THE LANDMINE VICTIM ASSISTANCE RESPONSIBILITIES OF STATES PARTIES TO THE 1997 MINE BAN TREATY

Dr. Kenneth R. Rutherford¹⁸³

Co-Founder, Landmine Survivors Network

Assistant Professor, Political Science

Southwest Missouri State University



There are more than 300,000 landmine survivors worldwide, and that to rehabilitate these survivors, it will cost more than $3 billion over the next ten years.¹⁸⁴ In article 6 paragraph 3, the Mine Ban Treaty requires States Parties to support mine victim assistance in order to reintegrate landmine survivors into society.¹⁸⁵ This brief chapter examines state legal obligations to mine victim assistance and argues that all States Parties can undertake a range of victim assistance activities and initiatives. It concludes that State support of landmine victim assistance is a rapidly emerging international customary law.

With the entry into force of the Mine Ban Treaty in March 1999, the social and economic integration of landmine survivors became part of international treaty law. The Treaty is especially noteworthy because it is the first arms control and disarmament treaty that incorporates language to support victims of that weapon. In the treaty's preamble, State Parties express their wish "to do their utmost in providing assistance for the care and rehabilitation, including the social and economic rehabilitation of mine victims." To achieve this goal, the treaty's article six, paragraph three clearly obligates signatory states to support victim assistance. It commits state parties to victim assistance obligations by stating that "[e]ach State Party in a position to do so shall provide assistance for the care and rehabilitation, and social and economic reintegration, of mine victims and for mine awareness programs." Based on these provisions, the treaty "implies a responsibility of the international community to support victim assistance programs in mine-affected countries with limited resources"¹⁸⁶ This means that States Parties can ask or be asked for survivor assistance. Specifically, article 6, paragraph 7(e) grants states the right to request other States Parties to assist victims.

While "shall" in Article 6 paragraph 3 can perhaps be read as less "obliging" than the "undertakes to" language used elsewhere in the treaty for non-use, stockpile destruction, etc., the treaty language for assistance provision is less absolute. The qualifying treaty language about assistance differs from the time-qualifying language for de-mining.¹⁸⁷ Stockpile destruction and de-mining is to be progressively realized over time. Put otherwise, the demining and stockpile destruction obligation can be read as being written in a harder way than is victim assistance. However, this may be due to more readily quantifiable demining information available and the dearth of detailed victim assistance information at the time of the treaty signing. Moreover, putting time limits on victim assistance is difficult since the rehabilitative process last a lifetime and discrimination against the disabled continues even in the most advanced legalistic and economically developed states.

This chapter's claim is that all state parties, irrespective of poverty, wealth or level of economic development, can provide for mine victim assistance. Specifically, if States Parties understand the definition and spirit of victim assistance they would better understand that they are in a position to provide victim assistance. This issue is briefly discussed below:

While the treaty's article 6, paragraph 3 calls for State Parties to "provide assistance for the care and rehabilitation, and social and economic reintegration, of mine victims and for mine awareness programs" (italics mine). This assistance does not necessarily have to be delivered through programs. Victim assistance can take place through programs and policy. The definition of victim assistance is comprehensive and is not restricted to the provision of medical treatment for initial traumatic injuries sustained from landmine explosions and the provision of prosthetics. Victim assistance also includes the provision of ongoing treatment to aid in the physical therapy, mental and emotional rehabilitation of survivors and their families. Landmine survivors themselves have defined victim assistance as "emergency and medical care; access to prosthetics, wheelchairs and other assisitive devices; social and economical reintegration; psychological and peer support; accident prevention programs; and legal and advisory services.¹⁸⁸ These activities can take the form of continued rehabilitative care, the provision of psychological and social counseling, vocational training, and broader public advocacy for disability rights and judicial reform aimed at removing barriers to persons with disabilities in an effort to achieve integration into society. For example, if a state does not have the financial resources to provide direct victim assistance, it can contribute through policy changes to help the survivors become more fully integrated into society's economic and social realms.

Described below are three specific policy examples of victim assistance, whose implementation did not require "programming."

Legislation and Public Awareness

State Parties can enact and enforce national legislation to promote effective treatment, care and protection for all disabled citizens, including landmine survivors. The legislation should ensure that disabled populations have legal protection against discrimination, and assurance of an acceptable level of care and access to services. Moreover, landmine survivors should be given access to a formal statutory complaint mechanism to address the concerns and protect their interests. Lastly, each State Party can accept responsibility for raising public awareness of the needs of its disabled citizenry and to counter the stigmintization of persons with disabilities. This type of policy implementation can include community education measures, such as a campaign to publicize the abilities of the disabled and the availability of rehabilitative and social services.

Physical and Rehabilitation Access

States Parties can also provide victim assistance by providing increased physical access to persons with disabilities. This can take the form of elimination of physical obstacles to mobility, ensuring access to buildings and public places, availability of first aid, emergency and continuing medical care, physical rehabilitation, employment opportunities, education and training, religious practice, sports and recreation, safe land and tenure of land, and information and communication about available services. States can also set affirmative action policies designed to encourage the education, recruitment, and hiring of landmine victims and persons with disabilities.

Establish a National Council on Disability Issues

States Parties can set up a National Council on Disability Issues, which would include landmine victims. Cambodia has done this (although before the advent of the Treaty) by creating the Cambodian Disability Action Council, a joint government, international organization, and NGO body that is mandated to oversee all aspects of programs and policies relating to persons with disabilities.

In sum, all states can provide victim assistance, particularly when assistance is explicitly defined to include social re-integration, a lot of which does not require much financial assistance but can be accomplished by legislation, policy, exhortation and/or example. Therefore, in reality and not just theoretically, each state can provide some form of assistance to mine victims.

This chapter's assertion is that all states, even the poorest, can assist landmine victims within their territory and jurisdiction, not only those states in a position so to do, as treaty law puts it. There is a range of activities that states, even those with low GNP, can undertake to support victim assistance. This chapter describes less well known ways states can assist survivors, such as policy changes to allow for increased physical access, better legislation and awareness for disability rights. It hopes to help convince decision-makers of the existence of state responsibility generally and demonstrate that any proposed actions flow naturally from the Mine Ban Treaty.

183 I especially thank Damien Donnelly-Cole, David Hawk and Becky Jordan of the Landmine Survivors Network for their helpful comments. I have also benefited from the comments on an earlier version of this chapter by Lou Maresca of the International Committee for the Red Cross.

184 Landmine Monitor: Executive Summary 1999, p. 22.

185 States Parties are those states that have either signed and ratified or acceded to the Treaty. States that have not signed the Treaty cannot ratify it. They become States Parties by acceding to it. Accession has the same effect as ratification and States that accede are full States Parties.

186 Landmine Monitor Report 1999, p. 24.

187 Article 4, Destruction of stockpiled anti-personnel mines will be destroyed "as soon as possible but not later than four years after the entry into force of this Convention for that State Party." Article 5, Destruction of anti-personnel mines in mined areas, stating "each State Party undertakes to destroy all anti-personnel mines in mined areas "as soon as possible but not later than ten years after the entry into force of this Convention for that State Party."

188 Jerry White and Ken Rutherford, "The Role of the Landmine Survivors Network,' in Maxwell A. Cameron, Robert J. Lawson, and Brian W. Tomlin, To Walk Without Fear: The Global Movement to Ban Antipersonnel Landmines (Toronto: Oxford University Press, 1998), pp. 103-104.