Ukraine Symposium – Russian Booby-Traps and the Ukraine Conflict

by | Apr 5, 2022

Booby Traps

As Russian troops pull back from the Kyiv area, they are leaving behind horrific evidence of international humanitarian law (IHL) violations and war crimes. Images from the suburb of Bucha, including the bodies of dead civilians with hands bound and mass civilian graves, are particularly shocking. U.S. Secretary of State Blinken labeled them a “punch to the gut,” while NATO’s Secretary-General characterized the situation as “horrific.” The UN Secretary-General has called for an independent investigation leading to “effective accountability,” and Ukraine has asked the International Criminal Court (ICC) to investigate. In a shameless example of disinformation, the Russian Foreign Ministry countered, “Who are the masters of provocation? Of course the United States and NATO.”

In a speech condemning the slaughter, President Zelensky also charged Russian forces with rigging booby-traps as they retreated. He alleged that “they are mining all this territory. Mining houses, equipment, even the bodies of killed people. Too many tripwire mines, too many other dangers….” The allegations have a ring of truth about them. Ukraine’s emergency services have announced that in a single day, they found 1,5000 explosives in the village of Dmytrivka. Meanwhile, in Bucha, soldiers are using cables to drag bodies from the street out of fear they might explode.

It is not the first time Russia has been accused of using booby-traps indiscriminately. During the conflict in Afghanistan, Soviet troops allegedly used, among other types, booby-trapped toys designed to attract children. And Russian private military companies “attached explosives to toilet seats, doors and teddy bears, designed to detonate upon touch” during their Libyan operations in 2020.

This post examines the IHL rules governing the use of booby-traps in international armed conflicts. As will be seen, they can be used lawfully in some circumstances.  However, if the allegations against the Russian forces are true, their use of booby-traps violates IHL and constitutes war crimes on multiple bases.

General IHL Conduct of Hostilities Rules

 A bobby-trap is “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” (CCW Protocol II, art. 2(2); Amended Protocol II, art. 2(4)). This definition includes both “field-expedient” devices, like a hand grenade rigged to explode when a door is opened, and devices explicitly designed as booby-traps, such as one made to look harmless but which explodes when disturbed (U.S. DoD Law of War Manual, § 6.12.2).

The general rules governing the conduct of hostilities apply fully to the use of booby-traps. Rigging a booby-trap qualifies as an “attack” to which the IHL rules regarding the conduct of hostilities apply. The International Committee of the Red Cross (ICRC) analogously, and correctly, made this point vis-à-vis mines in its 1987 Commentary to Additional Protocol I to the 1949 Geneva Conventions’ definition of attacks (AP I, art. 49). Thus, using booby-traps intentionally to harm civilians qualifies as an attack on civilians, while using them without regard to whether they will harm combatants or civilians amounts to an indiscriminate attack (AP I, art. 51; U.S. DoD Law of War Manual, § 6.12.5.1, 6.12.5.2; ICRC Customary IHL Study, rules 1, 11). Violation of these rules results in State responsibility for the side using them (Articles on State Responsibility, art. 2). The conduct also amounts to a war crime for which those involved may be prosecuted (see, e.g., ICC Rome Statute, art. 8(2)(b)(1)). Although early accounts are insufficiently granular to determine whether the Russian forces intended the booby-traps to be activated by civilians, their use in a population center before the entry of Ukrainian troops and emplacement where civilians are likely to be located, such as houses and near civilian bodies, makes violation of the indiscriminate attack prohibition highly likely.

Even when booby-traps are intended to target combatants, the rule of proportionality precludes their use if the expected incidental harm to civilians would be excessive relative to the anticipated military advantage of their use against combatants or others who may be targeted lawfully, such as organized armed groups and civilians who are directly participating in hostilities (AP I, art. 51(4)(c); ICRC Customary IHL Study, rule 14). Indeed, even if an attack utilizing a booby-trap would not violate the proportionality rule, the Party considering its use must assess whether there are other feasible means or methods (weapons or tactics) to achieve the same desired effect as the booby-trap while placing civilians at less risk (AP I, art.  57; DoD Law of War Manual, § 6.12.5.3, ICRC Customary IHL Study, rule 15). For instance, if the Russian forces intended the booby-traps to wound or kill Ukrainian soldiers, were there other locations where they might have been placed to lower the risk to civilians?

International humanitarian law includes rules prohibiting various means and methods of warfare designed to protect combatants. For instance, it bans those that cause them superfluous injury or unnecessary suffering (1907 Hague Regulations, art. 23(e); AP I, art. 35(2); U.S. DoD Law of War Manual, § 6.6; Customary Law Study, rule 70]. This prohibition would apply, for instance, to a booby-trap containing glass shards or contaminated objects intended to exacerbate injuries. Such acts are war crimes (see, e.g., ICC Rome Statute, art. 8(2)(b)(xx)).

It is also prohibited to perfidiously kill or wound the enemy (1907 Hague Regulations, art. 23(b); AP I, art. 37; U.S. DoD Law of War Manual, § 5.2.2; Customary Law Study, rule 65). Perfidy involves killing or wounding by inviting the enemy’s confidence that the object, location, or person in question is entitled to protection under IHL. For example, killing Ukrainian troops using booby-trapped dead civilians qualifies, for civilians are protected under IHL, as are dead bodies (Customary IHL study, rule 113; see also treaty sources cited therein). Perfidy is a war crime (see, e.g., Rome Statute, art. 8(2)(b)(xi)).

Specific IHL Booby-Trap Rules

International humanitarian law does not outlaw booby-traps altogether. However, given the grave risks booby-traps pose to the civilian population, IHL places stringent restrictions on their use. The ICRC, for instance, has concluded, correctly so, that the “use of booby-traps which are in any way attached to or associated with objects or persons entitled to special protection under international humanitarian law or with objects that are likely to attract civilians” is a violation of customary IHL (Customary IHL Study, rule 80).

Of greater immediate relevance to the conflict in Ukraine is the 1980 Conventional Weapons Convention’s Protocol (II) on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices and its 1996 Amended Protocol (II). Russia and Ukraine are Parties to both the Protocol and Amended Protocol (for the U.S. interpretation of the Amended Protocol, see President’s Letter of Transmittal). This post focuses on the prohibitions in Amended Protocol II, which generally replicate those in Protocol II.

Amended Protocol II forbids the use of booby-traps in three booby-trap-unique situations. First, Article 7(3) bans their use in “any city, town, village or other area containing a similar concentration of civilians” if “combat between ground forces is not taking place or does not appear to be imminent.” This includes booby-traps intended to harm combatants or other individuals who lawfully may be attacked. The provision contains two exceptions. Booby-traps may be employed to target enemy forces 1) if “placed on or in the close vicinity of a military objective belonging to or under the control of an adverse party” or 2) when “measures are taken to protect civilians from their effects, for example, the posting of warning signs, the posting of sentries, the issue of warnings or the provision of fences.”

Most of Russia’s reported use of booby-traps violates the provision. Russian troops have retreated from the areas in question and are unlikely to return; therefore, Article 7(3) applies. As to the exceptions, President Zelensky’s reference to “equipment” implicates the first. No violation would lie if he was referring to abandoned military equipment (or other military objectives, like military facilities) that the Ukrainian forces would be expected to use. But if the equipment (or other objects) is civilian, as in the case of the houses of which Zelensky spoke, the first exception does not apply.

Moreover, there is no indication that Russian forces took any measures to protect the civilian population from the booby-traps. It is especially doubtful that Russian forces have made any attempt to record the location of the booby-traps, as is required by Article 9, in order to facilitate removal following the end of hostilities. After all, they would, in many cases, be recording IHL violations and war crimes.

Second, booby-traps may not take 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” (art. 7(2)). The U.S. Department of Defense’s Law of War Manual  provides the example of “booby-traps manufactured to resemble items, such as watches, personal audio players, cameras, toys, and the like.” It observes that the “prohibition is intended to prevent the production of large quantities of dangerous objects that can be scattered around and are likely to be attractive to civilians, especially children” (§ 6.12.4.8).

In that regard, note that the provision does not bar the booby-trapping of actual harmless objects, such as cameras or houses. The prohibition only applies when the booby-trap is intentionally designed to look harmless, as in a booby-trap made to look like a camera. Nor does it prohibit booby-trapping non-portable harmless things, like a gate. And it only applies to booby-traps designed or otherwise manufactured to serve as a booby-trap. Accordingly, it does not apply to field-expedient booby-traps or otherwise improvised ones. More information on the nature of the Russian booby-traps is required to determine whether this particular prohibition has been violated.

Third, booby-traps may not be attached or associated with the following specified objects (art. 7(1)).

    • internationally recognized protective emblems, signs or signals;
    • sick, wounded or dead persons;
    • burial or cremation sites or graves;
    • medical facilities, medical equipment, medical supplies or medical transportation;
    • children’s toys or other portable objects or products specially designed for the feeding, health, hygiene, clothing or education of children;
    • food or drink;
    • kitchen utensils or appliances except in military establishments, military locations or military supply depots;
    • objects clearly of a religious nature;
    • historic monuments, works of art or places of worship which constitute the cultural or spiritual heritage of peoples; or
    • animals or their carcasses.

The prohibition regarding internationally recognized protective emblems, signs, or signals resembles perfidy but is broader. It does not require harm to manifest and applies to the use of booby-traps targeting both combatants and civilians. Concerning the allegations leveled against the Russian forces, note that booby-trapping bodies is expressly forbidden, whether military or civilian.

Amended Protocol II emphasizes that certain prohibitions and obligations already resident in IHL apply to the use of booby-traps. In part, this was felt necessary because of a degree of disagreement over whether the mere emplacement of a mine, booby-trap, or other similar device constituted an “attack” under IHL and was therefore subject to those rules (U.S. DoD Law of War Manual, § 6.12.5). Article 3(7) prohibits directing booby-traps against civilians, while Article 3(8) bans indiscriminate use of booby-traps and Article 3(8)(c) applies the rule of proportionality to booby-traps. Article 7(1) notes that the Protocol’s prohibitions are “[w]ithout prejudice to the rules of international law applicable in armed conflict relating to treachery and perfidy.” And Article 3(3) prohibits the use of booby-traps that are “designed to cause superfluous injury or unnecessary suffering.”

Finally, Article 3(10) of Amended Protocol II requires “[a]ll feasible precautions [to] be taken to protect civilians from the effects of” booby-traps. This restates the precautions in attack rule in Article 57 of Additional Protocol I and customary law. Notably, the Amended Protocol II, Article 3(10), defines feasible precautions as “those precautions which are practicable or practically possible taking into account all circumstances ruling at the time, including humanitarian and military considerations.” Since Additional Protocol I contains no definition of feasibility, Article 3(10) is often looked to when assessing the scope of the general precautions in attack obligation.

Although the aforementioned prohibitions also appear in Protocol II, Amended Protocol II, inter alia, 1) extends Protocol II’s prohibitions to non-international armed conflict (art. 1(2)), 2) imposes a ban on booby-traps “which employ a mechanism or device specifically designed to detonate the munition by the presence of commonly available mine detectors” ((art. 3(8)(b)), and 3) adds a provision regarding doubt ((art. 3(8)(a)).

As Russia is a Party to the instruments, the 2001 Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation (§ 9) reflect their prohibitions. In particular, the regulations forbid the following during combat operations:

mines, booby-traps or other devices specially designed to detonate the munition by the presence of mine detectors as a result of their magnetic or other non-contact influence during normal use in detection operations;

booby-traps which are placed outside a military objective and in any way attached to, or associated with: the internationally recognized protective emblems (signs or signals); sick, wounded persons or dead bodies; burial or cremation sites, graves; medical facilities, equipment, supplies or transport; children’s toys or objects specially designed for children; food or drink; kitchen utensils or appliances (except those in military units); objects of a clearly religious nature; historic monuments, works of art or places of worship; animals or their carcasses;

self-made booby-traps in the form of apparently harmless objects.

If the allegations of Russian use of booby-traps in the manner alleged are substantiated, Russian troops have violated their own rules in addition to international law. Ukraine’s 2004 Manual on the Application of IHL Rules likewise prohibits the use of “booby-traps which are in any way attached to or associated with: internationally recognized protective emblems, signs or signals, as well as with other apparently harmless objects (e.g. wounded or dead persons, medical equipment, children’s toys and so forth)” (§ 1.3.3.).

Conclusion

It is too early to draw definitive conclusions about whether Russian troops engaged in the booby-trapping of which they have been accused. However, if the allegations are true, Russia is irrefutably responsible under international law for having violated multiple IHL rules, and its soldiers have committed war crimes that may, and should, lead to their prosecution.

***

Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy. He is also Professor of Public International Law at the University of Reading, Strauss Center Distinguished Scholar and Visiting Professor of Law at the University of Texas, and Professor Emeritus at the United States Naval War College.

 

 

Photo credit: U.S. Department of Defense

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