The Afghan farmer Hakim Masjedi was gathering firewood with his nephew when he stepped on a landmine, losing his right leg and suffering injuries to his face and left food. His nephew died trying to save his uncle, as he too stepped on a mine. Anti-personnel landmines are banned by most countries around the world, since they frequently kill and wound civilians. So far, 164 countries have become parties to the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (also known as the “Ottawa Treaty”). Several countries have not ratified the treaty such as Russia, China, Iran, and the United States (U.S.). In late January of this year, the Trump administration announced that it would allow the employment of advanced and non-persistent landmines by its Combatant Commanders. Parties to the Ottawa Treaty, such as France, Germany and the United Kingdom, have expressed their concern and disappointment about the Trump administration’s announcement. This post examines the legal dimensions of anti-personnel landmines and discusses the potential legal implications of the Trump administration’s new landmine policy.
The International Laws of Anti-Personnel Landmines
The employment of landmines by states is mainly regulated by treaties and customary international law. Originally, the use of landmines used to be a matter of customary humanitarian international law (HIL). Landmines can be considered a clear violation of two of the fundamental principles of HIL: the distinction between civilians and combatants and the prohibition of unnecessary suffering. Both of the HIL principles were codified in the two additional protocols of the Geneva Conventions in 1977 (Art 48 and Art 35 of Protocol I).
HIL condemns any attacks not specifically directed at military targets as unlawful. It is questionable whether a country that drops landmines across large areas of territory can clearly direct them against military objectives and can carefully distinguish between military targets and civilians. Out of the more than 120,000 recorded casualties that have been added to the landmine monitor database between 1999 and 2017, civilians represented the vast majority of causalities, which highlights the arbitrary nature of landmines.
The superfluous injury and the unnecessary suffering caused by landmines relate to the other principle of customary IHL. Unnecessary suffering refers to the weapons’ impact on human beings. Since unnecessary suffering does not serve any inherent military purposes, IHL restricts the use of weaponry that causes devastating harm.
The principles of customary IHL relating to landmines were gradually codified in international treaties. The first important treaty dealing with landmines is the UN Convention on Certain Conventional Weapons (CCW) concluded in 1980. The convention has 125 parties, including the U.S., which ratified the treaty with significant reservations. The convention recognizes the customary HIL distinction principle by prohibiting the employment of landmines against civilians (Protocol II). However, the convention does not ban the use of landmines overall, but rather regulates its employment. Unlike the CCW, the Ottawa Treaty, effective since 1999, prohibits the overall use of anti-personnel mines.
The U.S.’s Decision Not to Join the Ottawa Treaty
The U.S.’s military operation in South Korea is crucial in understanding the American decision not to ratify the Ottawa Treaty. Due to North Korea’s military advantage over South Korea with regards to its considerably larger troop size, the U.S. regarded the high number of landmines planted in the demilitarized zone as an important strategic tool to deter North Korea from invading the South. If the U.S. had joined the Ottawa treaty, it would have had to destroy the landmines that were believed to deter a North Korean attack. Additionally, the U.S. would have been restricted in its ability to conduct operations with South Korea, since the treaty prohibits states from engaging in military cooperation with nations that make use of landmines.
In 2014, the Obama administration decided to align the U.S. with the key requirements of the Ottawa Treaty. It announced that the U.S. would not employ anti-personnel landmines. However, it specified an important exception: the Korean Peninsula. The U.S. would thus not employ landmines anywhere outside the Korean Peninsula and would destroy landmines considered unnecessary for the defense of South Korea.
On January 31, 2020, the Trump administration announced the abandonment of the Obama administration’s policy to prohibit the U.S. from using landmines outside of the Korean Peninsula. The Department of Defense reached the conclusion that the restrictions imposed on U.S. forces by the Obama administration’s policy could place the U.S. at a severe disadvantage during a conflict. The new landmine policy thus allows U.S. troops – in exceptional circumstances – to use advanced, non-persistent landmines.
Trump’s New Landmine Policy and its Relationship with International Law
President Trump’s reversal of the Obama administration’s policy on anti-personnel landmines has important implications with regards to international law. Firstly, the use of landmines by the U.S. can be seen as a violation of the two principles of customary HIL mentioned at the beginning: the distinction between civilians and combatants and the prohibition of unnecessary suffering. Even though the U.S. has not ratified Protocol I of the 1977 Geneva Conventions, which codifies the distinction principle and the principle concerning unnecessary suffering, the U.S.’s new landmine policy could still be legally questioned from a perspective of customary HIL. The U.S. administration seems to carefully pay attention to the HIL by emphasizing that the new landmines are “specifically designed to reduce unintended harm to civilians and partner forces.” However, it remains doubtful that the U.S. can actually guarantee that their landmines will only be used against combatants and will not cause unnecessary suffering.
Secondly, the Trump administration’s new landmine policy could be regarded as a breach of a customary international law that has gradually developed prohibiting the employment of landmines, thus undermining the U.S.’s reputation within the international community. The argument could be advanced that the prohibition of landmines led to a new customary international law, since most countries in the world do not employ landmines and recognize their use as unlawful. The Ottawa Treaty, which is ratified by the majority of members of the international community, can be seen as an almost international recognition of the landmines’ ban as law, thus constituting opinio juris. The combination of the common state practice of not using landmines and the recognition of such practice as law can be interpreted as having developed into a new customary international law. Following that argument, the U.S.’s new landmine policy arguably violates the customary international law that prohibits the employment of landmines.
Thirdly, the Trump administration’s new stance on landmines could potentially lead to a new customary international law that generally accepts the employment of landmines against combatants. The U.S.’s new landmine policy could animate other states and particularly American allies to start employing landmines again. If enough states joined the Trump administration’s new position on landmines, a new state practice could develop and parties to the Ottawa Treaty could decide to terminate it. Normalizing the practice of using landmines by a state as influential as the U.S. could gradually lead to a customary international law that tolerates the use of landmines.
The Trump administration’s decision in January of this year to allow the use of anti-personnel landmines outside of the Korean peninsula is a clear reversal of the Obama administration’s aspiration to put the U.S. in alignment with the rest of the international community and in compliance with the Ottawa Treaty, which prohibits the employment of landmines. The Trump administration’s new landmine policy is not a clear breach of treaty law, since the U.S. is not a party to the Ottawa Treaty and to the Protocol I of the 1977 Geneva Conventions. However, the argument can be made that the U.S.’s new landmine policy violates customary humanitarian international law, in particular the distinction between civilians and combatants and the prohibition of unnecessary suffering.
Whether the new policy has a significant impact on international law and changes customary international law regarding the employment of landmines depends on the future actions of states. The international community has to decide whether to accept and follow the Trump administration’s new policy, or whether to commit to the protection of people like the Afghan farmer Hakim Masjedi from suffering from the unpredictable nature of anti-personnel landmines.