Two conventions currently exist that address the use of anti-personnel landmines. They are the Amended Protocol II of the United Nations Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to have Indiscriminate Effects (most commonly referred to as CCW) and the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel mines and on their Destruction (commonly referred to as the Ottawa Treaty or Mine Ban Treaty). While the CCW was deliberated by the State parties at the UN Conference on Disarmament, the Ottawa Treaty was basically a NGO initiative under one umbrella organization of the International Campaign to Ban Landmines. However both treaties address the use of mines by State actors only and non-state actors (NSAs) do not have any obligations.
The CCW, “under all circumstances”, prohibits the use of “mines, booby traps or other devices’. It defines a mine as “a munitions designed to be placed under, on or near the ground or other surface area to be exploded by the presence, proximity or contact of a person or a vehicle” and an anti-personnel mine as a “mine primarily designed to be exploded by the presence, proximity or contact of a person and that will incapacitate, injure or kill one or more persons”. Booby traps include “any device or material which is designed or constructed, or adapted to kill or injure, and which functions unexpectedly when a person disturbs or approaches an apparently harmless object or performs an apparently safe act”. Other devices are defined as “manually emplaced munitions and devices including improvised explosive devices designed to kill, injure or damage and which are actuated manually, by remote control or automatically after a lapse of time”. The definitions are the most comprehensive to include most unorthodox use of standard munitions.
The Ottawa Treaty, on the other hand, addresses only to anti-personnel landmines. Its definition of ‘mine’ and ‘anti-personnel mine’ is the same as that of the CCW’s. However, the crucial difference is the exclusion of the word ‘primarily’ in its definition of anti-personnel landmines. The main objective of this exclusion was to remove any kind of ambiguity that surfaces due to dual purpose mines that are designed to target personnel and vehicles. The Treaty does not prohibit the use of mines with ‘anti-handling devices’. Also, there is no explicit mention of restrictions on booby-traps or IEDs. During initial negotiations it was accepted that the definition of mine also includes booby-traps. Subsequent interpretations of the Treaty have also come to include IEDs within the scope of the ban.
The CCW despite being comprehensive in its definitions has less stringent measures to restrict the use of mines. It offers various clauses which permit the prolonged use of these weapons and prohibition on mine use does not include self-destructing and self-deactivating mines. On the other hand the Ottawa Treaty demands total ban on all munitions that fall under the category of mines under all circumstances. There are no exceptions. Therefore the Ottawa Treaty is hailed more comprehensive by landmine ban campaigners.
While both treaties address the state actors, the Ottawa Treaty, additionally through article 9, emphasizes the obligation of the states to ensure non-use of mines anywhere within its territory by passing requisite domestic legislation to curb use of mines and such other devices. This poses a challenge to the States that not only face the damage caused by the NSAs use of IEDs but also ensure that they don’t use it in future. However, the ICBL is replete with examples of NSAs that have unilaterally given up use of mines in their struggle against the state. In the region, one such example is the declaration by the Taliban in
banning the use of mines by their forces. Considering that verification of State parties compliance with treaty conditions is still a challenge, it is not surprising that monitoring the use of mines by NSAs, who are not party to any treaty, is not high on anybody’s agenda. The ICBL NSA working group, however, is exploring possibilities which would encourage the NSAs reconsider the use of these munitions.
Notwithstanding these treaties, it is unlikely that the NSAs will give up use of booby-traps or IEDs as these are the perfect tools of ambush and terror compared to any other weapon available.