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Landmine Victim Assistance and Government
Legal Obligation |
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What are a state’s legal
obligations to landmine victim assistance? |
by Dr. Kenneth R. Rutherford, Landmine
Studies Coordinator, Southwest Missouri State University
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Cambodian landmine survivors and Dr. Ken
Rutherford—before his last and remaining leg was amputated. |
Introduction
The major impetus for the 1997 Convention on the Prohibition of the Use,
Stockpiling, Production and Transfer of Anti-Personnel Mines and on their
Destruction (Mine Ban Treaty) was to alleviate the negative humanitarian
effects caused by landmines.1 The 1999 Landmine Monitor estimates
that there are more than 300,000 landmine survivors worldwide, and that the
cost of rehabilitating these survivors will exceed $3 billion (U.S.) over
the next ten years.2 Article 6, paragraph 3 of the Mine Ban
Treaty requires States Parties to provide mine victim assistance in order to
reintegrate landmine survivors into society.3 This provision
marks the first time in the world’s history that a treaty banning or
controlling weapons entitles victims to assistance from States Parties.4
Both the plain language and spirit of the Mine Ban Treaty commit States
Parties to victim assistance. To meet this obligation, States Parties can
undertake a range of victim assistance activities and initiatives. States
Parties can provide such assistance through bilateral exchanges,
non-governmental organizations (NGOs) and International Committee of the Red
Cross (ICRC) victim assistance programs, or through donations to
multilateral institutions, such as the United Nations (UN), earmarked for
mine victim assistance. Thus, mine victim assistance need not entail the
creation of an actual “program.” Other options, such as public policy
initiatives promoting disability rights for landmine survivors, may
similarly satisfy States Parties’ commitment to victim assistance under the
treaty.
State Responsibilities Under the Mine Ban Treaty
State signatories to the Mine Ban Treaty are bound by treaty law to
provide landmine victim assistance.5
In 1980, the attachment of the Landmine Protocol to the Convention of
Conventional Weapons (CCW) signaled the international community’s official
recognition of the humanitarian harm caused by landmines. By adopting the
protocol, States Parties intended to reduce harm caused by landmines by
restricting their use to certain areas and under particular conditions.
Nevertheless, the death and injury toll caused by landmines in the late
1980s and 1990s continued to increase. To stop landmine proliferation and
alleviate the effects of landmine use, the international community created
the 1997 Mine Ban Treaty.
With the entry into force of the Mine Ban Treaty in March 1999, the social
and economic integration of landmine survivors became part of international
treaty law. The Mine Ban Treaty is especially noteworthy because it is the
first arms control and disarmament treaty to incorporate language supporting
victims of the target weapon. In the treaty’s preamble, State Parties
express their wish “to do their utmost in providing assistance for the care
and rehabilitation, including the social and economic rehabilitation of mine
victims.”6 To achieve this goal, Article 6, paragraph 3 of the
treaty obligates signatory states to support victim assistance, stating that
“[e]ach State Party in a position to do so shall provide assistance for the
care and rehabilitation, and social and economic reintegration, of mine
victims and for mine awareness programs.”7 Based on these
provisions, the treaty “implies a responsibility of the international
community to support victim assistance programs in mine-affected countries
with limited resources.”8 This means that States Parties can ask,
or be asked, for survivor assistance. Specifically, Article 6, paragraph
7(e) grants states the right to request other States Parties to assist
victims.9
The drafters of the Mine Ban Treaty designed the treaty to prevent landmine
injuries and to help rehabilitate mine-injured individuals and communities.10
Treaty critics could claim, however, that the language of Article 6
paragraph 3 – “[e]ach State Party in a position to do so shall provide
assistance” – renders the argument that ‘all’ States Parties are obligated
to provide victim assistance untenable. Because one can read the provision
to imply that some States Parties are not “in a position to do so,” these
critics could also argue that such states are therefore not “obligated” to
provide victim assistance. Such criticism is grounded in the belief that the
obligation pertains exclusively to the more economically developed states,
or to those states that do not have limited GDP growth and internal problems
of their own. I counter that States Parties, irrespective of poverty, wealth
or level of economic development, can provide for mine victim assistance.
Specifically, if States Parties understand the definition and spirit of
victim assistance they will better understand that they are in a position to
provide victim assistance. This issue is discussed briefly below.
Overview of Landmine Victim Assistance
Article 6, paragraph 3 of the Mine Ban Treaty calls for States Parties to
“provide assistance for the care and rehabilitation, and social and economic
reintegration, of mine victims and for mine awareness programs.” 11
This assistance does not require the creation of formal programs
necessarily. Rather, states can assist victims through programs and policy.
The definition of victim assistance is comprehensive and is not restricted
to the provision of medical treatment for initial traumatic injuries
sustained from landmine explosions and the provision of prosthetics.12
Victim assistance also includes ongoing treatment to aid in physical
therapy, and mental and emotional rehabilitation of survivors and their
families. Landmine survivors themselves have defined victim assistance as
“emergency and medical care; access to prosthetics, wheelchairs and other
assistant devices; social and economical reintegration; psychological and
peer support; accident prevention programs; and legal and advisory
services.”13 These activities can take the form of continued
rehabilitative care, psychological and social counseling, vocational
training, broader public advocacy for disability rights, and judicial reform
aimed at removing barriers that hinder persons with disabilities from
integrating into society. For example, if a state does not have the
financial resources to provide direct victim assistance, it can satisfy its
obligation to assist victims through policy changes enabling survivors to
become more fully integrated into society’s economic and social realms.
Described below are three specific policy examples of victim assistance,
whose implementation did not require “programming.”
Legislation and Public Awareness
States Parties can enact and enforce national legislation to promote
effective treatment, care and protection for all disabled citizens,
including landmine survivors. The legislation should ensure that disabled
populations have legal protection against discrimination and assurance of an
acceptable level of care and access to services. Moreover, states should
provide landmine survivors access to a formal statutory complaint mechanism
to address survivors’ concerns and to protect their interests. Lastly, each
State Party can accept responsibility for raising public awareness of the
needs of its disabled citizenry and to counter the stigmatization of persons
with disabilities. This type of policy implementation may include community
education measures, such as a campaign to publicize the abilities of the
disabled and the availability of rehabilitative and social services.
Access
States Parties can also provide victim assistance by providing persons with
disabilities better access to a variety of services and assistance. Full and
open access to the physical environment, to rehabilitation, and to social
and economic programs is a means of equalizing opportunities in all spheres
of society. Access includes physical access to buildings and public places;
access to first aid, emergency and continuing medical care,physical
rehabilitation, employment opportunities, education and training, religious
practice, sports and recreation, safe land and tenure of land; and to
information and communication about available services. States can also set
affirmative action policies designed to encourage the education,
recruitment, and hiring of landmine victims and persons with disabilities.
Similarly, states can encourage the inclusion of landmine survivors and
landmine-infested communities in all initiatives and activities that concern
them.
National Council on Disability Issues
A third way for States Parties to provide victim assistance is through the
creation of a National Council on Disability Issues to address the needs of
disabled citizens, including the victims of landmines. Cambodia has done
this (although before the advent of the Mine Ban Treaty) by creating the
Cambodian Disability Action Council (DAC), a joint government, international
organization, and NGO body mandated to oversee all aspects of programs and
policies relating to persons with disabilities.14
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Landmine victim assistance advocate Diana, Princess of
Wales greets landmine survivor Dr. Rutherford upon her arrival in
Sarajevo, Bosnia-Hertzogevnia. |
The Intercessional Standing Committee of Experts (ISCE) may provide guidance
for the creation of National Councils. The ISCE, one of the few concrete
results concerning victim assistance directly attributable to the Mine Ban
Treaty, primarily aims to “help maintain the international community’s focus
on the Mine Ban Treaty and its implementation.”15 The ISCE is
organized into five Standing Committees (SCE) that meet twice a year
(between annual state party meetings) to discuss a range of subjects,
including victim assistance. The ICBL encouraged its members to participate
in the ISCE meetings “to have maximum impact on the Second State Parties
Meeting preparations.” 16 This encouragement included specific
action points for victim assistance, which states later incorporated into
their discussions.17 The ISCE is a continuation of the
International Campaign to Ban Landmine (ICBL) model of joint NGO-Government
collaboration to work toward the implementation of Treaty provisions.
18 Through its activities, the ISCE can help educate States Parties
about various supportive activities for people with disabilities that
require little, if any, money.
These three options demonstrate that all states can provide victim
assistance, particularly when assistance is explicitly defined to include
social re-integration. Methods of social re-integration, such as
legislation, policy, exhortation and example, often do not require much
financial assistance. Therefore, all States Parties' can enact low cost,
practical policies to support mine victims.19 On a broad level,
States Parties fulfillment of state obligations is essential to the
functioning of the international relations system. State respect for
international law is one of the key components of inter-state relations. In
fact, one of the fundamental goals of the United Nations is “to establish
conditions under which … respect for the obligations arising from treaties
and other sources of international law can be maintained.”20
Moreover, Article 26 of the Vienna Convention on the Law of Treaties
specifies that every treaty in force is binding upon States Parties, and
Article 31 (1) requires parties to perform duties in good faith.21
The implication is that the treaty’s principles and goals obligate all
States Parties to support landmine victim assistance because they are all
signatories to the treaty and, most critically, are all “in a position to do
so.” 22
In sum, all states, even the poorest, can assist landmine victims within
their territory and jurisdiction. Compelling arguments exist, under both
international humanitarian law and the Mine Ban Treaty, that a State has a
duty to assist survivors. It is important to ground the claim that states
are obligated to provide victim assistance in international law rather than
appealing to and relying on strictly emotional arguments. For example, state
support of landmine victim assistance is a rapidly emerging norm of
customary international law, as the growing recognition by all states,
including non-signatory states, of their victim assistance obligations
suggest. Both the plain language and spirit of the Mine Ban Treaty commit
States Parties to victim assistance support, which can entail a range of
victim assistance activities and initiatives. States Parties’ obligations to
mine victim assistance under the treaty need not entail the creation of an
actual program, and may be satisfied through other options, such as public
policy initiatives promoting disability rights for landmine survivors. These
understandings help ensure that states fulfill their obligations to landmine
survivors under the Mine Ban Treaty.
A different version of this article appeared in the Journal of International
Law and Policy. The author would like to acknowledge its editorial review
staff with special thanks to Erin Webster-Main.
*All photos courtesy of the author.
Endnotes
1 Convention on the Prohibition of the Use, Stockpiling,
Production and Transfer of Anti-Personnel Mines and On their Destruction,
Mar. 1, 1999, pmbl., 36 I.L.M. 1507 [hereinafter Mine Ban Treaty].
2 International Campaign to Ban Landmines, Landmine
Monitor: Toward a Mine-Free World: Executive Summary 22 (1999).
3 Article 6, paragraph 3 of the Mine Ban Treaty states
that "[e]ach State Party in a position to do so shall provide for the care
and rehabilitation, and social and economic reintegration, of mine victims
and for mine awareness programs. Such assistance may be provided, inter alia,
through the United Nations system, international, regional, or national
organizations or institutions, the International Committee of the Red Cross,
national Red Cross and Red Crescent societies and their International
Federation, non-governmental organizations, or on a bilateral basis." Mine
Ban Treaty, supra note 1, art. 6, para. 3, at 1510-1511. States
Parties are those states that have either signed and ratified or acceded to
the Treaty. States that have not signed the Treaty cannot ratify it. They
become States Parties through accession. Accession has the same effect as
ratification–States that accede are full States Parties. I would like to
thank Lou Maresca of the International Committee for the Red Cross for
highlighting this point.
4 This article focuses only on states and not other
international actors, such as international organizations, NGOs and
quasi-governmental authorities, because states are the main multilateral
donors and, by definition, the only bilateral donors. For example, in 1999
seventeen states contributed more than $210 million dollars to mine action
programs, while the major non-state international actor, the United Nations,
spent only $11.9 million. International Campaign to Ban Landmines, supra
note 3, at 36, 38.
5 Mine Ban Treaty, supra note 1, art. 6, para. 3,
at 1510-11.
6 Id. pmbl., at 1507.
7 Id. art. 6, para. 3, at 1510-11.
8 International Campaign to Ban Landmines, Landmine
Monitor Report 1999, 24 (1999).
9 See Mine Ban Treaty, supra note 1,
para.
7(e), at 1510-11 ("States Parties may request the United Nations, regional
organizations, other States Parties or other competent intergovernmental or
non-governmental fora to assist its authorities in the elaboration of a
national demining program to determine, inter alia … [a]ssistance to mine
victims.").
10 Mine Ban Treaty Preamble, paragraph one stating "[d]etermined
to put an end to suffering and casualties caused by anti-personal mines,
that kill or maim hundreds of people" and paragraph three stating "[w]ishing
to do their utmost in providing assistance for the care and rehabilitation,
including the social and economic rehabilitation of mine victims." Mine Ban
Treaty, supra note 1, at 1507.
11 Mine Ban Treaty, supra note 1, art 6, para. 1,
at 1510 (italics mine).
12 According to the International Campaign to Ban
Landmines (ICBL), the definition of "landmine victim" includes "those who,
either individually, or collectively, have suffered physical, emotional, and
psychological injury, economic loss or substantial impairment of their
fundamental rights through acts or omissions related to mine utilization."
International Campaign to Ban Landmines, supra note 3. Therefore, the
ICBL believes that "mine victims include directly impacted individuals,
their families, and communities affected by landmines." International
Campaign to Ban Landmines, Victim Assistance: Contexts, Principles, and
Issues, at http://www.icbl.org/wg/va/position.php3 (last visited
Mar. 11, 2001).
13 Jerry White & Ken Rutherford, The Role of the
Landmine Survivors Network, in To Walk Without Fear: The Global Movement
To Ban Antipersonnel Landmines, 99, 103-104 (Maxwell A. Cameron et al. eds.,
Oxford University Press 1998).
14 International Campaign to Ban Landmines, Landmine
Monitor Report 2000, 399 (2000).
15 E-mail from Susan Walker, ICBL Government Relations
Liaison, and Liz Bernstein, ICBL Coordinator, to ICBL Coordination
Committee, National Campaigns and Campaigners (Apr. 21, 2000)(on file with
author).
16 Id.
17 Working paper related to the Informal Consultations
on International cooperation and assistance in accordance with Article 6 of
the Convention, Maputo, Mozambique, May 3-7, 1999. Meeting of the States
Parties to the Convention on the Prohibition of the Use, Stockpiling,
Production and Transfer of Anti-Personnel Mines and on their Destruction (on
file with author).
18 See International Campaign to Ban Landmines Web
site, www.icbl.org, then visit hyperlink to "treaty" and then "SCE on Victim
Assistance, Socio-Economic Reintegration and Mine Awareness." For further
information concerning the NGO role in implementing the Mine Ban Treaty,
see Kenneth R. Rutherford, NGO Enforcement Of Arms Control
Agreements: The Case Of The Mine Ban Treaty, paper presented at the
Conference on Globalization and Security, Denver Colorado, November 10-11,
2000 (on file with author).
19 States Parties obligations to landmine victim
assistance, however, require action above and beyond committee work,
declarations and data collection. Data collection or survey work should not
substitute for direct victim assistance. Data collection that entails
survivor interviews should be conducted with compassion and care so that the
expectations and/or trauma of survivors are not raised. International
Campaign to Ban Landmines Working Group on Victim Assistance, Guidelines for
the Care and Rehabilitation of Survivors, at http://www.icbl.org/wg/va/guidelines.php3.
The goal of all information gathering must be to help governments make
timely, informed and life saving decisions.
20 U.N. Charter, pmbl.
21 Vienna Convention on the Law of Treaties, May 23,
1969, art. 2, para. 2, U.N. Doc. A/39/28 (1980), 8 I.L.M. 679 (entered into
force Jan. 27, 1980).
22 Mine Ban Treaty, supra note 1, art. 6, para 3,
at 1510-11.
Contact
Information
Dr. Kenneth R. Rutherford
Assistant Professor
Landmine Studies Coordinator
Department of Political Science
Southwest Missouri State University
Springfield, Missouri 65804
Tel: (417) 836-6428
Fax: (417) 836-6655
E-mail: kenrutherford@smsu.edu
http://www.smsu.edu/polsci/landmines
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