Practice Relating to the Prohibition of Certain Types of Landmines
Spain’s LOAC Manual (1996), referring to the use of mines, states:
Independent of the type of target, its location, the kind of military operation, the given mission or any other circumstances, it is prohibited to use this type of weapon … wherever its location is indiscriminate … wherever it cannot be guided towards a specific military target and wherever there is reason to believe that it will cause disproportionate collateral damage.
Spain’s LOAC Manual (2007) states that there is an absolute prohibition on the use of certain weapons, including “anti-personnel mines”.
The manual further states: “All ‘feasible precautions’ must be taken to protect civilians from the effects of mines … The Ottawa Treaty of 1997 establishes a total ban on anti-personnel mines.”
The manual also states:
Regardless of the type of target to be attacked, the place in which it is located, the type of military operation, the assigned mission or any other circumstance, the use of this type of weapon is prohibited … when their placement is indiscriminate … [or] which employs a method or means of delivery which cannot be directed at a specific military objective or which may be expected to cause excessive collateral damage.
Spain’s Penal Code (1995), as amended in 2010, states:
1. Any person who manufactures, commercializes or stockpiles weapons or munitions without authorization by law or competent authority shall be punished:
1. In the case of … anti-personnel mines … with five to ten years’ imprisonment for promoters and organizers, and three to five years’ imprisonment in the case of accessories.
2. The same penalties established in sub-section 1 of paragraph 1 shall apply to whoever develops or uses … anti-personnel mines … or makes preparations for their use.
The Code also states:
1. … Stockpiling of … anti-personnel mines … is understood as the manufacture, commercialization or possession of these weapons.
2. … [A]nti-personnel mines … are understood as defined by the international treaties and covenants to which Spain is a party.
The development of … anti-personnel mines … is understood as any activity comprising scientific or technical research or examination leading to the creation of a new … anti-personnel mine … or the modification of an existing one.
Spain’s Law on the Prohibition of Anti-Personnel Mines (1998) provides:
It is prohibited to use, to develop, to produce, to purchase in one way or another, to stockpile, to retain, to transfer or to export to anyone, directly or indirectly, landmines and weapons with similar effects specified in the Amended Protocol II to the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, and its technology and patents.
It is further prohibited to assist, encourage or induce, in one way or another, anyone to engage in any activity prohibited by this Act.
Spain did not endorse the Final Declaration of the Brussels Conference on Anti-personnel Landmines in June 1997 until the conference was already over. Before the adoption in 1997 of the Ottawa Convention on Anti-Personnel Mines, the only domestic legislation in place was a unilateral moratorium on the export of some types of landmines to certain countries. This first one-year moratorium was adopted in February 1994 (although it did not enter into force until July 1998), and again one year later (February 1995). Finally, in May 1996 the government proposed an indefinite moratorium.
Spain did not oppose the notion of a ban on landmines so much as it did the approach of the “Ottawa Process”. As the government pointed out, it adhered to the Joint Action of the European Union on 28 November 1997, and voted in favour of the UN General Assembly resolutions in support of a ban on anti-personnel landmines, as well as those of the European Parliament against the use or trade of landmines.