The Practical Guide to Humanitarian Law

« Calling things by the wrong name adds to the affliction of the world. » Albert Camus.

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Mines

Mines are objects designed to be placed under, on, or near the ground and to explode due to the presence, proximity, or contact of a person (in the case of antipersonnel land mines) or a vehicle (in the case of antitank or antivehicle land mines). Mines can also be maritime.

From a strategic point of view, mines are used to prevent the enemy from advancing or reaching a certain part of the territory. Mines are not prohibited as a weapon, but their use is strictly limited by the general principles of the law of armed conflict, which were further codified and updated in the 1980 Convention on Conventional Weapons. In 1997, a Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-personnel Mines and on Their Destruction was signed in Ottawa, Canada, but it only binds signatory States.

Regulations Concerning the Use of Mines

General Regulations in International Humanitarian Law

Certain rules of war forbid or limit the use of mines, booby traps, and other devices. These restrictions are based on two principles:

  • Mines must always be used in a way that makes it possible to ensure that they are not having an indiscriminate effect, striking the civilian population as much as military objectives.
  • The use of mines must be limited to the period of hostilities. One of the most basic principles of the laws of war is that a distinction must be made between times of peace and of war, meaning that the weapons used must be limited and controlled.

Methods (and means) of warfare

These principles are derived from the laws and customs of war, in particular the Geneva and Hague Conventions, which are binding on all States. The standards and rules set forth in these conventions reaffirm the principle that attacks must be proportionate to the goals sought and must distinguish between civilians and combatants. The purpose of these principles is to protect societies from the long-term material and psychological effects of war and to make a return to peace and reconciliation possible. These principles were reiterated and further codified in 1980.

AttacksProportionalityWar

1980 Protocol II on Prohibitions or Restrictions on the Use of Mines, Booby Traps, and Other Devices

On 10 October 1980, the Convention on Prohibitions of Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (known as the Convention on Conventional Weapons) was adopted, under the auspices of the UN. As of June 2015 it had 121 State Parties. It codified the rules governing the use of conventional weapons more precisely than earlier texts. Its second Protocol—on Prohibitions or Restrictions on the Use of Mines, Booby Traps, and Other Devices—specifically addressed the use of mines and other such devices in times of conflict. This Protocol was amended in 1996 and entered into force on 3 December 1998. It is now known as “Protocol II as amended on 3 May 1996” and currently has one hundred two States Parties.

The Protocol, as a convention that regulates the law of armed conflict, establishes the rules for the use of mines but does not forbid their use. It is applicable to both international and internal armed conflicts.

General Prohibitions and Obligations

Some of the provisions of Protocol II as amended on 3 May 1996 prohibit certain specific uses and others set forth clear obligations, in an attempt to limit the use of mines to strictly military purposes and to protect civilians, both during and after a conflict:

  • It is prohibited in all circumstances to use any mine, booby trap, or other device that is designed or of a nature to cause superfluous injury or unnecessary suffering (Art. 3.3);
  • it is prohibited, in all circumstances, to direct these weapons against the civilian population or individual civilians or civilian objects (Art. 3.7);
  • the indiscriminate use of these weapons is prohibited (Art. 3.8);
  • all feasible precautions shall be taken to protect civilians from the effects of these weapons (Art. 3.10);
  • it is prohibited to use antipersonnel mines that are not detectable (Art. 4);
  • it is prohibited to use mines, booby traps, or remotely delivered mines that are not in compliance with the Protocol’s precise provisions on self-destruction and self-deactivation (Arts. 5, 6);
  • the States Parties to the Convention or parties to a conflict undertake to record all information concerning minefields, mined areas, mines, booby traps, and other devices, in accordance with the Protocol’s Technical Annex (Art. 9);
  • each party to a conflict undertakes to clear, remove, destroy, or maintain all minefields, mined areas, mines, booby traps, and other devices in areas under their control, without delay after the cessation of active hostilities (Art. 10);
  • the international sign for minefields and mined areas (Art. 4 of Technical Annex) are:

° size and shape: a triangle no smaller than 28 centimeters (11 inches) by 20 centimeters (7.9 inches) for a triangle, or a square no smaller than 25 centimeters by 25 centimeters (10 inches);

° color: red or orange with a yellow reflecting border;

° content: the recognized symbol for danger is the skull and crossbones, which must be on all Mine Danger signs. The Technical Annex also suggests other recognizable images.

Special Protection for International or Humanitarian Missions

Article 12 of Protocol II as amended on 3 May 1996 establishes that certain UN or humanitarian operations, carried out with the consent of the State concerned, must enjoy special protection from the effects of minefields, mined areas, mines, booby traps, and other devices. These operations include:

  • any UN force or mission performing peacekeeping, observation, or similar functions in any area in accordance with the Charter of the United Nations;
  • any UN system humanitarian or fact-finding mission;
  • any ICRC or national Red Cross or Red Crescent Society mission performing functions with the consent of the relevant States, as provided for by the Geneva Conventions;
  • any humanitarian mission of an impartial humanitarian organization (including any impartial humanitarian demining mission);
  • any mission of inquiry established pursuant to the Geneva Conventions.

These missions must be protected, as long as they are performing their functions with the consent of the High Contracting Party on whose territory they are acting. This requirement does not apply to the first category (UN peacekeeping missions).

With regard to all such missions, the States Parties must:

  • take all necessary measures to protect the force or mission from the effects of mines, booby traps, and other devices in any area under their control;
  • provide the personnel of the mission with safe passage to or through any place under their control that the mission needs to cross in order to perform its functions.

In the case of UN peacekeeping missions or forces, the party to the conflict must also, “if so requested by the head of a force or mission,” remove or render harmless all mines, booby traps, and other devices in the area in which it is performing its functions, as far as possible, and must inform the head of the force or mission of the location of all known minefields, mined areas, mines, booby traps, and other devices.

Continued Use of Mines

Originally, belligerents’ respect for the obligations under the 1980 Convention on Conventional Weapons and Protocols, and other humanitarian law rules governing methods of warfare, was based on the principle of reciprocity rather than on punishment. The theory was that both sides had an interest in respecting these rules, in order to prepare for the return to peace.

Concrete reality and technological evolution upset the balance of reciprocity as a means of deterrence and control of the use of land mines: the invention of remotely delivered mines (dropped from aircraft or delivered by artillery) and non-detectable mines made the monitoring systems set up by humanitarian law useless.

Since humanitarian law does not strictly prohibit the use of mines, the debate on their conditions of use remained under the close control of military experts and mostly addressed complex technical issues.

The low cost of making mines makes them a popular weapon in many conflicts. Mines are generally used in a widespread manner to prevent access to entire territories or to spread terror among the population and, as such, have devastating effects on the civilian population. Civilians are the main victims of mines, and they continue to suffer the consequences for years, even decades, after peace has been restored. The ICRC estimates that two thousand individuals, three-quarters of whom are civilians, are injured or killed each month. According to UNICEF, one million individuals have been victims of mines since 1975, one-third of whom are children under the age of fifteen.

Prohibition on the Use of Mines: The 1997 Mine Ban Treaty

Facing a dead end in terms of regulating the use of mines, the ICRC and numerous NGOs launched an International Campaign to Ban Landmines (ICBL). Its aim was to prohibit the production and use of antipersonnel mines. The ICBL failed in its initial effort to obtain binding State commitments to this effect at the revision conference on the 1980 Convention on Conventional Weapons. But States did finally adopt a Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-personnel Mines and on Their Destruction (known as the Mine Ban Treaty)—under Canada’s initiative and supported by the ICBL—in Oslo, Norway, on 18 September 1997. It was opened for signature in Ottawa, Canada, on 3 December 1997 and entered into force on 1 March 1999.

The Mine Ban Treaty currently has 162 States Parties as of June 2015. However, the main mine-producing States refuse to adhere to the Treaty. These include the United States, the Russian Federation, China, India, and Pakistan.

The Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of Anti-personnel Mines and on Their Destruction (the Mine Ban Treaty)

The Mine Ban Treaty, which entered into force on 1 March 1999, bans antipersonnel mines. These are mines “designed to be exploded by the presence, proximity or contact of a person and that will incapacitate, injure or kill one or more persons” (Art. 2.1 of Mine Ban Treaty).

Each State Party undertakes the following:

  • never under any circumstances to use antipersonnel mines and to ensure that no one uses them in its territory (Art. 1.1.a);
  • never under any circumstances to “develop, produce, otherwise acquire, stockpile, retain or transfer to anyone, directly or indirectly, anti-personnel mines” (Art. 1.1.b);
  • to destroy all stockpiled antipersonnel mines it owns or that are under its jurisdiction or control, no later than four years after the Treaty enters into force for that State (Article 4);
  • to destroy all “mined areas”—defined as an area that is dangerous due to the presence or suspected presence of mines—within ten years (Art. 5.1); and
  • to submit an annual report to the UN on the national implementation measures undertaken in conformity with the Treaty. In fact, States Parties have the obligation to enact “all appropriate legal, administrative and other measures, including the imposition of penal sanctions, to prevent and suppress any activity prohibited . . . undertaken by persons or on territory under its jurisdiction or control” (Art. 9).
  • Finally, States have the option to authorize and send a fact-finding mission to verify a State’s compliance with its obligations under the Treaty.

Demining

Demining is a costly and dangerous activity. In times of conflict, international humanitarian law clearly forbids prisoners of war from being employed at this task (GCIII Art. 52). After the hostilities have ended, each party to the conflict may ask for technical and material assistance from other States and international organizations in its demining activities (Arts. 9–11 of Protocol II as amended on 3 May 1996). The Mine Ban Treaty establishes that each State Party “in a position to do so” is under the obligation to “provide assistance for mine clearance and related activities” (Art. 6.4).

This is essential because the cost of demining programs is colossal, and States ravaged by a conflict cannot afford it. The UN does have a fund specifically for demining assistance, which was used in Afghanistan, Cambodia, Mozambique, and the former Yugoslavia. Formerly under the Department of Humanitarian Affairs (now the Office for the Coordination of Humanitarian Affairs), the fund is now in the Department of Peacekeeping Operations. At the current demining rate, it would take eleven centuries to get rid of all mines.

The term humanitarian demining only applies to activities carried out immediately following the cessation of hostilities. Although in recent conflicts it has become increasingly difficult to determine exactly when the conflict is over, the signing of a cease-fire or peace accords is often used as a point from which to begin demining operations. These operations are important in order to favor the return of displaced populations or to facilitate the organization of elections.

During a conflict, demining can be combined with humanitarian relief operations. However, such activities must be undertaken very carefully because they can be seen as a military threat and result in reprisals against humanitarian actors.

Three-quarters of all mine victims are civilians, and one-third are children under the age of fifteen.

  • Approximately 110 million land mines currently lie in wait in seventy countries. According to Handicap International, mines claim an average of one victim every twenty minutes (or more than twenty-six thousand per year).
  • The average cost of a mine is between $3 and $30.
  • The average cost to remove one is between $300 and $1,000.
  • According to the ICBL, at the current demining rate, it would take more than a millennium and $33 billion to clear all of the existing mines in the world.

In theory, demining is the duty of the party that disseminated the mines in the first place. When peace accords are signed, parties to the conflict must exchange maps of the location of mines and must transmit these to the Secretary-General of the UN. They must also establish who is responsible for the demining. Such provisions are set forth in Protocol II to the 1980 Convention on Conventional Weapons (Arts. 9 and 10 of Protocol II on the Prohibitions or Restrictions on the Use of Mines, Booby Traps, and Other Devices, as amended on 3 May 1996).

To date, no international or national funds are set up for the compensation of mine victims, which may beg the question of how serious the international solidarity for victims of mines really is. The Mine Ban Treaty establishes that “each State Party in a position to do so shall provide assistance for the care and rehabilitation, and social and economic reintegration, of mine victims and for mine awareness programs” (Art. 6.3). Such assistance may be provided in cooperation with the UN or its agencies, the ICRC or national Red Cross and Red Crescent societies, NGOs, or other States.

It is important that medical reports be established for victims of mines, so as to enable them to file later claims for compensation or a disability pension.

AttacksMethods (and means) of warfareProportionalityWeapons

List of States Party to International Humanitarian Law and Human Rights Conventions (no. 28)

@ International Campaign to Ban Landmines: http:// www.icbl.org

For Additional Information: Cauderay, Gerald C. “Anti-Personnel Mines.” International Review of the Red Cross 295 (July–August 1993): 273–87.

Dinstein, Yoram. The Conduct of Hostilities under the Law of International Armed Conflict . Cambridge: Cambridge University Press, 2004, esp. chap. 3.

Hampson, Françoise. The Long Shadow: Landmines and the Law of Armed Conflicts . Colchester, UK: University of Essex, Human Rights Centre, 1995.

Henckaerts, Jean-Marie, and Louise Doswald-Beck, eds. Customary International Law . Vol. 1, The Rules . Cambridge: Cambridge University Press, 2005, part 4.

ICRC. Banning Anti-personnel Mines: The Ottawa Treaty Explained . ICRC: Geneva, 1998. Available at http://www.icrc.org/WEB/ENG/siteeng0.nsf/htmlall/p0702?OpenDocument&style=Custo_Final.4&View=defaultBody2 .

Prokosch, Eric, and Robert O. Muller. The Technology of Killing: A Military and Political History of Anti-personnel Weapons . New York: St. Martin’s, 1995.

Rogers, A. P. V. “Mines, Booby-Traps and Others Devices.” International Review of the Red Cross 279 (November–December 1990): 521–34.

Russbach, Remi. “Anti-personnel Mines: A Disgrace for Humanity.” International Review of the Red Cross 292 (January–February 1993): 57–58.

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