Finland, Territorial Security, and Anti-personnel Mines
This post outlines select international weapons law obligations of Finland relating to anti-personnel mines against the backdrop of its evolving national security situation. It identifies an array of legal, operational, and technical issues that will bear on any change in the Finnish position regarding anti-personnel landmines.
The Legal Regime
Anti-personnel landmines are the subject of a significant number of treaty provisions. First, there is the Second Protocol to the Conventional Weapons Convention which is widely recognised as reflecting the collective doctrinal approaches of responsible States to the use of mines in general, booby traps and what are known as “other devices.” That treaty, adopted on 10 October 1980, did not refer specifically to anti-personnel landmines (APL), but its provisions relating to landmines in general also apply to APL. It will not be considered further in this post.
During the 1990s, increasing concern as to the civilian casualties caused by APL, often long after the cessation of the hostilities in which the APL were used, gave rise to international discussions about the possibility of banning such weapons. But States that were party to the Conventional Weapons Convention were unable to achieve a consensus in favour of a ban.
Those States were, however, able to agree to the adoption on 3 May 1996 of an Amended Mines Protocol II (Amended Protocol II). Covering the same categories of weapon as the 1980 Protocol, namely mines, booby-traps, and other devices, Amended Protocol II broke new ground by including specific provisions dealing with APL. As outlined below, those specific provisions comprised a set of technical and restrictive limitations on the lawful use of such weapons. Arguably the restrictions would go a long way towards dealing with the indiscriminate effects of such weapons that had aroused so much concern.
Nevertheless, numerous non-governmental organisations, States, and influential commentators favoured the adoption of a global ban on all APL. Technical provisions that were designed to maintain the military utility of such weapons while addressing the humanitarian concerns they posed were seen to be unacceptable. So, on 18 September 1997, a treaty to prohibit anti-personnel landmines was adopted following negotiations in Oslo, Norway. This mine-ban treaty, known as the Ottawa Convention, is an arms control treaty in the sense that a wide selection of activities associated with APL are prohibited. At the time of writing, 164 States are party to, and thus bound by, the treaty. The United States is not a party to this treaty.
It is perhaps worth considering the significance of the time when these texts were negotiated and agreed. The collapse of the Union of Soviet Socialist Republics on 25 December 1991 and with it the end of the Cold War had created a peaceable environment in which States felt sufficiently secure to achieve what came to be known as a “peace dividend.” While it will be for the reader to form his or her own view, the author would suggest that this context may have inspired States to adjust their assessment of where the balance should be struck between those key fundamental principles of the law of armed conflict, namely military necessity and humanity. The humanitarian concerns aroused by the dangers that APL can pose for civilians were regarded by the States that supported an APL ban as overriding the perceived military usefulness of weapons of that kind.
The Position of Finland
Finland became party to the Ottawa Convention on 9 January 2012 and made no statements of interpretation when doing so. It had previously consented to be bound by Amended Protocol II on 3 April 1998. The international law position for Finland with regard to APL is therefore clear: APL are banned. Specifically, Finland is not permitted to use APL, nor may it develop, produce, acquire, stockpile, retain or transfer APL. Moreover, Finland must not “assist, encourage or induce, in any way, anyone to engage in any activity prohibited” under the treaty” (Ottawa Convention, art. 1(1)). In addition, and distinct from the Ottawa Convention prohibition, Finland is bound by the prohibitions and restrictions imposed by Amended Protocol II.
Of course, the circumstances that gave rise to the peace dividend mentioned earlier have now changed. The Russian Federation under the leadership of President Vladimir Putin is perceived by a number of its neighbours as posing a threat. The two invasions of Ukraine, in 2014 and 2022, and the ongoing armed conflict between those two States, reinforce that perceived threat. It is therefore perhaps unsurprising that the neighbouring States are carefully considering the steps they need to take to ensure their ongoing security.
Reports suggest that Finland is considering whether APL will be required as part of its border security arrangements. The underlying concerns are understandable. Finland’s border with Russia measures 1,343 kilometres. Providing effective security over such vast distances is always going to be challenging, even with the employment of modern technologies such as remotely piloted aircraft, outer space-based observation technologies, and the like. This, therefore, is the context in which a group of lawmakers, foreign policy experts, and others have reportedly launched a citizens’ initiative urging that Finland opt out of the Ottawa Convention. The argument will, one assumes, be that APL are a necessary element in effective defence of Finnish territory against potential Russian incursions or aggression.
Finland’s Position under the Ottawa Convention
Article 1 of the Ottawa Convention makes clear that it would not be lawful for Finland to possess or use APL. Indeed, under Article 1(2) Finland is obliged to destroy any APL that it may already possess. Mines are classified as anti-personnel for the purposes of the treaty if they are “designed to be exploded by the presence, proximity or contact of a person and … will incapacitate, injure or kill one or more persons” (art. 2(1)).
A distinction should be made here with mines which are designed to be detonated by the presence, proximity, or contact of a vehicle as opposed to a person but that are equipped with anti-handling devices. These are not considered to be APL. It follows that the Ottawa Convention ban will only apply if the weapon that the Finns plan to use comes within the APL definition. If evolving technology were to enable the required protective capability to be provided using weapons that fall outside this APL definition, the Ottawa Convention prohibition would not prohibit their emplacement.
This aspect deserves a little more detailed discussion. Let us imagine that Finland develops a mine that is designed to be detonated by the presence, proximity, or contact of a vehicle, say a light scout vehicle. For the purposes of this hypothesis let us assume that the mine is fitted with an anti-handling device. This would have the effect that the mine would not be an APL, and thus would not be prohibited by the Ottawa Convention, provided that the anti-handling device complies with the Ottawa Convention’s definition.
The Ottawa Convention defines an anti-handling device as “a device intended to protect a mine and which is part of, linked to, attached to or placed under the mine and which activates when an attempt is made to tamper with or otherwise intentionally disturb the mine” (art. 2(3)). It will therefore be interesting to see whether an anti-vehicle mine (AVM) can be developed which achieves the military purpose that Finland has identified, and which is fitted with an AHD that comes within the Article 2(3) definition.
The manner in which the AHD is linked to the mine is not likely to present significant legal issues, so long as such a link exists. The likely problem area will be whether the activation of the AHD is indeed limited to circumstances in which an attempt is made to tamper with the mine or otherwise intentionally disturb the mine. Putting the point another way, if the military purpose identified by Finland requires that the AHD be activated by an interaction with the mine that is less intrusive than attempted tampering or intentional disturbance, then it is likely that achieving this military requirement using mines will require the use of weapons that fulfil the definition of APL. If, therefore, Finland were to proceed with that option, it would need to withdraw from the Ottawa Convention.
There is, however, another aspect to consider. To come within, and therefore to be prohibited by, the Ottawa Convention, the munition in question must first and foremost be a mine. This term is defined as “a munition designed to be placed under, on or near the ground or other surface area and to be exploded by the presence, proximity or contact of a person or vehicle” (art. 2(2)).
If, therefore, Finland were to design a weapon to be placed somewhere other than under on or near a surface area, the weapon or munition would not be a mine for the purposes of the Ottawa Convention and could not, therefore be an APL prohibited by that treaty. It would be a matter for interpretation how far above or away from surface level a weapon would need to be to fall outside the Convention on this basis. As a separate matter, if, again hypothetically and by way of example, Finland were to develop some variant of air-based persistent drone technology in which air-based sensors can detect human presence in a specified location and, having done so, can initiate an attack, such a system may well, depending on how it is constructed, lie outside the Ottawa prohibition.
Withdrawal from the Ottawa Convention
If, however, the weapon that Finland develops comes within the APL definition in the Ottawa Convention, deployment of such weapons would only be lawful following Finland’s withdrawal from the Convention. Article 20 sets forth withdrawal arrangements. States parties have the right to withdraw from the Convention. Notice of withdrawal giving reasons must be provided to the other States parties, to the depositary (the UN Secretary General) and to the UN Security Council (art. 20(2)). Withdrawal takes effect six months after the depositary receives the withdrawal notice but if at that time the withdrawing State is involved in an armed conflict, the withdrawal does not take effect before the end of that armed conflict (art. 2(3)).
Finland’s Obligations under Amended Protocol II
If Finland were to withdraw from the Ottawa Convention, it would still remain bound by its obligations under Amended Protocol II to the Conventional Weapons Convention. This treaty addresses mines, booby-traps, and other devices. The definition of mine is practically identical to that in the Ottawa Convention. Under Amended Protocol II, an anti-personnel mine is defined as “a mine primarily designed to be exploded by the presence, proximity or contact of a person and that will incapacitate, injure or kill one or more persons” (art. 2(3)). So, if the mine is primarily designed to be exploded by the presence, proximity, or contact of a vehicle but is also capable of being exploded by the presence, proximity, or contact of a person, by virtue of that primary design purpose the mine will not be an APL for the purposes of Amended Protocol II, irrespective of its status under the Ottawa Convention.
We should for completeness note the definitions of booby-traps and other devices. A booby-trap is defined as “any device or material which is designed, constructed or adapted to kill or injure, and which functions unexpectedly when a person disturbs or approaches an apparently harmless object or performs an apparently safe act” (art. 2(4)). It is assumed for the purposes of this analysis that Finland’s focus is not on the use of booby-traps. If that assumption is not correct, additional legal issues may arise.
Amended Protocol II defines “other devices” to mean “manually-emplaced munitions and devices including improvised explosive devices designed to kill, injure or damage and which are actuated manually, by remote control or automatically after a lapse of time” (art. 2(5)). The manual emplacement and listed methods of actuation also suggest that “other devices” as defined in Amended Protocol II are not going to be Finland’s preferred approach in the present circumstances.
Long-term Minefields under Amended Protocol II
The Finland-Russia border is so long that it seems likely that remote delivery of mines would be the preferred approach. Under Amended Protocol II, mines are considered to be remotely-delivered if they are “not directly emplaced but [are] delivered by artillery, missile, rocket, mortar, or similar means, or dropped from an aircraft” (art. 2(2)). If the mines were delivered from a land-based system from less than 500 metres, they would not be classed as remotely-delivered. This would have implications for the applicability of detailed rules relating to the technology associated with the mines. They would, however, have to comply with Article 5 and other relevant provisions of the Protocol. Factors that will determine the feasibility of land-based delivery within 500 metres will include the urgency associated with the deployment of the weapons, the surface accessibility of the territory concerned, the security status of that territory at the time of planned deployment, and other relevant matters.
It should be noted that Amended Protocol II contains a large number of detailed restrictions and prohibitions that must be carefully considered when mines, booby-traps, or other devices are being employed. General restrictions and prohibitions are, for example, set forth in Article 3. In the rest of this post, only certain pertinent provisions are discussed.
Importantly, Article 4 requires that all APL, as defined in the treaty, be detectable by commonly available mine-detection equipment (Technical Annex to Amended Protocol II, para. 2). The location of remotely delivered mines must be recorded in accordance with the requirements in paragraph 1(b) of the Technical Annex to the Protocol. In addition, all remotely delivered anti-personnel mines must comply with the self-destruction and self-deactivation requirements of the Technical Annex (art. 6(2)).
By contrast, the Article 6(3) requirement that remotely delivered mines other than anti-personnel mines have an effective self-destruction or self-neutralisation mechanism with a backup self-deactivation feature only applies to the extent feasible. It follows that if a minefield is being established using remotely delivering anti-vehicle mines with the specific purpose of establishing long-term security for a lengthy border in remote areas it is likely to be impractical for the mines to be equipped with an effective self-destruction or self-neutralisation mechanism with a backup self-deactivation feature. If it is not practicable or practically possible for the mines to be so equipped, the Article 6(3) requirement will not apply (consider art. 3(10)).
This leads to the conclusion that it would be lawful under Amended Protocol II for Finland in the relevant remote areas to deliver remotely anti-vehicle mines that do not have an effective self-destruction or self-neutralisation mechanism with a backup self-deactivation feature.
Effective “advance warning shall be given of any delivery or dropping of remotely-delivered mines which may affect the civilian population, unless circumstances do not permit” (art. 6(4)). In remote border areas of northern Finland, civilian populations may not be affected, or it may be impractical to deliver warnings. However, and given the proud humanitarian traditions of that country, Finland may be expected to do what it can to warn herders and others who may be affected. The specifications on self-destruction and self-deactivation are to be found in paragraph 3 of the Technical Annex.
The important purpose of these provisions in the Technical Annex relating to remotely delivered antipersonnel mines and non-remotely delivered antipersonnel mines used outside marked areas is that not more than one in 1,000 activated mines will function as a mine 120 days after emplacement (art. 5 and the associated part of the Technical Annex). This therefore suggests that permanent minefields employing anti-personnel mines would breach Amended Protocol II. However, permanent minefields employing remotely-delivered or non-remotely delivered mines to which Article 2(3) does not apply, i.e. anti-vehicle mines, will be lawful provided the provisions of Amended Protocol II are complied with.
This all rather suggests that if Finland is to achieve its long-term border security objectives by employing landmines while remaining party to Amended Protocol II, it will need to do so by acquiring and deploying mines that fall outside the Amended Protocol II definition of anti-personnel mines. Specifically, the requirement will be for mines that are primarily designed to be exploded by the presence, proximity or contact of a vehicle, irrespective of whether they are also capable of being detonated by the presence, proximity or contact of a person.
Concluding Thoughts
The foregoing discussion considered the position of Finland. It should, however, be noted that Estonia’s National Defence Committee will, according to reports, be considering the reintroduction of APL as part of its national defence arrangements. Estonia became party to the Ottawa Convention on 12 May 2004 and made no interpretive statements when doing so. Estonia became party to Amended Protocol II on 20 April 2000 and also made no statement of interpretation when doing so. The comments made earlier in this paper therefore apply equally to Estonia.
The treaty provisions discussed in this post are complex. In formulating national policy, careful consideration of the various provisions will be necessary. Moreover, if effective border security arrangements are to be achieved, it may well be appropriate for a collective interpretation of the law to be agreed involving certain other relevant States.
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Air Commodore William H. Boothby retired as Deputy Director of Royal Air Force Legal Services in July 2011. He is Honorary Professor at the Australian National University and also teaches at the University of Southern Denmark and at the Geneva Centre for Security Policy.
Photo credit: Soheil Sahranavard, Fars Media Corporation
