Humanitarian demining

5     Humanitarian demining

Introduction

The objective of humanitarian demining is to make land safe for communities and individuals. In the immediate post-conflict phase, reducing the contaminated area is the key priority. This means prioritizing clearance of those mines that pose the most urgent humanitarian threat. Later on in the process, priorities shift to addressing the socio-economic impact of landmines. Ensuring that areas are free from landmines and safe for civilian use is the most tangible way of achieving the humanitarian goals of the two landmine treaties.¹ Humanitarian demining is therefore of central importance in meeting core regime objectives set out in both APII and the mine ban treaty. However, the apparent cognitive dissonance between advocacy actors and practitioners, highlighted in earlier chapters, is particularly marked in this field. Mike Croll, a former deminer and author of The History of Landmines, characterizes the ban campaign as a double-edged sword whose positives must be set against a diversion of resources away from humanitarian demining: ‘certainly the campaign brought a great deal of publicity to the issue, but it … distorted the size and shape of the problem and distracted attention from the crux of the issue’.² This points to the need to understand the interplay between technical and political considerations for regime effectiveness in the area of humanitarian demining.

Overall regime effectiveness can depend greatly on specific sub-issues and commitments. Humanitarian demining is particularly important because it can enable a focus on the actual (rather than assumed) contributions of the landmine regimes. Examining this issue can help to answer the question that divides many practitioners and advocates: whether there is a causal link, or a degree of parallelism, between the regimes and humanitarian demining. Because of the role of the Ottawa Process in pushing the landmines issue up the international policy agenda, it is tempting to posit a clear, positive relationship between regime implementation and progress in humanitarian demining. However, such a link should not be assumed. The mine action community has advanced significantly in its own right over the past decade in its approach to addressing the scourge of landmines.

Humanitarian demining displays both lengthy historical antecedents and a short history as a distinct discipline. Mine action began in Afghanistan from 1988 with a UN-assisted appeal for funds to support humanitarian demining. Programmes subsequently expanded to many other countries,3 particularly in Asia, Africa and the Balkans but also, though to a more limited extent, in Eastern Europe and the Americas. The state of the art in humanitarian demining emphasises a ‘toolkit’ approach that combines the appropriate use of manual deminers, mine detection dogs and mechanical demining equipment.⁴ In reality, there is often a chasm separating best practice from the realities faced on the ground. Many practitioners point out that financial and practical constraints mean that they work with what they have (or what they are given) in often difficult conditions, rather than achieving an ideal combination of capabilities.⁵ This implies that adaptation and learning are essential if the regimes are to contribute to meeting real humanitarian demining challenges and priorities.

Regime implementation and humanitarian demining

Regime rules and field realities

Knowing the extent and location of mined areas is a prerequisite for effective humanitarian demining. Thus, each state party to the mine ban treaty must make ‘every effort to identify all mined areas under its jurisdiction or control in which anti-personnel mines are known or suspected to be emplaced’. Further, ‘as soon as possible’ these areas should be ‘perimeter marked, monitored and protected by fencing or other means, to ensure the effective exclusion of civilians, until all anti-personnel mines contained therein have been destroyed’ (Mine Ban Treaty, Article 5 (2)). APII requires that ‘all reasonable precautions should be taken to protect civilians from the impact of mines, booby traps and other devices’, (Amended Protocol II, Article 3 (10)), while their locations should be recorded in accordance with the requirements of the protocol’s Technical Annex (Amended Protocol II, Article 9 (1)). Manually emplaced APMs that do not self-destruct and self-deactivate can only be used if ‘placed within a perimeter-marked area which is monitored by military personnel and protected by fencing or other means, to ensure the effective exclusion of civilians from the area’ (Amended Protocol II, Article 5 (2)). Locating and identifying mined areas thus represents a common priority across both regimes.

In reality, few mined areas are fenced and in many cases animals, weather or the needs of local people, result in the destruction or removal of such barriers that have existed. Even poles and wire have an intrinsic worth that may outweigh the protective value of the barrier. Contaminated land, viable for hunting or farming, is frequently used by locals in the full knowledge of the risks being run. Moreover, maps often do not exist as a consequence of the widespread practice of nuisance mine laying targeted deliberately at civilian populations. Even where maps are available, the location of mines shifts over time due to weather and soil conditions, limiting their value. Landmine Monitor acknowledges that one aspect of the Article 5 requirement almost never met is that of perimeter marking and monitoring. It is reported that only Denmark, France (in respect to a military base in Djibouti) and the UK (Falkland Islands) have taken such measures. These are clearly exceptional cases, involving developed countries that know to a high degree of accuracy where APMs have been emplaced. That no mine-affected state has been able to fulfil this obligation points to the fact that the requirement is unenforceable in developing countries with large, often unmapped swathes of contaminated land.

APII reiterates the earlier Protocol II requirement for the recording of ‘pre-planned’ minefields. However, many mined areas laid by government or irregular forces have either served immediate tactical reasons – so the provision does not apply – or when targeted at civilians, have not been planned or mapped at all. Even in the Falklands, where the location of mined areas is well known, landmines have shifted over time as a result of weather and ground conditions, rendering maps largely redundant. Although subject to little discussion at the 1979–1980 negotiating conference, it was recognized even at the time that the concept of a ‘pre-planned’ minefield was both vague and represented a degree of advance preparation sufficient to exclude nearly all traditional minefields, as well as the less clearly delineated ‘mined areas’ frequently encountered by deminers.6 India has subscribed to ‘a phased approach (that) will narrow the scope in which landmines can be used only for the defense of borders’.⁷ This position stands or falls on whether India can meet its APII obligations: are mined areas perimeter marked and monitored? Have accurate maps of mined areas been made and exchanged with opponents at the end of hostilities to aid subsequent demining efforts? And, fundamentally, if there has been compliance with these measures, has this ensured that civilians have not suffered through the use of landmines? Reports from the Kashmir region suggest that the difficulties of mapping and marking during conflict have made these provisions impossible to implement.⁸ Economic necessity and the effects of climate have further undermined efforts to accurately identify mined areas and warn civilians of potential hazards. National compliance with the letter of regime commitments does not contribute to the intent and purpose of the regime by reducing the danger posed by these weapons.

In practice, neither regime acknowledges that the tactical use of landmines almost never conforms to the image of static, clearly defined minefields. Analysis of mine ban treaty Article 7 reports provides evidence of this gap between regime rules and field reality. Moldova reported full clearance by August 2000. Yet subsequent reports have shown that communities continue to avoid certain ‘cleared’ areas. Other regions not subject to clearance are also suspected of containing landmines.⁹ Similarly, the Democratic Republic of the Congo stated that ‘no mined area has yet been identified’ at the same time as United Nations sources confirmed the presence of landmines within the national territory.¹⁰ While the stipulation to mark mined areas may be important regardless of implementation challenges, it is questionable whether many affected states are able to accurately identify their mined areas. And where such information could be usefully provided, there is no obligation in the case of APII to record the types of mines used, the pattern of mine laying or the location of individual mines: key information for the purpose of humanitarian demining. In sum, it is evident that the provisions on minefield marking and mapping contained in both treaties reflect a lack of appreciation of humanitarian demining concerns. While these challenges are not open to ready solutions, the regimes are weakened by their failure to address these practical issues.

The mine ban treaty obliges member states to destroy or ensure the destruction of all APMs in mined areas under its jurisdiction or control ‘no later than ten years after the entry into force of this convention for that State Party’ (Mine Ban Treaty, Article 4). While placing the responsibility for clearance squarely on individual regime members, the term ‘ensure the destruction’ of APMs is used deliberately to denote the external assistance that many post-conflict states require in fulfilling this obligation. Indeed, states parties ‘in a position to do so’ must assist in these efforts (Mine Ban Treaty, Article 6 (4)). In case this timeframe proves unrealistic, a request may be submitted seeking an extension of the destruction deadline for renewable periods of up to ten years (Mine Ban Treaty, Article 5 (3)). During the negotiations, the time period for destruction of mined areas was subject to considerable discussion. It was also proposed not to provide a specific deadline at all.11 This reflects a tension between ban advocates pushing for short deadlines, and others seeking greater flexibility either in acknowledgement of the scale of the humanitarian demining challenge or as a means to dilute this core obligation. A fixed deadline was ultimately retained in order to maintain the need for urgency. However, the renewal clause recognizes the difficulty of this task for heavily mine-affected states. In effect, the combination of fixed deadline and renewal clause embeds an unresolved tension between different stakeholders within the regime framework.

APII neither commits states parties to clear the mines they laid nor to assist in mine action. It only requests that after the cessation of hostilities, former conflict parties provide information to facilitate this work ‘wherever possible’ (Amended Protocol II, Article9 (2)). APII does include a provision that requires all APMs to be detectable by commonly available mine detection equipment (Amended Protocol II, Article 4). If this cannot be complied with in respect to existing stocks, a nine-year deferral period is permitted to make weapons compliant or destroy them. The ICRC estimated at the time that this delay could result in some 200,000 new mine victims.¹² Looking back to the original protocol, Prokosch argues that landmine contamination in Afghanistan would be much less severe today if the Soviet Union had observed its earlier Protocol II obligations following ratification in 1982. Instead, ‘through lack of control and lack of publicity, the Soviet army felt free to act without fear of effective sanctions or public censure, as have government and opposition forces in many other conflicts since 1980’.¹³ This example highlights a dual challenge to regime effectiveness. Lengthy deferral periods for the implementation of key technical provisions come with humanitarian costs. This is exacerbated by the absence of political will to impel implementation for humanitarian reasons in advance of the required timeframe.

Compromise solutions relating to destruction deadlines were made in both treaties. This reflects, in regime design, the practical challenges of implementation. It also brings the interests of different stakeholders into the open and points to the flexibility necessary to reach agreement. If both regimes display a lack of awareness of certain field realities, a core difference in their orientation and knowledge base is also apparent. Within the APII regime design process, destruction of stocks was understood as a straightforward technical exercise. For the mine ban treaty practical difficulties of implementation, as well as the humanitarian costs of different options, were discussed at length. This is reflected in an emphasis on support for national implementation that is absent from APII.

Angola, Ecuador and Ethiopia admitted using APMs as mine ban treaty signatories. Similar allegations have also been made against Burundi, Cambodia, Rwanda, Sudan, Turkey and Uganda.14 Overall, such conduct by states parties has been rare. The drastic reduction in the use of APMs by states generates a humanitarian demining pay-off by lowering the number of future mined areas that would need to be cleared. The decline in mine use thus fulfils the humanitarian criterion for regime effectiveness. In terms of the strength of the anti-APM norm, it is also significant that a central pillar of the regime – the prohibition – has proved resilient during the years since the treaty entered into force.

Landmine Monitor characterizes the obligation to clear mined areas as ‘the greatest challenge to the integrity of the treaty’.¹⁵ The Nairobi Action Plan, agreed at the first mine ban treaty review conference, calls on states to ‘strive to ensure that few, if any, States Parties will feel compelled to request an extension’ to their ten-year clearance deadline.¹⁶ In fact, the majority of mine-affected states have missed this deadline. The difficulties faced by affected states are made evident in a 2003 study on mine action in the countries of the Southern African Development Community (SADC). Taking one case, Neuma Grobbelaar states that ‘despite Mozambique’s Article 5 commitments under the Ottawa Convention, the reality is that Mozambique will probably never be able to rid itself of all landmines and unexploded ordnance’.¹⁷ The meeting of mine ban treaty states parties held in Amman, Jordan, in November 2007, seems to confirm this trend. The focus of the sessions dedicated to mine clearance was not on implementation challenges, but modalities for requesting extensions to clearance deadlines.¹⁸ The tension identified in the design phase between regime obligations and humanitarian demining realities is now apparent as a concrete implementation challenge. As of September 2010, twenty-two states have been granted extensions to their clearance deadlines.¹⁹

Perhaps the most significant issue discussed at the 2011 Phnom Penh meeting of mine ban treaty states parties was one completely unforeseen in regime design. States parties that had not reported contaminated areas nor sought extensions to their Article 5 deadlines, have now found themselves to have mines on the national territory so are in material breach of treaty commitments. The circumstances are eclectic. Germany found a suspected mined area on a Soviet era military training base in the East of the country. Hungary suspects that mines remain along the border with Croatia, harking back to the conflicts in the former Yugoslavia. Mali may have new contamination due to mine laying by an ANSA while Niger may have a mined area around a former French military base.20

The ICBL has responded proactively to this challenge by proposing in a food for thought paper that a ‘special Article 5 deadline procedure’ be created. The new procedure would provide for a specific, timebound deadline extension for states with previously undetected mined areas, or where clearance deadlines have already passed without an extension being requested.²¹ While this proposed mechanism may fill a hole in the treaty, to be effective it will require the leveraging of additional political will. If Germany was proactively transparent, Hungary did not report on the problem along its border in line with its transparency obligations. Ignorance is no defence, since the land had been surveyed for clearance and funding sought from the European Commission many months previously.²² Clarifications have not been possible from Mali or Niger, because neither state participated in the Phnom Penh meeting.

A number of mine ban treaty members that have not cleared mined areas in line with treaty commitments lack the necessary domestic capacity to support this work. Thailand’s failure to meet its clearance deadline is illustrative. Landmine Monitor identifies three reasons: ‘mine action has not been a government priority, inadequate financial support, and the military structure of mine action in Thailand’.²³ For a number of other states parties that have also not advanced in their clearance operations, adequate capacity is clearly an issue. In each case, involuntary defection results from a combination of the scale of the task and the lack of domestic capacity or implementation mechanisms, as well as insufficient political will.

With no demining work during a decade of regime membership, the case of Venezuela has crossed the line from involuntary to voluntary defection.²⁴ Clearance of APMs – used to protect naval facilities near the border with Colombia – was reportedly conditional on finding an alternative protection system.²⁵ Military necessity therefore seems to be the key consideration influencing Venezuela’s non-compliant behaviour. Significantly, this failure to implement a clear regime obligation was highlighted by Landmine Monitor as early as 2005. Yet this was not taken up as an issue of non-compliance within the framework of the mine ban treaty, reflecting reluctance to address a sensitive issue head-on.²⁶ The narrative emanating from the Venezualan authorities shifted in 2008 to emphasize practical challenges – weather, safety, terrain – impeding clearance. Subsequently, some initial demining work was initiated in 2010.²⁷

Through balancing humanitarian concerns with those of military necessity APII is, in principle, sensitive to concerns of national security. However, long-standing accusations that Russia employed landmines in Chechnya without marking, fencing or monitoring would represent a clear breach of the country’s obligations under APII.28 In a parallel to the mine ban treaty, this issue has been repeatedly raised by civil society campaigners without being addressed within the regime.