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Trump Presidency and International Criminal Justice: Should the world be ready for a showdown?

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[yt_dropcap type=”square” font=”” size=”14″ color=”#000″ background=”#fff” ] W [/yt_dropcap]ith the election of Donald Trump as the 45th President of the United States the possible approach of the new administration to international criminal justice and anti-impunity initiatives would be watched very keenly. Trump’s victory has brought back memories of George W. Bush’s presidency, which was characterized by a general contempt towards international criminal law and its only permanent institution, the International Criminal Court (ICC).

With the Trump campaign throwing no direct light on its international criminal justice agenda (with the exception of certain vague foreign policy statements) and the ICC prosecutor planning to launch a full scale investigation in Afghanistan (which would include a focus on Torture at the highest levels of the US administration), US-ICC relations are expected to get more complex in the times to come.

Clinton administration and the emergence of the ICC

The Rome Statute establishing the ICC was adopted on 17th July, 1998. United States, despite being a chief participant in the Rome deliberations during the Clinton Presidency was one of the seven countries which voted against the adoption of the Statute as opposed to 120 countries who supported the adoption. The chief objection was the possibility of ICC exercising jurisdiction over US servicemen engaged in legitimate and appropriate use of force and the resultant loss in sovereignty even in the absence of a formal ratification of the ICC statute. Even the indictment of civilian foreign policy makers by the ICC was not ruled out. Efforts to secure immunity for US nationals from the Courts jurisdiction proved futile. On December 31st 2000, President Bill Clinton signed the Rome Statute which, however, was not submitted for ratification to the Senate on the ground that a closer examination of the Court’s actual functioning was necessary for further action.

Bush Administration’s contempt towards the ICC

Prior to the coming into force of the Rome Statute on 1st July 2002, President Bush took the unprecedented step of “unsigning” US from the treaty and formally renounced all obligations that the US may have towards the Court. To further bolster its position against the Court, President Bush signed the American Servicemembers Protection Act (ASPA) which prohibited all wings of the US government from cooperating with the ICC. This was followed by “Article 98” Bilateral Immunity Agreements (BIA’s) with various countries including India which precluded bilateral partners from surrendering US nationals to the ICC. Under Article 98 of the Rome Statute, the ICC is prohibited from proceeding with the surrender of an individual to the Court unless the court has first obtained the cooperation of the sending state for surrender and cannot compel a state to violate an international agreement it is party to. The BIA’s in practice took away the power of the ICC to deal with US nationals and considerably whittled down the concept of universal jurisdiction. The referral of the Darfur situation to the ICC by the UNSC through Resolution 1593 in 2005 under Article 13 (b) of the Rome Statute was strongly objected by the Bush Administration on the ground of its fundamental disagreements with the ICC. However, the collective weight of the UNSC persuaded the US (and China, the other major objector) not to exercise their veto power and abstentions followed which facilitated the subsequent issue of arrest warrants by the ICC against Omar Al Bashir and others. Thus the Bush administration was the forefront of international efforts to scuttle the power of the ICC and efforts to undermine the legitimacy of the Court were significant features of its foreign policy.

Obama Administration and International Criminal Justice initiatives

The extreme hostility of the Bush administration to the ICC puts the Obama administration’s approach to the ICC in a comparatively positive light. While the Obama administration was careful not to water down the fundamental objections of the US towards the ICC, it took steps to extend an olive branch to the ICC. Among the favourable steps include the willingness of the administration to send forces to track down Joseph Kony, an ICC indictee and leader of the Lord’s Resistance Army (LRA) in Uganda, through the passage of the Lord’s Resistance Army Disarmament and Northern Uganda Recovery Act with the unanimous support of the Senate among other initiatives.

Expansion of the Rewards for Justice Programme (RFJ)

The RFJ, started in 1984 is a State Department programme to award information that leads to the arrest of individuals engaged in acts of aiding, abetting and conspiring terror against US interests. The expansion of the RFJ to cover ICC indictees and others wanted by mixed or hybrid tribunals was a major initiative of the Obama Presidency. However, keeping in view the existence of the Bush era’s ASPA, information pertaining to US nationals was excluded from the ambit of the programme.

Referral of Libya to the ICC

In sharp contrast to the Bush administration’s position of abstaining from Resolution 1593, the Obama administration voted positively to refer Libya’s situation to the ICC (UNSC Resolution 1970) in February 2011. However, the inability of the administration to take a leadership role on two controversial issues hanging fire since the Darfur referral in 2005 further exposed the commitment of the US to the ICC; firstly, the funding of UNSC referred ICC proceedings by the UNSC itself and secondly, the indictment of citizens of non-state parties in the referred scenarios. The position of the Obama administration was to leave the funding of these proceedings to the ICC and its state parties without involving the UNSC and non-prosecution of citizens of non-state parties to the ICC. Furthermore, the subsequent unwillingness of the administration to goad the ICC in enforcing its Libya mandate after a failed intervention in the country (accepted by Obama to be his biggest foreign policy failure) did not serve the cause of international justice.

Handing over Bosco Ntaganda to the ICC

Congolese warlord Bosco Ntaganda, an ICC indictee was handed over to the ICC after his voluntary surrender at the US embassy in Kigali, Rwanda in March 2013. US not being a party to the Rome Statute and having no obligations in this regard, decided to hand over the indictee to the Hague. Given the historic animosity of the US to the ICC, its voluntary co-operation with the ICC was widely viewed as a reflection of the changing nature of US-ICC relations.

Conclusion

While eroding the credibility of the ICC was a chief objective of the Bush administration in the wake of a favourable climate created by the Clinton administration, significant improvements in US-ICC relations were witnessed during the Obama administration, despite no indication that the country would be joining the Rome Statute. A Trump presidency given its ideological moorings is likely to take the US back to the Bush era and progressive developments made during the last eight years are likely to be lost. The world should be ready for a possible showdown between the Trump Administration and the ICC which does not bode well for anti-impunity initiatives. The immediate litmus test to this complex relationship would be ICC’s decision to proceed with the Afghanistan scenario given the reality that it would be seeking to pursue justice against the US -a non-state party on the ground that alleged violations of international law took place in Afghanistan- a State Party to the Rome Statute.

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International Law

Chagos Islands: Has the Sun Finally Set on the British Empire?

Punsara Amarasinghe

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Authors: Punsara Amarasinghe and Anastasia Glazova*

The fame of British Empire was once embellished around the corners of the world as the empire where sun never sets and its imperial majesty ruled the millions of lives regardless how they were brought under the colonial yoke. The end of two great wars saw eventually paved the path to dismantle British Empire yet the problems created by the colonial rule were unsolved and continued to undermine the decolonized states. The recent  advisory opinion given by International Court of Justice over the status of Chagos islands in Indian Ocean generates number of questions in the realm of international law regarding the drawbacks created in decolonization process and the duplicity of the concept if self-determination in international law. In the historic context Chagos islands always have been an integral part of Mauritius but however three years prior to granting independence to Mauritius Britain detached Chagos islands from Mauritius and created it a part of the territory known as British Indian Ocean Territory.

Between 1967 and 1973 the inhabitants lived in Chagos islands were forcibly removed and thus far they have been impeded by British law to enter the territory. The issue on the sovereignty of Chagos islands has lasted for decades as an unsolved riddle of colonialism whereas Mauritius always insisted the Chagos islands a part of their sovereignty despite British were reluctant to relinquish it, even the initial efforts made by Mauritius to bring the case before ICJ was not successful in the 80 decade. Nevertheless after envisaging a serious of attempts along with the assistance of African Union, 2017 United Nations General Assembly passed a resolution referring the issue to the advisory opinion of ICJ. The two fundamental questions General Assembly  put forward before were that whether the decolonization process of Mauritius was completed when it was granted independence in 1968 and secondly what are the consequences emerging from modern international law before the continues presence of Britain in Chagos islands.

The issue of decolonization seems to be the most interesting legal issue arising from the advisory opinion of ICJ due to the fact that court has viewed the decolonization of Mauritius was not complete as it was not in accordance of the right to self-determination of the Mauritius people.  Bringing the idea of self-determination into further evaluation becomes a pertinent issues as the very idea of self-determination always been a double edged sword. Especially in the post-colonial context dialog between West and newly independent states in Global South regarding understanding self-determination always have been different and the notion of self-determination appreciated by Third World was based on preserving their external integrity without getting subjected to any foreign force. As a matter of fact it was a quite understandable position as many of Third World countries had emerged from years of colonial domination and it paved the way for them to concern about external self-determination as their prime concern. However in examining court’s approach to assess the scope of right to self-determination in its advisory opinion was akin to the Declaration on the Granting of Independence to Colonial Countries and Peoples adopted by the UNGA Resolution 1514(XV) in 1960 (Resolution 1514). The Resolution 1514 declares that the ‘subjection of peoples to alien subjugation, domination and exploitation constitutes a denial of fundamental human rights…’, and all such peoples ‘have the right to self-determination’ whereby ‘they freely determine their political status and freely pursue their economic, social and cultural development’.

The trivial question encountered in discussing the self-determination was whether it was a part of customary international law when the UK granted independence to Mauritius in 1968. However it is rather ironic that UK being the forefront colonizer in early 20thcentury had appeared for the right of self-determination of Sudanese people as their legal entitlement, in its effort to counter Egyptian claims on the Sudan in 1947. In its advisory opinion court seemed to have generally relied on the number of general assembly resolutions in deciding the scope of self-determination in international law. In fact the lethargic position adopted by Court without tracing the historical development of right to self-determination in opinojuris and state practice has diminished the magisterial jurisprudential value that many international law scholars expected to hear from this advisory opinion.  However court confined its opinion regarding right to self-determination of Mauritius people to UNGA Resolution 2625 (XXV) of 1970, on Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the UN Charter and court confirmed its status in customary international law.

The court’s opinion on the incompletion of Mauritius decolonization should be taken into account as a monumental position shared by ICJ on the grim realities of colonialism which keeps haunting in 21st century. ICJ came to a conclusion that separation of Chagos Islands from Mauritius before the independence was an act done by British colonial rule without the genuine consent of Mauritius people. It seems to indicate that Court may have implicitly hinted that it would have been lawful if the separation was conducted after assessing the consent of people through something like a referendum. Court’s opinion was concluded by stating “the United Kingdom’s continued administration of the Chagos Archipelago constitutes a wrongful act entailing the international responsibility of that State”. This was the culmination of ICJ advisory opinion which brought a great triumph for Mauritius and a great blow upon the United Kingdom.  In its concluding remarks Court invoked all UN member states have a responsibility to finalize the decolonization of Mauritius as right to self-determination stands as erga omnes obligation.

All in all the advisory opinion on Chagos islands brought some solace to the states eager to confront the colonial legacies and post-colonial burdens. As an example in its court proceedings Mauritius was heavily backed by African Union and India. One counsel appeared on behalf of African Union stated that “It is unthinkable that today, in the 21st century, there is a part of Africa that still remains subject to European colonial rule.” On the other hand the UK has been still adamant about their presence in Chagos island as they claimed that matter was resolved in 1982 in an agreement on compensation and also the UK has pointed out that right to self-determination was not applicable in international law till 1970’s , whereas the separation of Chagos island took place in 1968. The UK defense was rejected by majority of judges in ICJ and the only dissenting opinion was given by American judge Joan Donoghue and her contention was based on that this matter should not have been taken before ICJ as it stands as a bilateral dispute between Mauritius and the United Kingdom. It is evident that this advisory opinion has brought a severe pressure on the UK in the backdrop of ongoing Brexit hullaballoo. Even though the advisory opinions are not binding that it is hardly to assume the UK would completely disdain the opinion as it has already acknowledged that the manner of removing the inhabitants of Chagos islands was shameful. In that case the entire advisory opinion should be regarded as a significant victory for Chagossians and hall mark legacy in the international jurisprudence relating to concept of self-determination.

*Anasatasia Glazova is a PhD candidate in at Faculty of Law, Higher School of Economics in Moscow, Russia. She worked as state legal officer in Vologda prior joining HSE and her research areas include International Human Rights Law, Law of the Sea and International Maritime Law. She can be reached at:  angla.1892[at]mail.ru

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Getting the interpretation of 2008 India-Pak Bilateral Agreement right and its relevance in Jhadav Case

Nithin Ramakrishnan

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On 21st February 2019, International Court of Justice finished it hearing the arguments of India and Pakistan on Jadhav Case and cases is reserved for deliberation. In 2017 India had instituted proceedings against Pakistan claiming for consular access to Mr.Jadhav (alleged to be Indian Spy by Pakistan) who is convicted for espionage. The case arises out of an Application filed by India under Article 40, paragraph 1, of the Statute of the Court and Article 38 of the Rules read along with Article 1 of the Optional Protocol concerning the Compulsory Settlement of Disputes (Optional Protocol) done at Vienna on 24 April 1963.Pakistan has however in its reply statement argued that State of Pakistan was willing to permit consular access upon an undertaking from the State of India that it will co-operate with Pakistan in a mutual investigation about the crimes allegedly perpetrated by Jadhav in the territory of Pakistan and his possession of Indian Passport with wrong credentials. State of Pakistan states its view is legally correct as per paragraph (vi) of the Indo-Pak 2008 Bilateral Agreement on Consular Access.

The interpretation of 2008 Bilateral Agreement is thus important in order to resolve the issue. However, while the State of India considers the 2008 Agreement to be irrelevant and Pakistan relies on a flawed interpretation of the same in order assert the correctness of their action. Getting the interpretation of 2008 Bilateral Agreement right could have saved States from arguing on the uncharted areas of espionage, and the status of military tribunals, indirectly compromising the interests of national security on various notes.

Indian counsels began the arguments by identifying two broad issues arising in the case. The first one relates to the violation of Article 36 of Vienna Convention of Consular Relations (VCCR)1963 and the second is a little extended argument about the relief to be awarded in the said case upon an affirmative decision of the violation of Article 36. Indian Counsels stressed on the importance on the special relief of release pleaded by India, unlike Avena or La Grand Case, where ICJ had ordered reconsideration. They had been confident enough throughout the hearing that the first issue is established on a very simple prima facie observation. However there appears to be a missing point in the Indian take on the case. It fails to address the India-Pakistan2008 Bilateral Agreement on Consular Access interpretatively. It simply relies on a theory that the 2008 Agreement doesn’t modify the obligations of the State of Pakistan under the Vienna Convention of Consular Relations. Perhaps, the State of Pakistan was successfully managing to fix the context of the dispute to an alleged espionage case and led the arguments away from the text of treaties.

There are several ambiguities in the explanation given on 2008 Bilateral Agreement. Not using the full title of the 2008 agreement even once, State of India argued that “(2008 Agreement) is… irrelevant to the assertion of rights to consular access under Article 36 of the Vienna Convention (Para 107 of Verbatim Record 2019/1)”. It is highly unsustainable claim State of India can make, after signing an international agreement titled “Agreement on Consular Access” intending to provide “reciprocal” consular facilities. Such a claim is not consistent with good faith by which States enter into treaty relationships. You may argue Human Rights, but the implementation of the same requires inevitably a system of governance build upon the principle of trust.

By applying Article 41 of VCLTand Article 73 of VCCR India contends that the provisions of 2008 Agreement have no applicability in the instance case. It also relies on the Human Right’s dimension of the Article 36 of VCCR (pages 35-47 of Verbatim Record 2019/1) to establish an erga omnes nature of consular access as a due process of law. It deals casually with the words “supplementary and amplification the provisions thereof” in the text of Article 73. This in my view is a serious lacuna. The word “supplementary” can mean something which is “completing and supporting” the provisions as well. If it solely meant to be augmenting the provisions then there is no need for separate enunciation of the words “confirming”, “supplementing”, “extending” or “amplifying” in the article.   

First of all, Article 73 of VCCR is speaking about the provisions of VCCR as such, and not directly addressing the rights contained therein. It means that the absolute notion of the rights mentioned in VCCR is imaginary and highly expansive of the textual meaning of Article 73.Article 36 of VCCR also is primarily not a human rights provision, although the dimensions of Human rights are easily attributable to it. It deals with procedural aspect of “exercising consular functions” and intents “to facilitate” a smooth exercise of the same. Viewed from such a context the 2008 Agreement is meaningful and relevant. It is decidedly descriptive of the procedure to be adopted by governments of India and Pakistan in cases involving Article 36 of the VCCR.

The Article 36 of the VCCR, paragraph 1 clause (a) speaks about the freedom of consular agents to communicate with nationals of sending state and vice-versa, clause (b) deals with actions to be taken up by the receiving state, without delay, if the nationals under custody request to meet their consuls, and clause (c) right of the consular officer to meet nationals and arrange for legal assistance. But clause (c) also requires consuls to refrain from such actions if the nationals expressly requests so. Paragraph 2 further mandates that the rights referred in paragraph 1 shall be exercised according to the laws and regulations of the receiving state with only subjection that “the purposes” for which the rights are provided must be fulfilled.  

The2008 Bilateral Agreement paragraphs (i-iv) are improving upon these provisions of Article 36. They are not irrelevant as such. The paragraph (ii) makes it obligatory that receiving state immediately inform the sending state the arrest of its nationals, whether the national requests so or not. This is an amplification of right mentioned in paragraph (b) of the Article 36 of VCCR. Paragraph (iv) improves upon the position of paragraph (b) of Article 36 by qualifying the words “without delay” in Article 36(b) with “a maximum limit of 3 months” within which the consular access “must be provided”.  Paragraph (iii) once again improves upon the provisions of the VCCR by making it obligatory again for the receiving state to inform expeditiously about the sentencing of the nationals of sending state. State of India at ICJ could have ideally relied upon these provisions in order to further establish instances of violations of its rights by the State of Pakistan. Although the State of Pakistan has almost violated almost each one of these provisions in the instant case, India’s claim solely relies upon the Vienna Convention (Application Instituting Proceedings, Para 46).The motivations behind State of India in avoiding such a straight legal strategy and choosing the language of Human Rights is something interesting to be investigated. Probably it’s because of the intention to seek remedies beyond “review” or “reconsideration” of case back in the courts of Pakistan.

On the other hand, State of Pakistan claims the paragraph (vi) of 2008 Bilateral Agreement enables them to make the provision for consular access conditional, which is both jurisprudential and interpretatively unsustainable. Jurisprudentially, such an argument abridges the guarantee of the right of consular access, a ‘due process principle ‘codified under Article 36 of VCCR. Interpretatively, paragraph (vi) not cannot be argued successfully as a provision dealing with consular access. Although the paragraph (vi) states thus “in case of arrest, detention or sentence made on political or security grounds, each side may examine the case on its merits”, it is not clear as to whether this could mean limiting the right to consular access.

Both the paragraphs (v) and (vii), i.e. to say antecedent and subsequent to para (vi), deals with the repatriation of the individuals arrested, detained or convicted inside the territory of receiving state upon the fulfilment of certain conditions by the sending state. Just because the Agreement is titled after Consular Access, it is highly imaginative to load paragraph (vi) with explanation on consular access when both the paragraphs (v) and (vii) are dealing predominantly with repatriation after detention or conviction. Right to Consular Access is a right coming into the effect at the very first moment of the arrest or sometimes even when a decision to make an arrest is made by the receiving state.

However arguing on the false premise presented by State of Pakistan, India Counsels had to the extent the breadth of its own arguments, finally ending up with claims like interests of national security cannot be self-certified by nations concerned. This is in direct contravention to Indian position in various human rights forum that it cannot allow for politicised international organisations or international tribunals to decide upon the issues of national security. Further these arguments, if addressed seriously by the International Court, are going to change the composure of the jurisprudence of international law. Although such an evolution of jurisprudence is desirable from the angle of human rights, it has the danger of exposing diplomatically the weaker State’s sovereignty to a politicized International arena. This could have been possibly be avoided by solely relying upon positive legal materials such as Vienna Convention 1963 and 2008 Bilateral Agreement. The outcome of judgement could be no different, but would also have saved the principle of State sovereignty. The lack of international law expertise of developing nations was quite visible throughout the hearing.

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Anti-Personnel Landmines Still Mutilate Asia: Banning in the Global Politics of Human Rights

Dr. Nafees Ahmad

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In South and Southeast Asia, Afghanistan, India, Nepal, Pakistan, Sri Lanka, and China, Cambodia, Lao PDR, Myanmar, North Korea; South Korea, Philippines, Thailand, Vietnam, and Taiwan have been confronting the curse of landmines. Afghanistan runs the oldest and largest demining programme in the world. Afghanistan remains one of the states with the highest level of contamination from landmines and explosive remnants of war. It has the highest number of casualties caused b ylandmines, explosive remnants of war and improvised explosive devices. 

Human rights are a desultory desire of universal utility, which is nurtured and navigated by the quality of justice system of a nation – state devoid of any political polemics, paradoxical pursuits, and gawky gobbledygook. The administration of criminal justice system gets activated if a person is inflicted with death in its various permutations by someone which is followed by an investigation to rummage and apprehend the culprit and is accordingly brought to justice in any civilized society committed to a desiderata of constitutionalism, rule of law, equality, fraternity, liberty, humanitarianism, social justice, transparency, accountability, good governance and human rights. But in the case of landmine explosions resulting in a mass human pogrom, the justice system is hamstrung. On the other hand, it becomes possible to prosecute the culprit and bring to book for a single act of criminality. But, unfortunately, persons who made people crippled and injured by landmines can never be brought to justice. There would never be an investigation. Even time would find it difficult to heal the whelming wounds and atrophic agonies sustained by victims. Permanent privation of limbs would never be substituted in a normal and natural way. The psychological trauma and diabolical effects received and experienced by the victims haunt them throughout their whole life, and they struggle for their existential survival. Nevertheless, they are not able to eke out an honorable existence in society and destined to drag on their parasitic identity. The magnitude of their suffering and severe disabilities is immeasurable by any yardstick in any form whatsoever developed by perennial human peregrination from avionics to genomics.

This excursus attempts sanities the issue of landmines and their excruciating effects on the human psyche and exhorts upon humanity to exscind its menacing presence for once and all so that posterity could be able to live in peace. The obviation of landmines must be the shibboleth in the 21st century based on a time frame. The international community must subscribe to pragmatism so for their eradication is concerned instead of making sibilatory overtures and resorting to minatory maneuvers with tectonic tendencies to perpetuate and justify their military necessity. Means of warfare must be devised on humanitarian premise while keeping in view broader possible transgressions of human rights during military engagements.

Landmine is a most dreaded, lethal and crippling device of modern warfare and devastates human limbs beyond any possible cue and care. It is the weapon of incendiary nature that once detonated would hurricane dirt particles, metal shards, plastic pebbles, and cordite fragments penetrate deep into the human body and resultant wounds necessitating further amputations. It is a weapon of mass destruction and does not discern between a horse do combat and civilians. It does not identify its targets. It is sardonic to aver that a landmine proceeds to swallow its target sat the pedestal egalitarianism. It does not discriminate between military personnel and or civilian. Consequently, the vast majority of its victims are innocent children and civilians. But the suffering does not bid a farewell here as the repercussions and ramifications of landmine explosion spread far beyond the victim who mules its scourge for rest his/her life.

Landmines are of various types with one commonality, i.e., destruction of genocidal dimensions. There are anti-personnel mines (designed to maim, kill and injure people), anti-vehicle mines (designed to destroy tanks and vehicles) and “smart” anti-personnel mines (mines which are capable of self-destruction or self-Deactivation). These mines are programmed in advance to explode automatically. However, the recent advancements in landmine technology have blurred the conventional dichotomy between anti-personnel and anti-vehicle mines. Today, multi-purpose mines are being developed having diabolical and debilitating dimensions.

A landmine has been defined under Article 2, paras 1 and 2 of convention on the prohibition of the use, stockpiling production and transfer of anti-personnel mines and on their destruction, September 18, 1997, which is popularly known as Ottawa Treaty (hereinafter referred to as Ottawa Treaty) It defines a landmine as under:

 “(1) Anti-personnel mine means 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. Mines designed to be detonated by the presence, proximity or contact of a vehicle as opposed to a person, that are equipped with anti-handling devices, are not considered anti-personnel mines as a result of being so equipped.”

 “(2) “Mines” means 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.”

It is axiomatic from the language of the definition that it is framedin general words, which make it comprehensive and inclusive.

There are some International Legal Institutions designed to achieve a landmine-free world through municipal legal jurisdictions. These international conventions envisaged various provisions and clauses by which state parties are made to adhere to it. There is United Nations Convention on the prohibition of Anti-personnel mines and on their destruction 1997, UN Convention of certain conventional weapons (CCW) with its Additional Protocols I,II,III,IV and amended Protocol II. This Additional Protocol concerns different aspects of means of warfare such as undetectable fragments, landmines, incendiary weapons, and blinding laser weapons respectively. There are only 72 countries that had acceded to the CCW so far.

On the other hand, the Ottawa Treaty was signed by 164 countries as of January 2018. However, 32 nation-states remain non-signatories including prominent powers such the US, Russia China and India, and these countries are also the producers and users of landmines. In South and Southeast Asia, countries like India, North Korea, South Korea, Lao PDR, Myanmar, Nepal, Pakistan, Singapore, and Vietnam have not acceded to the Ottawa Treaty. Afghanistan and Bangladesh are the only two countries that have signed the Mine Ban Treaty on September 11, 2002, and May 07, 1998respectively in South Asia; however, 11 states have enacted national legislation. Therefore, II states have announced the destruction of stockpiles and no states so for published total clearance or demining of emplaced mines. There are around 25, 00,000 people globally disabled by landmines of which 600,000 were civilians including women and children who are either wood-hewers or drawers of water.

It is remarkably relevant to note that the initiative to have or ban treaty on landmines was taken by the government of Canada independent of any role of the United Nations. Earlier in 1990, the ICRC and some other non-governmental humanitarian organizations like national Red Cross societies, Red Crescent societies and International Campaign to Ban Landmines (ICBL) began dissemination of awareness of started documenting the higher incidence of landmines casualties of civilians. Consequently, on October 5, 1996, the conference adopted the Ottawa declaration which committed the participants to execute a plan of acting directed to the enhancement of resources and building-up an infrastructure to clear mines, assist victims and rehabilitating them.

Ultimately, the government of Canada invited all national governments to come to Ottawa in Canada in December 1997 to sign a treaty banning the production, stockpiling transfer and use of anti-personnel mines. It is known as the Ottawa Process resulted in a global ban on landmines. This treaty came into force on March 3, 1990. UN Secretary-General has been entrusted with the power to investigate, with prior consent of state parties to the convention, the possible misuse of the convention. The treaty envisages a comprehensive ban, reintegration of victims, their social rehabilitation, dissemination of information and mobilizing national and international public opinion. Although it is heart-wrenching that Ottawa Treaty received only 133 signature and 66 ratifications on March 1, 1999. Unfortunately, India, Pakistan, Russia, and China have not acceded to this important treaty intended to save humanity from 100 million mines in over 60 countries.

When military engagement and hostilities come to an end leading to a state of ceasefire and envisage usually, and the civilians resume routine life, the presence of landmines poses a threat of gravest nature as the cost of dismantling and obliterating them is colossal beyond the resources of the war-ravaged country. Moreover, as landmines do not identify its target, its presence does not make any difference between pre-state of war or post-war situations. It has the same devastating prowess unless pulverized which remains a distant dream, in some locations across the world. Consequently, in a post-war scenario in many countries, civilians become the victims of landmines despite having passed many years in peace and tranquility.

On the other hand, a country impregnated by the landmines cannot resume its economic activities on a healthy footing. Mines make direct bearing on transportation, roadways, waterways, agriculture, industrialization and reconstruction activities leading to unemployment, starvation, malnutrition, low birth rate, mendicancy, poverty and a sudden spurt in crime. Every twenty minutes a landmine maims or kills a person. It is challenging to engage in demining activities. Biting insect’s inaccessible terrain, impenetrable bamboo thickets, and thorn bushes – mine clearance everywhere in the world is a hot, sweaty business at the best of times. Because tripwires hidden in the undergrowth could trig explosions, the vegetation and verdancy have to be uncluttered by hand before mine detection can start. It is a tedious matter and can occupy two-thirds of a mine clearer’s working hours in a day. In the dry season, the land can be indestructible, and deminers must move forwards scrupulously, prodding with a prodder and digging with a small trowel. Only one in a thousand of the searches likely to be an explosive, but we cannot let our concentration slip for a moment. The majority of deminers who undertake this uphill asks are not experts but generally local persons who have gone through a training course of two or three weeks.

In South Asia, India, and Pakistan are two important countries which experienced the scourge of landmines warfare. India is confronted by the acts of non-state actors in insurgency infested Kashmir, and northeast region where mines were laid by the militants, Kargil aggression by Pakistan is a case in sight while retreating mercenaries and army regulars laid landmines. Recently institute of peace, Disarmament and environmental protection and global green peace organized a seminar on “Ban Anti-Personnel Landmines” in Srinagar highlighted the growing incidents of landmines use by the insurgents in the Kashmir.

In Sri Lanka, Tamil Tiger has indigenously developed “Jonny Mine” considered to be the most competent in the world of explosive devices and using them devoid of any humanitarian norms of warfare. There is also a problem of detection of these mines. It has become very difficult mines of plastic and low content of metal. The Indian army has four types of mines. Two of them are anti-personnel, and two are anti-tank mines. M-14 and M-16 are two anti-personnel mines which are similar to M-14 of the U.S. having shallow metal content which is virtually undetectable and highly determined. Pakistan also has some mines and use them in the war of 1965 and recently in Kargil also.

Regional co-operation must form an essential and kernel part of any future legal regime for banning and demining in the South Asia region. SAARC countries have already acknowledgment the dangers and repercussions of landmines. Moreover, efforts are already on the anvil to arrive at a formidable legal regime. Bangladesh, Bhutan, Nepal may become a party to the banning regime soon. India is already a party to 1980 U.N. Convention on certain conventional weapons (CCW) with its additional protocol. Although this convention does not entirely ban landmines even then no other south Asian country acceded to this convention.

India, Maldives, Pakistan and Sri Lanka have expressed identical views on not to use landmines in internal conflicts. Recently the government of India has agreed in principle to be a party to Ottawa Treaty by the end of 1999,but it still lacks a regional consensus on evolving a regional legal regime to deal with the menace of landmines. South and Southeast Asia must enhance its pro-disarmament position in the global politics of banning landmines. Everything, in war, is brutal, brazen and barbaric but the worst barbarity of war is that it compels men collectively to comment acts against which individually they would revolt with their whole existential being. Therefore, it is axiomatic that there is an urgent need to have a thin-tank of lawyers, jurists, defense experts, academicians, NGOs and policy institutions, etc. for evolving and shaping concrete and pragmatic mechanism for a vibrant, vital, legal regional protection regime about landmines. Moreover, Indian Human rights movement must be sensitive enough to incorporate and discourage the non-ethical and immoral use of mines. 

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