Legal background

Anti-personnel landmines are regulated under international humanitarian law both by existing custom and by treaty. A fundamental principle of the customary rules of international humanitarian law is that, in any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited. Derived from this general principle is the prohibition in customary law of the use of weapons “of a nature to cause superfluous injury and unnecessary suffering”. Thus, for example, expanding dum-dum bullets were outlawed long ago because they inflicted injuries that went beyond those militarily necessary to remove a soldier from combat.

General agreement does not yet exist, however, on how to determine objectively whether a given weapon violates this prohibition.¹

¹ R.M. Coupland FRCS (ed), The SIrUS Project: Towards a determination of which weapons cause “superfluous injury or unnecessary suffering”, ICRC, November 1997.

Customary law also prohibits the use of weapons that are inherently indiscriminate. Thus, the preamble to the Ottawa treaty declares that the agreement is based on the principle, inter alia, that a distinction must be made between civilians and combatants. Moreover, 1977 Additional Protocol I to the Geneva Conventions of 1949 declares that indiscriminate attacks include those which employ a means of combat which cannot be directed at a specific military objective.²

² Art. 51, para. 4(b), Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I, 8 June 1977),

CONVENTION ON THE PROHIBITION OF ANTI-PERSONNEL MINES AND ON THEIR DESTRUCTION [THE “OTTAWA TREATY”]

Why the need for a treaty?

Although international humanitarian law and traditional military doctrine have laid down clear requirements for the “responsible” use of anti-personnel mines, all too often these rules have not been implemented. Research conducted on behalf of the ICRC by military experts has shown that in 26 conflicts since the beginning of the Second World War, anti-personnel mines have only rarely been deployed in accordance with existing legal norms and military doctrine.³ Even well-trained professional armies have found it extremely difficult to use anti-personnel mines correctly in combat situations. Furthermore, mines have increasingly been used as part of a brutal and systematic war against civilians, especially in the bitter internal conflicts that have come to characterize warfare in the late 20th century.

³ Anti-personnel landmines: Friend or foe? A study of the military use and effectiveness of anti-personnel mines, ICRC, March 1996.

It is these tragic realities which make anti-personnel mines a particularly abhorrent weapon and which have led the ICRC and many other organizations and individuals to call for their prohibition and stigmatization. The use of poison gas and exploding bullets, has already been stigmatized and condemned by the international community. Both are weapons of war that are considered to violate the most basic principles of humanity however and whenever they are used. Now, with the adoption of the Ottawa treaty, anti-personnel mines will also be considered as a weapon of which the humanitarian costs far outweigh their limited military value.

“ANTI-PERSONNEL LANDMINES: FRIEND DR FOE?” MAIN CONCLUSIONS The material which is available on the use of anti-personnel mines does not substantiate claims that they are indispensable weapons of high military value. ------------ Establishing, monitoring and maintaining extensive border minefields is time-consuming, expensive and dangerous. In order to have any efficacy at all, they need to be under continuous observation and direct fire, which is not always possible. Because of these practical difficulties, some armed forces have entirely refrained from using such minefields, which have also proved unsuccessful in preventing infiltration. ------------ Under battlefield conditions the use, marking, and mapping of mines in accordance with classical military doctrine and international humanitarian law is extremely difficult, even for professional armed forces. History indicates that effective marking and mapping of mines has rarely occurred. ------------ The cost to forces using anti-personnel mines in terms of casualties, limitation of tactical flexibility and loss of sympathy of the indigenous population is higher than has been generally recognized. ------------ Although the military value of anti-tank mines is acknowledged, the value of anti-personnel mines is questionable. The protection of anti-tank mines is generally claimed to be an important function of anti-personnel mines, but there are few historical examples to substantiate the effectiveness of such use. ------------ Remotely-delivered anti-personnel mines are not solely defensive weapons. In practice they are likely to be used in huge quantities to saturate target areas. Even so, the mobility of professional armies will not be significantly hindered. ------------ Remotely-delivered anti-personnel mines will almost certainly cause vastly increased civilian casualties, even if such mines are designed to be self-destructing and self-deactivating. ------------ Some barrier systems and other tactical methods offer alternatives to anti-personnel mines. Additional alternatives, rather than further development of any new anti-personnel mine technologies, should be pursued. Developments which further increase the lethality of anti-personnel mines are to be deplored and are unnecessary. ------------ Improved mine-clearance technologies for military, humanitarian and civilian agencies should be vigorously developed with the goal of making anti-personnel mines progressively less useful. ------------ The limited military utility of anti-personnel mines is far outweighed by the appalling humanitarian consequences of their use in actual conflicts. On this basis their prohibition and elimination should be pursued as a matter of the utmost urgency by governments and the entire international community.

THE NEGOTIATION OF THE OTTAWA TREATY [THE “OTTAWA PROCESS”]

Following widespread disappointment at the failure to agree to substantial restrictions on anti-personnel mines within the framework of the Review Conference of the 1980 Convention on Conventional Weapons, the Canadian government hosted an international strategy conference, Towards a Global Ban on Antipersonnel Mines, which took place in Ottawa in October 1996 with the active support of 50 governments, the ICRC, the ICBL and the United Nations. At the conclusion of this Conference, the Canadian government again seized the initiative by inviting all governments to come to Ottawa in December 1997 to sign a treaty prohibiting the use, stockpiling, production and transfer of anti-personnel mines. The “Ottawa process” had been officially launched.

International support for a ban on landmines continued to build. In December 1996, the UN General Assembly passed Resolution 51/45S, which called upon all countries to conclude a new international agreement totally prohibiting antipersonnel mines “as soon as possible”. A total of 157 countries voted in favour of this resolution, none opposed it, and only 10 abstained from the Voting. To support the Ottawa process, the Austrian government prepared a draft text of a ban treaty and circulated it to interested governments and organizations. This draft, which was subsequently revised a number of times, was the basis of the ban treaty concluded in Oslo in September 1997.

International discussion on the draft text began in Vienna in February 1997 at a meeting hosted by the Austrian government. In April 1997 the German government hosted a special meeting to discuss possible verification measures to be included in a total ban treaty. The formal follow-up to the 1996 Ottawa conference took place in Brussels from 24 to 27 June 1997. The Brussels International Conference for a Global Ban on Anti-Personnel Mines was attended by representatives of 154 countries, the largest gathering of governments to date for a conference devoted specifically to the issue of landmines. On the closing day, 97 governments adopted the Brussels Declaration, calling for formal negotiations on a comprehensive landmine ban treaty, greater international cooperation, assistance for mine clearance and the destruction of all stockpiled and cleared anti-personnel mines. The Declaration called for the convening of a diplomatic conference in Oslo to negotiate such a treaty on the basis of the draft prepared by the Austrian government.

In accordance with the Brussels Declaration, which was soon signed by a total of 107 countries, formal treaty negotiations took place from 1 to 18 September 1997 at the Oslo Diplomatic Conference on an International Total Ban on Antipersonnel Land Mines, hosted by the Norwegian government. Ninety-one countries took part in the negotiations as full participants and 38 countries were present as observers, as were the ICRC, the ICBL, and the UN. The Oslo Diplomatic Conference proved to be a tremendous success. On 18 September, under the impetus of its South African Chairman. Ambassador Jakob Selebi, the Conference formally adopted the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction - the Ottawa treaty.

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Adherence to the treaty

In accordance with Article 15, the treaty was open for signature from 3 to 4 December 1997 at a specially convened conference in Ottawa, Canada, and thereafter at the United Nations headquarters in New York until its entry into force on 1 March 1999. On that date 133 States had signed the treaty, and 67 had ratified it. By signing the treaty, States commit themselves to adhering to it in the future. Each State must also formally ratify its provisions and subsequently deposit an instrument of ratification with the United Nations Secretary-General in New York to become legally bound by it. The 40th such instrument was deposited on 16 September 1998, thus triggering entry into force on 1 March 1999, only 15 months alter the treaty was first opened for signature. This was the first time a multilateral arms-related treaty had entered into force so rapidly.

Treaty provisions

States party to the Ottawa treaty undertake never under any circumstances to use, develop, produce, stockpile or transfer antipersonnel mines, or to help anyone else to do so.⁴ Anti-personnel mines are mines designed to be placed under, on or near the ground and detonated by the presence, proximity or contact of a person.⁵ On the basis of the negotiations, this definition is understood to include “ improvised” anti-personnel mines, namely other munitions, for example grenades, which are adapted to serve as anti-personnel mines. Specifically excluded, however, are anti-vehicle or anti-tank mines, including those equipped with “anti-handling devices” that detonate the mine when an attempt is made to tamper with it or otherwise intentionally disturb it.⁶

⁴ Art. 1, para. 1.
⁵ Art. 2, para. 1.
⁶ Ibid.

Under the Ottawa treaty a claymore mine is deemed to be an anti-personnel mine if tripwire-actuated, but not if command-detonated by remote control.

Thierry Gassmann/ICRC

Each State Party must destroy all its stockpiled anti-personnel mines within four years of the date the treaty enters into force for a particular State, except for a few hundred or a few thousand mines that can be retained for the development of and training in mine-detection, mine-clearance or mine-destruction techniques. Emplaced anti-personnel mines must be destroyed within ten years of the treaty’s entry into force for a particular State and measures taken to protect civilians until mine-clearance work is completed.⁷ Severely mine-affected States, however, may ask the other States Parties to grant extension periods of up to ten years at a time if they are unable to complete the clearance and destruction process in the time allowed.⁸ Such a request also enables mine-clearance work to be appropriately supported by other States.

⁷ Art. 5, paras 1 and 2
⁸ Art. 5, paras 3 and 6

There is a general obligation on States in a position to do so to provide international support for mine clearance, mine awareness programmes and assistance to mine victims, including for their care and rehabilitation, and social and economic reintegration.⁹ Assistance for mine victims may be provided through the ICRC, National Red Cross and Red Crescent Societies and their International Federation, as well as bilaterally or through other organizations.¹⁰

⁹ Art. 6
¹⁰ Art. 6 para 3

THE 1980 CONVENTION ON CERTAIN CONVENTIONAL WEAPONS [CCW]

In addition to the Ottawa treaty, Protocol II to the 1980 Convention on Certain Conventional Weapons (CCW) regulates the use and transfer of all landmines. It represents a minimum international norm for belligerents who have not adhered to the Ottawa treaty and continue to use anti-personnel mines. Other protocols annexed to the CCW regulate or prohibit three other types of weapons. As a result of an intergovernmental review process initiated in 1993, Protocol II was amended by the States Parties on 3 May 1996.

Protocol II as amended, which applies in internal as well as international armed conflicts, prohibits the use of remotely-delivered anti-personnel mines without effective self-destructing and self-deactivating mechanisms, and requires that manually emplaced antipersonnel mines must either be placed in a marked, fenced and monitored area or must self-destruct and self-deactivate. All antipersonnel mines must be detectable. Transfers of non-detectable mines and transfers of any mines to non-State entities are prohibited, A clear obligation is placed on those using mines to clear them after hostilities have ended. Finally, a new provision offers protection from landmines to Red Cross, Red Crescent, and other humanitarian workers.

Protocol II as amended, while allowing continued use of certain anti-personnel mines, restricts the use of anti-vehicle/anti-tank mines and directional fragmentation munitions (when command-detonated by remote control), and prohibits the use of any mines that are specifically designed to detonate as a result of the use of electromagnetic mine detectors. In addition, at the end of an armed conflict, States party to Protocol II as amended are obliged to remove or assist in the removal of all mines laid by them.

Although universalization of the Ottawa treaty is a high priority, adherence to the 1980 Convention on Certain Conventional Weapons and its annexed Protocols must continue to be actively promoted. As at 1 March 1999, 73 States had adhered to the 1980 Convention. Of these, 68 have accepted to be bound by Protocol II in its original form and 32 by the strengthened version of Protocol II as amended in 1996. The amended version entered into force as binding international law on 3 December 1998.

In accordance with the final declaration of the first Review Conference of the CCW, the second Review Conference will be held no later than 2001, with expert groups beginning in the year 2000 if necessary. It is expected that the mines issue will again be a major feature of the discussions.

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Max Deneu/ICRC