AT CARTAGENA, START THINKING: PROPOSAL FOR AMENDMENT OF THE 1997 OTTAWA TREATY, ARTICLE 1 ON GENERAL OBLIGATIONS, SO AS TO COVER NON-STATE ARMED GROUPS

Proposed Amendment (new paragraph for Art. 1):

 “3.  Armed groups that are distinct from the armed forces of a State shall not, under any circumstances, engage in any activity prohibited to a State Party under this Convention.” 

Reference Models 

2000 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, Article 4, No.1:  “Armed groups that are distinct from the armed forces of the State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.” 

2008 Convention on Cluster Munitions, twelfth prefatory clause:  “Resolved also that armed groups distinct from the armed forces of a State shall not, under any circumstances, be permitted to engage in any activity prohibited to a State Party to this Convention,”

[Note: this was based on a Philippine proposal, albeit for an operative provision rather than a mere prefatory clause.]

Explanation

1.  The 1997 Ottawa Treaty on a total ban anti-personnel mines, in its Art. 1 on General Obligations, speaks only of undertakings by States Parties.  Steve Goose, a leading light of the International Campaign to Ban Landmines (ICBL), had once cited as one of the main areas of concern in the Ottawa Treaty its “failure to include specific language regarding application to non-state actors [i.e. non-state armed groups].”[1]

2.  As the annual Landmine Monitor Reports (LMRs) have shown, “Non-state armed groups are using anti-personnel mines in more countries than government forces.  Engaging with these groups is essential to achieve true universalization of the mine ban norm.”[2]  And those include countries with internal armed conflicts like the Philippines and Colombia.  This is so even as the number of countries in which NSAGs have been using anti-personnel mines has decreased markedly over the past decade (from 13 countries in LMR 1999 to 7 countries in LMR 2009), paralleling a decline in use by states (from 15 countries in LMR 1999 to 2 in LMR 2009).  All in all, LMR has identified NSAG use of anti-personnel mines in at least 28 countries in all continents or global regions.[3]  

3.  Does the above proposed amendment confer belligerency status or the like to non-state armed groups?   Clearly, no.  The proposed amendment is modeled from international treaties which have not in any way conferred belligerency status (incidentally, an outmoded or obsolete concept in modern international law) or the like to non-state armed groups.  The following implications are established in international humanitarian law (IHL) as:

          - not affecting the legal status of the parties to a conflict or of a territory in question (1977 Additional Protocol I, Art. 4, No. 1; last para. of Common Article 3 of the 1949 Geneva Conventions I-IV; Optional Protocol on the Involvement of Children in Armed Conflict, Art. 4, No. 3)

- not affecting of the sovereignty of a State or the responsibility of the Government to maintain law and order or to defend the national unity and territorial integrity (1977 Additional Protocol II, Art. 3, No. 1)

            - no justification for intervening in the armed conflict or in the internal or external affairs of a State Party in the territory where that conflict occurs (1977 Additional Protocol II, Art. 3, No. 2)

Atty. Soliman M. Santos, Jr.

            PCBL Coordinator