What Is Left After Leaving Ottawa?

With 165 member States (at the time of writing), the Ottawa Convention is arguably the most widely recognized international treaty on conventional weapons. It was long regarded as a triumph of civil society, with progress reported on an annual basis. Even the fact that military powerhouses like China, the Russian Federation and the United States, along with nations involved in protracted and/or frozen armed conflicts (Armenia, Azerbaijan, Georgia, India, Israel, Pakistan, the Republic of Korea, and Syria, to name a few), politely but persistently avoided joining the Convention could not change the general optimism.

Initially, the Russian aggression and full-scale invasion of Ukraine did not alter this perception. Russia enjoyed the military advantage of using anti-personnel mines (APMs), whereas Ukraine desperately sought alternatives, whilst, against its will, it was turned into the world’s largest minefield. Some Ukrainian and international commentators expressed doubts about the wisdom of uncritical adherence to the Ottawa Convention, but to little avail. Ukraine continued to comply with the Convention, even at the cost of lives and territories.

And then came a bolt from the blue, although a watchful observer could have spotted  presages of the coming storm. Five States hastily initiated withdrawal from the Convention while withdrawal discussions intensified in others. The reasons are obvious: the withdrawers are those at most risk of the next Russian aggression, and their decisions are not a short-lived situational response but a deliberate step meant to last until the regional security context changes. Most recently, the five nations announced plans to build “a new iron curtain” made of landmines – a self-confessed indication of the reasons of withdrawal. And regardless of whether one joins in the outcry or shares the belief that the Convention was made by “peacetime fools,” the reality is that the Ottawa space is diminishing. Is this a catastrophe, or are there alternatives? And ultimately, what is left after leaving Ottawa?

Before and After “Never” 

There is no need to reiterate that the Ottawa Convention is not the sole international treaty regulating issues related to APMs. A broad legal regime embodied in Protocols to the Geneva Conventions establishes principles applicable to all weapons. The 1980 Convention on Certain Conventional Weapons and its Protocols (CCW) solidified these principles by developing a set of application-oriented rules. The Protocols to the CCW prohibited some specific weapons (for details we strongly recommend this thorough account by Prokosch) and regulated the use of others. Despite calls for a complete ban of APMs, the CCW Protocol II on mines, booby-traps and other devices (Protocol II) was designed to be regulative, not prohibitive.

When States proved only partially successful in addressing landmines, civil society stepped in to lead the famous International Campaign to Ban Landmines. The resulting 1997 Ottawa Convention was, undoubtedly, an outstanding accomplishment, as it gave States the option to commit to a “never under any circumstances” weapons ban, which was previously reserved exclusively for weapons of mass destruction. A remarkable number of States opted for such a commitment, yet, in the absence of support from specially-affected States (presumably, those engaged in the use of landmines), the Ottawa Convention remained a choice, not a general rule.

The five States that recently withdrew from the Ottawa Convention are also parties to CCW Protocol II, and we do not know whether there have been discussions to withdraw from this as well. Currently, the States’ withdrawal from Ottawa will not permit their militaries to engage in uncontrolled use of APMs. It will simply reflect a retreat from prohibition to restriction.

Same Destination, Different Roads

In the absence of the Ottawa Convention, whether Protocol II alone is enough to protect civilians from the harmful effects of landmines remains an open question. Protocol II, which regulates rather than bans landmines, will be of little use in promoting the goal of a mine-free world. However, given the current security situation, even the most peace-loving nations may find this goal to be a bridge too far.

Criticism of withdrawal is understandable, as it reveals a deep and justified concern about the long-lasting effects of APMs on the civilian population. Yet it also clearly reveals that the prevention of civilian harm, rather than the elimination of mines for the sake of elimination, is the key priority. The “never under any circumstances” obligation is an instrument for the protection of civilians.

The preamble of the Ottawa Convention seems to support this. It opens with an expression of determination to:

put an end to the suffering and casualties caused by anti-personnel mines, that kill or maim hundreds of people every week, mostly innocent and defenceless civilians and especially children, obstruct economic development and reconstruction, inhibit the repatriation of refugees and internally displaced persons, and have other severe consequences for years after emplacement.

Aside from a brief mention of suffering caused by APMs, the bulk of this formula focuses on mitigating the impact of mines on civilians during wartime and on all persons in peacetime. It is about the elimination of the effects of APMs on individuals and communities.

Now let us compare this to the goals of the CCW, which are articulated in its preamble. The CCW’s preamble recalls “the general principle of the protection of the civilian population against the effect of hostilities.” Although less intricately formulated, the CCW promotes the same idea of civilian protection based on the principle of distinction. Indeed, Protocol II establishes rules: that prohibit the placement of mines on, or directed against, any object which is not a military objective; that prohibit the use of mines against the civilian population; and that provide for prompt demining “[w]ithout delay after the cessation of active hostilities.” Therefore, if diligently complied with, Protocol ІІ is indeed capable of replacing the Ottawa Convention in achieving its main goal of safeguarding civilians against the scourge of war. Of course, both treaties’ goal of protecting civilians can be achieved only if States implement them in good faith.

Ukrainian Lessons

An obvious counterargument is that even the most carefully managed use of APMs still creates higher risks for civilians than non-use. This argument is only partially justified. Other munitions also create hazards that may last for decades, and this is confirmed by the adoption of Protocol V to the CCW, which deals precisely with the dangers caused by explosive remnants of war other than mines. Consequently, non-use of APMs is not a guarantee of civilian safety. The situation in Ukraine, where Russian forces contaminated large areas with a variety of explosives such as mortar rounds, anti-tank and anti-personnel mines, unexploded ordnance, ammunition, missiles, and bombs, amply demonstrates this. With or without APMs, war zones remain deadly and require a cleanup effort.

Another possible counterargument is that withdrawal from the Ottawa Convention establishes a perilous precedent by narrowing the legal regulation of warfare. Yet again, this assertion is only partially accurate. The removal of Ottawa from the equation, while rendering the regulation less broad, does not eliminate the fundamental principles of humanity and distinction. The principles can be enforced effectively, even without more concrete obligations, as exemplified by Ukraine’s experience with cluster munitions (CMs), another weapon with respect to which some States undertook a “never under any circumstances” commitment.

Ukraine never shared that commitment and considered CMs an effective weapon when used appropriately. Nevertheless, in July 2023, the Ministry of Defence of Ukraine issued Order 398 on CMs which, although not publicly available, is described in Ukraine’s Voluntary Report on the implementation of international humanitarian law (IHL). The order requires CMs to be used “in full compliance” with IHL and describes other rules for their use. These rules are similar to those included in CCW Protocol II: prohibition of use against civilians, prohibition of use in populated areas, registration, and an obligation to demine. Prior to that order there were allegations of civilian casualties from the use of CMs by Ukraine.

Yet to our knowledge, there was not a single allegation of civilian casualties after the order, despite the Armed Forces of Ukraine’s extensive reliance on CMs to gain military advantage. Ukraine’s experience with CMs demonstrates that applying purposeful, weapon-specific rules, consistent with IHL, can make a big difference in civilian protection while retaining military advantage. We see no reason to believe that this approach would not also work to regulate APMs.

Concluding Thoughts

The abandonment of the Ottawa Convention by some States is not ideal, and it should have been avoided if possible. The vision of a mine-free world must remain on the table, yet it is unclear how to achieve that vision. Stronger arms control measures and a restoration of common respect for the rules-based international order might be part of the answer.

In the meantime, we can, at the very least, minimize losses. Burying our heads in the sand will not achieve anything, but a strategy for dealing with APMs would be helpful. It might be overly ambitious to offer a comprehensive strategy at the conclusion of this brief post, but we can propose some starting points for discussion.

– Mourning the Ottawa Convention is unhelpful. Criticism of States’ decisions will not stop the wave of withdrawals caused by new international realities, in which aggressors exploit victims’ international commitments to gain military advantage.

– Withdrawal from Ottawa does not mean lawlessness in the use of APMs. APMs continue to be weapons regulated by general IHL principles and the highly nuanced Protocol II.

– The ultimate goal of the Ottawa Convention to eliminate all APMs is not an end in itself. In the context of a full-scale international armed conflict, APMs are but one of many explosive hazards threatening civilians. This threat warrants a broad response from States, including warnings, notifications, recording of mine locations, and the clearance of mines at the cessation of active hostilities, as provided for in Protocol II.

– Faced with uncertainty, it is essential to observe the IHL principles, most importantly those of humanity and distinction. Implementation of these principles enables civilian protection even in the absence of a more specific international obligation.

– A combination of principles and experience from the ground may become a basis for rethinking the Ottawa Convention in the future. However, this is a conversation for another day.

***

Inna Zavorotko, PhD is a lieutenant colonel in the Armed Forces of Ukraine. She currently serves in the Legal Department of the Ministry of Defense.

CPT Oleksii Plotnikov is an officer at the Legal Department of the Ministry of Defense of Ukraine. 

The views expressed are those of the authors, 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: 24th Mechanized Brigade of the Ukrainian military