Rule 83. At the end of active hostilities, a party to the conflict which has used landmines must remove or otherwise render them harmless to civilians, or facilitate their removal.
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 mines for States which have not yet adopted a total ban on their use, with the proviso that the Ottawa Convention on Anti-Personnel Mines contains special provisions on the destruction of anti-personnel landmines in mined areas.[1]
Until the 1990s, there was little practice indicating a requirement that those laying mines have to remove them, and generally speaking the expectation was that it was up to the State with mines on its territory to decide what to do. The original Protocol II to the Convention on Certain Conventional Weapons merely encourages cooperation to remove or render minefields ineffective.[2] However, the attitude of the international community has changed in this regard. The wording of Article 3(2) of Amended Protocol II, incorporating the principle that States laying mines are responsible for them, reflects this change of attitude.[3] Amended Protocol II provides detailed rules on the removal of mines or otherwise rendering them harmless at the end of hostilities.[4]
A large number of UN Security Council and UN General Assembly resolutions have been adopted since 1993 deploring the danger to civilians of mines remaining on or in the ground and specifying the need to ensure their removal.[5] These resolutions were deliberately not limited to international armed conflicts, as the worst problems relating to uncleared mines are frequently associated with non-international armed conflicts. Several of these resolutions specifically refer to the need to clear landmines laid in non-international armed conflicts, including in Angola, Cambodia, Rwanda and Kosovo.[6]
This practice indicates that it is no longer permissible for a party to the conflict to simply abandon landmines they have laid. The UN Secretary-General’s Report on Assistance in Mine Clearance also supports this view.[7] The actual method to be adopted to remove the mines or otherwise render them harmless is, however, couched in relatively general terms. Military manuals and the various UN resolutions refer to removal by the mine-layer, or the requirement to aid third parties, including international bodies, to undertake such removal through the provision of information or other appropriate resources.[8]
[1] Ottawa Convention on Anti-Personnel Mines, Article 5.
[2] Protocol II to the Convention on Certain Conventional Weapons, Article 9 (cited in Vol. II, Ch. 29, § 346).
[3] Amended Protocol II to the Convention on Certain Conventional Weapons, Article 3(2) (ibid., § 348).
[4] Amended Protocol II to the Convention on Certain Conventional Weapons, Article 10 (ibid., § 351).
[5] See, e.g., UN Security Council, Res. 1005 (ibid., § 399), Res. 1055 (ibid., § 401), Res. 1062 (ibid., § 400), Res. 1064 (ibid., § 401), Res. 1074 (ibid., § 401), Res. 1087 (ibid., § 401), Res. 1093 (ibid., § 402) and Res. 1119 (ibid., § 402); 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).
[6] UN Security Council, Res. 1005 (ibid., § 399), Res. 1055 (ibid., § 401), Res. 1064 (ibid., § 401), Res. 1075 (ibid., § 401), Res. 1087 (ibid., § 401); UN General Assembly, Res. 49/199 (ibid., § 406), Res. 50/178 (ibid., § 406), Res. 51/98 (ibid., § 406) and Res. 53/164 (ibid., § 409).
[7] UN Secretary-General, Report on Assistance in Mine Clearance (ibid., § 411).
[8] See, e.g., the military manuals of Canada (ibid., § 365), France (ibid., §§ 366–367), Germany (ibid., § 368), Switzerland (ibid., § 375) and United States (ibid., § 378); UN Security Council, Res. 1005 (ibid., § 399), Res. 1055 (ibid., § 401), Res. 1062 (ibid., § 400), Res. 1064 (ibid., § 401), Res. 1075 (ibid., § 401), Res. 1087 (ibid., § 401), Res. 1093 (ibid., § 402) and Res. 1119 (ibid., § 402); UN General Assembly, 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); UN Commission on Human Rights, Res. 1996/54 (ibid., § 410).