Déjà Vu: International Landmine Law and the New U.S. Landmine Policy

Following a “comprehensive policy review,” the Biden Administration announced significant changes to U.S. Anti-Personnel Landmine (APL) policy on June 21, 2022. The new policy reverses most aspects of the Trump Administration’s 2020 policy. In fact, since the Clinton Administration, each successive administration has changed course on APL policy. The Biden policy brings the United States back into alignment with those of the Obama Administration and, with one notable exception (Korea), most other States.

This post offers a primer on the international law and U.S. policy governing the weapons. It begins with the treaties that address them before moving on to possible APL-specific customary rules. The post concludes by tracking the sequential development of U.S. policy on the matter. At the outset, it must be cautioned that APL law and policy must be distinguished from that governing naval mines, which the law of naval warfare addresses (e.g., 1907 Hague Convention VIII), and anti-vehicle mines, which are subject to general international humanitarian law rules (IHL), such as that prohibiting indiscriminate attack (Additional Protocol I, art. 51; ICRC Customary IHL study, Rule 11).

The Treaties

The United States is a Party to the 1980 Convention on Certain Conventional Weapons (CCW). Protocol II to that instrument addresses “the use of mines, booby traps and other devices.” Amended Protocol II replaced that protocol in 1996 for Parties to the amended instrument. The latter expands coverage to non-international armed conflict and adds additional limits on using the weapons (while retaining those set forth in Protocol II). The United States is a Party to Amended Protocol II, as are 105 other States, including, inter alia, all permanent members of the Security Council (the “P-5”) and Ukraine. In a conflict with a non-Party like North Korea, a Party State like the United States is not bound by either Protocol unless the non-Party “accepts and applies” it after having notified the Depositary, which is the U.N. Secretary-General (CCW, art. 7).

Under the treaty, the term anti-personnel mine refers to “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). The requirements and prohibitions of Amended Protocol II differ depending on whether a mine is “remotely-delivered.” Remotely delivered mines are “not directly emplaced but delivered by artillery, missile, rocket, mortar, or similar means, or dropped from an aircraft. Mines delivered from a land-based system from less than 500 metres are not considered to be ‘remotely delivered’” (art. 2).

As an aside, command-detonated munitions such as the claymore mines that may not employ a trip-wire which the United States has transferred to Ukraine, are not “anti-personnel mines” under the Amended Protocol (see Enclosure A to Transmittal Letter). Although encompassed in the Protocol as “other devices,” they are subject to different, and less restrictive, limitations.

The Amended Protocol bans non-detectable mines (art. 4), as it does mines that are designed to detonate when near mine detectors and those that cause superfluous injury (e.g., because they include hard-to-detect fragments) (art. 3). Additionally, the use of APL that are not remotely delivered is prohibited unless they either 1) comply with certain self-destruction and self-deactivation requirements outlined in a Technical Annex (see below) or 2) are placed in an area that is marked and protected by fencing or other means, and monitored by military personnel to ensure civilians are kept out (art. 5). The latter must be cleared before the force laying them leaves the area unless another State has accepted responsibility for compliance, or it is impossible to maintain the safeguards due to enemy action. Should the enemy gain control of a mined area, it must, “to the maximum extent feasible,” continue these protections (art. 5).

Outside marked and protected areas, self-destruction and self-deactivation requirements apply to both remotely and non-remotely delivered mines. The Amended Protocol’s Technical Annex provides that the mines must be designed and constructed “so that no more than 10% of activated mines will fail to self-destruct within 30 days after emplacement.” Each shall also have a backup self-deactivation feature that, combined with the self-destruction mechanism, ensures that “no more than one in one thousand activated mines will function as a mines 120 days after emplacement.”

Moreover, the party employing mines must record their location and, following the cessation of hostilities, remove them from territory it controls and cooperate in mine removal efforts (Amended Protocol, arts. 3 and 10). A party using APL also must take measures to protect peacekeeping and humanitarian missions of the United Nations, the ICRC, and other humanitarian or enquiry missions from the effects of mines (art. 12). Finally, the Amended Protocol prohibits indiscriminate use of the mines and requires Parties to take feasible precautions to protect the civilian population from their use, a prohibition and obligation general IHL already imposes (Customary IHL study, Rules 11 and 15).

Numerous States and non-governmental organizations believed these safeguards were insufficient to protect the civilian population against APL’s incidental and long-term effects. Accordingly, following the First Review Conference of the CCW in 1995, Canada launched the so-called “Ottawa Process,” which undertook an effort to ban them altogether. The result was the 1997 Ottawa Convention on Landmines, to which 164 States are now party (including Ukraine). The United States, China, India, Iran, Pakistan, Russia, and the Koreas are among the non-Parties.

The instrument is comprehensive. Parties undertake never to use; “develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly”; or “assist, encourage or induce, in any way, anyone to engage in” such activities (art. 1). Additionally, Parties must destroy their APL stockpiles (art. 4) and engage in mine clearance in areas under their control (art. 5). The treaty also requires States to cooperate in achieving these objectives and to assist landmine victims (art. 6). Some Parties to the treaty (e.g., Australia, Canada, the Czech Republic, Montenegro, Serbia, Poland, and the United Kingdom) have issued declarations permitting their forces to provide indirect support to States, such as the Republic of Korea, that engage in operations that the treaty would prohibit.

Customary International Law

The ICRC has concluded that there are customary international law requirements regarding the use of anti-personnel mines that bind all States, although it has not asserted that their use is per se unlawful. Its Customary International Humanitarian Law study includes three.

Rule 81 is a chapeau prohibition. It provides, “when landmines are used, particular care must be taken to minimize their indiscriminate effects.” Since the indiscriminate use of any weapon is already prohibited by customary international law (see discussion in Customary Law Study, Rule 11), the only uncertain aspect of the purported rule is the reference to “particular care.” The legal question is whether particular care is a greater degree of care than would otherwise apply. In support of its position, the ICRC cites the various restrictions and requirements found in CCW Protocol II and the Amended Protocol, as well as the fact that military manuals address precautionary measures when using landmines.

I agree with the ICRC that anti-personnel landmines are of particular concern, a premise supported, as noted, by the existence of specific treaty law governing them. It is also a war crime under U.S. law to willfully kill or seriously injure civilians by means of a violation of the Amended Protocol. However, I am uncomfortable with the notion of “degrees of care.” In my estimation, customary IHL already requires Parties to an armed conflict to take all precautions in attack to minimize harm to civilians that are feasible in the attendant circumstances (Customary IHL study, Rules 15-22). Those circumstances include the extent of risk to civilians and civilian objects and military operational sensibility. Thus, the notion of “particular” care is, for me, redundant.

The other two rules are narrower. According to Rule 82, “A party to the conflict using landmines must record their placement, as far as possible.” Rule 83 states, “At the end of active hostilities, a party to the conflict which has used landmines must remove or otherwise render them harmless to civilians, or facilitate their removal.” In support of the assertion that these two rules reflect customary law, the ICRC points to provisions in CCW Protocol II and the Amended Protocol, various U.N. Security Council and General Assembly resolutions highlighting the danger of mines to civilians, and military manuals. For instance, it notes that the 1995 Commander’s Handbook on the Law of Naval Operations (NWP 1-14M) required recording all minefields before the United States became a Party to Additional Protocol II (in which the requirement to record all minefields was imposed). The same manual required facilitating the removal of mines upon cessation of hostilities (§ 9.3).

That these are customary requirements is a supportable assertion, although not an unassailable one. After all, heavy reliance on treaty obligations to support a claim of a rule’s customary status can be tenuous absent an indication that States would comply even in the absence of the treaty. For the United States, however, this technical point matters little because the substance of the two Customary Law Study rules already resides in the Amended Protocol. Moreover, the Amended Protocol requires Parties to “require that its armed forces issue relevant military instructions and operating procedures” (art. 14). This the United States has done by comprehensibly reflecting the Amended Protocol’s requirements (and thus the substance of the ICRC’s rules) in its DoD Law of War Manual (§ 6.12).

U.S. Anti-Personnel Landmine Policies

In May 1996, as the Ottawa Process was underway, the Clinton Administration announced its anti-personnel landmines policy (see also here). Presidential Decision Directives 48 and 54 (June 1996 and January 1997) formally set forth the policy.

That policy committed the United States to “aggressively pursuing an international agreement to ban use, stockpiling, production, and transfer of anti-personnel landmines with a view to completing the negotiations as soon as possible.” However, it treated the situation on the Korean Peninsula as unique and insisted that any such agreement permit the United States to use APL there until alternatives were available.

The United States had already unilaterally prohibited the use of non-self-destructing (“persistent”) APL anywhere but Korea and committed to destroying inactive stockpiles of these weapons by the end of 1999. The U.S. policy actually was more restrictive than the Amended Protocol, which, as explained above, allowed the use of persistent APL in limited circumstances without geographical restriction. In addition to the Korean Peninsula caveat, the policy reserved the option of using self-destructing (“non-persistent”) APL to “safeguard American lives and hasten the end of fighting” pending adoption of the aforementioned agreement. However, the policy specifically noted that any such use would be consistent with the requirements of Amended Protocol II. The Administration set a goal of ending the use of APL outside Korea by 2003 and becoming a Party to the Ottawa Treaty by 2006 if it could find alternatives to APLs and mixed anti-tank systems.

In February 2004, following a two-and-a-half-year review, the Bush administration backed away from certain of these objectives when it released its landmine policy. Of note, it abandoned the goal of joining the Ottawa Treaty because “its terms would have required us to give up a needed military capability.” For the Bush Administration, “landmines still have a valid and essential role in protecting United States forces in military operations” and “[n]o other weapon currently exists that provides all the capabilities provided by landmines.” In particular, “[l]andmines enable a commander to shape the battlefield to his advantage. They deny the enemy freedom to maneuver; enhance effectiveness of other weapons (such as small arms, artillery or combat aircraft); allow us to fight with fewer forces against a larger enemy force….”

Whereas the Clinton administration’s policy addressed anti-personnel mines, the Bush policy also encompassed anti-vehicle mines. It committed the United States to eliminating all “persistent” mines but adopted no goal regarding those that self-destruct. Nor did the policy impose any geographic restrictions.

This was a significant shift in policy because, as noted, the United States had previously sought to ultimately ban all anti-personnel mines and stop using them outside of Korea by 2003. The new policy allowed the use of persistent mines in Korea until 2010. Use of persistent anti-vehicle mines elsewhere was permissible until 2010, but only with presidential authorization. Notably, the Bush policy stated that within a year, the United States would eliminate low metal content landmines, which are difficult to detect.

With the election of Barack Obama, the policy would change again. In September 2014, the Obama administration announced its landmine policy. In it, the United States adopted policies applicable outside the Korean Peninsula that were generally consistent with the Ottawa Treaty. This was sensible, for over 160 countries, including all NATO Allies, were now Party to that instrument. In January 2016, Presidential Policy Directive-37 set out the Administration’s formal policy.

The Obama policy committed the United States not to use APL beyond the Korean Peninsula, not “assist, encourage, or induce anyone outside the Korean Peninsula to engage in activity” contrary to the Ottawa Convention, and to destroy APL stockpiles not required to defend South Korea. The Korean caveat remained in place, but the policy emphasized that the United States would continue “diligent efforts to pursue material and operational solutions that would be compliant with and ultimately allow us to accede to the Ottawa Convention while ensuring our ability to meet our alliance commitments to the Republic of Korea.” Essentially, the Obama policy revived the Clinton Administration’s.

The Trump Administration’s landmine policy announced in January 2020 dramatically reversed course. It allowed the production of non-persistent landmines and permitted their use anywhere in the world. It also lowered the authorization level for using landmines to Combatant Commanders (e.g., European Command and Central Command), as distinct from previous policy that, since 1996, required Presidential approval. Such authorization was permissible “when necessary for mission success in major contingencies or other exceptional circumstances.” However, the Trump policy confirmed that U.S. use would comply with Amended Protocol II requirements. It also maintained the U.S. commitment not to employ persistent landmines.

The Department of Defense explained that the relaxation of restrictions was necessary because “the U.S. military faced a critical capability gap, making it less prepared for future security challenges, due to restrictions previously imposed.” It asserted that the “strategic environment has changed…. We face an era of strategic competition that requires our military to become more lethal, resilient, and ready for future contingencies.” And the DoD pointed out that “area-denial systems are a ‘force multiplier’ in key operational contexts; they can obstruct, channel, and delay/stop numerically superior adversaries and prevent them from outflanking friendly forces.”

The Biden Administration moved cautiously concerning landmine policy despite a campaign pledge to reverse Trump’s policies if elected. For instance, in April 2021, a Department of Defense spokesperson labeled APL “a vital tool in conventional warfare” that the U.S. armed forces “cannot responsibly forgo, particularly when faced with substantial and potentially overwhelming enemy forces in the early stage of combat.”

But last week, the President made good on his pledge. Essentially, the Biden Administration’s new policy returns the United States to that of the Obama Administration. Indeed, the former’s Fact Sheet contains text drawn verbatim from the latter’s. It again emphasizes that U.S. policy beyond the Korean Peninsula will be consistent with Ottawa Treaty obligations and highlights the fact that over 160 states, including every NATO Ally, are Party to that instrument.

By the “new” (resuscitated) policy, the United States commits to:

• • Not develop, produce, or acquire APL;
  • Not export or transfer APL, except when necessary for activities related to mine detection or removal, and for the purpose of destruction;
  • Not use APL outside of the Korean Peninsula;
  • Not assist, encourage, or induce anyone, outside of the context of the Korean Peninsula, to engage in any activity that would be prohibited by the Ottawa Convention; and
  • Undertake to destroy all APL stockpiles not required for the defense of the Republic of Korea.

As did the Obama APL policy, the Biden Administration’s commits the United States to “undertak[ing] diligent efforts to pursue materiel and operational solutions to assist in becoming compliant with and ultimately acceding to the Ottawa Convention, while ensuring our ability to respond to contingencies and meet our alliance commitments.” Although the Fact Sheet confirms that U.S. anti-personnel landmine policy regarding the Korean Peninsula remains unchanged “at this time,” that clause leaves the door open to future revision.

Upon release of the policy, a State Department official discussed the maintenance of the Korea caveat in a special briefing to the press. He explained that only the South Korean armed forces maintain any minefield in the Republic of Korea. But the Ottawa Convention prohibits Parties from assisting, encouraging, or inducing anyone to use landmines. Therefore, he stated that the United States could not comply with both that prohibition and its collective defense obligation to the Republic of Korea. Nevertheless, the official emphasized that the United States would abide by the Ottawa Treaty requirements elsewhere, and that the United States would destroy all stockpiles not necessary for the defense of Korea. There are presently about three million mines in our stockpile.

Conclusion

For those old enough to recall the Clinton and Obama APL policies, the Biden policy invites a sense of déjà vu. But the policy is also timely, for it draws attention to the real-world use of the weapons. As a National Security Council spokesperson accurately observed, the new, more restrictive policy comes at a time when “the world has once again witnessed the devastating impact that anti-personnel landmines can have in the context of Russia’s brutal and unprovoked war in Ukraine, where Russian forces’ use of these and other munitions have caused extensive harm to civilians and civilian objects.” Indeed, Michael Matheson, who served as the U.S. Ambassador to the Conference that adopted the Amended Protocol, has suggested that Russia’s actions would appear to violate both general IHL conduct of hostilities rules and the Amended Protocol, obligations the United States also shoulders.

Finally, while the United States has not used anti-personnel landmines in any significant way since the 1991 Gulf War, the long-standing debate over their utility continues, with operationally savvy experts on both sides of the issue. Nevertheless, the law is clear—the United States must abide by the provisions of Amended Protocol II, but the possession and use of certain APL in certain situations and ways is not categorically forbidden. And as a matter of policy, only the use by U.S. forces of non-persistent APL, and only in Korea, is now permitted.

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Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy at West Point. He is also Professor of Public International Law at the University of Reading; Professor Emeritus and Charles H. Stockton Distinguished Scholar-in-Residence at the United States Naval War College; and Strauss Center Distinguished Scholar and Visiting Professor of Law at the University of Texas.

Photo credit: U.S. Department of Defense