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.
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.
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.
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]
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).
[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>.
[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.