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Land Mines: a Critical Examination of Existing Legal Instruments

01-05-1995 by Louise Doswald-Beck, Peter Herby

Extract from UNIDIR Newsletter, no 28/29

 Louise Doswald-Beck serves as Senior Legal Adviser and Peter Herby as Arms Control Adviser in the Legal Division of the International Committee of the Red Cross in Geneva. The opinions expressed do not necessarily represent those of the ICRC.  

    

The use of land mines is regulated by both customary international humanitarian law and by the 1980 Convention on Certain Conventional Weapons. Humanitarian law seeks to reduce the suffering caused by armed conflict to the minimum necessary for the achievement of legitimate military objectives. In particular it seeks to protect civilians and other non-combatants.

If existing international humanitarian law were faithfully applied, the current indiscriminate use of land mines would not have occurred. However, a blatant disregard for humanitarian principles on the part of many warring parties, coupled with severe weaknesses in the 1980 Conventional Weapons Convention and a lack of international response, have led to a situation which threatens the credibility of both the Convention and broader humanitarian principles. The October 1995 Review Conference of the 1980 Convention provides the international community with a unique opportunity to reassert and strengthen humanitarian norms in the face of the current land mine crisis.

 The Basis of International Humanitarian law  

International humanitarian law, formerly known as the laws of war, has been codified since the la te nineteenth century through numerous diplomatic conferences which have addressed certain methods and means of war which were considered to violate the conscience of humanity. In virtually every case the prerequisite was to achieve a balance between humanitarian concerns and what was considered to be military necessity. Ignoring humanitarian imperatives would have left warfare completely unrestrained, while discounting military requirements would have made humanitarian law appear unworkable and irrelevant to the conduct of hostilities. Although there is a certain amount of compromise in humanitarian law, clear and stringent rules do exist, even if their implementation is all too often woefully, even tragically, inadequate.

The predominant body of international humanitarian law is contained in the Hague Conventions of 1899 and 1907, in the four Geneva Conventions of 1949 and in the two Protocols additional to the Geneva Conventions, adopted in 1977. To the extent that these agreements codified existing customary law their obligations apply to all States, irrespective of whether they have ratified the particular Conventions or Protocols themselves. The following summary will be based primarily on rules found in the Geneva Conventions and their Protocols which integrated and developed the norms of the Hague Conventions.

 Protection of Civilians/Prohibition of Indiscriminate Attacks  

The rule of distinction between military and civilian persons and objects is a fundamental principle of humanitarian law. Its most recent expression, which reflects customary law, is found in Article 51 of the First Additional Protocol of 1977:

 Indiscriminate attacks are prohibited.  

 Indiscriminate attacks are:  

 (a) those which are not directed as a specific military objective;  

 (b) those which employ a method or means of combat which cannot be directed at a specific military objective; or  

 (c) those which employ a method or means of combat the effects of which cannot be limited as required by this Protocol;  

 and consequently, in each such case, are of a nature to strike military objectives and civilians or civilian objects without distinction.  

The issue of whether anti-personnel land mines are of a nature to strike military and civilian persons and objects without distinction is a matter of quite some debate. Clearly, as with rifles, mines are capable of being used against civilians but are not necessarily so used. It could be argued that mines are indiscriminate by nature because their effects cannot be limited as required by the law; even if the mines are aimed at military objectives the civilian casualties are usually excessive because of the long life of mines and the inability of a mine to distinguish between a civilian and a soldier

However, States have not taken this approach and they believe that the issue is one of how mines are used. The general interpretation has been that if they are aimed at military objectives and precautions taken (in particular, if they are used in a guarded, fenced and marked minefield around a military installation) they would clearly not be in violation of the law. However, it is indisputable that scattering the same mines over large areas which are liable to be used by civilians would clearly constitute an attack which is of a nature to strike military objectives and civilians or civilian objects without distinction.  

The use of land mines over large areas may even constitute a direct attack upon civilians. If designed or intended to attack civilians the attack would violate the humanitarian law norm contained in Article 51: The civilian population as such, as well as individual civilians, shall not be the object of attack.  

    

However, when mines are used in times of armed conflict it may be difficult to determine whether civilians have been intentionally made the object  of an attack or have been the collateral victims of a legitimate use of mines against a military objective. This ambiguity leaves open the possibility of widespread use of anti-personnel mines under the guise of defense against an opponent's military force when in fact they are being used to damage or terrorize the civilian population.

In summary it can be stated that the intentional use of mines against a civilian population can be very difficult to prove in times of armed conflict. On the other hand it is clear that mines will strike without distinction against military and civilians alike unless their emplacement is severely limited to avoid areas liable to be used by civilians and unless they are removed when they no longer serve a military purpose.

 Prohibition of Unnecessary Suffering  

The use of weapons which inflict unnecessary suffering or superfluous injury is prohibited under customary humanitarian law. The first treaty provision bases on this principle was the 1868 Saint Pet ersburg Declaration renouncing the use in war of bullets which explode inside the human body. The Declaration articulated the basic principle of the law of war that the only  legitimate object which States should endeavour to accomplish during war is to weaken the military forces of the enemy and that arms which uselessly aggravate the sufferings of disabled men or render their death inevitable... would therefore be contrary to the laws of humanity. This principle was the basis of the 1925 Geneva Protocol prohibiting poison gas and was reaffirmed in Additional Protocol I (Art. 35). 

Since deliberate attacks against civilians are prohibited per se this rule normally applies only to the effects of weapons on combatants. As regards anti-personnel land mines this principle is likely to be violated only in the case of mines which inflict greater injury than necessary for the purpose of the mine, namely to halt the advance of soldiers in the minefield. The experience of war surgeons treating mine victims has been that some mine models inflict far more injury and death than others, although the same purpose is served.

 The 1980 Conventional Weapons Convention  

The 1980 Convention's Protocol II deals with Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices . It essentially contains the following provisions:

* a restatement of the general rule that mines may only be directed at military objectives, a prohibition on indiscriminate use and a requirement that all feasible precautions  be taken to protect civilians.

* re motely-delivered mines may not be used unless either their location is accurately recorded or they are fitted with an effective neutralising mechanism.

* pre-planned minefields are to be recorded and parties to a conflict are to endeavour to ensure the recording of those laid during hostilities.

* at the end of hostilities, parties are to try to agree among themselves or with other States or organisations to take the necessary measures to clear minefields.

Major weaknesses of the Convention are that:

(1) it does not apply to internal armed conflicts where most recent mine use has occurred,

(2) no clear responsibility is assigned for removal of mines,

(3) it does not prohibit the use of non-detectable mines,

(4) provisions for remotely-delivered mines are weak, and

(5) there is not effective implementation or monitoring mechanism.

An additional weakness is that, by late 1994, only 42 States had become parties to the Convention. This may be attributed both to the weakness of its provisions and to the lack of mechanisms for follow-up and regular review. A number of States have announced their intention to ratify or otherwise adhere to the Convention before the October 1995 Review Conference.

Given the serious flaws mentioned above, the 1980 Convention has had little or no effect on the use of anti-personnel mines in recent conflicts, with devastating results for civilian populations in many parts of the world. Strengthening of the Convention should be among the highest humanitarian priorities of the international community. The most effective means of protecting civilians from the scourge of mines, and of reaffirming the principles of humanitarian law, would be to entirely prohibit the use, transfer and possession of anti-personnel mines, as the Intern ational Committee of the Red Cross, the United Nations Secretary-General and many humanitarian organisations urged in early 1994. Such a total prohibition is the only practical means of preventing the continued spread and misuse of mines in violation of customary international law. It is a recognition that, whatever the theoretical possibilities for legal military use, the low cost and ease of production of anti-personnel mines make the enforcement of more complex standards virtually impossible without elaborate and extremely expensive control mechanisms. The enforcement of more complex norms in internal conflicts would be virtually impossible.

The resolution on the export of anti-personnel mines adopted by the 1994 United Nations General Assembly (A/Res/49/75D of 15 December 1994) recognised the ultimate goal of the eventual elimination of anti-personnel land mines as viable and humane alternatives are  developed. In so doing it set the standard against which amendments to the 1980 Convention should be judged. Changes will be welcome to the extent that they move towards elimination and unwelcome if they undermine or divert attention from that goal.

The Group of Governmental Experts preparing proposals for the October Review Conference has held four meetings to date. A number of proposals are currently under consideration which, if adopted, would represent important steps forward. These include:

* extension of the scope of the Convention to internal armed conflicts;

* a prohibition on mines which are not easily detectable, with specific technical characteristics prescribed for this purpose;

* establishment of the principal that parties which use mines are responsible for their removal;

* incorporation into the Convention of effective implementation and verification mechanisms ;

* the introduction of methods, including positive incentives, to promote universal adherence.

However, none of the above will be effective without stringent controls on mine transfer and use, even if a total prohibition is not achieved at the Review Conference. None of the proposals currently under consideration, other than a total ban, are likely to significantly reduce civilian casualties.

The most widely supported initiative currently under consideration would require that all mines used outside marked and guarded minefields contain effective self-destruct mechanisms. Because this proposal explicitly permits the continued production, sale and use of non self-destruct mines for classical use in minefields, these " dumb mines " will continue to be available and will be used indiscriminately. The requirement for self-destruct mines, even if agreed, may not be implemented in the many countries which claim they cannot pay for new mine stocks.

Unfortunately, the promotion of self-destruct mines for use outside marked and guarded minefields may have the effect of suggesting that not only classical barrier minefields, but also remotely-delivered or scattered mines are essential to military operations. These are precisely the mines which have been used in some countries on a vast scale and indiscriminately. They are extremely difficult to locate after a conflict has ended and have inflicted enormous suffering upon civilian populations. Unless the self-destruct mechanisms are 100 per cent reliable and are set to destroy the mine very shortly after their emplacement, many civilians will continue to fall victims to them. Promotion of self-destruct mines could in fact lead to an increase rather than a reduction in the trade in, and use of, anti-personnel land mines.

A regime based on the use of self-destruct mines in only likely to reduce casualties if the production, transfer and use of non self-destruct or " dumb mines " are prohibited and if they are accompanied by a stringent verification system and sanctions. The self-destruct period would need to be short (at most a few months) as would the " grace period " for States to implement the new requirement. Even if these conditions are met, large numbers of civilians are likely to suffer when these mines are used indiscriminately in civilian areas before self-destructing and when they fail to self-destruct. It is essential that attempts to develop a regime based on self-destruct mines do not delay steps towards a total ban and the development of more humane alternatives.

A more direct route towards achieving total prohibition might be a stringent requirement that anti-personnel mines only be used within marked, fenced and guarded minefields, coupled with an impartial and non-political verification regime to identify violators, and the appropriate use of sanctions. If accompanied by a ban on the export of anti-personnel mines, and good faith efforts to develop alternatives the result might be a significant reduction in mine use and casualties over a period of time. The process could be accelerated by international efforts to destroy existing mine stocks, estimated to number some 100 million. Such an effort would be far less costly than future demining, treatment of victims and the rebuilding of afflicted communities.

 Conclusion  

The only effective solution to the global crisis of land mines is their total prohibition and elimination. Other options fall far short of the goal of protecting civilians from the indiscriminate effects of anti-personnel mines and are likely to result in continued civilian casualties on a large scale for many years. The opportunity exists in the Review Conference of the 1980 Conventional Weapons Convention to take decisive steps towards the goal of elimination and the pursuit of alternatives to anti-personnel mines.