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Army Lawyer
December, 1998
Department of the Army Pamphlet 27-50-313
TJAGSA Practice Note
Faculty, The Judge Advocate General's School
International and Operational Law Note
ANTIPERSONNEL LAND MINES LAW AND POLICY
Lieutenant Colonel Barfield
Opinions and conclusions in articles published in the Army Lawyer are solely
those of the authors. They do not necessarily reflect the views of the Judge
Advocate General, the Department of the Army, or any other government agency.
Introduction
The global movement to ban all antipersonnel land mines (APL) has focused
attention on the use of these mines by United States forces. [FN104] Judge
advocates must be aware of the following policies and laws when advising
commanders on the use of APL.
United States Policy on the Use of Anti-Personnel Land Mines
On 16 May 1996, the President announced that United States forces may no longer
employ non-self-destructing APL, except for training purposes and on the Korean
Peninsula to defend against an armed attack across the de-militarized zone.
[FN105] These APL do not self-destruct, self-neutralize, or have a deactivating
capability. [FN106] This policy applies in international armed conflict and
Operations Other Than War. The law that applies in international armed conflict,
however, is not as restrictive as this policy.
Protocol II of the 1980 Conventional Weapons Convention
The 1980 United Nations Convention on Prohibitions and Restrictions on the Use
of Certain Conventional Weapons (UNCCW) [FN107] limits the use of certain
weapons that may cause unnecessary suffering or have indiscriminate effects.
Protocol II of the convention covers land mines (including APL), booby traps,
and "other devices" such as command detonated mines. [FN108] The United States
is a party to the UNCCW and ratified Protocol II to the convention. [FN109] The
Protocol prohibits the use of land mines against civilians,
[FN110] either directly or though indiscriminate placement. [FN111] The Protocol
also requires that forces take all feasible precautions to protect civilians
from the effects of land mines. [FN112] Articles 4 and 5 restrict placement of
mines and booby traps in populated areas. Under Article 4, non- remotely
delivered mines, booby traps, and other devices cannot be used in towns or
cities, or other populated areas where combat between ground forces is not
taking place or is not imminent. Article 4 creates limited exceptions, however,
if the devices are placed in the vicinity of a military objective under the
control of an "adverse party" (combatant) or measures are in place to protect
civilians from their effects (for example, posting of signs, sentries). Under
Article 5 forces may only use remotely delivered mines [FN113] against military
objectives. In addition, they may be used only if their location can be
accurately recorded or if they are self-neutralizing. [FN114] Article 6
prohibits the use of booby traps on ten categories of objects including the
dead, wounded, children's toys, medical supplies, and religious objects.
Protocol II of the UNCCW addresses land mines generally; the United States is
now considering ratifying the amended Protocol II that will further regulate the
use of APL.
Amended Protocol II
On 3 May 1996, the Review Conference of the State Parties to the UNCCW
proposed amendments to Protocol II. [FN115] The United States participated in
this conference and the President transmitted the ratification package on the
amended Protocol II to the Senate on 7 January 1997. [FN116] The Senate is
currently considering whether to give its advice and consent on ratification.
The amendments expand the scope of the original Protocol to include internal
armed conflicts. [FN117] They require that all remotely delivered APL be
equipped with self-destruct devices and backup self- deactivation features.
[FN118] Furthermore, the amendments require that all remotely delivered mines
other than APL have the same features "to the extent feasible." [FN119] The
self-destructing and self-deactivating features must comply with specifications
in the technical annex to the amendments. [FN120] The amendments require that
all non-remotely delivered APL be self-destructing or self-neutralizing unless
they are employed within controlled, marked, and monitored minefields that are
protected by fencing or other means to keep out civilians. [FN121] These areas
must also be cleared before they are abandoned. [FN122] These restrictions,
however, do not apply to claymore weapons if they are: (1) employed in a
non-command detonated (tripwire) mode for a maximum period of seventy-two hours,
(2) located in the immediate proximity of the military unit that emplaced them,
and (3) the area is monitored by military personnel to ensure civilians stay out
of the area. [FN123]
If a claymore weapon is employed in a tripwire mode that does not comply with
these restrictions, it will be regarded as an APL and must meet the restrictions
for an APL. The Amended Protocol II also requires that all APL be detectable
using available technology. [FN124] All APL must contain the equivalent of eight
grams of iron to ensure detectability. [FN125] The amendments require that the
party laying mines preclude their irresponsible or indiscriminate use. [FN126]
At the end of hostilities, the party must immediately clear, remove, destroy, or
maintain the mines in a marked and monitored area. [FN127] The amendments *25
provide for means to enforce compliance. [FN128] The ability of United States
forces to lawfully use APL recently faced a challenge by domestic legislation
that would have rendered these laws essentially irrelevant for most of 1999.
APL Moratorium
Section 580 of the Foreign Operations Authorization Act of 1996 [FN129] would
have established a moratorium on the use of antipersonnel land mines for one
year beginning 12 February 1999, "except along internationally recognized
borders or in demilitarized zones with a perimeter marked area that is monitored
by military personnel and protected by means to exclude civilians." [FN130] The
moratorium would not have applied to command detonated claymore mines. Section
1236 of the Fiscal Year (FY) 1999 Department of Defense
Authorization Act [FN131] repealed Section 580 of the 1996 Act.
Ottawa Convention
Judge advocates should be aware of another international APL agreement (the
Ottawa Convention). The Convention on the Prohibition of the Use, Stockpiling,
Production, and Transfer of Anti-Personnel Mines and on Their Destruction
[FN132] (hereinafter Ottawa Convention) was signed on 2 and 3 December 1997 by
123 nations. As of December 1998, 131 nations have signed the convention and
fifty-seven nations have ratified it. The convention will enter into force on 1
March 1999. The United States is not a party to the convention. Parties to the
convention pledge never to use APL. In addition, the parties agree never to
develop, produce, otherwise acquire, stockpile, retain or transfer to anyone,
directly or indirectly APL. Finally, the parties agree not to assist, encourage,
or induce, in any way, anyone to engage in prohibited activity to a state party
under the convention. Each state party must destroy or ensure the destruction of
all stockpiled APL it owns or possesses, or that are under its jurisdiction or
control. This must be done as soon as possible but not later than four years
after a country enters the convention into force. Though the United States did
not sign the Ottawa Convention, we must consider interoperability issues related
to our allies that have ratified the treaty. [FN133] Though the United States is
not a party to the treaty, the President has announced several initiatives with
regard to APL that are related to the treaty.
United States Initiatives
On 17 September 1997, the President explained why the United States did not sign
the Ottawa Convention and announced the steps that the United States would take
to "advance our efforts to rid the world of land mines." [FN134] The President
directed the DOD to develop alternatives to APL for use outside of Korea by the
year 2003, with the goal of fielding them in Korea by 2006. [FN135] The
President appointed a former Chairman of the Joint Chiefs of Staff as an advisor
on land mines, [FN136] and the President pledged to increase demining programs.
[FN137] He also stated: "[W]e will redouble our efforts to establish serious
negotiations for a global antipersonnel land mine ban in the Conference on
Disarmament in Geneva." [FN138] Key aspects of the President's announcement have
been codified in Presidential Decision Directive 64 (PDD 64). [FN139] This
document addresses general guidance on APL policy, [FN140] a schedule for
developing APL alternatives, [FN141] the development of future barrier systems
as alternatives to mine systems, [FN142] humanitarian demining programs, [FN143]
a global APL ban, [FN144] and cooperation among allies. [FN145]
Conclusion
The international process underway to outlaw all APL is primarily concerned with
the indiscriminate effect irresponsible use has on civilian populations. United
States armed forces primarily employ APL to protect our defensive positions and
to prevent deactivation of our anti-tank mines. United States doctrine fully
complies with Protocol II and the Amended Protocol II of the UNCCW. Except on
the Korean Peninsula, the United States employs highly reliable APL that
self-destruct within hours or days of their employment and contain a backup
self-deactivation feature. Many non-governmental organizations and some United
States allies objected to APL use as indiscriminate because of their potential
for misuse; therefore, they have supported the Ottawa process. In the face of
the continuing efforts to ban all APL and the scrutiny surrounding the use of
any APL, judge advocates must be prepared to clearly articulate U.S. policy and
applicable law. Lieutenant Colonel Barfield
Points of Contact
Questions regarding APL issues should be directed to HQDA DAMO-SSD (LTC Spinelli,
(703) 695-5162 or DSN 225-9162), or OTJAG (Mr. Parks, (703) 588-0132 or DSN
425-0132).
[FN104]. An antipersonnel land mine (APL) is a 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. Protocol on the Prohibitions
or Restrictions on the Use of Mines, Booby-Traps and Other Devices, amended May
3, 1996, art. 2, U.S. TREATY DOC. NO. 105-1, at 37, 35 I.L.M. 1206
[[[[hereinafter Amended Protocol II]
[FN105]. President William Jefferson Clinton, Statement at the White House (16
May 1996) (available at LEXIS, News Library, ARCNWS File); The White House,
Office of the Press Secretary, Fact Sheet, subject: U.S. Announces Anti-
Personnel Landmine Policy (May 16, 1996), available at <http://
www.pub.whitehouse.gov/uri-res/I2R?:pdi://oma.eop.gov.us/1996/5/16/7.text.1>;
U.S. DEP'T OF ARMY, FIELD MANUAL 20-32, MINE/COUNTERMINE OPERATIONS xvii (29 May
1998); see generally Presidential Decision Directive 48 (on file with Chairman
Joint Chiefs of Staff Legal Counsel). On 17 January 1997, the United States
imposed a unilateral APL stockpile cap and banned the export and transfer of all
APL. The United States also initiated action to pursue negotiations on a
worldwide treaty banning the use, production, stockpiling and transfer of APL in
the United Nations Conference on disarmament. This policy was codified by
Presidential Decision Directive 54 (on file with Chairman Joint
Chiefs of Staff Legal Counsel). Information Paper, LTC John Spinelli, Policy
Analyst, Department of the Army Deputy Chief of Staff Operations and Plans (DCSOPS),
DAMO-SSP, subject: Anti-Personnel Landmine (APL) Studies and Initiatives
(L-1-00) (16 Nov. 1998) (copy on file with the author). See infra text
accompanying notes 135-40 (discussing U.S. policy initiatives).
[FN106]. "Self-destruction mechanism means an incorporated or externally
attached automatically-functioning mechanism that secures the destruction of the
munitions into which it is incorporated or attached." Amended Protocol II, supra
note 104, art. 2, para. 10. "Self-neutralization mechanism means an incorporated
automatically-functioning mechanism that renders inoperable the munitions into
which it is incorporated." Id. art. 2, para. 11. "Self- deactivating means
automatically rendering munitions inoperable by the irreversible exhaustion of a
component, for example, a battery that is essential for the operation of the
munitions." Id. art. 2, para. 12. An example is the claymore, which is not a
mine if it is in command-detonated mode.
[FN107]. Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have
Indiscriminate Effects, Oct. 10, 1980, U.S. TREATY DOC. NO, 103-25, at 6, 1342
U.N.T.S. 137, 19 I.L.M. 1523 [hereinafter UNCCW].
[FN108]. Protocol On Prohibitions or Restrictions on the Use of Mines,
Booby-Traps and Other Devices, 10 Oct. 1980, 19 I.L.M. 1529 [hereinafter
Protocol II]. "Mine means 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 ...." Id. art. 2, para. 1. "Booby-
trap means any device or material which is designed, constructed or adapted to
kill or injure and which functions unexpectedly when a person disturbs or
approaches and apparently harmless object or performs an apparently safe act."
Id. art. 2, para. 2. "Other devices means manually-emplaced munitions and
devices designed to kill, injure or damage and which are actuated by remote
control or automatically after a lapse of time." Id. art. 2, para. 3.
[FN109]. A state is considered a party to the UNCCW if it has ratified two or
more of the Protocols at the time it deposits its instrument of ratification.
The United States ratified Protocols I and II. The United States ratified the
UNCCW on 24 March 1995, with a reservation to article 7, paragraph 4. That
article applies the UNCCW in wars of self-determination as described in article
1, paragraph 4 of Protocol I Additional to the Geneva Conventions of 1949.
Geneva Protocol I expands the definition of international armed conflict to
include so called wars against "colonial domination," "alien occupation,"
and "racist regimes." Protocol I Additional to the Geneva Convention of 1949,
Dec. 12, 1977, 16 I.L.M. 1391. The United States objects to the expansion of the
scope of international armed conflict under the UNCCW. The United States
believes this expansion politicizes the law of war by injecting a political
cause consideration.
[FN110]. Protocol II, supra note 108, art. 3, para. 2.
[FN111]. Id. art. 3, para. 3.
[FN112]. Id. art. 3, para. 4.
[FN113]. "Remotely delivered mine means any mine delivered by artillery, mortar
or similar means or dropped by aircraft." Id. art. 2(1).
[FN114]. A self-neutralizing mechanism can be a self-actuating or remotely
controlled mechanism that renders the mine harmless or destroys the mine when
the mines no longer serve a military purpose. Id. art. 5(1)(b).
[FN115]. Amended Protocol II, supra note 104.
[FN116]. Message from the President of the United States Transmitting Protocols
to the 1980 Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have
Indiscriminate Effects: The Amended Protocol on Prohibitions or Restrictions on
the Use of Mines, Booby-Traps and Other Devices (Amended Protocol II); the
Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons
(Protocol III or the Incendiary Weapons Protocol); and the Protocol IV on
Blinding Laser Weapons (Protocol IV), Jan. 7, 1997, U.S. TREATY DOC. NO. 105-1
(1997).
[FN117]. The Protocol applies to situations referred to in Article 3 common to
the Geneva Conventions of 1949. Id. art 1(2).
[FN118]. Amended Protocol II, supra note 104, art. 6, para. 2.
[FN119]. Id. art. 6, para. 3.
[FN120]. Id. technical annex, para. 3.
[FN121]. Id. art. 5, para. 2(a).
[FN122]. Id. art. 5, para. 2(b).
[FN123]. Id. art. 5, para. 6.
[FN124]. Id. art. 4.
[FN125]. Id. technical annex, para. 2.
[FN126]. Id. art. 14.
[FN127]. Id. art. 10.
[FN128]. Id. art. 14.
[FN129]. Pub. L. No. 104-107, 110 Stat. 751 (1996).
[FN130]. Id.
[FN131]. h.R. Conf. Rep. No. 105-736, at 246 (1998).
[FN132]. Convention on the Prohibition of the Use, Stockpiling, Production,
and Transfer of Ant-Personnel Mines and on Their Destruction, opened for
signature Sept. 8, 1997, 36 I.L.M. 1507.
[FN133]. Of the 16 NATO members, only the United States and Turkey have not
signed the Ottawa Convention. Belgium, Canada, Denmark, France, Germany, Italy,
Norway, and the United Kingdom had ratified the Ottawa Convention. As of 20
December 1998, Greece, Iceland, Luxemburg, Netherlands, Portugal, and Spain have
signed, but not ratified the Convention. Department of the Army (HQDA), Joint
Chief's of Staff, DOD and the Department of State (DOS) are currently working on
interoperability issues with a number of NATO allies. Judge advocates at field
commands should consult the HQDA points of contact (listed at the end of this
note) for current information pertinent to their command.
[FN134]. President William Jefferson Clinton, Remarks on Land Mines at the White
House (Sept. 17, 1997), available at <http:// www.whitehouse.gov/WH/New/html/19970917-8619.html>.
[FN135]. Id.
[FN136]. Id.
[FN137]. Id.
[FN138]. Id.
[FN139]. Information Paper, LTC John Spinelli, Policy Analyst, Department of the
Army Deputy Chief of Staff Operations and Plans, DAMO-SSP, subject: PDD-64:
Anti-Personnel Landmines (APL): Expanding Upon and Strengthening U.S. APL Policy
(U) (8 July 1998) (copy on file with author).
[FN140]. Id. Presidential Decision Directive 64 ensures that as the United
States pursues its humanitarian goals, it will take necessary steps to protect
the lives of American military personnel and civilians they may be sent to
defend. The DOD will ensure that the design and employment features of APL
alternatives provide equivalent military effectiveness and safety, while
minimizing the risks to non-combatants. The DOD will also ensure that APL
alternatives do not create other humanitarian problems. Id.
[FN141]. Id. The DOD will develop APL alternatives to end use of all APL outside
Korea, including those that self-destruct, by the year 2003. The DOD will
develop a new mixed system that provides an alternative to employing two
munitions (Area Denial Artillery Munitions and Remote Anti-Armor Mine) and
preserves an important anti-tank mine capability. The United States will assess
the viability of other APL alternatives being explored pursuant to this PDD, as
well as other relevant factors, before deciding (in FY 2001) to proceed with
production. The DOD will aggressively pursue the objective of having
alternatives to APL ready for Korea by 2006, including those that self-
destruct. This date is an objective, rather than a deadline, because viable
alternatives have not yet been identified, the risks of the program are
significant, and the costs to build and deploy alternatives cannot be fully
assessed at this time. Id.
[FN142]. Id. As the DOD explores alternatives to APL, it will retain mixed
anti-tank mine systems as part of the current and planned inventory of anti-
tank munitions. However, as alternatives to existing APL are developed, the DOD
will actively investigate the use of such alternatives in place of the "anti-
personnel" (AP) component in mixed munitions. The DOD will also actively explore
other technologies and concepts that could result in new approaches to barrier
systems that could replace the entire mixed munitions. These alternatives would
also be advantageous militarily, cost effective, safe, and eliminate the need
for mines entirely. No established deadline exists by which alternatives for the
AP component in mixed munitions, or the entire mixed system, must be identified
and fielded. Presently, an operationally viable concept has not been identified
and there is no guarantee this search will be successful.
[FN143]. Id. The DOD executes the United States' humanitarian demining research
and technology development program. In consultation with relevant agencies
(including the DOS Special Representative for Global Humanitarian Demining) DOD
will continue to ensure its research and development program supports the
broader goals of U.S. humanitarian demining programs and the objectives
established in the United States' "Demining 2010 Initiative." Id.
[FN144]. Id. While more than 120 nations have signed the Ottawa Convention, for
reasons that were explained on 17 September 1997, the United States has not
signed. The United States, however, will sign the Ottawa Convention by 2006 if
it has identified and fielded suitable alternatives to APL and mixed anti-tank
systems. The United States will continue work on a global ban in the Conference
on Disarmament. Id.
[FN145]. Id. The United States will continue to work with NATO allies to ensure
Ottawa Convention signing, ratification, and adherence does not undercut the
alliance's ability to carry out other treaty responsibilities. The United States
will also work with other allies to ensure its ability to execute its
responsibilities under other regional security agreements is not adversely
affected. Id.