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Monitoring armed non-state actor compliance with humanitarian norms: a look at international mechanisms and the Geneva Call Deed of Commitment

  • Pascal Bongard and Jonathan Somer

Abstract

Armed non-state actors are involved in most armed conflicts today, yet international law provides few mechanisms to ensure that they comply with humanitarian norms applicable to them. In particular, monitoring and verification mechanisms that address the conduct of armed non-state actors rarely appear in multilateral treaties, and, even when they do, are weak and not applied in practice. Over the past few years, a number of alternative mechanisms have been developed to better monitor respect of humanitarian norms during internal armed conflicts and verify allegations of violations. This article examines the strength of these various mechanisms and then focuses on the Deed of Commitment, an innovative instrument developed by the Swiss-based non-governmental organization Geneva Call, to hold armed non-state actors accountable. Experience with the Deed of Commitment on the prohibition of anti-personnel mines shows that these alternative mechanisms can be effective in ensuring better compliance with at least some humanitarian norms.

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1 Pictet, Jean (ed.), Commentary on the Geneva Conventions of 12 August 1949 for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, International Committee of the Red Cross (ICRC), Geneva, 1952, p. 377.

2 The term ‘humanitarian norms’ refers to international humanitarian law and relevant standards of international human rights law.

3 There is no universally agreed definition of ‘armed non-state actors’. For its operational purposes, Geneva Call uses this term to refer to organized armed entities that are primarily motivated by political goals, operate outside effective state control, and lack legal capacity to become party to relevant international treaties. This includes armed groups, de facto governing authorities, national liberation movements, and non- or partially internationally recognized states.

4 However, Additional Protocol II only refers to conflicts which meet certain criteria, i.e. those ‘which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol’. See Additional Protocol II, Art. 1(1).

5 There are eight additional rules whose applicability to non-international armed conflicts is listed as ‘arguable’. See Henckaerts, Jean-Marie, ‘Study on customary international humanitarian law: a contribution to the understanding and respect for the rule of law in armed conflict’, in International Review of the Red Cross, Vol. 87, No. 857, March 2005, pp. 198212.

6 Clapham, Andrew, Human Rights Obligations of Non-state Actors, Oxford University Press, Oxford, 2006; Christian Tomuschat, ‘The applicability of human rights law to insurgent movements’, in H. Fischer, U. Froissart, W. Heintchel von Heinegg, and C. Raap (eds), Krisensicherung und Humanitärer Schutz – Crisis Management and Humanitarian Protection: Fetschrift für Dieter Fleck, Berliner Wissenschafts-Verlag, Berlin, 2004, pp. 586–587.

7 For example, the word ‘should’ appears in Art. 4(1) of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict, which refers to armed groups. Also, Art. 7(5) of the African Union Convention for the Protection and Assistance of Internally Displaced Persons in Africa starts off with the words, ‘Members of armed groups shall be prohibited from: …’ and subsequently lists several actions that are to be prohibited.

8 International Criminal Tribunal for the former Yugoslavia (ICTY), Prosecutor v. Dusko Tadic, Case No. IT-94-1-AR72, Decision on Jurisdiction (Appeals Chamber), 2 October 1995, paras. 96–126, esp. paras. 113, 119, and 126.

9 Jakob Kellenberger, ‘Ensuring respect for international humanitarian law in a changing environment and the role of the United Nations’, 60th Anniversary of the Geneva Conventions – Ministerial Working Session, 26 September 2009, emphasis added, available at: http://www.icrc.org/eng/resources/documents/statement/geneva-conventions-statement-260909.htm (last visited 12 March 2012).

10 For the purpose of this article, monitoring is defined as the systematic collection, analysis, and use of information to follow up on compliance with humanitarian norms; verification or fact-finding refers to the investigation of alleged violations or incidents that have taken place in a particular situation; reporting is defined as the processing of information in oral or written reports. These definitions derive from Program on Humanitarian Policy and Conflict Research (HPCR), Monitoring, Reporting and Fact-finding Mechanisms: A Mapping and Assessment of Contemporary Efforts, HPCR, Harvard University, November 2010 and Amnesty International and Council for the Development of Social Science Research in Africa, Monitoring and Investigating Human Rights Violations in Africa: A Handbook, Russell Press, Basford, Notts, 2000.

11 See below, pp. 684–689.

12 In 2010, according to the Stockholm International Peace Research Institute (SIPRI), all major armed conflicts waged worldwide were intrastate. Over the decade 2001–2010, only two of the twenty-nine major armed conflicts recorded by SIPRI were interstate. See SIPRI, SIPRI Yearbook 2011: Armaments, Disarmament and International Security, Oxford University Press, Oxford, 2011.

13 See below, pp. 679–680 on the Enquiry Procedure and the International Humanitarian Fact-Finding Commission.

14 For example the Geneva Call Deed of Commitment: see below, pp. 685–687.

15 This is generally the case for humanitarian agreements: see below, p. 680.

16 International mechanisms refer to mechanisms that formally involve states or regional or international organizations.

17 See Vité, Sylvain, Les procédures internationales d’établissement des faits dans la mise en œuvre du droit international humanitaire, Bruylant, Brussels, 1999; ICRC, Improving Compliance with International Humanitarian Law: ICRC Expert Seminars, ICRC, Geneva, 2003; David, Eric, Principes de droit des conflits armés, Bruylant, Brussels, 2008; Boutruche, Théo, ‘Credible fact-finding and allegations of international humanitarian law violations: challenges in theory and practice’, in Journal of Conflict and Security Law, Vol. 16, No. 1, January 2011, pp. 105140; Pfanner, Toni, ‘Various mechanisms and approaches for implementing international humanitarian law and protecting and assisting war victims’, in International Review of the Red Cross, Vol. 91, No. 874, June 2009, pp. 279328; Patricia Watts, ‘Monitoring human rights treaties’, in Verification Yearbook 2004, Verification Research, Training and Information Centre (VERTIC), London, 2004, pp. 213–232; ICRC & Swiss Federal Department of Foreign Affairs, 60 Years of the Geneva Conventions and the Decades Ahead (Geneva, 9–10 November 2009), Merkur Druck, Bern, 2010.

18 Weapons treaties are considered distinct from IHL treaties for convenience of analysis. Those considered are: Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction (Biological Weapons Convention, BWC); Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (Chemical Weapons Convention, CWC); Convention on the Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (Convention on Certain Conventional Weapons, CCW); Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (Ottawa Convention), and the Convention on Cluster Munitions (Oslo Convention). This article does not consider nuclear weapons treaties.

19 States parties must submit a report every four years under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT), the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the International Covenant on Civil and Political Rights (ICCPR), and the Convention on the Rights of the Child (CRC).

20 In 1986, the second Review Conference of the BWC introduced confidence-building measures, see http://www.unog.ch/bwc/cbms (last visited 12 March 2012). Art. 7 of the Ottawa Convention is an example of transparency reporting in a weapons treaty, while Art. 13(4) of CCW Protocol II provides for transparent annual reports by High Contracting Parties.

21 Implementation bodies do exist for the BWC and CWC, but these do not function in the same way as human rights treaty bodies. No similar body exists with respect to the Ottawa and Oslo Conventions. See below, pp. 690–693.

22 See below, pp. 693–696, for the Ottawa Convention.

23 See CAT, Art. 22(1), and Art. 31(1) of the International Convention for the Protection of All Persons from Enforced Disappearance (CED). Sometimes, Optional Protocols act as opt-in mechanisms: see Art. 1 of the Optional Protocol to the International Covenant on Civil and Political Rights (ICCPR OP) and Arts. 1 and 2 of the Optional Protocol to the Convention on the Elimination of Discrimination against Women (CEDAW OP).

24 Where provision is made in a treaty for a more investigative inquiry or fact-finding mechanism, states can generally opt out. See CEDAW OP, Art. 8; CAT, Art. 20; and Art. 6 of the Optional Protocol to the Convention on the Rights of Persons with Disabilities (CRPD OP), which all allow for inquiry mechanisms, while CEDAW OP, Art. 10; CAT, Art. 28; and CRPD OP, Art. 8 allow states to opt out of the respective mechanisms.

25 For example, CEDAW OP, Art. 8(2); CAT, Art. 20(3); CRPD, OP Art. 6(2).

26 CAT OP, Arts. 2 and 4. Note that, as of February 2012, there are 150 states parties to the CAT (with 10 states taking advantage of Art. 28 to opt out of the mandatory fact-finding provision envisioned under Art. 20), while there are only 62 states parties to the CAT OP, which establishes a much more stringent mechanism. This is perhaps indicative of states’ reluctance to commit to stronger MRV mechanisms.

27 See Part III of the Verification Annex to the CWC.

28 The ‘Protecting Powers’ system was one of the main mechanisms for monitoring compliance with IHL in international armed conflicts prior to World War II. Although the mechanism was incorporated in the four Geneva Conventions, ‘the “Protecting Powers” system has been infrequently relied upon: the Suez Affair (1956), Goa (1961), the Franco-Tunisian conflict in Bizerte (1961), the Indo-Pakistani war (1971) and to some extent the Falklands/Malvinas war between Argentina and the UK. The limited list of cases reveals that states are generally reluctant to appoint protecting powers in international armed conflicts.’ (ICRC & Swiss Federal Department of Foreign Affairs, above note 17, p. 38).

29 See Arts. 10/10/10/11 of the 1949 Geneva Conventions and Art. 5 of Additional Protocol I.

30 See below, p. 681. NGOs are in many cases allowed to submit information to treaty bodies.

31 Most human rights mechanisms that allow consideration of individual complaints require exhaustion of local remedies. See, for example, CAT, Art. 22(4)(b); CED, Art. 31(2)(d); CEDAW OP, Art. 4(1); International Convention on the Elimination of All Forms of Racial Discrimination, Art. 14(7)(a); CRPD OP, Art. 2(d); and ICCPR OP, Art. 2.

32 E.g. CAT, Art. 20(1); CEDAW OP, Art. 8(1); and CRPD OP, Art. 6(1).

33 E.g. Ottawa Convention, Art. 8 and Oslo Convention, Art. 8.

34 Art. 45(a) of the CRC allows for formal submission of such reports. Other treaty bodies may informally receive reports from NGOs. See Office of the High Commissioner for Human Rights (OHCHR), Working with the United Nations Human Rights Programme: A Handbook for Civil Society, OHCHR, New York and Geneva, 2008, pp. 33, 40, 49, and 50.

35 CAT OP, Art. 16(4).

36 There are other sources of international MRV mechanisms such as special procedures, but they remain outside the scope of this analysis.

37 Articles 52/53/132/149 of the Geneva Conventions. One could argue that it is applicable because the scope of coverage is ‘concerning any alleged violation of the Convention’ and the term ‘Party to the conflict’ – the same as in Common Article 3 – is used.

38 E. David, above note 17, p. 670.

39 These mechanisms have never been used in international armed conflict, so one may question whether they would ever be invoked in conflicts involving ANSAs. There is, however, an indication that the IHFFC was about to be used in Colombia before a change in government. See Kalshoven, Frits, ‘The International Humanitarian Fact-Finding Commission: a sleeping beauty?’, in Humanitäres Völkerrecht, Vol. 15, Issue 4, 2002, p. 215.

40 Para. 3 of Common Article 3 to the Geneva Conventions reads as follows: ‘The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention’.

41 These agreements are drawn from the compilation made by Olivier Bangerter, ‘Collection of agreements on IHL: armed groups and governments or third parties’, unpublished document, April 2011 (on file with the authors). They are: Agreement signed on 22 May 1992 by representatives of the Presidency of the Republic of Bosnia-Herzegovina, the Serbian Democratic Party, the Party of Democratic Action and the Croatian Democratic Community (the Bosnia-Herzegovina Agreement); Mozambique National Resistance–RENAMO Joint Declaration with the Government of Mozambique on the Guiding Principles of Humanitarian Assistance, 16 July 1992 (the Mozambique–RENAMO Agreement); Comprehensive Agreement on Respect for Human Rights and International Humanitarian Law between the Government of the Republic of the Philippines and the National Democratic Front of the Philippines, 16 March 1998 (the CARHRIHL Agreement); Agreement on the Civilian Protection Component of the International Monitoring Team (IMT) between the Government of the Republic of the Philippines and the Moro Islamic Liberation Front, 27 October 2009 (the Philippines–MILF Agreement); San Jose Agreement on Human Rights between the Government of El Salvador and the Frente Farabundo Marti para La Liberacion Nacional, 26 July 1990 (the San Jose Agreement); Agreement between the Government of the Republic of Sudan and the Sudan People's Liberation Movement to Protect Non-Combatant Civilians and Civilian Facilities from Military Attack, 10 March 2002 (the Sudan–SPLM Agreement). All these documents are in the public domain.

42 Memorandum of Understanding between the Justice and Equality Movement (JEM) and the United Nations regarding the Protection of Children in Darfur, 21 July 2010 (the JEM–UN Agreement), available online at: http://reliefweb.int/sites/reliefweb.int/files/resources/3864EE07BF38473C852577670066EA08-Full_Report.pdf (last visited 12 March 2012).

43 UN Security Council Resolution 1612, UN Doc. S/Res/1612, 26 July 2005, para. 3.

44 UN Security Council Resolution 1960, UN Doc. S/Res/1960, 16 Dec 2010, paras. 3 and 4. As this process is still being developed, it will not be addressed in this article.

45 ‘Opinions on the value of the system range from the view that it is an empty diplomatic ritual that should be disbanded, at one extreme, to the opposite view that, while the system is not flawless, it is a valuable tool in ensuring implementation’. P. Watts, above note 17, p. 221. On the virtues of self-reporting, see also below, pp. 690–692.

46 Bosnia-Herzegovina Agreement, Art. 5.2; CARHRIHL Agreement, Part V; JEM–UN Agreement, Art 1.2.

47 JEM–UN Agreement, Art. 1.2.

48 Arts. 52/53/132/149 of the Geneva Conventions.

49 San Jose Agreement, Art. X.

50 Mozambique–RENAMO Agreement, Art. V.

51 Philippines–MILF Agreement, Art. 2.

52 Sudan–SPLM Agreement Art. 2(2)(e). The parties must agree to the selection, but agreement must not be unreasonably withheld.

53 Office of the Special Representative of the Secretary General for Children and Armed Conflict, UN Children's Fund (UNICEF) and UN Department of Peacekeeping Operations (DPKO), MRM Field Manual: Monitoring and Reporting Mechanism (MRM) on Grave Violations Against Children in Situations of Armed Conflict, Section F.3.1 (‘Basics of verification for MRM’), August 2010, p. 22.

54 Art. 2 of the Philippines–MILF Agreement states, ‘the Parties shall designate humanitarian organizations and nongovernmental organizations, both international and national, with proven track record for impartiality, neutrality and independence, to carry out the civilian protection functions’.

55 JEM–UN Agreement, Art. 1.3.

56 T. Pfanner, above note 17, p. 307.

57 Ibid., p. 285, ‘An enquiry procedure is provided for under the Geneva Conventions, but to date has never been used since its inception in 1929. Its dependence on the belligerents’ consent is doubtless one of the reasons why this mechanism has not been put to the test.’

58 Additional Protocol I to the Geneva Conventions, Art. 90(2)(a) and (d). See also Sandoz, Yves, Swinarski, Christophe, and Zimmermann, Bruno (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, ICRC/ Martinus Nijhoff, Geneva/Dordrecht, 1987, para. 3626.

59 Philippines–MILF Agreement, Art. 2; JEM–UN Agreement, Arts. 1.2 and 1.3.

60 Bosnia-Herzegovina Agreement, Art 5.2.

61 Sudan–SPLM Agreement, Art. 2.

62 CARHRIHL Agreement, Art. 3.

63 San Jose Agreement, Art. XIX.

64 UN Security Council Resolution 1564, UN Doc. S/Res/1564, 18 September 2004, para. 12.

65 Human Rights Council Resolution S-9/1, 12 January 2009, para. 14.

66 MRM Field Manual, above note 53, p. 5.

67 UN Security Council Resolution 1379, UN Doc. S/Res/1379, 20 November 2001, para. 16.

68 UN Security Council Resolution 1882, UN Doc. S/Res/1882, 4 August 2009, para. 3.

69 ‘As part of the de-listing process, a party to the conflict, whether a State or non-State actor, is required to enter into dialogue with the United Nations to prepare and implement a concrete, time-bound action plan to cease and prevent grave violations committed against children for which the party has been listed in the Secretary-General's report on children and armed conflict, in accordance with Security Council resolutions 1539 (2004), 1612 (2005) and 1882 (2009)’. Report of the UN Secretary-General to the Security Council, Children and Armed Conflict, UN Doc. A/64/742-S/2010/181, 13 April 2010, p. 179.

70 UN Security Council Resolution 1612, para. 2d. See also ‘Letter dated 4 April 2007 from the Permanent Representatives of Myanmar, Nepal, the Philippines, Sri Lanka, the Sudan and Uganda to the United Nations addressed to the Secretary-General’, UN Doc. A/61/845-S/2007/189.

71 UN Security Council Resolution 1564, para. 14.

72 Sudan–SPLM Agreement, Art. 4(b).

73 CARHRIL Agreement, Philippines–MILF Agreement, and Bosnia-Herzegovina Agreement.

74 See MRM Field Manual, above note 53, p. 32. Note that MRM also contributes to other monitoring mechanisms such as the Universal Peer Review.

75 Mozambique–RENAMO Agreement, Art. VII.

76 San Jose Agreement, Art. XIV(k).

77 See Sandesh Sivakumaran, ‘The ownership of international humanitarian law: non-state armed groups and the formation and enforcement of the rules’, in Benjamin Perrin (ed.), Modern Warfare: Armed Groups, Private Militaries, Humanitarian Organizations, and the Law, University of British Columbia Press, Vancouver, 2012 (forthcoming).

78 For details, see Nicolas Florquin, Pascal Bongard, and Emilia Richard, ‘Options for engagement: armed groups and humanitarian norms’, in Small Arms Survey, Small Arms Survey 2010: Gangs, Groups, and Guns, Cambridge University Press, Cambridge, 2010, pp. 308–310.

79 As far back as 1871, Henry Dunant, one of the founders of the ICRC, engaged with leaders of the Paris Commune to negotiate the release of hostages taken by the insurgents. See Olivier Bangerter, ‘The ICRC and non-state armed groups’, in Geneva Call, Program for the Study of International Organization (PSIO), and UN Institute for Disarmament Research (UNIDIR), Exploring Criteria and Conditions for Engaging Armed Non-state Actors to Respect Humanitarian Law and Human Rights Law, Geneva Call, Geneva, 2008, p. 75.

80 The issue of ANSA compliance with humanitarian norms has also been the subject of many studies and seminars over the last decade. See, inter alia, Bruderlein, Claude, The Role of Non-state Actors in Building Human Security: The Case of Armed Groups in Intra-state Wars, Centre for Humanitarian Dialogue, Geneva, 2000; Petrasek, David (ed.), Ends and Means: Human Rights Approaches to Armed Groups, International Council on Human Rights Policy, Geneva, 2000; Zegveld, Liesbeth, Accountability of Armed Opposition Groups in International Law, Cambridge University Press, Cambridge, 2002; ICRC and College of Europe, Relevance of International Humanitarian Law to Non-state Actors, Collegium No. 27, Bruges, 2003 and Improving Compliance with International Humanitarian Law, Collegium No. 30, Bruges, 2004; McHugh, Gerard and Bessler, Manual, Humanitarian Negotiations with Armed Groups: A Manual for Practitioners, UN, New York, 2006; ICRC, Improving Respect for International Humanitarian Law in Non-international Armed Conflicts, ICRC, Geneva, 2007; Coalition to Stop the Use of Child Soldiers, International Forum on Armed Groups and the Involvement of Children in Armed Conflict, London, 2007; International Institute of Humanitarian Law, Non-state Actors and International Humanitarian Law: Organized Armed Groups: A Challenge for the 21st Century, FrancoAngeli, Milano, 2010; Forced Migration Review, Armed Non-state Actors and Migration, No. 37, Refugee Studies Centre, Oxford, March 2011; and Geneva Academy of International Humanitarian Law and Human Rights, Rules of Engagement: Protecting Civilians through Dialogue with Armed Non-state Actors, Geneva, 2011. See also A. Clapham, above note 6, and Geneva Call, PSIO, and UNIDIR, above note 79.

81 On the origins of Geneva Call, see ICBL, Landmine Monitor Report 1999: Toward a Mine-free World, Human Rights Watch, New York, 1999, pp. 940945; Swiss Campaign to Ban Landmines, Engaging Non-state Actors in a Landmine Ban: A Pioneering Conference, Quezon City, 2001, pp. 137138; Yeshua Moser-Puangsuwan, ‘Outside the treaty not the norm: non-state armed groups and the landmine ban’, in Jody Williams, Stephen D. Goose, and Mary Wareham (eds), Banning Landmines: Disarmament, Citizen Diplomacy, and Human Security, Rowman & Littlefield Publishers, Lanham, MD, 2008, pp. 166–169.

82 Landmine Monitor has identified ANSA use of AP mines in at least twenty-eight countries from 1999 to 2009. The armed groups that have made the most extensive use of AP mines and improvised explosive devices are probably the Revolutionary Armed Forces of Colombia (FARC) and the Liberation Tigers of Tamil Elam (LTTE) in Sri Lanka, followed by the Karen National Liberation Army (KNLA) in Myanmar/Burma. In comparison, Landmine Monitor identified twenty-one governments that have allegedly used AP mines during the same period. See ICBL, Landmine Monitor Report 2009: Toward a Mine-free World, Mine Action Canada, Ottawa, 2009, p. 10.

83 On ANSAs obligations towards the Ottawa Convention, see Kathleen Lawand, ‘Non-state actors and the mine ban: the Ottawa Convention framework’, in Italian Campaign Against Landmines, Beyond States: Engaging Non-state Armed Groups for a Truly Effective Mine Ban, Rome, 2005, pp. 17–22.

84 Ottawa Convention, Art. 9.

85 The development beyond the AP mine issue was foreseen from the outset in the statutes of Geneva Call (Art. 3).

86 For a discussion on the legal status of the Deed of Commitment, see A. Clapham, above note 6, pp. 291–299.

87 The text of the two Deeds of Commitment is available on the Geneva Call website: http://www.genevacall.org (last visited 12 March 2012). A third Deed of Commitment, on the prohibition of sexual violence and gender discrimination, will be launched this year.

88 Geneva Call, Deed of Commitment Banning AP Mines, Art. 1. Under this article, all devices that effectively explode by the presence, proximity, or contact of a person are prohibited. This includes commercially manufactured AP mines, victim-activated improvised explosive devices, booby traps, and anti-vehicle mines that can be triggered by the weight of a person.

89 Ibid., Arts. 1 and 2.

90 Ibid., Art. 2.

91 Ibid., Art. 4.

92 Ibid., Art. 3.

93 Ibid., Art. 5.

94 Ibid., Art. 6.

95 Ibid., Art. 7.

96 See the full list of signatories on Geneva Call's website: http://www.genevacall.org/resources/list-of-signatories/list-of-signatories.htm (last visited 12 March 2012). Note that nineteen of the forty-one signatories are no longer active. Some of them have become part of state's authorities while the others have either dissolved or abandoned armed struggle.

97 See below, pp. 699–701.

98 For details on signatories’ implementation of the Deed of Commitment Banning AP Mines, see Call, Geneva, Engaging Armed Non-state Actors in a Landmine Ban: The Geneva Call Progress Report (2000–2007), Geneva Call, Geneva, 2007, pp. 1419, and Call, Geneva, Non-state Actor Mine Action and Compliance to the Deed of Commitment banning Anti-Personnel Landmines (January 2008–June 2010), Geneva Call, Geneva, 2010.

99 See Geneva Call, Engaging Armed Non-state Actors, above note 98, pp. 7–8. According to ICBL, the use of AP mines by ANSAs was confirmed in four countries (Afghanistan, Colombia, Myanmar, and Pakistan) in 2010–2011. This is the lowest number of countries with recorded ANSA use ever reported by Landmine Monitor since 1999. See ICBL, Landmine Monitor 2011: Toward a Mine-free World, Mine Action Canada, Ottawa, 2011, p. 12.

100 See Pascal Bongard, ‘Engaging armed non-state actors on humanitarian norms: the experience of Geneva Call and the landmine ban’, in Geneva Call, PSIO, and UNIDIR, above note 79, pp. 116–119.

101 See for example the Declaration of the Fifth Meeting of the States Parties, 19 September 2003, APLC/MSP.5/2003/5, para. 12. See also the Review of the Operation and Status of the Convention: 1999–2004 APLC/CONF/2004/5, Part II, para. 9 and the Review of the Operation and Status of the Convention: 2005–2009, APLC/CONF/2009/9, para. 24.

102 Report of the Secretary-General on the protection of civilians in armed conflict, UN Doc. S/2009/277, 29 May 2009, para. 43 and UN Doc. S/2010/579, 11 November 2010, para. 53.

103 See European Parliament resolutions, Measures to Promote a Commitment by Non-state Actors to a Total Ban on Anti-Personnel Landmines, B5-0542/2001, 6 September 2001; Review of Ottawa Treaty on Anti-Personnel Mines, B5-0215/2004, 22 April 2004; A Mine-free World, B6-0414/2005, 7 July 2005; and 10th Anniversary of the 1997 Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, B6-0518/2007, 13 December 2007. The European Commission has also regularly expressed political support for Geneva Call's work during meetings of states parties to the Ottawa Convention.

104 African Union, Common African Position on Anti-Personnel Landmines, adopted at the 2nd Continental Conference of African Experts on Landmines, 17 September 2004, para. 9(xi), available at: http://www.nairobisummit.org/fileadmin/pdf/review_conference/regional_conference/addis/AU_Common_African_Position_17Sept04_FINAL_E.pdf (last visited 12 March 2012).

105 Note that the MRV provision in the two Deeds of Commitment is substantially the same. See Art. 9 of the Deed of Commitment for the Protection of Children from the Effects of Armed Conflict.

106 Geneva Call has convened two such meetings to date, in 2004 and 2009 in Geneva. These meetings are similar to the Meetings of States Parties and Review Conferences provided in Arts. 11 and 12 of the Ottawa Convention.

107 See Ottawa Convention, Art. 7. The first Meeting of States Parties, held in Mozambique in 1999, adopted standard forms for reporting under Art. 7. See Angela Woodward, ‘The United Nations’ role in implementing the compliance aspects of the Ottawa Convention’, in ICBL, Landmine Monitor Report 2000: Toward a Mine-free World, Human Rights Watch, New York, 2000, p. 1083.

108 Each state party must submit an initial report to the UN Secretary-General, the Convention's depositary, no later than 180 days after the Convention enters into force and then provide annual updates by 30 April each year.

109 All these documents are available on Geneva Call's website, http://www.genevacall.org, under the section ‘resources’. See in particular Geneva Call progress and annual reports.

110 Sensitive information, however, such as the location of stockpiles, will not be communicated.

111 This has been done through a database, which is accessible not just to states parties but also to the general public at: http://www.unog.ch/80256EE600585943/%28http://Pages%29/A5378B203CBE9B8CC12573E7006380FA?OpenDocument (last visited 12 March 2012).

112 The intersessional work programme was established at the First Meeting of the States Parties in 1999. At this meeting, the states parties recognized the importance of having intersessional Standing Committees of Experts on issues related to the operation of the Ottawa Convention. Subsequently, states parties established the intersessional work programme made up of thematic Standing Committees, which focus on key elements of treaty implementation (general status and operation of the Convention, stockpile destruction, mine clearance, and victim assistance).

113 Pursuant to a decision of states parties, the ISU was established in 2001 by the Geneva International Centre for Humanitarian Demining (GICHD) to support the operation and implementation of the Convention. See http://www.apminebanconvention.org/implementation-support-unit/overview (last visited 12 March 2012).

114 E-mail from Kerry Brinkert, ISU Director, 1 August 2011. For more details on the Ottawa Convention's implementation machinery, see Kerry Brinkert, ‘An emphasis on action: the Mine Ban Treaty's implementation mechanisms’, in J. Williams, S. D. Goose, and M. Wareham, above note 81, pp. 87–104.

115 See Geneva Call, Non-state Actor Mine Action, above note 98, p. 11.

116 Landmine and Cluster Munitions Monitor fact sheet, ‘Transparency Reporting (Article 7)’, November 2010, available at: http://www.the-monitor.org/index.php/content/view/full/24553 (last visited 12 March 2012). This does not include the recent accession of three additional states as, at the time of writing, the Convention has not yet entered into force for these countries.

117 For example, Geneva Call has experienced difficulties in obtaining precise information from some signatories on the total number of stockpiled mines in their possession. See Geneva Call, Engaging Armed Non-state Actors, above note 98, pp. 28–29.

118 Ibid., p. 26; Geneva Call, Non-state Actor Mine Action, above note 98, p. 6.

119 ICBL, above note 99, p. 3.

120 Stephen D. Goose, ‘Goodwill yields good results: cooperative compliance and the mine ban treaty’, in J. Williams, S. D. Goose, and M. Wareham, above note 81, pp. 108–109.

121 ICBL, Landmine Monitor Report 2002: Toward a Mine-free World, Human Rights Watch, New York, 2002, p. 502; ICBL, Landmine Monitor 2010: Toward a Mine-free World, Mine Action Canada, Ottawa, 2010, pp. 34; ICBL, above note 99, pp. 3–4.

122 Emphasis added.

123 See the report of the first Meeting of Signatories to the Deed of Commitment, Geneva Call, PSIO, and Armed Groups Project, An Inclusive Approach to Armed Non-state Actors and International Humanitarian Norms, Geneva Call, Geneva, 2005, pp. 2021.

124 The Landmine Monitor is an initiative of the ICBL created in 1998 to report on the universalization and implementation of the Ottawa Convention. In 2009, the Landmine Monitor changed its name to the Landmine and Cluster Munition Monitor to reflect its decision to report on the Oslo Convention in addition to the Ottawa Convention.

125 Geneva Call, Non-state Actor Mine Action, above note 98, p. 11, and Geneva Call newsletter No. 3, Vol. 6, November 2008, p. 3.

126 Media reports are frequently inaccurate regarding the circumstances of incidents involving the use of explosive devices (types of device used, mode of activation, etc.). These details are critical for determining whether the incidents constitute a possible violation of the Deed of Commitment Banning AP Mines. In some countries, Geneva Call has provided training to the local journalists to enhance the accuracy of their reporting.

127 Mary Wareham, ‘Evidence-based advocacy: civil society monitoring of the Mine Ban Treaty’, in J. Williams, S. D. Goose, and M. Wareham, above note 81, p. 60. See also http://www.the-monitor.org (last visited 12 March 2012).

128 Article 8 provides for the possibility of sending a fact-finding mission without the consent of the concerned state, but this must be agreed by a majority of states parties. See below, p. 694.

129 Deed of Commitment Banning AP Mines, Art. 3.

130 For a critical analysis of the Ottawa Convention MRV mechanisms, especially Article 8, see Trevor Findlay, ‘Verification of the Ottawa Convention: workable hybrid or fatal compromise?’, in Disarmament Forum, UNIDIR, Geneva, No. 4, September 1999, pp. 45–55; Angela Woodward, ‘Verifying the Ottawa Convention’, in Verification Yearbook 2001, VERTIC, London, 2001, pp. 99115. See also Thomas Hajnoczi, Thomas Desch, and Deborah Chatsis, ‘The Ban Treaty’, in Maxwell A. Cameron, Robert J. Lawson, and Brian W. Tomlin (eds), To Walk Without Fear: The Global Movement to Ban Landmines, Oxford University Press, Oxford, 1998, pp. 301–304; Atwood, David, Promoting Compliance: Observations on the Anti-Personnel Mine Ban Convention, Geneva Centre for Security Policy, Geneva, No. 17, 2000; Maslen, Stuart, Commentaries on Arms Control Treaties, Volume 1: The Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-personnel Mines and on their Destruction, Oxford University Press, Oxford, 2004, pp. 209242; S. D. Goose, above note 120, pp. 106–110.

131 Ottawa Convention, Art. 8(1).

132 S. Maslen, above note 130, p. 238; A. Woodward, above note 130, p. 102.

133 Deed of Commitment Banning AP Mines, Art.7, emphasis added.

134 Ottawa Convention, Art. 8(19). These procedures are not spelled out but, according to Trevor Findlay, they are a ‘commonly used euphemism for the imposition of some form of sanction such as suspension of treaty benefits or referral of the matter to the Security Council or the International Court of Justice’. See T. Findlay, above note 130, p. 46.

135 Geneva Call, Non-state Actor Mine Action, above note 98, p. 11.

136 Monitoring missions have not necessarily always included on-site inspections of signatories’ weapons stockpiles.

137 For Trevor Findlay, ‘with no continuous, routine monitoring or inspection system, any request for a fact-finding mission is bound to be seen as politically inflammatory, however reasonable the grounds for the request. The fact that the treaty portrays a fact-finding mission as a last resort in case of alleged non-compliance would further increase its political saliency and makes it less likely that one will ever be initiated’. See T. Findlay, above note 130, p. 47.

138 A. Woodward, above note 130, p. 103.

139 Geneva Call, Engaging Armed Non-state Actors, above note 98, pp. 28–29.

140 See below, pp. 699–701.

141 See ICBL, above note 82, pp. 10–15; ICBL, Landmine Monitor 2010, above note 121, pp. 3–4; ICBL, above note 99, pp. 3–4. See also S. D. Goose, above note 120, pp. 111–114.

142 Report of the Monitoring Group on Somalia pursuant to Security Council Resolution 1676, UN Doc. S/2006/913, 22 November 2006, paras. 68 and 75.

143 Letter from Hassan Dahir Mohamud, Vice-President of the Puntland State of Somalia, to Geneva Call, 10 January 2007.

144 ICBL, Landmine Monitor Report 2007: Toward a Mine-free World, Mine Action Canada, Ottawa, 2007, pp. 384385.

145 ICBL, Landmine Monitor Report 2008: Toward a Mine-free World, Mine Action Canada, Ottawa, 2008, p. 1005.

146 See Geneva Call, Landmines in Somalia: Report of the Geneva Call follow up mission to Puntland, Hiran and Bakol regions, 15–27 September 2004, Geneva Call, Geneva, 2005, pp. 9 and 13.

147 Ibid.

148 Geneva Call press release, ‘Somalia: Puntand authorities grant unprecedented access to their stockpiles, request international assistance for humanitarian mine action’, 30 September 2007, available at: http://www.genevacall.org/news/press-releases/f-press-releases/2001-2010/2007-30sep-gc.htm (last visited 12 March 2012).

149 Geneva Call/MAG/PMAC press release, ‘Somalia: Puntland authorities destroy anti-personnel mines’, 24 July 2008, available at: http://www.genevacall.org/news/press-releases/f-press-releases/2001-2010/2008-24jul-gc-mag.pdf (last visited 12 March 2012).

150 MAG, ‘Somalia: munitions stockpile clearance in Puntland’, 1 May 2009, available at: http://www.maginternational.org/MAG/en/news/somalia-munitions-stockpile-clearance-in-puntland/ (last visited 12 March 2012); MAG, ‘Somalia: largest haul of mines destroyed’, 17 February 2011, available at: http://www.maginternational.org/news/somalia-largest-haul-of-mines-destroyed/ (last visited 12 March 2012).

151 MAG, ‘Somalia: twelve tonnes of unsafe munitions cleared from army compound’, 9 December 2009, available at: http://www.maginternational.org/MAG/en/news/somalia-twelve-tonnes-of-unsafe-munitions-cleared-from-army-compound-/ (last visited 12 March 2012).

152 ICBL, above note 144, p. 385.

153 This section was written by Chris Rush, Senior Programme Officer with Geneva Call.

154 See Geneva Call, Seeking Rebel Accountability: Report of the Geneva Call Mission to the Moro Islamic Liberation Front in Central Mindanao, Philippines (3–8 April 2002), Geneva Call, Quezon City, 2002.

155 ICBL, Landmine Monitor Report 2004: Toward a Mine-free World, Human Rights Watch, New York, 2004, p. 673; ICBL, above note 145, p. 587.

156 ‘2 MILF mujahideen killed, 11 troops wounded in Basilan clash’, in Mindanao Examiner, 25 May 2008, available at: http://mindanaoexaminer.com/news.php?news_id=20080524235217 (last visited 12 March 2012).

157 See Geneva Call, Fact Finding During Armed Conflict: Report of the 2009 Verification Mission to the Philippines to Investigate Allegations of Landmine Use by the Moro Islamic Liberation Front, Geneva Call, Geneva, 2010, pp. 4748.

158 The approval letter is reproduced in ibid., p. 51.

159 The legal and fact-finding expert was Eric David, Professor of International Law at the Free University of Brussels and a member of the IHFFC.

160 A. Clapham, above note 6, p. 299. In the interest of transparency, it should be pointed out that Professor Clapham was a member of Geneva Call's Board from 2004 to 2010.

161 This does not preclude other forms of consequences. During Meetings of Signatories to the Deed of Commitment, some ANSA representatives recommended further measures to deal with proven cases of non-compliance, such as a public condemnation by signatories or exclusion from the Deed of Commitment. Other delegations suggested that the utility of sanctions varies widely and that they must be tailored to each specific situation in order to be effective. While recognizing the importance of exercising pressure on signatories that do not live up to their commitment, they stressed the need to help non-compliers address the challenges they face on the ground and that contribute to non-compliance. See Geneva Call, PSIO, and Armed Groups Project, above note 123, p. 22.

162 See Geneva Call, Engaging Armed Non-state Actors, above note 98, pp. 22 and 30.

163 The forthcoming study was previewed at a Human Rights Day Conference entitled The UN Human Rights Council: Commissions of Inquiry, held in Geneva in December 2011. See http://www.unige.ch/international/collOI/Events/UNOprogrammeDec11.pdf (last visited 12 March 2012).

164 T. Findlay, above note 130, pp. 51–54.

165 M. Wareham, above note 127, p. 55.

166 Under Art. 4 of the Ottawa Convention, states parties must complete the destruction of their AP mine stocks no later than four years after becoming party to the Convention.

167 Geneva Call press release, ‘Verification mission to investigate allegations of landmine use by the Moro Islamic Liberation Front in the Philippines conducted’, 30 November 2009, available online at: http://www.genevacall.org/news/press-releases/f-press-releases/2001-2010/2009-30nov-gc.htm (last visited 12 March 2012).

168 For a discussion of the monitoring role of NGOs, see Andreas Persbo, ‘The role of non-governmental organizations in the verification of international agreements’, in Disarmament Forum, UNIDIR, Geneva, No. 3, September 2010, pp. 65–73; Olivier Meier and Clare Tenner, ‘Non-governmental monitoring of international agreements’, in Verification Yearbook 2001, VERTIC, London, 2001, pp. 207–227.

169 Sassòli, Marco, ‘Taking armed groups seriously: ways to improve their compliance with international humanitarian law’, in International Humanitarian Legal Studies, No. 1, 2010, pp. 3642.

* The authors are grateful to Chris Rush for writing case study 2, and Yvette Issar and Elvina Pothelet for their helpful contributions to this article. Thanks also go to other colleagues at Geneva Call, as well as Kerry Brinkert, Toni Pfanner, and Sandesh Sivakumaran, for their valuable comments and suggestions on earlier drafts. The views expressed in this article, however, are the authors’ own, and do not necessarily reflect the position of Geneva Call.

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