Rule 82. A party to the conflict using landmines must record their placement, as far as possible.
State practice establishes this rule as a norm of customary international law applicable in international, and arguably also in non-international, armed conflicts. This rule applies to the use of anti-vehicle mines. It also applies in relation to anti-personnel mines to States which have not yet adopted a total ban on their use.
The original Protocol II to the Convention on Certain Conventional Weapons specifies the requirement to record pre-planned minefields and, to the degree possible, record other minefields.[1] Amended Protocol II to the Convention on Certain Conventional Weapons specifies that information relating to all landmines and mined areas must be recorded.[2]
Many military manuals specify the requirements contained in the original Protocol II to the Convention on Certain Conventional Weapons or state more generally that the placement of minefields should be recorded.[3] Some of these manuals reproduce the rules of the Protocol to which the State is party.[4] The manuals of Canada, France, Germany, Israel, Switzerland and the United States, however, state that there is a requirement to record all minefields (in the case of Switzerland “large-scale minefields”) and are thus not limited to pre-planned minefields.[5] These States were not party to Amended Protocol II to the Convention on Certain Conventional Weapons at the time of publication of their respective manuals, or their publication pre-dated the adoption of Amended Protocol II.
Several resolutions adopted by consensus by the UN General Assembly in 1994, 1995 and 1998 emphasize the importance of recording the location of landmines.[6] It is interesting to note that in the resolution adopted in 1994, the term “where appropriate” was used in relation to the recording of the location of mines, whereas it was dropped in the 1995 and 1998 resolutions. The wording of the later resolution reflects the growing concern of States about the devastating effects of landmines and a consensus that the rules concerning their use needed to be stricter.
The original Protocol II to the Convention on Certain Conventional Weapons only applied to international armed conflicts. It is not clear whether the more extensive recording requirements of Amended Protocol II, which apply to non-international armed conflicts,[7] are part of customary international law. Although in many cases parties to non-international armed conflicts (especially non-State parties) did not record the emplacement of mines, recent developments show that the international community now agrees that the use of landmines is to be recorded in all circumstances, if at all possible. In particular, UN General Assembly resolutions deliberately make no distinction between international and non-international armed conflicts in respect of landmines.[8]
[1] Protocol II to the Convention on Certain Conventional Weapons, Article 7 (cited in Vol. II, Ch. 29, § 341).
[2] Amended Protocol II to the Convention on Certain Conventional Weapons, Article 9 (ibid., § 350).
[3] See, e.g., the military manuals of Argentina (ibid., § 360), Australia (ibid., §§ 361–362), Belgium (ibid., § 363), Cameroon (ibid., § 364), Canada (ibid., § 365), France (ibid., §§ 366–367), Germany (ibid., § 368), Israel (ibid., § 369), Kenya (ibid., § 370), Netherlands (ibid., § 371), New Zealand (ibid., § 372), Spain (ibid., § 373), Sweden (ibid., § 374), Switzerland (ibid., § 375) and United States (ibid., §§ 377–378).
[4] See, e.g., the military manuals of Argentina (ibid., § 360), Cameroon (ibid., § 364), Netherlands (ibid., § 371), New Zealand (ibid., § 372), Spain (ibid., § 373) and Sweden (ibid., § 374).
[5] Canada, LOAC Manual (ibid., § 365); France, LOAC Teaching Note (ibid., § 366) and LOAC Manual (ibid., § 367); Germany, Military Manual (ibid., § 368); Israel, Manual on the Laws of War (ibid., § 369); Switzerland, Basic Military Manual (ibid., § 375); United States, Air Force Commander’s Handbook (ibid., § 377) and Naval Handbook (ibid., § 378).
[6] UN General Assembly, Res. 49/215 and 50/82 (ibid., § 405) and Res. 53/26 (ibid., § 408).
[7] Amended Protocol II to the Convention on Certain Conventional Weapons, Article 1(2) (ibid., § 347) and Article 9 (ibid., § 350).
[8] With respect to the recording of landmines in particular, see UN General Assembly, Res. 49/215 and 50/82 (ibid., § 405) and Res. 53/26 (ibid., § 408). With respect to the issue of landmines in general, see UN General Assembly, Res. 48/75 K (ibid., § 403), Res. 49/79 (ibid., § 404), Res. 49/199 (ibid., § 406), Res. 49/215 (ibid., § 405), Res. 50/82 (ibid., § 405), Res. 50/178 (ibid., § 406), Res. 51/49 (ibid., § 407), Res. 51/98 (ibid., § 406), Res. 53/26 (ibid., § 408) and Res. 53/164 (ibid., § 409).