There are about 72 mine action programs (MAPs) around the world, most of them working in collaboration with the United Nations—United Nations Mine Action Service (UNMAS), United Nations Development Programme (UNDP), United Nations Office for Project Services (UNOPS), etc.—depending on the political, social and/or economic situation of the country. A majority of the MAPs work in collaboration with UNDP. It is important for all MAPs to have a legal framework because it makes their jobs much easier through division of the residual responsibilities among different governmental bodies (ministries, committees, etc.). Numerous examples exist of MAPs facing competition with the Ministry of Emergency Situations, Ministry of Defense (MOD), Ministry of Construction as well as the Ministry of social protection and Labor (which is responsible for Social Protection policy—including mine victims).
In accordance with basic law, ministries and MAPs can be established by presidential decree or law adopted by the parliament. MAPs mainly have a status of an agency, committee or something similar. In accordance with the constitution, the president is the highest executive body of the republic and parliament is the legislative body. Therefore, a document approved by the parliament carries more weight than approval by other means.
It is important that when the MAP is being established in collaboration with UNDP and the donor community it obligates the government to pass the national mine action legislation through the parliament. For obvious reasons, UNDP (with the support of the donor community as well if needed) is better suited to put pressure on the government to adopt mine action laws than other United Nations bodies such as UNMAS, whose activity begins in an emergency environment immediately after war. The destruction of state structures resulting from war complicates the problem. Also, it is recommended that the law is adopted during the first year of the program before the newly established MAP has begun its work full swing, determined the scope of the problem or gone into risky activities such handling explosives, construction, etc. The law will be an excellent tool to build a strong program and will dispel all confusion between governmental bodies. The International Mine Action Standards (IMAS) also should contain mine action legislation-related standards.
Legislating the Profession of Mine Action
The clauses in the legislation should be well-articulated; I also believe that inclusion of issues regarding the social rights of the deminers (operational staff) would be prudent. It is widely known in post-Soviet areas there is legislation for "laws about military service" (for militaries) and "labor codes" (for civilians) that contained articles clarifying points regarding laborers whose activity is considered to be highly physical or a health risk. In accordance with the labor codes, the government issued a bylaw that stipulates these social protection issues (including the beneficial calculation of the service year).
The above description shows how the legislative and normative acts work as a system within the state. In some countries, demining is not included in the list of high-risk professions because of bureaucracy or because it is a new activity to which government does not pay enough attention. This oversight means that for any unfortunate events, the deminers will receive no benefits from the state. Thus, UNDP should encourage the government to include the deminers in the list of professionals who face risks. The other option is to include the benefits in the national humanitarian demining law, if that happens to be the case.
Governmental regulations (or bylaws) as well as decrees or some other documents only for implementation can be changed on a regular basis, but legislation makes some changes difficult, while governmental decrees are issued to support implementation of the law.
Liability for Accidents
Liability is indeed a complicated issue and has been ever since humanitarian mine action began. We have faced this problem and we still haven't gotten the right solution. I think we should treat mine action in similar ways under national law to other dangerous activities conducted for the public benefit: for instance, law enforcement structures need accident liability plans when they conduct special operations and other risky activities. This concern relates to the national mine action center (NMAC), which issues the clearance certificate. Nobody can convince us that land certified by the NMAC as cleared land (even if the NMAC conducted quality assurance management in accordance with the IMAS during the clearance and it performed quality control at the end by inspecting samples of the cleared land) is completely safe because of the threat from outside influences. For example, a disgruntled employee of a clearance organization or some competitors who could not pass the tender to get a contract for clearance might bury a mine or UXO in the certified land. They would aim to create a problem for the competitor and/or the NMAC who had conducted the tender and thereby remove the competitor for the next tender. I think we can imagine lot of other scenarios related to residual liability. Another example could be traffic police issuing a driving license to a driver and then the driver having an accident. Can any law take the department head to court for issuing the driving license to the driver? Probably not, but I believe that should an accident happen, the NMAC should help the investigator without prejudice. NMAC participation in the investigation will make the NMAC even more cautious in getting the mine clearance work done with utmost care.
My second point involves criminal law and refers to the concept of the statute of limitations. The statute of limitations says that if a crime is committed and this criminal offence was detected after the period of the statute of limitations, this offence cannot fall under criminal code. Liability for demining accidents also should have clear legal obligation, and we have to use the statute of limitations in our case. For example, when land is not used for one year and an accident happens, nobody can prove that the mine was not buried after clearance for a different reason. Furthermore, no one can prove the opposite. All we know is that this land wasn't used by the owner.
The issues mentioned above are indeed interesting topics of concern for research, and UNDP, UNMAS and the Geneva International Centre for Humanitarian Demining (GICHD) should use them as lessons learned. UNDP, in cooperation with UNMAS, as well as GICHD, should establish a special unit to address such cases around the world for programs that operate under the umbrella of U.N. agencies. First of all, it will give the necessary confidence to the United Nations to be involved not only at the operational level but also at the policy level, in collaboration with the NMAC. Moreover, in some countries the barrister who defends a man under investigation in the court should be a citizen of the country of the plaintiff, and the unit can assist the barrister during the investigation and/or the court hearing. The information being gathered during this hearing is very valuable and will bring answers to undisclosed issues on liability for accidents. This unit could also serve as a consultant in law-related issues for MAPs around the world that operate in collaboration with U.N. agencies. Moreover, the unit could be in charge of cases regarding incidents that happen during the training as well as demining operations (as recently happened in Albania when Handicap International conducted training).
Advocacy Against the Use of Anti-personnel Mines
Today, the adoption of the Anti-personnel Mine Ban Convention or Amended Protocol II to the Convention on Certain Conventional Weapons is a complicated issue. In spite of amendments included in the protocol mentioned, its adoption is still questionable. Amended Protocol II also contains obligations for marking and clearing of mines, booby-traps and other devices.
Everyone in the mine action community is aware of the "Orahovac Case." This case in Bosnia and Herzegovina was highlighted in A Study of National Mine Action Legislation. Moreover, it was linked with the problem of marking of hazardous areas. After hazardous areas were marked, sticks were stolen from the field, and as a result, a child stepped in the minefield. While this event saddens us all, the problem is that you cannot prevent people from stealing sticks from the minefield. As you know, villagers use wooden sticks such as the one removed from the minefield for their personal needs. They often argue they have problems with electricity during the winter and that they burn the sticks to survive. As mentioned in Developing Mine Action Legislation, this activity often falls under the jurisdiction of the NMAC; however, these organizations should not carry all responsibilities. What about the responsibilities of the law enforcement institutions who are also accountable for security-related issues, not only for investigation of issues mentioned above? In addition, concerns arise for municipalities or local executive authorities (in some post-Soviet countries) that are involved in land-related issues within their own districts.
Regarding the Anti-personnel Mine Ban Convention or Amended Protocol II to the Convention on Certain Conventional Weapons, two groups exist in the world: those who joined and those who did not join. This separation brings some discomfort for countries that are included into the third group, those who want to join the Convention but for technical reasons, such as lack of an official peace agreement, cannot. The problem is that these countries are made outcasts by some donors despite their need for money for mine clearance. Without clearing the land, development in the countries is not expected in great amounts, a fact that is apparently true in the case of Azerbaijan and Armenia. Neither country signed the Convention, as there has not been any peace agreement between these two countries; thus, technically, they are still at war. There are many countries in the region that produce mines and are not signatories of the Convention. How should we handle these countries? First, we should divide responsibility within non-signatory countries between "producers" and "buyers" because so-called "buyers" have to buy mines to protect the borders (an explanation by militaries) because of their lack of human resources, etc.
I think it is time to make amendments to include the "good intention but can't sign the convention" parties. For example, Azerbaijan officially prohibited use and transit of any mines within its borders. This country demonstrated its goodwill by agreeing to sign the Ottawa Convention once occupied areas are liberated. They are willing to sign the Convention, but due to separatist regime in Nagorno-Karabakh and unresolved conflicts within their own territories in Georgia, they are unable to sign. International organizations and international communities should recognize such conflicts officially. In the meantime, these countries can sign the Convention as a sign of goodwill; however, implementation of the convention can start only after an official peaceful agreement is in place.
Emil M. Hasanov
Operations Manager, ANAMA
69 st. Fizuli, Baku
Tel: +994 12 4973 851
+994 12 4958 401
+994 12 4958 891
Fax: +994 12 4974 427
Cell: +994 50 310 2979