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Dangerous Obligations

Norwegian soldiers participating in international operations have an independent responsibility to comply with Norwegian law and our international obligations. They often do this in close operational cooperation with forces that sometimes have a flexible relationship with international law or simply ignore it, writes Christian H. Ruge, senior adviser at Fafo


[Afghanistan] Norway has been an ardent advocate for the ban on landmines. According to Ny Tid number 5/2006, Norwegian engineering soldiers failed to clear parts of minefields around a US air base in Afghanistan in 2002, by order of US officers. The defense denies that it happened, and claims that their efforts there have nothing to do with the international mine ban. Norway is a driving force behind this ban. Does the Armed Forces take on Norwegian obligations?

The report raises two key questions about how to enforce the international ban on anti-personnel mines (AP mines). One is how the ban will be handled in situations where Norwegian personnel cooperate directly in military operations with the United States or other countries that have not joined the ban. This becomes especially relevant when Norwegian personnel are under foreign command. The second is whether there is a breach of the prohibition of leaving some mines behind rather than removing them. In addition, history illustrates well some of the international law dilemmas that Norway faces when our soldiers participate in international warfare.

Other people's mines.

All use, production, export and storage of ap-mines is prohibited by the 1997 Mining Convention. It was negotiated in Oslo in 1997 and entered into force on 1 March 1999. Norway ratified in July 1998. Now almost 150 countries have acceded to this ban. . Although states such as the United States, China and Russia have not joined, there is now a broad international consensus that the use of ap-mines is unacceptable.

The Convention prohibits the parties from using, producing, exporting or storing ap-mines, and Norway was quick to fulfill its obligations. But the Convention also has an article (1c) that requires the parties "never, under any circumstances, to assist, encourage or cause," others' violations of the Convention, that is, to help others use or make ap-mines. The countries that have joined the ban have yet to arrive at a clear joint explanation of how that article is to be understood.

A large majority of NATO and EU countries have joined this convention. The problem of dealing with the ban on assisting conventionally unlawful activities arises in the context of joint military operations with countries that have not joined the ban, such as the United States. Since these types of operations have been the rule rather than the exception in recent years, it is important to find out where the boundaries go. In connection with the Afghanistan operation, according to the Ministry of Defense, there was a written agreement with the United States that Norwegian forces could not under any circumstances be ordered to carry out activities contrary to Norwegian law or international agreements Norway has joined. But that agreement obviously did not say anything about how it should be interpreted in practice, for example in relation to the mining ban.

Cheap defense. In another context, the Ministry of Defense has clarified that their understanding of the assistance ban is that Norwegian forces will not in any way use or contribute to others' use of AP mines in joint operations. Furthermore, the Norwegian ban also applies to soldiers who operate outside Norway. Therefore, it is strange to read the Armed Forces' statement in Ny Tid that the questions asked about the Afghanistan effort "have nothing to do with the [Mine] Convention".

But what is it to "assist, encourage or cause" others' use of forbidden mines? There are situations and actions that span a wide range. The oil fund's investments in companies that produced ap-mines got a lot of attention a while ago. These and similar investments have now been terminated with reference to the Convention obligations.

Situations where Norwegian citizens do not themselves directly participate in prohibited activities, but indirectly contribute to or even benefit from others breaking the mining ban is more difficult. One conceivable situation may be, for example, that Norwegian personnel use installations protected by conventionally unlawful mines, such as airports, camps or hospitals. This does not only apply to Norwegian military. When the Mining Campaign received the Nobel Peace Prize in 1997, surgeon Mads Gilbert stated that it was wrong to ban a defensive weapon available to poor rebel groups, and that he had been protected by minefields several times.

Is it contrary to the convention that Norwegian mine cleaners leave some minefields for tactical reasons, even though they have not been able to place them out? The convention itself does not say anything about how mines should be cleared. All mine cleaners, whether military or humanitarian, first obtain an overview of the area to be cleared, then the tasks are prioritized in relation to needs and resources and thus some minefields lie longer than others. International standards define that an area that is cleared humanitarian must be up to 100 percent cleared. Such clearance takes longer than military clearance, which has more limited objectives and not the same security requirements. The Norwegian engineer soldiers were on a military mission and not subject to humanitarian requirements.

Other's use.

The question is whether Norwegian personnel have contributed to "assisting, encouraging or causing" others' use of prohibited mines. The answer lies in whether the old minefields around the US bases can be defined as the use of others, and whether the efforts of the Norwegian engineers have contributed to the use. The United States claims in other contexts that they have no military benefit from the old Soviet minefields at Bagram and elsewhere, and therefore have no obligation to secure them against civilians. The minefields are not theirs. But if the soldiers in the report speak true, the minefields around the airport are used to protect the American installations. If Norwegian engineers have worked with the minefields with the knowledge that they were included in the security of the American camp, this is at best within an unclear gray zone for what the Convention and Norwegian law allow. Rather than reject the question, the Defense should use this opportunity to clarify a key aspect of the mining convention.

The Mining Convention is part of international humanitarian law, which aims to regulate unnecessary suffering in war. Norwegian soldiers participating in international operations have an independent responsibility to comply with Norwegian law and our international obligations. They often do this in close operational cooperation with forces that sometimes have a flexible relationship with international law or simply ignore it. Then the Norwegian authorities must be clear and clear on what rules apply and where the limits for unacceptable activities go. At the same time, the Armed Forces must respect the soldiers' right to participate in the debate and express themselves critically, without affecting their future careers. The ambiguity about what actually happened when Norwegian soldiers were attacked in Afghanistan recently underscores this.

Christian H. Ruge, senior adviser at Fafo,

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