national legislation legal, administrative and other measures to prevent and suppress prohibited...
TRANSCRIPT
National Legislation
Legal, Administrative and Other Measures to
Prevent and Suppress Prohibited Activities
International Committee of the Red CrossFiona Barnaby
Outline of presentation
Ottawa in brief Ottawa's must haves Measures Statistics A few points to note
Ottawa in brief Basis The Ban Definitions Cooperation and Assistance
Basis : international humanitarian law
the rights of the parties of an armed conflict to choose means and methods of warfare not unlimited
prohibition against use of weapons which cause superfluous injury or unnecessary suffering
distinction between civilians and combatants
Ottawa in brief
The ban
22 Articles Article 1 : The ban on States
Use Development Production Acquisition Stockpiling Retention Transfer Assistance, Encouragement, Inducement
of the above
Ottawa in brief
Definitions
Art. 2(1) : Defines : APM : a mine designed to be exploded by the presence, proximity or contact of a person AND that will incapacitate, injure or kill one or more persons.
c.f. Art. 2(2) : Defines : Mines : a munition designed to be
placed under, on or near the ground or other surface area and to be exploded by the presence, proximity or contact of a person or a vehicle.
Exception : Art. 3 : retention\transfer for training and destruction purposes permitted
Ottawa in brief
Cooperation and Assistance
Art. 6: International Cooperation
…each State party has the right to seek and receive assistance the right to seek and receive results in an
obligation to provide
Art. 8 : States may Request for Clarification of a matter related to compliance
Ottawa in brief
Ottawa's must haves Article 4 : Destruction of stockpiled APM Article 5 : Destruction of APMs in mined areas Article 7 : Transparency measures Article 9 : National implementation measures
Articles 4 and 5
States must : Art. 4: Destroy anti-personnel mine stockpiles
(4yrs after entry i.f.)
Art. 5: Destroy anti-personnel mines (10yrs after entry
i.f.) Mark, monitor, fence mined areas Possible extension of time frame up to 10 yrs
Ottawa's must haves :
Article 7
States must : Report to Secretary-General of the United
Nations
An initial report 180 days after the entry into force
Annual reporting On 30 April of each year
Content national implementation measures, total stockpiles mined areas location, de-mining programs
Ottawa's must haves :
Article 9
" Each State Party shall take all appropriate legal, administrative and other measures, including the imposition of penal sanctions, to prevent and suppress any activity prohibited to a State Party under this Convention undertaken by persons or on territory under its jurisdiction or control"
Ottawa's must haves
National legislation must:
Criminalise and provide penal sanctions for all activities prohibited by Article 1(a), (b) and (c)
individual criminal responsibility (military and civilian) for violations of the Convention
AT ALL TIMES (Not only in times of armed conflict)
in normal times : private companies (mine producers) and farmers (crop stealing)
Ottawa's must haves :
Article 9
National legislation must :
Apply definitions consistent with Article 2
Recognise the exceptions permitted under Article 3
Ottawa's must haves :
Article 9
Purpose and extent
Purpose of implementation : to prevent and suppress any activity prohibited by the Convention Penal sanctions should be proportionate to the
crime : usually prison and/or fine, forced labour
Extent of coverage : Persons or on territory under its jurisdiction or control Extraterritorial jurisdiction? : PKOs, Business
Ottawa's must haves :
Article 9
IHL in peace support operations
Problem
UN cannot be party to Geneva Conventions 1949 and similar weapons treaties
countries contributing troops have different legal bases
Ottawa's must haves :
Article 9
APMs in PSOs
Solution = common code of conduct UN SG Bulletin 1999/13 on the "Observance by UN
Forces of International Humanitarian Law"
sets out fundamental rules and principles of IHL applicable to UN Forces conducting operations under UN command and control
Means and methods of combat principle of limitation prohibition of certain methods and weapons
Ottawa's must haves :
Article 9
Recap : Article 9 Who? – Each State Party must
What? Take all appropriate measures Legal, administrative and other measures Including penal sanctions
Why implement? to prevent and suppress any activity prohibited by the Convention
How far? activity prohibited to a State Party under this Convention undertaken by persons or on territory under its jurisdiction or control
Ottawa's must haves :
Article 9
Measures
ICRC Proposed Article 9 checklist
In order to guide States in the preparation of their Annual Article 7 reports: Form A concerns national measures
(especially legislation)
ICRC encourages States to ensure that Article 9 measures are included in Form A, not just mine action steps.
Measures
This checklist includes two parts:
1. Legislative measures required by Article 9
Does your legislationprohibit and provide
punishment for these violations?
(Art. 9)*
Is there a prohibition for assisting,
encouraging and inducing these
violations? (Art. 1 c and Art. 9)*
Use (Art. 1 a)
Acquisition (Art. 1 b)
Stockpiling (Art. 1 b)
Retention (Art. 1 b)
Transfer, including the physical movement of AP mines into or from national territory, and the transfer of title to and control over the mines (Art. 1 b, and Art. 2(4))
Development (Art. 1 b)
Production (Art. 1 b)
Measures
2. Other appropriate legal, administrative and other measures
a) How would a fact finding mission (Art. 8) be facilitated: under what law, regulation, or other measure?
b) Is destruction of AP mines (Art. 4 and 5) provided for by law, regulation or by other measure?
c) Is there legislation, regulation or other measure to assist the Ministry or Department responsible for annual Article 7 reports, for example by requiring all persons, including other government officials, to provide the necessary information?
Measures
Other appropriate national implementation measures :
For States Parties with stockpiles: measures to facilitate stockpile destruction
(Article 4)
For mine-affected States Parties: measures to facilitate implementation of
Article 5 (i.e. mine clearance and other mine action) see GICHD Guide to Developing Mine Action Legislation
Measures
When implementing the Convention, each State may choose from:
1. Special legislation;2. Amendment to existing legislation;
or3. Combination of 1 and 2
M'sia, Canada, UK, Australia, Cambodia, South Africa f.e. have special legislation
Measures
Tools for implementation :
ICRC – ICBL – Gov. of Belgium Information Kit on the Development of National legislation to implement the Ottawa Convention (English, French, Spanish, Russian)
ICRC Model Legislation for Common Law States (English)
ICRC Table of Article 9 National Implementation Measures, and the ICRC Article 9 Checklist (May 2006)
ICRC's Advisory Service assists States in developing implementing legislation
Measures
Statistics
AlbaniaAustraliaAustriaBelarusBelgiumBelizeBosnia and HerzegovinaBrazilBurkina FasoCambodiaCanadaChadColombia*Cook Islands
Costa RicaCroatiaCyprusCzech RepublicEl Salvador
Estonia FranceGermanyGuatemalaHondurasHungaryIcelandItalyJapan
LiechtensteinLuxembourgMalaysiaMaliMalta*MauritaniaMauritius MonacoNew ZealandNicaraguaNigerNorwayPeruSaint Vincent and the Grenadines
SenegalSeychelles South AfricaSpainSwedenSwitzerland Trinidad & TobagoTurkey United KingdomYemen ZambiaZimbabwe
54 States Parties report having adopted legislation
to implement the Convention (of 155)
* = countries are new in this category
Statistics
25 States Parties report considering existing laws to be sufficient to give effect to the
Convention* = countries are new in this categoryAlgeria
Andorra BulgariaCentral African Republic DenmarkGreeceGuinée-BissauHoly SeeIrelandIndonesiaKiribati LesothoLithuaniaFYR Macedonia
MexicoMoldovaNetherlandsPapua New Guinea PortugalRomaniaSamoaSlovakiaSloveniaTajikistanTanzaniaTunisia
Statistics
AfghanistanArgentinaBangladeshBeninBoliviaBotswanaBrunei*BurundiCameroon
Chile D.R. CongoR. CongoCôte d'IvoireDjibouti*EcuadorGuineaJamaicaJordanKenyaMadagascar
MalawiMozambiqueNigeria PanamaParaguayPhilippinesRwandaSaint Lucia
SerbiaSurinameSwazilandThailandTogoUgandaUruguay *Vanuatu
36 States Parties report being in the process of adopting
legislation to implement the Convention
* = countries are new in this category
Statistics
5 States Parties report assessing whether to adopt legislation
Namibia, Nauru, Sierra Leone, Solomon Islands, Timor-Leste
Statistics
30 States Parties for which information is as yet unavailable or
unclear * = countries are new in this category
AngolaAntigua and
BarbudaBahamasBarbadosBhutanCape VerdeComorosDominicaDominicanRepublicEquatorial
GuineaEritrea
EthiopiaFiji Gabon GambiaGhanaGrenada GuyanaLatviaLiberia MaldivesNiue
QatarSaint Kitts & NevisSan MarinoSao Tome & Principe Sudan Turkmenistan UkraineVenezuela
Statistics
5 New Member States that have not yet reported
Haiti Iraq Kuwait Montenegro Palau
Statistics
Changes between 2005 and 2007, number of States Parties in the following categories:
2005 2006 2007 Oct 2007
Legislation adopted 43 48 52 52 Considering whether to adopt
legislation 6 5 5 5 State considers its existing
legislation is adequate 25 25 25 25 Legislation is in process 36 32 36 37 Unclear or not reported 34 34 31 31 New States parties that have
not yet reported 6 4 5Totals 144 150 153 155
Statistics
A few points to note
A few notables
Article 19 : Ottawa is one of few treaties to which reservations cannot be made when becoming a party : significance : take or leave it
Article 20 : the right to withdraw in the exercise of national sovreignty
must give notice with full explanation
w.e.f. 6 mths after instrument of withdrawal if State withdrawing not in armed conflict at that time
other remaining States Parties still bound
Points to note
A few notables
Retaining a stable number of mines year after year under Article 3 : retention forever or training forever
indicates that they are not being used for a permitted purpose and could amount to stockpiling (i.e. prohibited activity)
Legislation should contemplate : civilian criminal code AND
military criminal code
Points to note
Thank you for your Thank you for your attention!attention!