The Disarmament Treaties Prohibiting Anti-Personnel Mines and Cluster Munitions: Separating Fact from Fiction
In recent months, there has been considerable criticism in scholarship, and in opinion editorials in several newspapers, of the content and impact of the two conventional disarmament treaties: the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction (Anti-Personnel Mine Ban Convention); and the 2008 Convention on Cluster Munitions (CCM). In particular, critics argue that some of the prohibitions set forth in these treaties are no longer realistic given the situation in Ukraine and in the other Western States bordering the Russian Federation that have adhered to one or both of these treaties.
Not all of these critics’ claims, however, are legally accurate. This is particularly so in the case of anti-personnel mines and the Anti-Personnel Mine Ban Convention. On occasion, legal analyses, however inadvertently, silently omit information in a way that misinforms the reader. The aim of this post is therefore to dispel some of the misleading information, whether this emanates from the writings of a leading publicist or an interested layperson.
The Military Utility of Anti-Personnel Mines and Cluster Munitions
The starting point of the discussion must include an acknowledgment that both anti-personnel mines and cluster munitions have real-world military utility (albeit at the tactical and not the strategic level). Thus, States that have adhered to the two treaties—165 in the case of the Anti-Personnel Mine Ban Convention and 112 in the case of the CCM—have renounced a weapon that would offer their forces a military advantage on the battlefield. Their doing so is the result of a concern for the prolonged humanitarian effects on civilians and, in the case of anti-personnel mines, the especially profound food security, public health, social, and economic consequences that result from the weapon’s widespread use.
This trumping of military utility by humanitarian concerns reflects the very long-standing acceptance that international law restrains the right of the parties in any armed conflict to choose their means of warfare. In the wording of the 1899 Hague Regulations, “The right of belligerents to adopt means of injuring the enemy is not unlimited.” Since those words were written, States have prohibited several weapons that have significant anti-personnel utility because of the human suffering they engender, such as chemical and biological weapons, and more recently, in 1995, blinding laser weapons.
The Anti-Personnel Mine Ban Convention drew its legal inspiration and overall framing from the 1992 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (Chemical Weapons Convention). This Convention has since attracted adherence from 193 of the 197 States eligible to join. But ratification is not irrevocable. Withdrawal from the treaty by any State party is legally possible upon 90 days’ notice, even though no State has chosen to do so. Indeed, any such move would attract significant pushback because of the potentially strategic nature of the weapon (i.e., possession by one State is a potential threat to another).
Unless and until a withdrawal occurs, however, every State party to the Chemical Weapons Convention must comply fully and in good faith with all of its substantive provisions. That is so even if they are the victim of aggression and even if they are the victim of an attack that itself involved the use of chemical weapons. The wording in Article I whereby each State Party “undertakes never under any circumstances” to develop, produce, stockpile, transfer, or use chemical weapons is unequivocal. The prohibition on any reservation to one or more articles of the Chemical Weapons Convention reinforces the all-encompassing nature of the ban. Once a State becomes a party, it is bound, pacta sunt servanda.
The Anti-Personnel Mine Ban Convention stands on this basis. Any State adhering to it was similarly undertaking in its Article 1(1) to “never under any circumstances” develop, produce, stockpile, transfer, or use anti-personnel mines. That undertaking persists even if the State is the victim of aggression and even if the attack involves the use of anti-personnel mines. Those who decide of their own free will to adhere but who later suffer buyer’s remorse may withdraw under Article 20 of the Convention. To ensure that a contracting State is not only bound in peacetime, however, under paragraph three of Article 20, a withdrawal is not effective if, at the end of the six-month notice period, the State party is involved in any armed conflict. In such a scenario, only at the end of that armed conflict, whether it be international or non-international in character, does the withdrawal take effect.
Ukraine’s Serious Breaches
This brings us to Ukraine, a State party which has breached its obligations under the Convention more than any other State. Even before Russia’s aggression in 2014, Ukraine stood in serious violation of its duty to destroy its stockpiled anti-personnel mines. Almost six million anti-personnel mines remained when its four-year treaty deadline for clearance expired on June 1, 2010. As of February 24, 2022, when the massive, illegal invasion of Ukraine’s territory by Russian forces began, more than three million anti-personnel mines—the vast majority of which were remotely deliverable—remained. This was confirmed in Ukraine’s Article 7 report under the Convention for the period from January 2022 to January 2023 (Form B). To this day, the public remains in the dark as to the whereabouts of these stockpiled anti-personnel mines, as well as whether any are still in stockpiles.
Any use of anti-personnel mines by a State party is a serious violation of the Anti-Personnel Mine Ban Convention, irrespective of whether the use also violates the law of armed conflict (LOAC) (for instance, when a State directs the weapon against civilians in the conduct of hostilities). It is also a serious violation if the weapons self-destruct and/or self-deactivate after a certain period of time. No anti-personnel mine, whether persistent or short-lived, falls outside the material jurisdiction of the Convention as set out in Article 2(1). Confusion with the provisions of the Amended Protocol II to the UN Convention on Certain Conventional Weapons, which does distinguish in certain respects between anti-personnel mines that self-destruct and self-deactivate and those that do not, may explain part of this confusion.
Accordingly, the suggestion that it is not only “likely” that the use of anti-personnel mines by a State party “does not comply” with its obligations under the Convention misstates the legal position. It suggests room for doubt where there is none as to the legal capture of the rules. It is certain that any new use by a State party, even when confronted with an aggressor that widely uses anti-personnel mines is a serious violation of the Anti-Personnel Mine Ban Convention. This includes the actions of Ukraine. Moreover, in that specific case, the use of an anti-personnel mine is also a war crime under Ukraine’s domestic penal law (see Ukraine Criminal Code, art. 438).
In contrast, the claim that the transfer of hundreds of thousands of U.S. anti-personnel mines by the United States in 2024 violated its international obligations is not legally robust. While the United States’s decision to transfer such mines may be deeply regrettable, it is not unlawful. It would not be an internationally wrongful act by the United States per se, as the United States is not a party to the Convention, and would also not engage the United States’ responsibility under customary international law for aiding or assisting an internationally wrongful act. Article 16 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts requires that the act be not only a violation by the recipient of assistance, but also by the provider.
Hence, Ukraine alone committed the violation in the transfer of anti-personnel mines in a way that is both manifest in nature and serious in extent. Its call for the United States to supply it with anti-personnel mines encouraged a prohibited activity in violation of the obligation not to do so in Article 1(1)(c) and then its acceptance of the weapons violated the undertaking in Article 1(1)(b) to never under any circumstances acquire the weapon. Once again, that these were indeed violations is not open to doubt.
International law does not, as the Chief Executive Officer of The Hazardous Area Life-support Organization (HALO) Trust claimed, offer Ukraine “succour.” The large-scale Russian aggression and the right to use force in self-defence do not affect Ukraine’s obligations under the Anti-Personnel Mine Ban Convention. LOAC is likewise irrelevant in this regard, as a disarmament treaty covers any intended use in the conduct of hostilities as it does in peacetime. There are tens of thousands of people around the world who owe their lives and limbs to the demining that groups like The HALO Trust have performed from Afghanistan to Angola, and from Cambodia to Ukraine. It has thus been shocking to some to see an organisation dedicated to removing mines implicitly sanctioning the illegal actions of a State party to emplace mines. In this regard, the international community should not forget that the Landmines Act 1998 in force in the United Kingdom makes it a criminal offence for any UK national to encourage the use of anti-personnel mines.
As a matter of international law, Ukraine cannot effectively withdraw until its international armed conflict with Russia ends. Other States bordering the Russian Federation could withdraw following the submission of a duly framed instrument of withdrawal and the provision of the requisite six months’ notice.
That said, it might be appropriate to inquire as to the use to which any such States are going to make of their new-found freedoms. In this regard, the initial reticence of one Scandinavian nation to support a total ban on anti-personnel mines in the middle of the 1990s dissolved upon publicization of its intended use of anti-personnel mines. The Swedish military allegedly planned to pepper with mines areas of the country containing foreign troops, including places where they might travel. Among the consequences of such widespread use, the civilian population would inevitably fall victim to some of those mines. The indiscriminate effects common to most mine use, even if lawful at the moment of deployment, would thus have inflicted appalling suffering on the people the army was seeking to protect.
Conclusion
One may draw many lessons from the tragedy of the Ukraine conflict. But in terms of means of warfare and military utility, it is critical to prevent the emplacing of millions more anti-personnel mines across Ukrainian territory. Rather, as military strategists consistently observe, remotely piloted aircraft and soldiers are the game changers (in the vernacular, drones in the air and boots on the ground).
Let us hope, therefore, that withdrawing States have a strategy for mine use that does not involve remote delivery of hundreds of thousands—or even millions—of mines into populated areas. But if a State that is no longer party to the Anti-Personnel Mine Ban Convention intends only to lay mines along its international borders, one has to ask what the real value would be in doing so, given the very limited impact it would have on an invader’s forces. Those who want to see more mines in the ground rather than out of the ground should be careful what they wish for.
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Stuart Casey-Maslen is Visiting Professor at the Faculty of Law of University of Johannesburg.
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: National Police of Ukraine
