Report of the ICRC for the review conference of the 1980 UN conventions on Prohibitions or restrictions on the use of certain conventional weapons which may be deemed to be excessively injurious or to have indiscriminate effects
30-04-1994 Article, International Review of the Red Cross, No. 299
PART II : Mines
Humanitarian, legal and military aspects of landmines: need for thorough discussion
Every year, thousands of men, women and children are victims of anti-personnel mines. Landmines not only kill but mutilate horrendously, strike blindly at all human beings alike, and continue to spread terror for years or even decades after the hostilities have ended. The effects of mines are frequently inconsistent with certain fundamental rules of international humanitarian law which require parties to distinguish between civilians and combatants, prohibit the use of indiscriminate weapons, and also prohibit the use of weapons that are liable to cause excessive suffering.
The magnitude of the damage caused by anti-personnel mines, in terms of both human suffering and long-term socio-economic destabilization, as witnessed by ICRC delegates and medical teams, prompted the ICRC to hold the Montreux Symposium on anti-personnel landmines in April 1993. It was recognized that the problems created by the use of mines are complex and multifaceted and that there would certainly not be a single solution to the present situation. Therefore, in addition to the surgical and orthopaedic needs of mine victims, the Symposium discussed the difficulties of mine clearance, the actual military use of mines in different situations, the technical construction of mines and possible developments, the manufacture and trade in mines, and, of course, the present legal regulation of mines and its shortcomings. It was clear that further legal regulation would require consideration of all the factors concerned in order to arrive at the most effective solution.
During the Montreux Symposium, the need was felt to secure a wider and more detailed military viewpoint on the operational use of landmines. Towards this end, the ICRC organized a Symposium of military experts on the military utility of anti-personnel landmines, in January 1994.
Annex I contains the results of the Montreux Symposium. These have been grouped under five themes: humanitarian, medical and socio-economic costs of landmines; prohibition of the use of certain types of mines; proposals for modification of the 1980 Convention and of its Protocol 11; possible arms control and disarmament measures; and information to the public.
Annex II reproduces the results and proposals of the Symposium of military experts.
Possible amendments to Protocol II of the 1980 Convention
Section 11 of this Part will now give an overview of the various amendments to Protocol 11 that were proposed during the two symposia organized by the ICRC and by other persons or bodies. All suggestions pertinent to the possible amendment of Protocol 11 have been included. They are not necessarily alternative suggestions but could be combined. This report analyses the advantages and possible disadvantages of each proposal and indicates the conditions that would be necessary to make the proposal most effective.
For ease of reference, the proposals are presented in two groups:
- proposals on the prohibition of certain types of mines;
- proposals for further regulations on how mines are used.
Analysis of various proposed amendments to Protocol 11
A number of proposals were made by experts during the two symposia the ICRC hosted as well as by other persons or bodies on possible approaches that could be adopted to improve the situation caused by landmines. Most of these proposals have their advantages and difficulties and need to be considered in the light of a number of relevant factors. With a view to helping the Review Conference find the most realistic and effective solution possible, this part of the report will briefly analyse each of the proposals bearing in mind the considerations that need to be taken into account by the Review Conference.
I. Proposals suggesting the prohibition of the use of certain types of mines
The Review Conference could amend Protocol 11 of the Convention by introducing a prohibition on the use of certain types of mines or a prohibition on the use of mines which do not have certain features. As this Convention is a humanitarian law treaty, it can only address the regulation or prohibition of the use of certain types of mines.
However, given the low price and widespread availability of mines, it is clear that any new prohibition relating to use must be accompanied by appropriate arms control/disarmament measures in order to make the rule effective. Therefore discussions during this Review Conference should take into account the arms control measures that would be necessary in order to choose which would be in fact the most effective rule.
1. Prohibition of the use of all anti-personnel mines
This is the proposal that was supported by a number of participants at the Montreux Symposium and is being put forward by many non-governmental organizations, Senator Leahy of the USA and other influential indi viduals and organizations.
There is no doubt that from the humanitarian point of view this would be the best option, as a total ban would have the effect of stigmatizing the use of mines and a violation of the rule would be easily provable. Although it is recognized that lawless groups would be likely to make their own explosive devices if anti-personnel mines were not available, such improvised devices would not be available in the vast quantities that antipersonnel mines are and the problem would therefore be reduced. The advantage of this option over a ban on anti-personnel mines without self-destruct mechanisms is that the latter would still be around for the duration of their life and, in the case of internal armed conflicts that frequently last for years, if not decades, they are still likely to cause civilian casualties. It is recognized, however, that with self-destruct mines there would not be the cumulative effect that results from decades of laying live mines. Another advantage of a total ban is the fact that there would not be the danger of the technical failure of self-destruct or self-neutralizing devices and that refugees could immediately return home at the end of hostilities.
In order to be effective, however, this option would require the following:
(i) General agreement among States, which would need to weigh the advantages and disadvantages of the continued use of anti-personnel mines. The meeting of military experts came to the conclusion that anti-personnel mines are the most effective means of achieving the objectives for which they are used. Alternative systems would require greater resources and the armed forces would be likely to suffer greater losses during the conflict. However, these considerations are to be balanced against the loss of and damage to innocent civilian lives, the loss of agricultural land, and the enormous resources necessary for mine clearance and for care of the victims of mines. These negative effects of mines would not be altogether avoided by the use of mines that self-destruct or self-neutralize, for the reasons outlined above.
(ii) There should also be an arms control agreement to ban the manufacture and stockpiling of anti-personnel mines, together with appropriate verification procedures. This verification might not have to be quite as strict as would be necessary if it were agreed that mines need self-destruct and self-neutralizing mechanisms, as the stigmatization of mines would have its own effect (as with the banning of the use of chemical and biological weapons in 1925).
(iii) There would need to be a very careful definition of anti-personnel mines that are to be banned, especially as dual use systems exist and any vagueness in the wording would allow the prohibition to be evaded.
(iv) It would be useful to have an additional requirement that anti-tank mines must be both detectable and fitted with neutralizing mechanisms, for al- though these mines are causing fewer casualties than anti-personnel mines they are still very dangerous and ought not be left around for an indefinite period of time.
2. Prohibition of the use of scatterable (remotely-delivered) mines that are not fitted with self-destruct mechanisms
This was one of the proposals of the Symposium of military experts. The advantage of the incorporation of self-destruct mechanisms is that it would reduce the need for mine clearance and also cause fewer civilian casualties in the long term. Civilian casualties from mines would not be avoided as they would still occur during the active life of the mines and would continue to be caused in the longer term by mines whose self-destruct mechanism failed to function. Civilian casualties are particularly likely to persist in internal armed conflicts which typically last for years and sometimes even decades, and where widespread mining tends to occur. However, one would avoid the build-up effect of the laying and relaying over many years of minefields that remain active throughout the hostilities and for years afterwards.
In order to make this proposal both effective and realistic, the following conditions need to be met:
(i) There must be general agreement on the proposal, otherwise those who do not agree will continue to use scatterable systems without self-destruct mechanisms.
(ii) There must be an arms control agreement to the effect that only scatterable mines with self-destruct mechanisms can be manufactured, and appropriate verification measures instituted. This is essential as there would be a temptation to manufacture scatterable mines without self-destruct mechanisms, which would be cheaper and therefore assured of a market.
(iii) There must be a defined time-limit on the active life of the mine once it is laid. This is critical, as without such a specification the regulation is meaningless. From a humanitarian point of view, the time-limit should be as short as possible. If the mines in question continue to be active for years, there will be no reduction in the damage that mines inflict on the civilian population.
(iv) The mechanism chosen must not depend on the good faith of the user for its correct functioning. Practice has shown that one cannot rely on proper behaviour. The self-destruct mechanism must therefore be incorporated into the mine in such a way that it cannot be easily tampered with and that the mine will automatically self-destruct at the end of a given period once the mine is activated.
(v) The mechanism chosen must have an extremely low failure rate. As scatterable mines are laid thousands at a time, any failures will continue to pose a serious threat to the civilian population.
(vi) This proposal should not be taken in isolation, as the problems caused by mines emplaced by hand or vehicle are equally serious.
3. Prohibition of the use of anti-personnel mines that are not fitted with self-destruct mechanisms
This proposal, which was put forward by participants at the Montreux Symposium, would apply to all anti-personnel mines, whatever their method of delivery and intended use.
Self-destruction in the case of anti-personnel (AP) mines was considered preferable to self-neutralization for a number of reasons and the Symposium of military experts concurred with this, with the possible exception of jumping and directional fragmentation (Claymore) mines (see point 5 below).
There would need to be a definition of " anti-personnel mines " for the purpose of such a rule and, in order for the rule to be effective, the considerations outlined in point 2 above (scatterable systems) would also apply here.
As with the proposal to incorporate self-destruct systems in scatterable mines, this proposal would certainly reduce the numbers of civilian casualties, although it would not eliminate the problem.
4. Hand-emplaced anti-personnel mines used for tactical purposes and scatterable mines should have a self-destruct mechanism, but hand-emplaced mines used for long-term and barrier minefields need not have such a mechanism
The participants in the Symposium of military experts made a distinction between hand-emplaced mines that are used for tactical purposes during a given conflict, on the one hand, and those used for long-term protective purposes, such as protecting a border, on the other. I n their opinion, hand-emplaced mines that do not self-destruct should still be permitted for long-term and barrier minefields, but would have to be used under tightly controlled circumstances.
Although these are clearly two different military uses, there are serious objections to basing an international regulation on this distinction:
(i) If hand-emplaced mines continue to be manufactured, there is at present no means of controlling that they are sent only to countries that need them for such long-term barrier minefields and that they are indeed only used for that purpose.
(ii) Very few mines would need to be manufactured for these types of minefields because of their limited number. Further, if the mines do not self-destruct, they do not need regular replacement. How could one control that only this small amount is manufactured and by which companies? Again, how could one control to which countries they are sent, according to which criteria and on whose decision?
(iii) Given the above difficulties, and the very great danger from a humanitarian point of view of allowing such " dumb mines " to continue to be manufactured, it would be preferable to require that all AP mines have self-destruct mechanisms. This would mean that barrier minefields would need to be replaced regularly (probably every year). This is essentially a financial problem but it should be seen against the enormous cost of demining that would otherwise continue to be needed as well as the medical, social and infrastructural costs that result from the use of " dumb mines " .
5. Directional fragmentation mines do not necessarily have to be fitted with a self-destruct mechanism, but jumping mines must be fitted with either a self-destruct or a self-neutralizing mechanism
The military expert s drew a distinction between these anti-personnel mines and point detonating mines, as directional fragmentation mines and jumping mines have a much greater radius of lethality. They pointed out the disadvantage in equipping these types of anti-personnel mines with self-destruct mechanisms: there would be a greater danger to anyone who might be passing at the moment of self-destruction. The difficulty with self-neutralization is that one cannot be certain that the mechanism has functioned, and parts of the mine might still be available for reuse.
It was thought that directional mines would be reused and are therefore less likely to be left in place to pose a threat to civilians. It will have to be established whether one can assume that these mines will indeed not be left lying around, or whether it would be safer to equip them with a self-neutralizing mechanism that would take effect after a certain period if the mine is not switched off for reuse.
With regard to jumping mines, it will have to be assessed whether it would be safer to provide for the incorporation of a self-destruct mechanism or a self- neutralizing mechanism, taking into account the advantages and disadvantages of each system.
6. Prohibition of the use of mines that are not detectable
This proposal was put forward by the participants in both symposia. The military experts agreed that in future anti-personnel mines should be manufactured so as to be detectable. However, they were unable to agree on the feasibility of rendering existing stocks of mines detectable. The problem of future stocks will be considered separately below.
The proposal to require that mines be made detectable is a useful one, although it should be combined with one or more of the other proposals in this section in order to have a real impact on the worldwide pr oblem of mines. ' Re requirement must provide, however, that the detectable element in the mine cannot be easily removed. There must also be verification that mines not conforming to these specifications are not manufactured.
7. Prohibition of the use of anti-tank mines that are not fitted with self-neutralization mechanisms
Anti-tank mines were not discussed at any length during the ICRC-hosted symposia, as these concentrated on anti-personnel mines. However, it was indicated during the Symposium of military experts that anti-tank mines frequently have a self-neutralizing device. This is because these mines are expensive and therefore frequently need to be reused, and to equip them with self-destruct devices would be too dangerous for passers-by.
It would therefore be useful to require that all anti-tank mines be fitted with neutralizing mechanisms, and it would have to be verified that only this type is manufactured.
8. Prohibition of the use of mines with anti-handling devices
This was a proposal put forward at the Montreux Symposium. It was felt that the military purposes of these devices, that is, to lower the morale of the enemy and act as a deterrent to breaching a minefield, did not justify the difficulty they create for mine-clearance operations after hostilities.
It was pointed out during the meeting of military experts that anti-handling devices are fitted to anti-personnel mines used to protect anti-tank mines. This makes it far more difficult for the opposing forces to remove the anti-tank mines. However, the major problem is that these anti-handling devices render mine- clearance efforts extremely difficult and dangerous. The majority of the participants in this meeting agreed that if anti-personnel mines fitted with anti-handling devices were also equipped with self-destruct mechanisms there would be less of a problem, as instead of attempting to clear the minefield one would simply wait until the mines had self-destructed.
The difficulty with this approach is that:
(i) It may well be necessary to clear an area before the active life of the mines has expired, and the longer the active life of the mines, the more likely this will be.
(ii) If there is no agreement on and effective implementation of a new rule that all mines are to have self-destruct or self-neutralizing devices (self-destruct for point detonating anti-personnel mines and self-neutralization for jumping and possibly Claymore anti-personnel mines and anti-tank mines). then the problem of anti-handling devices will remain as acute as ever.
This proposal would, of course, have to be combined with some of the other proposals as by itself it would not have any major effect on the problems caused by the use of mines.
9. Existing stocks should be modified to be in conformity with the new law or destroyed
Although this is an arms control or disarmament measure and therefore is not actually a proposed amendment to Protocol II of the 1980 Convention, it is a subject that should be kept in mind during the Review Conference. It is estimated that in existing stocks there may be up to one hundred million mines, most of which are undetectable and do not incorporate self-destruct or self-neutralization mechanisms. Should the Review Conference decide to render illegal the use of certain types of mines (e.g. anti-personnel mines without self- destruct mechanisms), the question will arise as to what should be done with these stocks. States which accept the new proh ibition would not themselves be able to use them and, in the case of small anti-personnel mines. it would not be possible to add such mechanisms.
There is a great danger in allowing such stocks to continue to exist, for they are likely to be used in one way or another, making the massive problem that has been created world-wide by the use of such mines much worse. It would be simple to add a means of detecting the mine, by applying a metal strip for example, but this in itself would not prevent the enormous numbers of civilian casualties that will continue to occur before comprehensive mine-clearance is undertaken. There would also need to be verification that this modification to mines in stock has indeed been carried out, but given the limited result this measure would have in humanitarian terms, it is questionable whether such a proposal is worthwhile.
The only major difficulty relating to the destruction of stocks is financial. However, the cost of destruction and of possible restocking with the new mines has to be compared with the enormous cost of mine-clearance operations, which would have to be stepped up if existing stocks continue to be used. This is in addition, of course, to the cost of medical care, loss of agricultural land, etc.
II. Proposals on further regulations on how mines are used during an armed conflict and cleared after hostilities
The existing provisions of Protocol 11 of the Convention relate exclusively to the way mines are to be used during an international armed conflict and to clearance operations after active hostilities. The effectiveness of these provisions depends entirely on combatants behaving in conformity with the law.
Although this is the case with all humanitarian law rules, non-compliance with the law has particularly serious effects in the case o f the use of mines because of the fact that they continue to be active for such long periods. Prohibition of the use of certain types of mines is therefore necessary, as one cannot ensure behaviour in accordance with the law even in areas where various implementation mechanisms exist.
However, the participants in both ICRC-hosted symposia felt that rules on the way mines are used are still necessary. The Montreux Symposium looked at some of the shortcomings of Protocol 11 as it now stands (see pages 43-44), and both this Symposium and that of the military experts made some suggestions on possible improvements.
1. Introduce implementation mechanisms
The experts noted that a major shortcoming of the 1980 Convention is its lack of implementation mechanisms. Although it may be possible to conceive of implementation mechanisms appropriate only for the use of mines and booby-traps, and therefore incorporated in Protocol 11, it is proposed that the more logical place to introduce implementation mechanisms is in the body of the Convention itself. This proposal will therefore be examined in more detail in Part 111 of this report.
Possible arms control/disarmament measures relating to the manufacture, stockpiling and transfer of mines were examined by participants in the Montreux Symposium (see pages 45-47). Such measures would probably not be included in Protocol 11 to the 1980 Convention as it is a humanitarian law treaty, but they would be necessary in order to render new rules on the use of mines effective.
2. Extend the applicability of the law to non-international armed conflicts
As the majority of conflicts are non-international, and as the appalling situation caused by the widespread and indiscriminate use of mi nes has occurred primarily as a result of these conflicts, it would make sense to extend the applicability of the law on the use of mines to non-international armed conflicts.
However, such an extension of the applicability of the law would normally be effected by an amendment to the Convention itself which specifies its scope of application. This proposal will therefore be considered in Part Ill of this report.
It should be noted, however, that in regard to the use of mines a mere extension of the applicability of the Convention to non-international armed conflicts is even less likely to have the effect of ensuring respect for the rules than is the case in international armed conflicts. There will inevitably be more violations of the law in non-international conflicts, and the report of the military experts indicates why insurgents are likely to continue relying extensively on the use of mines, especially if they are easily available (see pages 52-53). It is of particular interest, therefore, to seriously consider a total ban on the use and manufacture of certain types of mines so that forces in these conflicts do not have access to them. It is recognized that this will not stop insurgent forces from making explosive devices by hand and that each of these devices is likely to be very dangerous. However, there is a limit to the number they could make and they therefore would not be able to strew vast numbers of them around as is presently the case with mines manufactured on a large scale.
3. Introduce stricter rules relating to the precautions that should be taken to protect civilians
The participants at the Montreux Symposium noted that the duty to take precautions to protect the civilian population that is contained in Article 3 of Protocol 11 is very weak in that it is limited to taking " all feasible precautions " . Some participants suggested that the word " feasible " should be removed as it leaves too large a loophole, but others were of the opinion that this would place an impossible burden on the military in some situations.
The Symposium of military experts thought that all efforts should be made to mark minefields by fences or other means, even if they comprise mines that self-destruct or self-neutralize. They also suggested that there should be a duty to mark scattered minefields if at all possible, although they recognized that this is less feasible in most circumstances. Such provisions are in fact already included in Protocol 11 as it stands, although the reference to precautions in Article 3 could be rendered more specific by indicating that fences, etc., are to be used wherever possible for all types of minefields.
In any event, the report of the Montreux Symposium shows that one cannot put too much trust in the rule requiring such precautions, not only because they are frequently not taken, but also because experience has shown that markers such as fences and signposts tend to be removed by the local population for their own use as they are seen as valuable items.
4. Introduce stricter rules on the recording of minefields
The participants in the Montreux Symposium criticized the provisions of Protocol 11 relating to the recording of minefields. There is a duty to record " pre-planned " minefields (Article 7) but no definition of this term. With regard to all other minefields, parties are only required to " endeavour " to record. A more careful definition of the content of the legal duty to record should be considered; it was suggested that records should also indicate the types of mines used.
The Symposium of military experts suggested that the recording of minefields should be required even in the case of mines that self-destruct or self-neutralize. With regard to mines that are scattered by aircraft or artillery, their general area of use should be recorded. Self-destruct or self-neutralization times should also be recorded.
Although the situation would be improved if these proposals were carried out, one cannot place too much reliance on the duty to record for the following reasons:
(i) in the light of past experience, even if there were an absolute rule that all minefields (or at least their general area of use) had to be recorded without exception, it is unlikely that the rule would be generally respected, especially in non-international armed conflicts;
(ii) in the confusion of war, records frequently get lost;
(iii) the recording of minefields is less effective than is generally expected as mines (especially scattered ones) frequently move to quite different locations owing to rainfall (which can displace mines kilometres from their original position) and to the movement of the soil or sand.
5. Introduce the requirement that self-destruct times and other minefield information should be declared to all parties at the end of the hostilities
This would be a useful step if it were carried out, but there are reasons to doubt that such a provision could be relied on:
(i) States did not accept a rule to this effect during the negotiation of the 1980 Convention, and Article 7, para. 3(a), sub-paras. (ii) and (iii), indicate only that such information is to be given once territory is no longer occupied by the adverse party. This reticence may still exist.
(ii) Such information will be available only if records have indeed been made and kept, and will be useful only if the min es have not moved to any great degree.
6. Extend the duty to take measures for the protection of third-party forces or missions
The participants in the Montreux Symposium thought that the duty to take certain measures for the protection of United Nations forces or missions currently contained in Article 8 should be extended to include other missions, such as those undertaken by the CSCE. Some of the provisions could also be of use for the protection of mine-clearance organizations or humanitarian agencies that are attempting to work in the area.
If complied with, these rules would help alleviate the problems that arise after hostilities. It should be noted that the duty created by Article 8, para. 1, is conditional on whether the party concerned " is able " to undertake the measures. It is uncertain whether this can be improved on, especially as a large proportion of mines are laid not by government troops but by insurgents.
7. Introduce stricter rules on the duty to clear minefields at the end of active hostilities
The participants in the Montreux Symposium stressed that at present no one has responsibility for clearing minefields, and that this is a major shortcoming of the law. They recognized, however, that finding an acceptable and effective solution in this respect may be difficult.
Some participants in the Symposium of military experts expressed the view during discussion that, in principle, those who laid the mines should be responsible for their removal. A suggestion was made during the Montreux Symposium that the Security Council could determine who should pay for mine clearance and who should carry it out.
8. Introduce rules to prevent the indiscriminate effects of unexploded sub-munition
The symposia that the ICRC hosted did not deal directly with the problem of unexploded sub-munition, and therefore did not make any particular proposals in that regard, as it does not fall into the category of mines. However, participants in both meetings pointed out the extensive danger caused by these remnants of war which in many respects constitute the same type of hazard to civilians and clearing difficulties after hostilities as mines do. However, some of the issues involved are different from the question of mines. Ibis subject will be looked at again in Part HI below.