Practice Relating to Rule 81. Restrictions on the Use of Landmines
Australia’s Commanders’ Guide (1994) lists mines under the heading “Limitations on lawful weapons” and states: “The primary concern with the employment of mines and booby traps is that they could be disturbed by innocent parties.” It states, however, that the use of mines is permitted “if they can be confined to areas where only lawful combatants would encounter them”.
The Guide refers to the restrictions on the use of mines contained in Article 3(3) and (4) and Article 4 of the 1980 Protocol II to the Convention on Certain Conventional Weapons. The Guide also states:
Mines … may not be directed against civilians under any circumstances and they may not be used indiscriminately. Indiscriminate use is placement of such weapons which:
a. is not on, or directed at, a military objective; or
b. employs a method or means of delivery which cannot be directed at a specific military objective; or
c. may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects or a combination thereof, which would be excessive in relation to the concrete and direct military advantage anticipated.
The Guide further provides:
Remotely delivered mines may only be used within an area which is a military objective or which contains military objectives. Either the location of minefields containing remotely delivered mines must be accurately recorded or the mines themselves must be equipped with an effective neutralising mechanism which destroys or renders them harmless after a period of time. If circumstances permit, the civilian population should be warned in advance of the delivery of remotely delivered mines which may affect them.
Australia’s Defence Force Manual (1994) provides:
All feasible precautions must be taken to protect civilians from the effects of land mines … and similar devices. They must not be directed at civilians nor may they be used indiscriminately. It is indiscriminate to place them so that they are not on or not directed at a military objective, to use a means of delivery which cannot be directed at a military target, or to place them so that they may be expected to cause excessive collateral damage, that is, injury, loss or damage to civilians which is excessive in relation to the concrete and direct military advantage anticipated.
The manual adds:
Land mines (other than remotely delivered mines) … must not be used in areas containing civilian concentrations if combat between ground forces is neither imminent nor actually taking place unless they are placed on, or in the vicinity, of an enemy military objective or there are protective measures for civilians such as warning signs, sentries, fences or other warnings to civilians.
With respect to remotely delivered landmines, the manual states that they “can be used within the area of a military objective if their location can be accurately recorded and they can be neutralised when they no longer serve the military purpose of which they were placed in position”. It further states: “If circumstances permit, effective advance warning should be given where remotely delivered mines are likely to affect civilians.”
Australia’s LOAC Manual (2006) states:
4.25 The use of anti-vehicle landmines is permitted so long as:
• they are not designed to be detonated by mine detectors;
• any anti-handling device is deactivated when the mine deactivates;
• they are either cleared, removed, destroyed, or appropriately maintained after cessation of active hostilities.
4.26 Restrictions on use. The following rules apply to anti-vehicle mines:
• they may only be deployed against or to protect military objectives,
• they may not be directed against civilians,
• indiscriminate use is prohibited,
• feasible precautions must be taken to protect civilians from their effects,
• effective advance warning must be given of any deployment of mines that might affect the civilian population unless circumstances do not permit, and
• mines must not be of a nature to cause superfluous injury or unnecessary suffering.
4.27 Civilian protection factors. In considering the protection of the civilian population, regard should be had to the following factors, though these are not exclusive:
• the short and long-term effect of mines on the local civilian population;
• possible measures to protect civilians (for example fencing, signs, warning and monitoring);
• the availability and feasibility of using alternatives to mines; and
• the short and long-term military requirements for a minefield.
Landmines, booby traps and other devices
4.36 In addition to the specific prohibition on the use of anti-personnel mines, all feasible precautions must be taken to protect civilians from the effects of mines, booby traps and similar devices. They must not be directed at civilians nor may they be used indiscriminately. It is indiscriminate to place them so that they are not on or not directed at a military objective, to use a means of delivery which cannot be directed at a military target, or to place them so that they may be expected to cause excessive collateral damage, that is injury, loss or damage to civilians which is excessive in relation to the concrete and direct military advantage anticipated.
4.39 Landmines other than anti-personnel mines, are defined as any munition on, under or near the ground or other surface area and designed to be detonated by the presence, proximity or contact of a vehicle and includes remotely delivered mines, that is, mines delivered by artillery, rocket, mortar or aircraft. Time delayed weapons are not landmines.
4.44 “Other devices.” are manually emplaced munitions and devices designed to kill, injure or damage and which are activated either remotely or by time delay. Restrictions on the use of these other devices are as for landmines and booby traps.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
In 1994, during a debate in the First Committee of the UN General Assembly, Australia stated that the 1980 Protocol II to the Convention on Certain Conventional Weapons “should apply to non-international as well as to international conflicts”, that “mines should not be exported to States that are not party to Protocol II” and that “anti-personnel mines should be detectable and incorporate a self-destruct mechanism”.
In 1995, in response to a report of the Australian Joint Standing Committee on Foreign Affairs, Defence and Trade that recommended that “international conventions relating to land mines could be couched in terms of rights and obligations, thereby making international criminal law applicable and making breaches subject to international criminal tribunals or war crimes tribunals”, the Government of Australia stated:
One of our proposals for the Review Conference [of the Convention on Certain Conventional Weapons] was to have the States parties acknowledge in their conference declaration that a deliberate or indiscriminate use of land mines against civilians ought to attract the same criminal responsibility as it does under other humanitarian instruments.
In response to a written parliamentary question regarding the Australian Defence Force’s position on anti-vehicle mines (2006), the Australian Minister for Defence stated:
(2) … Australia does not support a global ban on anti-vehicle mines but, instead, supports global restrictions on such mines that ensure that they are detectable by commonly available mine detection equipment, and that remotely deployable anti-vehicle mines are engineered to self-destruct/self-neutralise and self-deactivate within a set time frame.
Anti-handling devices provide a legitimate means of preventing enemy forces deliberately interfering with anti-vehicle mines which, if not protected, might subsequently be used by those forces.
(3) Australia does not support a global ban on anti-vehicle mines, or a ban on anti-vehicle mines that are not command detonated. Australia’s position is that anti-vehicle mines have legitimate military utility and that humanitarian concerns, including those posed by persistent anti-vehicle mines which remain active after the cessation of conflict, are best addressed through technical restrictions of the type proposed in the Certain Conventional Weapons Convention Experts’ Group Meetings.
In 2009, in a statement before a meeting of States Parties to the Convention on Certain Conventional Weapons, the counsellor and deputy permanent representative of Australia for disarmament stated:
We welcomed the opportunity to discuss how to tackle problems associated with improvised explosive devices (IEDs) during the group of experts meeting in April 2009.
As Australia stated at the Group of Experts meeting in April, IEDs are a threat to military forces and the broader civilian population in those countries where these weapons are indiscriminately deployed. Through terrorist bombings in Bali and Jakarta and in our operations in Iraq and Afghanistan, Australia, like many other countries represented here, has been affected by IEDs. We have lost many of our citizens and our soldiers to these devices and we are investing in the development of effective countermeasures to these weapons and their deployment.
Australia considers that continued dialogue and exchange of expertise on IEDs is valuable in the context of Amended Protocol II [to the Convention on Certain Conventional Weapons].