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Presentation of Liability in
Mine Action
Presentation content:
A liability can mean something that is a hindrance or puts an individual or group at a disadvantage, or something that someone is responsible for, or something that increases the chance of something occurring (i.e. it is a cause).
Liability is legal responsibility for one’s conduct: a person who commits a legal wrong or breaks a contract or trust is said to be liable or responsible for it. Liability is civil or criminal according to whether it is enforced by the civil or criminal courts.
Liability in Mine Action
Liability in mine action has become increasingly important because of the formalization of land release methodology and procedures through technical and non-technical methods.
The possibility of one or more mines or explosive remnants of war (ERW) remaining after the handover of a cleared area is always a risk, because an explosive item may have been missed during clearance.
Suspected land may have been incorrectly released by survey when it was in fact contaminated and an injury may subsequently occur. The legal issue will then be:
“Who bears the legal responsibility for the damage and/or injury this object could - or does - cause?”
The IMAS cannot stipulate universally applicable conditions for liability; instead, they offer guidance based on experiences and available evidence.
Resolving liability questions can be especially complex when nontechnical survey and technical survey procedures are applied to release land. In the absence of physical verification of all released land, there is always a risk that explosive hazards remain. It is also true that conducting full clearance will still not guarantee that an area is completely free of explosive hazards.
Eight conclusions regarding liability in Mine Action
The extent of civil liability for any negligence on the part of mine action operators should be clarified in national standards (and arguably also national legislation).
Legislation providing for the strict liability of the State in all cases, or in cases where the State has declared certain territories as mine-free, would avoid the generally complex assessment of negligence/reprehensible conduct. Therefore, overall this may be most cost-effective.
NMAAs should have well established standards for handing over of cleared land. Such standards should define at what exact point the responsibility of the operator is handed over to the authority.
Once a cleared area has been formally handed over to the relevant mine action centre or NMAA, there should be strict liability for the State regarding any mine/ERW accidents that occur on that land.
Despite the fact that only French legislation clearly provides for strict liability of the State, it appears possible under all legal systems to introduce systems of strict liability of the State, in regard to mine accidents on territories that have been expressly validated as mine free or “usable” by State agencies.
This would avoid the possibly complex assessment of negligence/reprehensible conduct and appears to be the most efficient approach.
Generally speaking, the liability of demining operators is based on negligence, though in some legal systems there is strict liability for carrying out dangerous activities. Both options are viable solutions.
NMAAs should have clear rules for compensation including procedures and levels of compensation following any accidents occurring in areas that have previously been cleared and subsequently accepted and handed over to the authority.
National standards should be detailed to the level of information that is to be collected and reviewed as a part of the handover of cleared land. Such standards should also include how and for how long such information should be stored.
End of presentation
Questions?
p.lodhammar@gichd.org
What is liability?
A guide to liability and Insurance in mine action
Two parts:
Part 1: Liability in Mine Action
Part 2: Insurance in Mine Action
Workshops and training courses as well as included in the mine action contracting training courses.
Liability and mechanical demining operations
CEN TESTED
ACCEPTANCE
TESTED
APPROVED SOPs
BASED ON NMAS
ACCREDITATION
INTERNAL
QA & QC
SUCCESSFULLY USED IN OTHER
MA PROGRAMMES
NO AUDIBLE OR VISUAL DETONATIONS
EXTERNAL
QA & QC
...in some countries...
100% manual follow-on operations...