Mine-clearance Activities and ANSA Participation: An Analysis
by Dr. Sadi Cayci [ Avrasya Stratejik Araştırmalar Merkezi ]
Effective mine action requires numerous actors to peacefully collaborate: governmental and nongovernmental, international and local. Armed non-state actors that operate beyond central control, such as rebel opposition groups and paramilitary organizations, and private defense companies can often provide necessary contributions to mine action. Understanding ANSAs allows humanitarian organizations to communicate, cooperate and avoid conflict.
Recognizing the need to end the suffering and casualties caused by anti-personnel mines, Turkey signed the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction1 in 2003. Turkey has been exerting every effort to fulfill its obligations stemming from the Convention. To that end, Turkey no longer produces or uses anti-personnel mines and is involved in mine clearance, stockpile destruction, victim assistance and socioeconomic reintegration of mine victims. The latest demonstration of the determination with which Turkey fulfills its obligations is the Mine and Ordnance Disposal Facility that came into operation as of 8 November 2007.2
Convinced that mine action is both a humanitarian issue as well as one of disarmament, Turkey supports efforts aimed at ridding the world of the scourge of these indiscriminately used weapons through the global implementation of the Mine Ban Convention. Cognizant of the fact that almost 40 states that produce, stockpile or use landmines are still not parties to the Convention—meaning that millions of mines remain at their disposal—and situated in a geographic region where the level of adherence to the Convention remains especially low, Turkey uses every opportunity to address this shortcoming. At the same time, Turkey is well aware of the fact that efforts by states alone are not adequate.3
The Complementary Role of NGOs
The Mine Ban Convention is a legally binding international instrument that was hammered out by states with the support of inter-governmental and nongovernmental organizations. Conferring certain rights and obligations to States Parties, it gives them the right to seek and receive assistance in implementing the provisions of the Convention. In this context, the Convention stipulates that States Parties may seek assistance through NGOs, and that States Parties who have the capability may also provide such assistance to other States Parties through NGOs. Indeed, States Parties have benefited from assistance sought and provided through NGOs that carry out activities in this field on some occasions. The Convention, however, does not authorize NGOs to act ex officio. In view of the relevant provisions of the Convention, the request and consent of the State Party concerned is a sine qua non element of the complementary activities of said NGOs. The Nairobi Plan of Action, which is a political document designed as a five-year roadmap, does not amend or modify this understanding inherent in the Convention.4
One of the ways in which States Parties have sought assistance through NGOs is by having their armed non-state actor(s) engage in mine action. Under international law this is, however, questionable because a State Party does not bear a responsibility for acts that are committed in areas where a de facto authority, such as an ANSA, may have actual control. Several States Parties have requested or allowed such engagements in order to fulfill obligations they do not believe they can otherwise fulfill, as Mine Ban Convention obligations extend to all areas under States Parties' jurisdiction or effective control. Some States Parties request or allow ANSA engagement in order to remove anti-personnel landmines from the list of weapons available to ANSAs with which they are engaged in armed struggle. Others have sought assistance or engagement within the context of efforts aimed at peace and reconciliation. In summary, States Parties that have acquiesced to NGO engagement of ANSAs may have benefited from this involvement for one reason or another.5
The Need for a Case-By-Case Approach
The engagement of ANSAs should be considered on a case-by-case basis, first and foremost due to definitional difficulties. While the legal and academic debates on the definition of ANSAs continue, one crucial aspect is clear. Many terrorist groups, which pose a threat to domestic as well as international peace and security, fit the existing widely held definitions of ANSAs. As such, the activities of such groups may be punishable under the domestic criminal laws of the state(s) in question, as well as international treaty law. Dealings that may amount to or be considered as direct or indirect support for such groups may be similarly punishable. One only needs to look at the United States, European Union and NATO lists of terrorist organizations, as well as the countering-terrorism laws and lists of proscribed organization of States Parties such as the United Kingdom, France, Germany, Australia and Canada. The only conceivable way in which ANSAs with terrorist backgrounds may be engaged, is if they renounce the use of violence, turn their weapons in and hand their members who have perpetrated acts of violence over to justice. Even then, close scrutiny would be required.
Certain ANSAs may try to use humanitarian engagement as a strategy to legitimize their political/ideological aims or even to acquire a legal status. Subject to the specific and applicable provisions of international humanitarian law, which by no means may establish a permanent and de jure status, organizations that carry out humanitarian work have the obligation to make sure that they are not abused. Otherwise, they may undermine the sovereign rights and obligations of states (such as protecting citizens from terrorist attacks) thus increasing tensions and risking the security environment that they aim to enhance. Therefore, absolute compliance by the humanitarian organizations to the neutrality and impartiality principles are of vital importance. Moreover, in such a situation, particularly the common public may perceive them as a party to the conflict.
In addition to these general points that would apply to all types of humanitarian NGO engagement with armed non-state actors, there are reasons specific to the Mine Ban Convention why engagement has to be dealt with on a case-by-case basis. First, ANSAs that engage in terrorist activities should not be permitted to have access to any types of weapons, be they nuclear, biological, chemical, radiological or conventional. It must not be forgotten that terrorism is an international crime and if NGOs wish to carry out humanitarian work in the field of disarmament, they ought to be staunch supporters of efforts to prevent not just victim-activated anti-personnel mines but all types of weapons from falling into the hands of terrorists.
Second, engaging ANSAs on a relatively high profile area of disarmament such as a total ban on AP landmines may actually be an incentive for ANSAs to use such weapons. The reasoning behind this is fairly straightforward. ANSAs that previously did not use anti-personnel landmines or had not been using them for some time may engage in attacks with these types of weapons to attract international attention and possible engagement. Following engagement and exposure, they may renounce the use of AP landmines, which they had no intention to use in the first place. Meanwhile, AP mines will have been laid, indiscriminate harm will have been caused and landmine contamination, possibly for decades, will have occurred.
A Policy Prescription
For the reasons outlined above, the delicate issue of engaging armed non-state actors within the context of the Mine Ban Convention has to be done with utmost caution, prudence and common sense. Theoretically speaking, there may be no way to objectively measure and implement such attributions. A common benchmark, therefore, has to be found for engaging ANSAs and the best possible way to ensure this is informing the State Party concerned and obtaining its consent.
Following on and as described in the beginning of this paper, there are indeed States Parties to the Convention that have requested and benefited from having their ANSA engaged. As there are actors in the Mine Ban community that provide such engagement services, and as there are third parties that may be willing to fund these types of activities, in the event that a State Party makes the sovereign choice of requesting or allowing the engagement of "its" ANSA, it falls on no other actor to question such an engagement that is based on state sovereignty and consent.
In fact, the Nairobi Plan of Action, which sets the operational terms of such engagements, also acknowledges the need for consent. Action 46 of the Plan stipulates, "States Parties in a position to do so will ... continue to support, as appropriate, mine action to assist affected populations in areas under the control of ANSAs."6 It is clear that States Parties are assigned the task of mine action, insofar as such action is deemed appropriate. In other words, Action 46 is contingent upon the position of the State Party. Moreover, it is also evident from this action, quoted by many to justify unrestrained engagement with ANSAs, that the engagement foreseen therein is limited to "assisting affected populations in areas under the control of ANSAs." Hence Action 46 can only be used as a basis for engagement of States Parties if a certain part of their territory is under the control of ANSAs. It must be noted that all of these considerations are irrespective of where such engagements physically take place.
Recognizing the need for prior information and consent, the Zagreb and Geneva Progress Reports read, "...as rights and obligations enshrined in the Convention and commitments in the Nairobi Action Plan apply to States Parties, some States Parties are of the view that when engagement with armed non-state actors is contemplated, States Parties concerned should be informed and their consent would be necessary in order for such an engagement to take place."7 Turkey is one of the States Parties that shares this view.
On the other hand, when such a prior consent of the territorial State Party is not required, mine clearance and other relevant humanitarian work by third parties may, as also described above, undermine the sovereign rights and obligations of the state. Such NGO activities may risk serving the illegitimate objectives of the armed non-state actor in question by increasing tension and thus adversely affecting not just the local security environment, but also endangering international efforts aimed at combating terrorism.
Not applying this rule of thumb also risks sending the wrong kind of signals to states that are outside the Convention but are seriously contemplating accession. After all, how many states would want to be part of a community that undermines their sovereign rights, especially on a matter of national security? Just as important is the question of how many States Parties can remain in a community in which its sovereign rights are undermined. In short, State Party consent within the context of ANSA engagement is vital for the globalization of and adherence to the Mine Ban Convention.
It is clear that NGOs and third parties cannot achieve the common goal of creating a mine-free world if they build their activities on ignoring or challenging sovereign rights of the State Party concerned. They must work in cooperation with the territorial state in question.
NGOs and international institutions may also devise ways and means through which they can fulfill humanitarian goals. They could find a way to advance such goals and help states create a more secure environment at the same time. They could assure states regarding the pure humanitarian purpose of their respective institutions. Furthermore, they could prevent third party abuse of the humanitarian cause for the purpose of intervening or undermining the sovereign rights of the state. In short, establishing an environment of mutual trust between actors is essential to overcome legal and political impediments. Exploring the criteria and conditions for engaging armed non-state actors to secure their respect for international humanitarian law and human rights standards may, indeed, yield some positive results. However, this exercise cannot be done in a vacuum, turning a blind eye to other relevant factors and developments that shape and at times threaten international security. Otherwise, they will lead to more harm than good in the long run.
Dr. Sadi Cayci is currently International Law Advisor at the Avrasya Stratejik Araşrmalar Merkezi (Centre for Eurasian Strategic Studies), Ankara,Turkey. Cayci's special areas of interest are national-security law, law of armed conflict and counterterrorism. His activities include being a Course Director for the International Military Courses on the Law of Armed Conflict, held at the International Institute of Humanitarian Law, Sanremo, Italy.
- Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on Their Destruction, Oslo, Norway. 18 September 1997. http://www.icbl.org/treaty/text/english. Accessed 21 December 2007. The document was opened for signature in Ottawa, Canada, 3 December 1997, and thus is commonly known as the Ottawa Convention.
- Ottawa Sozlesmesi, Turkish General Staff Official Web Site, 17 December 2007, http://www.tsk.mil.tr/4_ULUSLARARASI_ILISKILER/4_15_Ottova_Sozlesmesi/Ottova_Sozlesmesi.htm Silahlarin Kontrolu ve Silahsizlanma, Turkish Ministry of Foreign Affairs Official Web Site, 17 December 2007, http://www.mfa.gov.tr/MFA_tr/DisPolitika/AnaKonular/SilahlarinKontroluveSilahsizlanma/.
- Convention on the Prohibition of Anti-Personnel Mines, ICRC Official Web Site, 17 December 2007, http://www.icrc.org/web/eng/siteeng0.nsf/htmlall/landmines-factsheet-150807?OpenDocument&style=custo_print; A crucial summit in Nairobi: Let's end the era of antipersonnel mines, ICRC Official Web Site, 17 December 2007, http://www.icrc.org/web/eng/siteeng0.nsf/html/678FJK.
- Anki Sjöberg, "Armed Non State Actors," Journal of Mine Action, Summer 2007, 11/1, http://maic.jmu.edu/journal/11.1/notes/sjoberg/sjoberg.htm .
- A Critical Summit at Nairobi..., ibid.
- Zagreb Progress Report para. 48; http://www.apminebanconvention.org/fileadmin/pdf/mbc/MSP/6MSP/final_report/6MSP_Final_Report_Unofficial_2Dec05.pdf, accessed 22 January 2008.
- Geneva Progress Report para. 10, http://www.gichd.ch/fileadmin/pdf/mbc/MSP/7MSP/Inf_Mtg_17July06/GenPro_6July2006.pdf, accessed 22 January 2008.
Dr. Sadi Cayci
Associate Professor/ASAM International Law Professor
Colonel, Military Judge (Ret.)
Avrasya Stratejik Araştırmalar Merkezi
Konrad Adenauer Cad. 61
Ankara / Turkey
Mobile: +90 532 6950848
Web site: http://www.asam.org.tr