Ukraine Symposium – Landmines and the War in Ukraine

Human Rights Watch has documented the use of both anti-vehicle and anti-personnel landmines in Ukraine. Following reports that Ukraine is using anti-personnel landmines (APLs) in violation of the Ottawa Convention, the Ukrainian authorities acknowledged this allegation and reaffirmed the State’s commitment to its international obligations.

This post addresses the legal framework applicable to the use of landmines in the conflict between Ukraine and Russia. Because Ukraine and Russia have different legal obligations regarding landmines, this framework is complex. What is clear is that the use of APLs by Ukraine is unlawful in all circumstances. For Russia, the legality of employing APLs depends on the way they are used.

Regulating the Use of Landmines

The use of landmines was first regulated in 1980 in the United Nations Convention on Certain Conventional Weapons (CCW). Protocol II to the CCW was one of the three protocols States originally adopted. Article 2(1) of Protocol II defines landmines as “any munition placed under, on or near the ground or other surface area and designed to be detonated or exploded by the presence, proximity or contact of a person or vehicle.” Protocol II adopts a design-based approach, clarifying that any munition could be qualified as a mine if it is designed to operate in any of the ways indicated. Consequently, only those devices designed to operate as mines are covered by the Protocol, regardless of their labelling. Munitions that may occasionally behave, or be used, as mines are excluded from its regulatory framework provided these are not specifically designed for such use.

Protocol II regulates not just manually emplaced landmines, but also remotely delivered landmines (RDLs) whose use is subject to different restrictions (art. 5). In summary, Protocol II limits the use of RDLs to areas constituting “a military objective or which contains military objectives” and requires effective advance warning to be given to potentially affected civilian populations.

The restrictions applicable to manually emplaced mine warfare are largely a restatement of the targeting rules contained in Additional Protocol I to the Geneva Conventions. Protocol II to the CCW also provides detailed limitations on the use of landmines in populated areas. In particular, Article 4(2) states that mine warfare is prohibited “in any city, town, village or other area containing a similar concentration of civilians in which combat between ground forces is not taking place or does not appear to be imminent” unless landmines are placed close to the enemy’s military objectives or appropriate measures are taken to protect civilians, such as the posting of warning signs. The Protocol II obligations on recording the location of minefields are rather weak.

Towards a More Civilian-Friendly Regulation of Landmines

Efforts to strengthen the regulation of landmines within the CCW led to the adoption of Amended Protocol II in 1996. It contains specific provisions on the use of APLs, understood as any 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. Amended Protocol II prohibits the use of such mines which are “not detectable” as specified in the attached Technical Annex, and which do not comply with specific requirements of self-destruction and self-deactivation.

The prohibition of non-detectable APLs in Amended Protocol II is absolute, but the prohibition of non-remotely delivered APLs that are unable to self-destruct or -deactivate, is not. Belligerent parties may still use such APLs within perimeter-marked areas, or, under certain conditions, outside of such areas. The evident aim of these exceptions, as noted by Air Commodore Boothby, is to enable belligerent States to continue using APLs that do not comply with the more stringent standards of Amended Protocol II without, however, allowing the employment of long-term APL minefields (p. 164).

Amended Protocol II also made some useful improvements with regard to mine clearance, making each belligerent party responsible “for all mines…employed by it” and “to clear, remove, destroy or maintain” these in the area it controls after the hostilities. Further, the Amended Protocol strengthens the precautionary obligations to protect civilians from the effects of landmines. It absolutely prohibits the use of landmines against civilians and civilian objects by way of reprisal, and introduces more stringent recording obligations.

In relation to remotely delivered landmines (RDLs), Amended Protocol II introduced a number of restrictions which affect both their design and use. Most notably, it prohibits the use of all such mines which are not fitted with self-deactivation or self-destruction mechanisms. It also significantly improved the recording obligations. With regard to anti-personnel RDLs, Amended Protocol II created a special regulatory framework identical to that of non-remotely delivered APLs, which aims to further restrict their use.

Although Amended Protocol II went to great lengths to reinforce the law applicable to mine warfare, it failed to achieve an outright ban on APLs. This became the overarching goal of the Ottawa Convention, which was negotiated outside the framework of the CCW. It dictates that States parties shall “never under any circumstance” use, nor “develop, produce or otherwise acquire” APLs. Instead, States parties are required to destroy their stockpiles of APLs.

Customary Nature of the Rules

The fact that a number of highly relevant States such as the United States, China, Russia, and India are not party to some, or all the instruments described above begs the question whether their norms reflect customary international law. The influential ICRC Customary Law Study identifies only three basic customary rules applicable to mine warfare (rules 81 to 83). The more developed rules, including the ban on the use of APLs, thus seemingly lack customary status.

The Russia-Ukraine War

Russia and Ukraine have different obligations regarding mine warfare. While Russia and Ukraine both ratified Protocol II and Amended Protocol II, only Ukraine is a party to the Ottawa Convention. Thus, Ukraine may only use anti-vehicle landmines, whether manually or mechanically emplaced, or remotely delivered. In doing so, it must comply with all the precautionary and protective measures set out in Amended Protocol II.

Conversely, Russia may lawfully use any type of landmine, including APLs, provided that it observes the specific design, monitoring, and clearance requirements indicated in the Technical Annex of Amended Protocol II. Like Ukraine, Russia is expected and bound to comply with all precautionary and protective measures contained in Amended Protocol II when using landmines of any sort and to observe the strict recording criteria contained in the Technical Annex when manually or remotely positioning APLs.

HPD Anti-Vehicle Mines 

An illustrative example of the complex regulation of mine warfare in Russia’s war of aggression in Ukraine is whether the belligerents may lawfully use French Mine Antichar a Haut Pouvoir de Destruction (HPD) anti-vehicle mines. According to open sources, these mines may detonate if their anti-handling device comes into contact with mine-detector signals. This functionality may give the impression that the use of these mines is unlawful, and indeed, pro-Russian sources have made such allegations against Ukraine. However, Article 3(5) of Amended Protocol II only prohibits the use of landmines that are “specifically designed” to explode by the proximity of “commonly available” mine detectors. The necessary consequence of this language is that mines occasionally operating in this manner (such as HPD mines) but not “specifically designed” to do so, are generally exempted from the prohibition. Therefore, provided all due precautions are taken, the use of HPD mines by Ukraine is consistent with Amended Protocol II.    

Concluding Thoughts

The use of landmines by Russia and Ukraine is not categorically prohibited. This may seem unsatisfactory from a strictly humanitarian perspective, but the war in Ukraine demonstrates the military utility of landmines. For example, dense Ukrainian minefields near Pavlivka stopped a Russian advance on Vuhledar. Nevertheless, the use of landmines, particularly APLs, during armed conflicts remains a matter of concern. These weapons are inherently unable to distinguish between combatants and civilians, and they may also remain a hazard for the civilian population even after the conflict has ended.

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Dario Pronesti is pursuing a Master of Laws degree in Public International Law at the University of Amsterdam.

Dr. Jeroen C. van den Boogaard is Legal Counsel in International Law at the Legal Department of the Ministry of Foreign Affairs of the Kingdom of the Netherlands. He is also a lecturer and researcher at the University of Amsterdam. The views expressed in this contribution are those of the author, and do not necessarily reflect the official position of the Kingdom of the Netherlands, or of any of the other professional affiliations of the author.

Photo credit: Kyivcity.gov.ua