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The Italian Law for the Ban of Anti-Personnel Landmines*

Published online by Cambridge University Press:  17 February 2009

Pietro Gargiulo
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Extract

The adoption by the Italian parliament of Law No. 374 on 29 October 1997, entitled Rules for the ban of anti-personnel land-mines, formalizes the transformation of Italy from one of the major producers of such mines to one of the leaders of national and international initiatives for the ban of antipersonnel landmines.

Type
Current Developments
Information
Yearbook of International Humanitarian Law , Volume 1 , December 1998 , pp. 323 - 332
Copyright
Copyright © T.M.C. Asser Instituut and the Authors 1998

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References

1. Hereafter, Law 374/1997. The Law is reproduced infra at p. 563. Law 374/1997 is the result of a legislative course that started with the introduction of four bills regarding a ban on anti-personnel mines at the Chamber of Deputies during the 13th Parliament. These bills were submitted for first consideration to the III Committee-Foreign and Community Affairs (hereafter III Committee), acting in a reporting capacity. The III Committee decided (17 December 1996) to establish an ad hoc Subcommittee, which was entrusted with the detailed analysis. The Committee held its last session on 8 May 1997, approving a consolidated draft bill accepted by the III Committee on 28 May 1997, in plenary meeting. On 31 July 1997, the III Committee, acting in a legislative capacity, unanimously approved the consolidated draft bill. The text was then transmitted to the Senate and assigned to the Defence Committee. On 24 September 1997, this Committee unanimously approved the consolidated draft bill, with only a few modifications. The text was then returned to the Chamber of Deputies, as modified by the Senate, and definitely adopted by a majority of votes, yet with a significant number of abstentions. The latter were mainly due to the weakening of the Law as a consequence of the changes introduced by the Senate (see infra, paragraphs 7 and 10). Cf. the texts of the various bills, the text of the consolidated draft bill approved by the Committee and the discussions at the Foreign Affairs Committee of the Chamber of Deputies and at the Defence Committee of the Senate, in Camera dei Deputati — Servizio Studi (Chamber of Deputies — Research Department), Messa al bando delle mine antipersona (Ban of Anti-Personnel mines), Dossier Provvedimento nn. 151/3 e 151/4, III Legislature (Dossier Provision 151/3 and 151/4, 13th Parliament) giugno 1997 e ottobre 1997 (June 1997 and October 1997).

2. A few countries have adopted specific rules for the ban of anti-personnel mines, including Belgium (Law 9 March 1995, regarding anti-personnel mines, booby traps or similar devices) and Austria (Federal Law on the ban of anti-personnel mines, 1 January 1997. See the text in the English translation in UNGA, 52nd Session, Doc. A/52/91, 17 March 1997). The Austrian Law is reproduced infra at p. 561. However, a significant number of countries have adopted global moratoria on the production, selling and exportation of mines. See Williams, J., ‘National Initiatives and Legislation to Limit and Restrict the Production, Use and Transfer of Land Mines’, 28/29 UNIDIR Newsletter, (12 1994/05 1995) pp. 11–12Google Scholar. See also the reports of the Secretary-General of the United Nations, Doc. A/49/275 and Add.1, A/50/701 and A/51/313.

3. Italy signed the 1980 Convention on 10 April 1981 and inserted a declaration expressing great regret for the absence in the text of the Convention ‘of an article on the establishment of a consultative committee of experts competent to verify facts which might be alleged and which might constitute violations of the undertakings subscribed to’. See United Nations, Status of Multilateral Arms Regulation and Disarmament Agreement, 4th edn., 1992, Vol. 1 (New York 1993) p. 263Google Scholar. Italy then ratified the 1980 Convention and the three annexed Protocols on 20 January 1995 (by Law No. 715, 14 December 1994). See Nations Unies, Traitésmultilateraux déposés auprés du Secrétaire Général. Etat au 31 décembre 1996 (New York 1997) pp. 929–936Google Scholar.

4. See UNGA, Fifty-first Session, 10th Plenary meeting, 26 September 1996, Doc. A/51/PV. 10.

5. Nearly all the bills introduced to the Chamber of Deputies comprised references to financial support for the industrial reconversion of the Italian mine-manufacturing companies. By the time of the consideration and drafting of the consolidated draft bill in the III Committee of the Chamber of Deputies, these provisions had become redundant. See the documents cited supra at n. 1.

6. The development of adequate international rules began with the revision of the 1980 Convention and its Protocol II and continued with the adoption in Oslo on 18 September 1997 of the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on Their Destruction (hereafter Oslo Convention). For a discussion of his process, see Goose, supra p. 269. For the text of the Oslo Convention see infra p. 539. The Review Conference of the States Parties to the 1980 Convention was held in Vienna from 25 September to 13 October 1995, and in Geneva, from 15 to 19 January 1996, and from 22 April to 3 May 1996. The Final Report, Documents and Summary Records of the Conference are reproduced in CCW/CONF. 1/ 16 (Part. I) and (Part II), Geneva, 1996. For a recent analysis of the international law on mines, see Lord, J.E., ‘Legal Restraints in the Use of Landmines: Humanitarian and Environmental Crisis’, 25 California Western International Law Journal (1995) pp. 311–355Google Scholar; Petrarca, A. H., ‘An Impetus of Human Wreckage?: The 1996 Amended Landmine Protocol’, 27 California Western International Law Journal (1996) pp. 205–239Google Scholar; Ferrer, M. A., ‘Affirming Our Common Humanity: Regulating Landmines to Protect Civilians and Children in the Developing World’, 20 Hastings International and Comparative Law Review (1996) pp. 135–182Google Scholar; Bettati, M., ‘L'interdiction ou la limitation d'emploi des mines (Le Protocole de Genève du 3 mai 1996)’, XLII AFDI (1996) pp. 187–205CrossRefGoogle Scholar; Bogomolov, V. A., ‘Some Legal Aspects of Landmine Prohibition or Limitation’, International Law Bulletin (Russia and CIS), (1/1997) pp. 26–27Google Scholar.

7. The coalition of more than 1,000 NGOs played a very important role that was also internationally recognized in 1997, when the Nobel Peace Prize was awarded to the International Campaign to Ban Landmines and formally to its coordinator, Jody Williams.

8. There is a long list of papers on this issue. Following are only some of the most important: Human Rights Watch Arms Project and Physicians for Human Rights, Landmines: A Deadly Legacy (Human Rights Watch and Physicians for Human Rights, USA, 1993)Google Scholar; U.S. Department of State, Hidden Killers: The Global Landmines Crisis (1994)Google Scholar; Handicap International, Mines antipersonnel, la guerre en temps de paix (Éd. Complexe, Paris 1996)Google Scholar.

9. See Gowdey, D., ‘The Land Mines Crisis: The Humanitarian Dimension’, 28/29 UNIDIR Newsletter (12 1994/05 1995) pp. 17–19Google Scholar.

10. See Goose, S., ‘The Economics of Land Mines’, 28/29 UNIDIR Newsletter (12 1994/05 1995) pp. 13–16Google Scholar.

11. The United Nations estimated that in 1993 the international community spent about $70 million to clear roughly 100,000 landmines. In 1994 the UN Secretary-General underlined that $60–100 million will be necessary to expand existing demining operations and start new ones in other countries. See UNGA, Assistance in mine clearance. Report of the Secretary-General, A/49/357, 6 09 1997Google Scholar.

12. See International Committee of the Red Cross, Anti-Personnel Landmines — friend or Foe? A Study of the Military Use and Effectiveness of Anti-Personnel Mines (International Committee of Red Cross, Geneva, 1996)Google Scholar. See also Biddle, S.D. and Klare, J., ‘Military Utility and the Control of Land Mines’, 28/29 UNIDIR Newsletter (12 1994/05 1995) pp. 22–24Google Scholar.

13. See infra section 6.

14. For the consolidated draft bill, see the documents cited supra at n. 1.

15. We believe that the interpretation given to this text is confirmed by Parliament's proceedings regarding Law 374/1997. See the Dossier Provvedimento (Dossier Provision) No. 151/3 cited supra at n. 1, pp. 24–55. A confirmation of the correct interpretation derives from the authoritative statement of Hon. Achille Occhetto, President of the III Committee of the Chamber of Deputies: ‘The scope of the definition is so extensive, as to include all sort of anti-handling and other mechanical devices – as well as those anti-tank mines that can be easily adjusted to explode under the weight of a child…’ [emphasis added] in the introduction of Law 374/1977 to the Conference of Ottawa (3–4 December 1997). See Rules for the Ban of Anti-Personnel Mines, Italian Law No. 374, 29 October 1997, with Foreword by Achille Occhetto, Chairman of the Foreign Affairs Committee, Italian Chamber of Deputies, document prepared by the Italian Society for International Organization (Rome, 1997) p. 3.

16. Art. 3 of the Oslo Convention states that the amount of anti-personnel mines for the development of and training in mine detection, mine clearance or mine destruction techniques, shall not exceed the minimum number absolutely necessary for those purposes. During negotiations, there were different opinions concerning the exact amount, but all well below 10,000 units: Germany proposed 3,000 mines, while Canada and Belgium proposed 1,500.

17. See Camera dei Deputati, XIII Legislature, III Commissione-Affari Esteri e Comunitari, Seduta del 22 ottobre 1997 [Chamber of Deputies, 13th Parliament, III Committee-Foreign and Community Affairs, sitting of 22 October 1997].

18. See infra section 9.

19. See the document cited supra at n. 17.

20. Art. 8 of Law 374/1997 integrates Art. 2(3) of Law No. 49, 26 February 1997, adding to the existing Cooperation activities ‘support in favour of anti-personnel mines victims through compensation, assistance and rehabilitation programmes’.

21. See supra section 6.

22. Sate Secrets are regulated by Law No. 801, 24 October 1977 and by No. 202 and 256 of the Code of Criminal Procedure; Military Secrets are regulated by the Royal Decree No. 1161, 11 July 1941.

23. See supra n. 1.