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.[2] 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.[3] 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”[4] 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.[5] 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.[6] 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.
[1] 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. [2] Landmine Monitor:
Executive Summary 1999, p. 22. [3]
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. [4] Landmine Monitor Report
1999, p. 24. [5] 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.” [6] 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.