Rule 81. When landmines are used, particular care must be taken to minimize their indiscriminate effects.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. This rule applies to the use of anti-vehicle mines. It also applies in relation to anti-personnel landmines for States which have not yet adopted a total ban on their use.
Many of the rules in both the original and amended versions of Protocol II to the Convention on Certain Conventional Weapons, as well as other State practice, are aimed at obviating the indiscriminate effects of mines.
The provisions of these treaties, which include the prohibitions of certain types of mines as well as further limitations, are specifically aimed at limiting the potentially indiscriminate damage caused by these weapons. Furthermore, practice shows that the customary rules applying to the conduct of hostilities, such as the principle of distinction (see Rules 1 and 7), the principle of proportionality (see Rule 14) and the obligation to take all feasible precautions in attack (see Rule 15), are equally applicable to the use of landmines.
The obligation to take particular care when using landmines is based on a number of rules that have been codified in Protocol II to the Convention on Certain Conventional Weapons. This Protocol sets out general rules on the emplacement of all landmines.
It also outlines specific restrictions on the use of remotely delivered landmines and non-remotely delivered landmines used in populated areas.
In addition, the Protocol requires that all feasible precautions be taken to protect civilians from the effects of these weapons.
The Protocol also refers to special precautionary measures such as marking and signposting of minefields, recording minefields, monitoring minefields and procedures to protect UN forces and missions.
Protocol II to the Convention on Certain Conventional Weapons was adopted by consensus and was not controversial at the time.
Many military manuals set forth special precautionary measures to be taken when using landmines.
There are also indications that the provisions of Protocol II to the Convention on Certain Conventional Weapons are considered to constitute an authoritative minimum standard in relation to the use of landmines which are not specifically prohibited under treaty obligations, as are anti-personnel landmines under the Ottawa Convention on Anti-Personnel Mines.
As a result, these precautionary measures as a whole provide an indication of the types of measures States believe must be taken to minimize the indiscriminate effects of landmines.
Amended Protocol II to the Convention on Certain Conventional Weapons reaffirms and develops the precautionary measures to be taken when using landmines.
The original Protocol II to the Convention on Certain Conventional Weapons was only applicable in international armed conflicts, and physical practice in internal conflicts has for the most part not been consistent with these rules. However, the concern shown by the UN Security Council, UN General Assembly and individual States about the effects of landmines on civilians in non-international armed conflicts is an indication of the international community’s view that civilians must be protected from mines in such situations.
The extension of the scope of application of Amended Protocol II to the Convention on Certain Conventional Weapons to non-international armed conflicts reflects this view.
Since then, the Convention on Certain Conventional Weapons itself has been amended so that the original Protocol II is also applicable in non-international armed conflicts for States adhering to the amended Convention.
The amendment, adopted at the Second Review Conference in 2001, was not controversial. Hence, there is a strong case for the existence of a customary rule in non-international armed conflicts that mines must not be used in ways that amount to indiscriminate attacks and that particular care must therefore be taken to minimize their indiscriminate effects.
With over 140 ratifications of the Ottawa Convention on Anti-Personnel Mines, and others on the way, the majority of States are treaty-bound no longer to use, produce, stockpile and transfer anti-personnel landmines. However, several States, including China, Finland, India, Republic of Korea, Pakistan, Russian Federation and the United States, have not ratified the Ottawa Convention on Anti-Personnel Mines and maintain that they are still entitled to use anti-personnel landmines.
About a dozen non-party States have used anti-personnel mines in recent conflicts.
This practice means that it cannot be said at this stage that the use of anti-personnel landmines is prohibited under customary international law.
However, almost all States, including those that are not party to the Ottawa Convention on Anti-Personnel Mines and are not in favour of their immediate ban, have agreed that they need to work towards the eventual elimination of anti-personnel landmines. Particularly noteworthy is the Final Declaration adopted by consensus by States party to the Convention on Certain Conventional Weapons at the Second Review Conference in 2001, including by a number of States not party to the Ottawa Convention on Anti-Personnel Mines.
In the Declaration, the States parties “solemnly declare … their conviction that all States should strive towards the goal of the eventual elimination of anti-personnel landmines globally”.
In addition, a number of UN General Assembly resolutions have urged States to contribute to the elimination of anti-personnel landmines.
Although there were some abstentions to these resolutions, the majority of abstaining States have since joined the Declaration adopted at the Second Review Conference or have made statements recognizing the goal of the eventual elimination of anti-personnel mines, in particular Ethiopia in 1995 and Turkey in 2002 (which has now also ratified the Ottawa Convention on Anti-Personnel Mines).
Resolutions adopted by the OIC Conference of Ministers of Foreign Affairs in 1995 and 1996 and by the 26th International Conference of the Red Cross and Red Crescent in 1995 also support the eventual elimination of anti-personnel landmines.
It is particularly noteworthy that, at their First Meeting in Maputo in 1999, States party to the Ottawa Convention on Anti-Personnel Mines adopted a Declaration calling upon States still using or possessing anti-personnel landmines to “cease now” from so doing.
Such a statement to non-party States is a significant indication of the belief that all States should work towards the elimination of anti-personnel mines. All the practice cited above appears to indicate that an obligation to eliminate anti-personnel landmines is emerging.