Booby-traps and “Apparently Harmless” Portable Objects

Recent hostilities in eastern Europe and the Middle East have generated significant interest in issues of law of armed conflict (LOAC) compliance. Notably, several incidents have led to close scrutiny of the LOAC rules on the use of booby-traps (see e.g., here, here, and here).

Legal analysis of these incidents inevitably turns to Amended Protocol II of the Convention on Certain Conventional Weapons, which prohibits or restricts the use of booby-traps in certain circumstances. This is because each of the States involved in the hostilities—Russia, Ukraine, and Israel—is a party to that treaty and bound by its provisions. A number of these incidents have provoked detailed discussion of Article 7(2), Amended Protocol II, which prohibits the “use of booby-traps or other devices in the form of apparently harmless portable objects which are specifically designed and constructed to contain explosive material.”

Commentary on Article 7(2) has until now largely focused on how to determine when a booby-trap has been “specifically designed and constructed” to contain explosive material. For the purposes of this post, it is sufficient to indicate agreement with those commentators who have interpreted this phrase as limiting the scope of the prohibition to prefabricated explosive booby-traps (see e.g., here and here; for a contrary view, see here). By contrast, the explosive booby-trapping of pre-existing objects falls outside the scope of the prohibition but is subject to other applicable rules of the LOAC (e.g. Amended Protocol II, art. 7(1)).

Writers have paid less attention to determining when a booby-trap has taken the form of an “apparently harmless” portable object (however, see here). Yet the interpretation of this phrase is equally important to understanding whether Article 7(2) prohibits the use of a booby-trap. The interpretation of this phrase is the focus of this post.

Origins and Original Meaning of the Phrase

The origins of the phrase “apparently harmless” can be traced back to Article 5(1) of an influential United Kingdom-led working paper from 1976. The article proposed a framework for the regulation of the use of landmines and other devices, such as booby-traps. Prepared for the Ad Hoc Committee on Conventional Weapons as part of the 1974-1977 Diplomatic Conference, which resulted in adoption of two additional protocols to the 1949 Geneva Conventions, the working paper was an update to a proposal that the United Kingdom had submitted to the Conference of Government Experts on the Use of Certain Conventional Weapons earlier that same year.

As the United Kingdom delegate explained when introducing the working paper to the Committee, the most important change from the original proposal was the decision to omit the expression “booby-trap” (para. 23). The expression had caused such “linguistic and semantic difficulties” in prior negotiations that the authors felt compelled to forgo its use altogether if their proposal was to attract general acceptance.

Because the term “booby-trap” could not be used, let alone defined, it was necessary that the working paper describe or otherwise account for the essential features of a booby-trap in every prohibition or restriction relating to the use of such a weapon. Among these features is the quintessential characteristic that a booby trap conceal its capacity to injure from its prospective victim. Any unsuspecting person that encounters a booby-trap will therefore regard it as “apparently harmless.”

It is in this context that commentators should understand the phrase “apparently harmless” when reading Article 5(1) of the 1976 working paper: “It is forbidden in any circumstances to use any apparently harmless portable object (other than an item of military equipment or supplies) which is specifically designed and constructed to contain explosive material and to detonate when it is disturbed or approached.”

The decision to expressly exclude military items from the scope of the proposed prohibition (“… other than an item of military equipment or supplies …”) was consistent with the overall objective of the working paper. As the UK delegate outlined, the aim of the working paper was to establish a balance between humanitarian ideals on the one hand and the realities of armed conflict on the other (para. 16). In keeping with this approach, and in response to feedback from other States, the authors of the working paper chose to focus the proposed prohibition on the use of explosive booby-traps deliberately made (“designed and constructed”) to imitate portable objects such as “fountain pens and cameras” (para. 18).

Unlike the use of certain other booby-traps, which might be considered legitimate ruses of war, booby-traps of that sort were regarded as perfidious (in the wide, if not necessarily legal sense of the term) and abhorrent; they were purpose-built to resemble civilian objects and could be expected to attract the civilian population. By contrast, booby-traps made in the form of military equipment or supplies did not give rise to the same objections.

Evolution and Current Meaning of the Phrase

Having made progress on the definitional challenges associated with the term “booby-trap,” the Ad Hoc Committee on Conventional Weapons eventually revised the working paper to include a broadly acceptable definition, albeit by adopting the moniker “explosive and non-explosive devices” (para. 19). A variation of that definition later came to feature in the definitions sections (art. 2) of the original 1980 and amended 1996 texts of Protocol II. The definition remains in force to this day: “‘Booby-trap’ means 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.”

This overarching definition addressed the requirement that a booby-trap’s capacity to injure be hidden from its prospective victim (“… functions unexpectedly when a person disturbs or approaches an apparently harmless object or performs an apparently safe act”). It also meant that there was no need for the drafters to describe this feature in every prohibition or restriction relating to the use of a booby-trap in the original or amended texts of Protocol II. Yet the phrase “apparently harmless” portable object persists in Article 6(1)(a) of the 1980 formulation and in Article 7(2) of the amended version adopted in 1996.

At first glance, this might simply be regarded as an overlooked redundancy. However, the better interpretation is that the phrase came to assume a new meaning in its treaty context, albeit one that government experts had contemplated among themselves as far back as the mid-1970s (see e.g., here and here). It had instead become a proxy term for referring to certain booby-traps that States had repudiated as perfidiously deceptive and abhorrent, namely, portable booby-traps deliberately manufactured to resemble civilian objects, especially those likely to be attractive to or in daily use among the civilian population. The prospect that explosive booby-traps of that type could be produced and distributed en masse posed an unacceptable risk to civilians, who were apt to regard them as free from the dangers associated with military operations and therefore “apparently harmless.”

Several factors support this assessment. Unlike the predecessor provision from the UK working paper, neither Article 6(1)(a) of Protocol II nor Article 7(2) of Amended Protocol II includes an express carveout for the use of booby-traps in the form of portable military equipment or supplies. Yet the absence of an express carveout does not appear to represent an expansion in the scope of the prohibition to include military items. Rather, the overall circumstances indicate that the focus of the provisions remains balanced and confined to prohibiting the use of certain booby-traps denounced as perfidiously deceptive and abhorrent.

Consider the Report of the Working Group on Landmines and Booby-Traps, prepared for the UN Conference on Certain Conventional Weapons in 1979. The working group described Article 6(1)(a) of Protocol II (now Article 7(2) of Amended Protocol II) as dealing with “specifically treacherous or perfidious booby-traps.” The treaty text also made a direct connection between Article 6(1)(a) and perfidy.

Without prejudice to the rules of international law applicable in armed conflict relating to treachery and perfidy, it is prohibited in all circumstances to use: (a) any booby-trap in the form of an apparently harmless portable object which is specifically designed and constructed to contain explosive material and to detonate when it is disturbed or approached … .

Also notable is the fact that while the phrase “apparently harmless” was carried forward verbatim from Article 6(1)(a) of Protocol II to Article 7(2) of Amended Protocol II, another element of the prohibition with origins dating back to the UK working paper was removed (i.e. the requirement that the booby-trap “detonate when it is disturbed or approached”). This latter element was seemingly inconsistent with the 1996 expansion of the scope of the prohibition to include “other devices” (which are defined to detonate manually, remotely or automatically after a lapse of time) and had in any event become redundant since the adoption of an overarching definition of the expression “booby-trap.” The retention of the phrase “apparently harmless” after this other element was removed supports the notion that the meaning of the phrase had evolved beyond a simple (and otherwise redundant) description of one of the basic features of a booby-trap.

Interpreting the phrase “apparently harmless” as a proxy term for booby-traps deliberately made to imitate civilian objects is also consistent with national military manuals. For instance, the Law of War Manual issued by the U.S. Department of Defense describes the Article 7(2) prohibition as relating to “booby-traps manufactured to resemble items, such as watches, personal audio players, cameras, toys, and the like.” Equivalent publications of the United Kingdom, New Zealand and Denmark provide similar descriptions or examples.

Whether a particular booby-trap constitutes an imitation of a civilian object for the purposes of applying this interpretation will depend on the relevant facts and circumstances. As one delegate to the 1974 Lucerne Conference of Government Experts emphasized difficult cases will invariably arise involving objects “not exclusively used by civilians” (para. 258). In such cases, the facts and circumstances will be key in determining whether a particular booby-trap was manufactured to imitate a civilian object (the use of which Article 7(2) would prohibit) or an item of military equipment or supplies (whose use would be permissible subject to other applicable rules of the LOAC, such as Article 3 of Amended Protocol II). The definitions of “civilian object” and “military objective” provided in Article 2 of Amended Protocol II will also play a significant role in informing such determinations.

Conclusion

As commentators continue to scrutinize the recent hostilities in eastern Europe and the Middle East for compliance with the LOAC, including in relation to the use of booby-traps, reflecting on the origins, evolution and current meaning of the phrase “apparently harmless” portable object can assist with determining when the use of a booby-trap is prohibited under Article 7(2), Amended Protocol II. The history of Article 7(2) reveals that the key question in determining whether a booby-trap has taken the form of an “apparently harmless” portable object is whether, based on the facts and circumstances, the booby-trap was specifically designed and constructed to resemble a civilian object or an item of military equipment or supplies. Using an explosive booby-trap of the former category is prohibited under Article 7(2), whereas the use of the latter is permissible subject to other applicable rules of the LOAC.

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Lieutenant-Colonel Gary Pattison is a legal officer in the Office of the Judge Advocate General, Canadian Armed Forces.

The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense. 

Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.

Photo credit: Ministry of Defense of Ukraine