The Law of Land Mine Warfare: Protocol II to the United Nations Convention an Certain Conrentionai Weapons

• Author: by Lieutenant Colonel Burris M. Carnahan
• Pages: 03

1. INTRODUCTION

   Until recently. international law gavelittle guidance on the proper use of land mines and booby traps in armed conflict. Despite the uidespread use af these weapons since World War I. land mines and booby traps have remained "neglected stepchildren" in the modern law Thus. the 19Oi Hague Regulations on Land Warfare' did not mention land mines, even though the use of mines at sea became the subject of the VI11 Hague Convention, negotiated at the same international conference.' Similarly. and in contrast aith more contro-versial arms such as poison gas, napalm and nuclear neapons, the land mine has attracted almost no attention from writers on the law af armed c~nflict.~Oftherecenttreatises,onlythatof Morris Greens- *Judge Adwesre General Q Corps. United Sfstei Air Force Currently assigned ab Staff Judge Adbocate 1605th >!illtar) Airlift Support Wing Formerly amiensd tu the International Lar Division Office of The Judge Adrocare General. U S Air Force 1978-ak A~~miate

   Profe9sorof Law U S Air Force Academy, 1974-78 Served B.S a member of the United States delegation tc the United Xarms Conference an

   Con,entmal Weapani. 1979-80. L L M University of Michigan. 1974 J D.

   Xorth- uesrem Unnersity 1969. B A,. Drake Untverat?. 1966 Admitted to practice before the courts of the stare of Illinois and the United States Court of Military Appeals

   This paper ispissenti an Independent effmt on the part of the author and was not undertaken I" connection with his position a ~ m ~ f f i e e ~ o f the United States Air Force.He has not had meeial aeeers tc meeial information or ideas and has emolared onlv

   . . .

   ~pen-murce mntirial avajlable ra'any writer on this aubieet The mrs and C Y ~ C ~ Y smni expressed me those of the author They are not intended and should not be thowhf tu rearesent official Idear. attitudes or (lollcie~ of anv anenei af the United

   'Hague Convention LV Reipecting the L a w md Custom8 of Bar on land and Annexed Regvlatians 18 October 1907 36 Stat. 2277. T S 639

   'Hame Canwntlon VI11 Relatne to the L a y w of Auramatie Subrnnrine Contact Mines, 18 October 1907, 36 Stat 2332 T S 541

   'Sir ~ . g . M. MeDougal 8 F Felieiano. Law and Minimum Warid Public Older 119611' 2 L Oooenhem International La- 17th ed. H lauteroaeht 19521. 2 GSchwarnenbergk Intemztmal law as Applied bi' International 'courts and Tribunsli(3ded 19681 These standard aarks all discuss thelawofrninevarfareatJeabut contain no mention of mine Karfars on land Curiously, of the United States military publieations on the 18%' of armed conflict, only the Alr Force pamphlet mentions land mine u,arfare U S Dep't of the Air Force. Pamphlet No. 110-31, Internstianal La%-The Conduct of Armed Conflict and Air Operation8 para 6-6d 11976)

   pan erencansidersivhether theuseoflandminesmightbesubjectto any special rules. Greenspan concluded that land mines might Ian.-fully be used as a defensive weapon, "used to protect a defensive position or bya retiring farce todelay pursuit b? the enemy "'When used as an offensive weapon, however, "such mines would be open to objection. as for instance, when laid by a raiding force ~n enemy territory. since generally there would be nowa) ofensuringrhat they would not injure or kill persons.. protected by rhe law from attack "5 In his view. offensive mines would be considered "indie-criminate" weapons.

   The concerns expressed by Professor Greenspan finally became the subject of serious negotiation at the Geneva Diplomatic Conference on Humanitarian Law. which met from 1974 to 1977 and produced two Additional Protocols to the 1949 Genera Conventions an War Victims.6 At the request of ~everal delegations. the Conference formed an ad hoc committee an weapons to consider. among other issues. the creation of new limitations OD the use of land mines and booby traps: In support of the committee's work. the International Committee of the Red Cross convened two meetings of government experts an weapons, one at Lucerne ~n 1974 and the second at Lugano

   in 1976

   1.M. Greenspan The Modern Law of Land Variare 363 11969)

   ill

   The sudden interest in restricting land mines and other "delayed action aeapons" arose for both politicai and technical reasons. Politically. the rise of international terrorism in the 1960s and 1970s stimulated efforts to curb some of the terrorists' favorite weapans. booby traps and time bombs. On the technical side, the development of remotely delivered mines caused new concern that "offensive" mines might be used indiscriminately.

   The 1977 Diplomatic Conference was not, however, able tosuccessfully conclude any agreements on specific conventional weapons; in the end this subject was passed to the United Sations General As~ernbly.~

   The Assembly took up these issues by convening the Conference on Prohibitions or Restrictions ofUseaf Certain Conventional Weapons Which May by Deemed to Be Excessively Injurious or LO Hare Indiscriminate Effects. Theconference held two sessions, in 1979 and 1980. at the United Sations European Headquarters inGeneva. Switzerland. It waspreceded by two Preparatory Conferences, which met in 1978 and 1979. Eights-five nations participated in the Conference, including all the major military

   At both the Preparatory Conference and the Conference, work on land mines and booby traps was referred to a working group. which used a draft prepared by the United Kingdom as a starting paint for negotiations. The end result was the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby Traps and Other Devices (Protacal 111."

   11. THE NATURE OF THE THREAT

   Unlike ordinary munitions, land mines and baaby traps are not designed to explode when they approach the target They are, instead. designed to he dormant until enemy vehicles or personnel approach them. While most munitions are intended primarily to destroy enemy property or personnel. land mines are, in contrast, used primarily to impede enemg access to certain areas of land by requiring mine clearance before those areas are used. Militarily. minefields are similar to ditches. tank traps, and concertina barbed

   wire in that they are abstacies to enemy movement. Thew casualty-producing effects are secondary to this primary effect:Z

   The threat which land mined pose to civilians has tao dimensionsa seograpiiic dimension and a tPmpurn/ dimension. The geographic dimension arises from the danger that mines Kill be emplaced ~n an area containing a concentration of civilians or that civilians sill enter an area where mines hare teen laid. The temporal dimension arises from the danger that mines and minefields might no1 lie cleared after their military utility has ceased and that they wLi1 therefore present a threat to civilians for years and even decades after the armed conflict has ended.-J The Land Mines Protocol addresses both dimensions of the probiem. Before examining these provisions in detail, hoaever, it is appropriate to look triefly at the question of who is to be protected against these dangers

   111. PERSONS BENEFITING FROM THE PROTOCOL

   Most of the articles in the Land Yines Protocol are intended to protect ciiilians and the civilian population. While the Protocol does not define the terms "civiiian population." these terms are defined in

   Article 50 of the 1977 First Protocol to the Geneva Conientioni The ''civilian population" is therein defined a3 comprising "ail persons who are civilians" and a cirilian 1s defined as anlone uho is not a member of the armed forces of a party to the conflict. "Armed Forces" includes all organized forces groups and units under the command of a person or group responsible to a Part>- to the conflict for the conduct of subordinates." including militia. volunteer corps. organized resistance groups and members of a liive mnsse.li Further It vas the understanding of the Working Group on Land M~nes and Booby Traps that civiiim3 who take a direct part inhostilities are not protected by the Land Mines protocol.'^

   "Srr Lucerne Raporr. para 229, .4Ider Mode,,, Lntd llinr Ilarta,e 6 Armada

   l"*".l".l"l"l E IIYPn/

   de~ilopmenL efforts and entails losiaflifeand praiertr"The Rerolurian ;as purhed

   br Lib>a u,hich has had severs1 clrilian c~sualtiei resulting from mines emplaced during World War I1

   "1977 Firif Protocol art 13.

   Vhlrd Geneva Convention 811. ?A'*Sir Report of the Working Group on Landmines and Boob) Traps -

   U N

   G l O R - L' A Doc A CONF 'CIS' 7 119801 at 3. Report of the Conference to the General Assembly -

   0 N GAOR

   L'N Doe A.COPF 95 e 119791 at 18 [hereinafter cited ai 1980 Working Group Rapart and 1979 Conference Report

   -

   Article 50 of the 1977 First Protocol further states, however. that the"presence within the civilian population of individuals nhodonot come within the definition of CIYIIISIIS does not deprive the population of Its ciwlian character " Presumably. the same principle app-lies to the Protocol on Land Mines. Booby Traps and Related Devices.

   N'hile most of this Protocol is intended only to protect civilians. certain provisions have been included which protect members of United Xations missions and peacekeeping forces.'. Such missions and forces have in the past. often been endangered by land mines and booby traps. Express mention of them in the Land Mines Protocol marks an important innovation in the lan of armed conflict; previousiy, the only persons protected by that law were civilians, medical personnel. chaplains. and the sick and wounded.

   Finally, it should be noted that this Protocol 1s not intended to interfere with the existing laws of mine warfare st sea. Article 1 limits the Protocol's material scope of application as fallows: "This Protocol relates to the UEB on land ai mines, booby-traps and other devices defined herein, including mines laid to interdict beaches, naterwaycrossingsor river crossings. butdoesnot applyto theuseof anti-ship mines at sea or in inland waterways."1i The Protocol does not. therefore. protect persons who might be endangered by naval...