Legal Analysis of the Regulation of Mines and Explosive Remnants of War in Pakistan

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The international law of weaponry firstly forms part of the law of armed conflict, and secondly the law of arms control. The first part relates to the means and methods of warfare,1See for instance, Hague Conventions of 1899 And 1907; Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare 1925; Biological Weapons Convention 1972 Convention on Certain Conventional Weapons 1980, and Chemical Weapons Convention 1993. whereas the second part is related to the arms control and disarmament agreements which do not expressly address the actual conduct of armed conflict; rather, they establish some controls over the production, testing, stockpiling, transfer, or deployment of the weapons by which armed conflict might be conducted.2Adam Roberts and Richard Eds, Documents on the Laws of War, Third Edition (Oxford University Press 2000), 37. There are also international conventions which may be useful in dealing with the post-war effects of the use of weapons on the relevant populations, for instance, the Convention on the Rights of the People with Disabilities (CRPD) 2006. It must be admitted that the use of weapons in armed conflicts is a necessary act and unavoidable; however, its use has been limited by the International Humanitarian Law (IHL).3There are Numerous Legally Binding Instruments Starting From The St. Petersburg Declaration 1868, The Hague Declarations The limitation is according to the basic principles of IHL and embedded within different international conventions and customary international law.4The Main Treaties Placing Limits on Methods and Means of Warfare are The Hague Convention of 1907, The 1977 Additional Protocols to the Geneva Conventions and a Series of Agreements on Specific Weapons.

In most conflict situations or other situations of violence, conventional weapons are used. The conventional weapons include landmines and other weapons which remain unexploded at the end of the war. These landmines and Explosive Remnants of War (ERW) remain a legacy of the conflict and are a significant hazard to the population, particularly those returning home after hostilities have ceased, as well as humanitarian workers. ERWs and landmines as a result of armed conflicts pose significant threats to the survival and development of civilian populations.5Directorate of Political Affairs, Swiss Federal Department of Foreign Affairs, Protecting the Civilian Population from Mines and Explosive Remnants of War (This Project was aimed at removing the Remnants of War Materials in Libya. The Freedom of Movement of the Population, Direct and Preventive Protection of the Population and the Social Development of the Country are all Closely Linked to De-Mining). Poland, which was severely affected by ERW after the Second World War as late as 1989 to 2000, had to clear 3,428,290 explosive devices, of which 12,620 were mines.6Paul Ellis, Explosive Remnants of War: The Impact of Current Negotiations, (2003), 7(1) J ERW & Mine Action <Https://Commons.Lib.Jmu.Edu/Cgi/Viewcontent.Cgi?Article=2345&Context=Cisr-Journal> Accessed 27 October 2021 (Also, In The Year 2006, Around 1,189 Mine And 76,512 ERW Were Cleared) The explosive devices include, inter alia, blast and fragmentation from weapons used during a conflict or other situation of violence; landmines and Improvised victim-activated Explosive Devices (IEDs); unexploded and abandoned ordnance; and munitions stores.7ICRC Weapon Contamination Strategy, Draft 2016 These unexploded devices are also a threat to the environment and bring life to normalcy. These weapons continue to remain a hindrance for people in a post-conflict scenario to normalize their lives and continue to kill and maim people.8International Committee of the Red Cross (ICRC) Weapon Contamination, (January 2010)

The use of weapons that may remain unused at the end of a conflict and create a life-threatening situation for innocent civilians has been limited by the recent developments in the laws of the armed conflict. In cases where weapons including landmines and cluster munitions are used in conflicts, efforts for the clearance of such weapons are carried out for humanitarian purposes. A state in whose territory the contaminated weapons exist is under an obligation to reduce the threat to its civilian and military population by performing clearance operations. In addition, till the completion of the clearance operation, the people remain vulnerable to the threat, thereby there must be victim assistance and risk education programs for the affected population. The whole process of clearance, victim assistance, and risk education is time-consuming, expensive, and risky. The state practice shows that all the relevant efforts take place under the regulation of one government organ created specifically for this purpose. The organ mostly recognized as the National Mine Action Centre (NMAC), co-ordinate the efforts of different relevant organs to achieve a common purpose. The affected civilians, mostly people living in and around the contaminated area can refer to the NMAC for any assistance required or direct any litigation in cases of any violation of their rights. The centres under NMAC work independently in some cases and under the supervision of different ministries or even under the direct supervision of the head of a state in some cases. The major work of the NMAC is related to risk reduction, clearance, and victim assistance. Different organs within a state mostly exist for the fulfilment of the three tasks mentioned, for instance, state hospitals can carry out work-related with victim assistance and police authorities can work in risk reduction. However, these organs under normal circumstances do not have such a mandate, i.e. they only deal with problems not related to conflicts. These state organs must work under the supervision of an authority (namely NMAC) with a mandate of work related with risk reduction, clearance (landmines and ERW), and victim assistance. The NMAC in different jurisdictions engage various actors competent enough to carry out relevant actions, and in some cases also takes legal responsibility in cases of damage to civilian life or property in areas declared as safe by the NMAC. In cases where states are under an obligation to destroy anti-personal landmines and cluster munitions (weapons that tend to become contaminated), they have adopted enabling acts to fulfil these obligations. In other cases, the state military manuals and other usages of weapons-related laws restrict the usage of weapons which can be used indiscriminately. Thereby, the rights of the affected people need to be protected through specific legislation creating duties of the NMAC. The NMAC also create liaison with international organizations and other non-governmental organizations for technical and financial support.

Pakistan is a party to two relevant international conventions including Protocol II (amended) and Protocol V of the CCW.9Protocol II Ratified In 1999, Protocol V Ratified In 2009. Pakistan, however, is not a signatory to Mine Ban Convention. In the 71st session of the UN General Assembly on Disarmament and International Security, Pakistan asserted that landmines play a significant role in meeting its military needs and that the country requires landmines to guard its long borders, which are not protected by any natural barrier. Pakistan reaffirmed in the session that the country is a party to the Amended Protocol II of the Convention on Certain Conventional Weapons, which regulates the use of landmines in order to protect civilians from their indiscriminate and lethal effects. Pakistan is also not a party to the ‘Convention on Cluster Munitions’ and it states that the multilateral framework of the CCW (protocol V) is the most appropriate forum for addressing the issue of Cluster Munitions.

The problem of dealing with landmines, IEDs, and other remnants of war in the context of Pakistan requires a system based on interdependence, communication, and integration of the people, government, and the military. It is not just the acquisition of technologies that will deal with the situation but an appropriate application and usage of the equipment. A legal framework establishing and building a relationship among different organs of the state. Thereby, a focus on developing mine action centres, a strategic humanitarian demining plan, and increasing demining capability through demining training is required. The mine action programs in other states are inclusive in nature and controlled by the civil governments. For instance, the mine action force in Azerbaijan (ANAMA) is responsible for all relevant activities; the military force of Azerbaijan is not allowed to take part in the activities.10GICHD, A Study of the Development of National Mine Action Legislation (November 2004) Moreover, the direct involvement of the military in de-mining activities has not proven adequate in cases of Afghanistan and Kosovo.11 Paul Stelzer, “The United States Humanitarian Demining Program: Civil-Military Relations In Humanitarian Demining”, (School of Advanced Military Studies United States Army Command and General Staff College Fort Leavenworth, Kansasn 2015). In contrast, a community-based de-mining program showed positive results. The involvement of NGOs and commercial contractors proved more effective and had approval within the local community, although the leadership role was played by the military in both instances. The operations took place under a civil-military operations centre, which was responsible for regulating the operations. Secondly, a common demining plan is important as a coordinated effort can easily disarray when perspectives and agendas are different. The teams must work under a common agenda with specified roles to play and goals to achieve. Thirdly, the personnel involved in the de-mining activities require specific training and skills for a successful operation. Various de-mining practices show that the military de-miners do not match the competency of their civilian counterparts.12 Ted Paterson, ‘The Performance of Militaries in Humanitarian Demining’ (2010) 14 The Journal of Conventional Weapons Destruction < Https://Commons.Lib.Jmu.Edu/Cisr-Journal/Vol14/Iss1/11/> Accessed 24 October 2021. This may not be compatible in the context of Pakistan as the military of Pakistan has been involved in various humanitarian demining activities around the world. In addition, minefield clearance is also included in the normal military training within Pakistan. It has also been observed that in most cases the cost of civilian contractors is less than the military in demining activities.13Ibid However, in the case of Pakistan, the involvement of an already trained national military may not aggravate the costs.

The practice regarding clearance, risk education, and victim assistance within Pakistan has remained different from other states. The reason seems to be the unacceptance of the fact that contaminated weapons exist within the country. However, the reports of civilian and military casualties due to weapon contamination are also a fact that cannot be negated. Moreover, the use of different kinds of IEDs used against the government and civilians by the terrorists is accepted by the government. Thereby, it can be concluded from the known facts that there are areas within Pakistan’s territory where weapon contamination exists. However, there is no government agency which deals with the problems related to weapons contamination. The mine clearance (including ERWs) is carried out on need-based policy by the engineering department of the military. Hence, there is no civilian personnel dealing with the civilians to co-operate with the mine clearance teams. The victim assistance in cases of mine blasts is also non-existent and mainly based on the work of the NGOs or normal medical services available at government hospitals. Similarly, the risk education is also randomly done by the district administration. Hence, for a more coordinated effort to deal with this issue the creation of Pakistan’s National Mine Action Centre is of utmost importance.

A formation of a national agency with a mandate of risk reduction, victim assistance, and clearance with respect to mines and ERW, working under the Interior Ministry and/or Ministry of Human Rights and Justice with the collaboration of relevant national organizations including the military is inevitable. An option of authorizing an already existing organ i.e. NDMA to carry out activities related to an NMAC may also be adopted. The NDMA works directly under the supervision of the Prime Minister with a specific mandate to coordinate activities in cases of any disasters. Increasing the mandate of the NDMA may be feasible in the case of Pakistan as it already signed an agreement with ANAMA to co-operate in mine clearance and relevant activities. Moreover, the basic structure is already available, the capacity needs improvement. Furthermore, the NDMA has already worked in partnership with different national and international organizations in the field of disaster management. These capabilities might help in creating relationships with organizations like ICRC for cooperation in this field. In any case, the actions of victim assistance, risk reduction, and clearance will be carried out under the supervision of NMAC (or NDMA). The national agency will execute its clearance plan by introducing a public tender procedure. The activities related to clearance will be carried out by entities having a similar experience, for instance, the armed forces. The national agency will also have the authority to overlook and verify the activities related to the clearance of mines, IEDs, and ERWs. Further, the required finance for clearance operations will be provided by the national government from its budget, national and international donors, and other funding sources. One of the basic functions of the NMAC will be the coordination between the government and other relevant agencies. The relevant agencies include the law enforcement agencies, district management (administration), and healthcare organs for victim assistance. Thereby, a more coordinated effort is required starting with the acceptance of the problem and its overall impacts upon the victims and their families.

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Dr. Muhammad Asif Khan

Dr. Muhammad Asif Khan is an Associate Professor at the Department of Law, School of Social Sciences and Humanities, National University of Science and Technology (NUST), Islamabad. He has a Doctoral Degree (PHD) in Public International Law from the University of Salzburg, Austria. He also works as a consultant to the ICRC (Pakistan).

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