International Legal Regulation of the Use of Landmine Weapons: Classification Problems

 One of the main problems related to the subject of consideration and regulation of international humanitarian law is the mine problem, which is associated with the production, use and proliferation of mine weapons.

A characteristic feature of the use of mine weapons is their indiscriminate nature, which entails a special danger to the civilian population. The indiscriminate nature of mine weapons is clearly manifested both during and after the end of armed conflicts, the parties to which, as a rule, mine weapons are widely used.

At the same time, scientific and technological progress contributes to the creation of increasingly destructive types of weapons, including mine weapons, which have both the possibility of their rapid deployment and use in vast territories, and increased damaging properties.

The problem under consideration is significantly aggravated by the fact that, contrary to the existing agreements with the leadership of the USSR, in the post-Soviet period, NATO's expansion to the east, to the borders of the Russian Federation, continues continuously. This fact especially complicated the possibility of solving the mine problem, since the expansion of NATO to the borders of the Russian Federation led to an armed conflict between the Russian Federation and Ukraine.

At the same time, the latter is actively sponsored and supplied with weapons, including, contrary to international conventions, mine weapons, created for these purposes, the US-led coalition uniting about fifty states.

The activities of this coalition, organized at the US Air Force base in Ramstein in western Germany, and its monthly decisions are widely covered in various media. The formal reason for the creation of this coalition, also known as the Ramstein format or club, was the appeal of the President of Ukraine in March 2022 to NATO for military assistance and admission to NATO.

Already in April of the same year, on April 26, 2022, the first meeting of the so-called Ukraine Defense Contact Group (Contact Group for the Defense of Ukraine) took place at the specified airbase, and on February 14, 2023, in Brussels, its tenth meeting. The basis of this coalition is made up of NATO member states. The subject of discussion of the coalition is, first of all, the supply of military equipment and weapons to Ukraine for effective counteraction to the Armed Forces of the Russian Federation.

Thus, as before, in relation to the USSR, it is the United States that is the main opponent of the Russian Federation and, at the same time, the main initiator of the armed conflict between the two former republics of the USSR, supported by the coalition created by the United States.

The supply by the pro-American coalition to Ukraine and the use of various kinds of mine weapons by the latter are widely covered in the media.

Thus, on the website of the multimedia Russian holding RBC, in the publication "HRW appealed to Kiev because of the use of prohibited Petal mines by the Armed Forces of Ukraine on January 31 of this year, it was reported that the human rights organization Human Rights Watch revealed facts of the use of prohibited weapons by Ukraine - shelling with anti-personnel mines PFM, commonly known as "butterfly mines", "petals", territories near military facilities of the Armed Forces of the Russian Federation. Mines have caused casualties among civilians, and still pose a serious threat. Ukraine was asked to verify this information, pay compensation to the affected civilians and help with treatment. The head of the HRW Armaments Department, Steve Gus, expressed the opinion that this situation is connected with the actions of the armed forces of Ukraine. In turn, Ukraine stated that the Ukrainian Armed Forces comply with all international obligations, refusing to comment until the end of the conflict with the Russian Federation. And at a meeting of the participating countries of the Ottawa Convention, the delegation of Ukraine stated that it was a "responsible party" and had never considered the possibility of using existing stocks of anti-personnel mines for defensive purposes ^[15].

At the same time, it should be particularly noted that we are talking about a non-governmental organization specializing in the investigation and documentation of human rights violations with headquarters in the United States, originally created to monitor compliance with the Helsinki Agreements by the USSR. Accordingly, HRW's activities do not have a pro-Russian orientation.

Thus, Ukraine became one of the countries, a significant part of whose territories were mined during armed conflicts.

We are talking about both a large number of Soviet-made PFM-1C "Petal" mines used by Ukraine, which it undertook to dispose of after joining the Ottawa Convention on December 27, 2005, and mines supplied by the United States and its satellites.

So, on January 29, 2023, the British TV channel Sky News published an interview from which it follows that Ukraine has become the most mined country in the world in less than a year: "After many years of bloody conflict, the mutilated Ukrainian landscape is littered with mines that pose a deadly threat to the civilian population, which will persist long after the end of the war. According to one estimate, more than 40% of the country's territory is infected with mines, so Ukraine is considered the most mined country in the world." "The pollution is huge," said Katerina Templeton, a representative of the non-governmental organization Mines Advisory Group (MAG). According to her, anti-tank and anti-personnel mines, booby traps, tripwire mines, cluster munitions, a large number of unexploded shells can be found in Ukraine ^[2].

Thus, information about the use of certain types of conventional weapons on the territory of Ukraine, the use of which is prohibited or restricted by international conventions, has become widespread, confirmed by various sources, including Western ones.

At the same time, it is the United States, as the organizer and main sponsor of the armed conflict, that bears the main responsibility both for the very occurrence of the conflict and for violations of the requirements of international humanitarian law during the conflict.

On the official website of the US government on the Internet, in the newsletter on Ukraine dated September 15, 2022, there is a press release "600 million dollars of additional security assistance for Ukraine". This information reports on the twenty-first, since August 2021, military aid package allocated from the reserves of the US Department of Defense for Ukraine, including "Claymore anti-personnel ammunition" (item 8), as well as explosives (item 9). At the same time, the fact of providing significant financial assistance to Ukraine for military purposes was confirmed ^[14].

On February 3, 2023, the same source announced the provision of a new package of military assistance to Ukraine, which again includes "Claymore anti-personnel ammunition" ^[11].

This anti-personnel mine was adopted by the US Army in 1964, it has no elements of non-recoverability, non-destructibility, self-destruction ^[10].

As follows from the above, the facts of Ukraine receiving and using a large number of anti-personnel mines from the reserves of the US army have been officially confirmed by the latter.

Thus, the United States not only coordinates the activities of the coalition organized by them at their military base in Germany, but also actively initiates its military supplies to Ukraine, providing the latter, to a large extent, with its own weapons stocks.

In general, the practice of US violations of international conventions has a rich history and is by no means limited to the supply of anti-personnel mines to armed conflict zones.

As follows from the report of the Chinese Society for the Study of Human Rights "Serious humanitarian disasters caused by the aggressive wars of the United States against foreign countries", the United States was directly involved in 80% (201 out of 248) of military conflicts in the period after World War II and up to 2001 ^[1].

At the same time, it should also be noted that among the states in the coalition with the United States there are many that have a rich history of colonial seizures and aggressive wars in different parts of the world.

At the same time, all these states are members of the United Nations, which have undertaken to comply with the Charter ^[13] of this organization, as well as parties to various international conventions on international humanitarian law.

Accordingly, the activities of a significant part of the UN member states that supply weapons to Ukraine in accordance with the decisions of the anti–Russian coalition come into obvious contradiction with their participation in the UN, international conventions, including those regulating issues related to mine weapons used on land.

The above applies, first of all, to the United States, which not only supplies Ukraine with anti-personnel mines, but also, in general, initiates the supply of weapons for it.

What is happening, in essence, disavows international agreements on international humanitarian law, including on the mine problem, creates prerequisites for their complete disregard as imaginary, addressed only to the opposite side.

However, the direct or indirect refusal of any of the parties to international agreements to comply with them deprives it of guarantees of compliance with these agreements and other parties to them.

So, in relation to Ukraine and the Russian Federation, the issue of withdrawal from the treaties to which they are parties was not voiced, there were no official statements on this matter.

In such circumstances, it is unacceptable to ignore the agreements on international humanitarian law to which they are parties.

As for Ukraine, it is subject to the international obligations assumed by the Ukrainian SSR as a member of the UN. The latter, since it had international legal personality, signed fundamental international documents as a member of the UN, including on issues of international humanitarian law.

Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons That May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects ^[3], also known as  The Convention on "Inhumane" Weapons, with Protocols I, II, III attached to it, was signed by the Ukrainian SSR on April 10, 1981 and ratified on June 23, 1982.

Later, on September 18, 1997, the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-personnel Mines and on Their Destruction was adopted ^[4], also known as the Ottawa Convention, the Mine Ban Treaty. This document has been ratified by Ukraine.

Accordingly, Ukraine is a party to the above-mentioned international treaties.

The Ottawa Convention has not been ratified by the Russian Federation.

The international treaties ratified by the USSR did not require additional ratification by the Russian Federation.

By virtue of Article 67.1 of the Constitution of the Russian Federation, the Russian Federation, as the legal successor (legal debtor) USSR, is a party to the Convention on "Inhumane" Weapons, signed by the USSR on April 10, 1981, ratified by Decree of the Presidium of the Supreme Soviet of the USSR No. 7248-X of June 2, 1982 "On ratification of the Convention on the Prohibition or Restriction of the Use of Certain Conventional Weapons that May Be Considered to Cause Excessive Damage or have Indiscriminate Effect" ^[12].

Attached to this Convention is the "Protocol on the Prohibition or Restriction of the Use of Mines, Booby Traps and Other Devices, as amended on May 3, 1996" (Protocol II as amended)." In its original form, this Protocol was adopted together with the Convention on October 10, 1980.

As of February 8, 2023, 126 States are parties to the Convention on "Inhumane" Weapons ^[7].

As of February 23, 2023, 106 states were parties to Protocol II ^[8]., including the Russian Federation and Ukraine.

This Protocol consists of two articles, one of which (Article 1) includes the actual new version of the Protocol, and the other (Article 2) establishes the procedure for its entry into force; entered into force on December 3, 1998, on the same day it was registered as No. 22495 ^[8].

A number of States having agreed to be bound (succession) Protocol II, made statements in relation to its individual provisions, as well as reservations concerning the Protocol as a whole.

The statements of the Russian Federation concerning the interpretation and application of certain provisions of Protocol II and its Technical Annex are set out in Federal Law No. 158-FZ of December 7, 2004.

In general, Protocol II as amended (hereinafter referred to as the Protocol), unlike its original version, has a broader scope of application, since it applies not only to international, but also to internal conflicts. In addition, it contains more specific restrictions and prohibitions on the use of anti-personnel mines.

The differences in the subject of regulation of the Protocol and the Ottawa Convention are obvious, reflected in their names, cover, respectively, the prohibition or restriction of the use of mines, booby traps and other devices, as well as the prohibition and destruction of anti-personnel mines.

According to the Ottawa Convention, its article 1, the parties to this treaty undertake not to use, develop, produce, acquire, transfer or destroy anti-personnel mines, as well as not to assist anyone in violating this prohibition.

At the same time, the classification of landmine weapons, primarily anti-personnel mines, used in both acts of international humanitarian law raises questions. 

A comparison of the concepts and definitions of mine weapons used in both international documents is a prerequisite for proposals to improve international humanitarian law in the area under consideration - to solve the mine problem.

The characteristic of the scope of application, the subject of regulation in both acts of international humanitarian law allows us to note not only some identity, but, basically, the difference in the problems that they are designed to solve.

It is obvious that the regulation established by the Protocol applies to a broader, almost entire, list of landmine weapons than in the Ottawa Convention (anti-personnel mines).

A formal legal analysis of the definitions used in both international treaties shows the following.

A mine, according to paragraph 1 of article 2 of the Protocol, is a munition installed on land (underground, on the ground or near the ground or other surface) and designed to explode from the presence, proximity or contact of a person or vehicle.

In accordance with paragraph 2 of Article 2 of the Ottawa Convention, a mine is "a munition designed to be placed underground, on or near the ground, or on another surface and to be detonated in the presence, proximity or contact of a person or vehicle".

Thus, in both of these norms, the definition of a mine has the same content: a mine is a ground munition designed to explode from the presence, proximity or contact of a person or vehicle. There are no differences in the definition of a mine in both documents.

An anti–personnel mine, according to paragraph 3 of article 2 of the Protocol, is a mine designed "mainly to explode from the presence, proximity or contact of a person, and which ensures the incapacitation, injury or fatal defeat of one or more people."

The Ottawa Convention, its article 2, paragraph 1, states that an anti–personnel mine is a mine whose purpose is to detonate in the presence, proximity or contact with a person, as well as disabling, injuring or killing one or more people.

At the same time, "mines designed to be detonated in the presence, proximity or contact with a vehicle, and not with a person, which are equipped with devices that prevent movement," are excluded from the number of anti-personnel mines.

Thus, in the Protocol, the corresponding definition, in view of the reservation used in it ("mainly"), has a broader content.

At the same time, mines intended for use against vehicles equipped with devices that prevent their movement have been removed from the scope of the definition given in the Ottawa Convention on Anti-personnel mines.

The unconditional danger to humans of this category of mines, which, by virtue of their purpose, have much more destructive properties than an anti-personnel mine, is deliberately unreasonably removed from the scope of the prohibition established by the Ottawa Convention.

Under such circumstances, it seems obvious that the definition of an anti-personnel mine in the Protocol allows for a more comprehensive solution of the tasks stated in the preamble of the Ottawa Convention as motivating reasons for its adoption.

First of all, this is expressed in the presence in the Protocol, its article 3, of general restrictions on the use of mines, booby traps and other devices, for which the Protocol participant using them, according to paragraph 2 of the said norm, is responsible and obliged to neutralize after the end of hostilities in accordance with article 10 of the Protocol.

By virtue of paragraph 4 of Article 3, the weapons used "must strictly comply with the specifications and restrictions specified in the Technical Annex for each specific category."

General restrictions are also expressed in the establishment in article 3 of the Protocol of prohibitions on the use of weapons: in paragraph 3 - with the aim of causing or capable of causing excessive damage or unnecessary suffering; in paragraph 5 - which uses a mechanism or device designed to detonate weapons from the presence of publicly accessible mine detectors as a result of their non-contact influence during normal use during the search weapons.

Paragraph 6 of the same norm prohibits the use of self-deactivating mines equipped with an anti-handling element, the effect of which does not cease after the deactivation of the mine.

Paragraph 7 prohibits the use of these weapons against the civilian population, individual civilians, objects.

Paragraph 8 prohibits the indiscriminate use of weapons, that is, endangering civilians, objects.

In addition, article 3 of the Protocol contains conditions for the use of weapons that can be attributed to general restrictions: paragraph 9 defines a single military facility, paragraph 10 stipulates the use of precautionary measures to protect civilians, and paragraph 11 – informing the public, in the absence of obstacles, about the installation of weapons.

In addition to the general restrictions and prohibitions provided for in article 3, the Protocol also contains separate restrictions and prohibitions with respect to a specific type of weapon.

Article 4 of the Protocol prohibits the use of undetectable anti-personnel mines that do not meet the requirements of paragraph 2 of the "Detectability Specification" of the Technical Annex.

Paragraph 2 of Article 5 of the Protocol prohibits the use of anti-personnel mines not related to remotely installed mines that do not meet the requirements for self-deactivation and self-destruction set out in subparagraph (b) of paragraph 3 "Specifications for self-destruction and self-deactivation" of the Technical Annex to the Protocol.

Exceptions to the prohibition established by paragraph 2 of Article 5 are the corresponding weapons installed in marked areas, as well as deminable weapons.

The broader, unlike the Ottawa Convention, subject of regulation of the Protocol is also confirmed by the presence in its article 6 of separate regulations in relation to remotely installed mines, booby traps and other devices.

At the same time, this fact, the definitions of anti-personnel mines used in paragraph 3 of Article 2 of the Protocol and in paragraph 1 of Article 2 of the Ottawa Convention, by themselves, do not allow excluding other types of landmine weapons specified in the Protocol from the list of anti-personnel mines prohibited in the Ottawa Convention.

In particular, this directly follows from articles 5 and 6 of the Protocol, according to which anti-personnel mines can be installed both remotely and not remotely.

In this sense, the question arises about the correctness of the criteria used in article 2 of the Protocol for the classification of landmine weapons, using for this purpose simultaneously, in one case, the purpose of the mine (anti–personnel, anti-vehicle, other), in the other - the method of its installation.

Meanwhile, the question of the definition of landmine weapons, which should be attributed to anti-personnel mines, requires an unambiguous answer, since the absence of arbitrary discrepancies makes it possible to prevent manipulation in the implementation of the agreements reached, determining the scope of their action.

As noted above, the definitions of landmine weapons used directly in the Protocol and the Ottawa Convention, with the exception of the mine itself, have differences that do not allow an unambiguous definition of an anti-personnel mine.

According to paragraph 2 of article 2 of the Protocol, a mine is remotely installed using artillery, rockets, rocket launchers, mortars or similar means, or is dropped from an aircraft.

However, the classification of mines by the method of their installation differs from the classification of mines by their purpose.

Article 6 of the Protocol prohibits the use of remotely installed, unregistered mines; anti-personnel mines that do not meet the requirements for self-deactivation and self-destruction; mines that are not anti-personnel, without a self-destruction or self-neutralization mechanism, without a backup self-deactivation mechanism that ensures the termination of the mine when it no longer serves the purposes of its installation. It should be noted that in the latter case, a reservation was used to apply the ban on the use of the appropriate type of mines, which calls into question the very possibility of implementing the ban.

Regarding the restriction on the use of remotely placed mines, paragraph 4 of article 6 of the Protocol indicates the need for appropriate prior notification of the civilian population, if possible.

Such reservations, making it difficult to unconditionally implement the relevant norms of an international treaty, generally deprive them of their binding nature.

The prohibition on the use of booby traps and other devices, which are defined, respectively, in paragraphs 4 and 5 of article 2 of the Protocol, is enshrined in its article 7.

Based on the above, definitions of landmine weapons, restrictions and prohibitions on their use, requirements of the Technical Annex, it can be concluded that the Protocol includes all types of landmine weapons, which are subject to the general restrictions established by article 3 of the Protocol.

Restrictions, prohibitions on the use of mines in the Protocol are conditioned by certain requirements, differ from the ban established by the Ottawa Convention on anti-personnel mines only. With regard to the latter, the Protocol contains a number of reservations related to the possibility of their use subject to certain requirements, in particular, establishing a ban on the use of undetectable anti-personnel mines. In addition, the ban on anti-personnel mines in the Ottawa Convention, voiced as complete, is by no means such.

At the same time, both in the Protocol and in the Ottawa Convention, as it follows from the definitions used in them, there is no proper classification of landmine weapons, which are the subject of regulation of these international treaties.

Considered in the Protocol, with the establishment of accompanying restrictions, prohibitions, landmine weapons are classified simultaneously by purpose (anti-personnel mines, booby traps, other devices) and by the method of installation (installed by means of remote mining and installed not remotely, that is, manually or by means of mechanization).

The simultaneous use of different criteria seems unscientific and unreasonable in this case.

In addition, the classification given in the Protocol and the regulations accompanying it are fragmentary, incomplete.

The use of various criteria to form a single list of the types of weapons specified in the Protocol does not allow for an objective classification of the latter.

Thus, within the meaning of articles 1 and 2 of the Protocol, remotely placed mines, booby traps, and other devices are not anti-personnel mines, since they are considered separately and on a par with them as having their own specific properties that do not allow them to be classified as anti-personnel mines.

The importance of resolving the issue of a single classification of the latter that meets the basic criteria of landmine weapons is confirmed by the fact that the definitions of these weapons used in the Protocol are reproduced in documents intended for the practical implementation of the provisions of the Protocol by the armed forces of the States parties to the Protocol.

Thus, according to article 14 of the Protocol, its participants ensure that their armed forces issue appropriate military instructions, carry out working procedures in order for personnel to receive training corresponding to their duties and responsibility for compliance with the provisions of the Protocol.

In accordance with paragraph 9 of the "Guidelines on International Humanitarian Law for the Armed Forces of the Russian Federation", prohibited means of warfare include the same types of landmine weapons that are prohibited by the Protocol. The list given in the Manual ^[6], in general, reflects the prohibitions established by the Protocol, reproducing the classification of landmine weapons used by the latter.

Thus, despite the regulation of the use of the entire list of landmine weapons established by the Protocol, the classification used in it is not based on the same criteria for all types of these weapons.

With regard to the Ottawa Convention, the definition of an anti-personnel mine contained in it, in paragraph 1 of article 2, the question arises here about the criteria for classifying a particular weapon as anti-personnel mines.

We believe that arbitrary interpretations in this matter are unacceptable, in the international treaties under consideration, for their proper implementation, an objective classification of types of landmine weapons based on uniform criteria is necessary.

In this sense, it seems that both in the Protocol and in the Ottawa Convention, the actual content of the definition of an anti-personnel mine does not coincide.

 Apparently, this definition, after all, has a broader content than it is stated directly in the treaties under consideration.

Thus, in the publication "Landmines" posted on the ICBL-CMC Monitoring of Landmines and Cluster Munitions website on the Internet, it is noted that the Ottawa Convention "prohibits the use of mines that are activated by the victim, while the use of some mines in the "command detonation" mode (which means remote control) is permitted by the contract."

Anti-personnel mines do not belong to anti-personnel mines, respectively, anti-vehicle mines are also not prohibited, as follows from the above publication, provided "if they do not have sensitive fuses and function as anti-personnel mines".

In relation to booby traps, a detailed justification is also given: "In recent years, more attention has been paid to the widespread use of improvised mines, primarily by non-State armed groups. These improvised landmines are often referred to as improvised explosive devices (IEDs) or booby traps. However, most of them explode in the presence, proximity or contact with a person and, therefore, meet the definition of anti-personnel mines contained in the Mine Ban Treaty and are prohibited regardless of whether they were manufactured at a factory or elsewhere."^[5]

Accordingly, the "Claymore anti-personnel ammunition" supplied by the United States as military assistance to Ukraine ^[11] does not fall under the ban of this Convention, since it is considered to be remotely controlled.

The same mines, since they do not have a self-destruction mechanism, fall under the scope of article 5 of the Protocol. 

The fact that the Ottawa Convention does not apply to landmines in general, with the exception of anti-personnel mines, which do not include those with remote control, and also does not consider almost all anti-vehicle mines as prohibited, cannot but raise questions.

At the same time, in the Protocol, booby traps are allocated to a separate category, whereas the Ottawa Convention refers most of the booby traps to anti-personnel mines, due to the peculiarities of their detonation..

It follows from the above that the definitions used in both international treaties have not only different subject matter and methods of regulation, but also a different definition of anti-personnel mines.

In addition, the relevant conclusions given above seem indisputable. So, in the case of remotely detonated ("command detonation") mines, we are talking about the degree of controllability of weapons and anti-personnel mines, like other mine weapons, can be detonated remotely by a remote operator.

It seems to be a flawed classification based not on the main criterion of a landmine weapon - its purpose - but on derived criteria - the method of installation or the degree of controllability of the mine.

It seems that in international treaties, the classification of landmine weapons should be based primarily on the basis of their purpose. This criterion is obviously the main one. Other criteria for classification, if necessary, should be considered separately, as auxiliary to the main one.

The exclusion of anti-vehicle mines from the Ottawa Convention, which pose a greater threat to combatants and civilians than anti-personnel mines, seriously limits the potential of this treaty to solve the problem of landmine weapons.

The discrepancies in both treaties seem to indicate the need to unify the definitions used in relation to landmine weapons, since non-compliance with this condition prevents not only an objective, without interpretation and explanation, consideration of the definitions of mine weapons used in Protocol II as amended and in the Ottawa Convention, but also an objective assessment of the effectiveness of the proposed in both documents solutions to the mine problem. Discrepancies in the definition of the basic definitions used in these international treaties are unacceptable.

Based on the above, it is obvious that further development of the provisions of Amended Protocol II creates more prospects for solving the problems of international humanitarian law related to the use of landmine weapons, including those stated in the preamble of the Ottawa Convention. This fact does not exclude the need to expand the scope of the Ottawa Convention, to extend its provisions to all types of anti-personnel mines.

In any case, there is no alternative to the further implementation of the agreements reached in the field of international humanitarian law, their development. Peace initiatives based on such agreements, allowing not only to implement them, but also to develop them further, have no positive alternative.

The classification of landmine weapons, for all its apparent evidence, has not yet found its objective reflection in international agreements on the mine problem. Reasonable proposals in this regard are designed to fill peace initiatives with real content.