Published: 06 February 2020 Author: Stefan Talmon
Anti-personnel mines (APM) do not distinguish between combatants and civilians, do not respect cease-fires and continue to kill and maim long after the end of conflicts. The vast majority of their victims are civilians, not soldiers. In 2018, some 6800 persons were killed, and many more injured by landmines. In the 1990s, an international campaign to ban APMs was launched which led to the adoption of the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines (Ottawa Convention) on 18 September 1997. The Convention was opened for signature on 3 December 1997 and entered into force on 1 March 1999.
On 23 September 2014, U.S. President Barack Obama aligned U.S. policy outside the Korean Peninsula with the key requirements of the Ottawa Convention. This meant that the United States would not use APMs outside the Korean Peninsula; not produce or otherwise acquire any anti-personnel munitions that are not compliant with the Ottawa Convention, not assist, encourage, or induce anyone outside the Korean Peninsula to engage in activity prohibited by the Ottawa Convention. It also undertook to destroy APM stockpiles not required for the defence of the Republic of Korea.
U.S. President Donald Trump revised this policy. On 31 January 2020, the White House Press Secretary issued the following statement:
“As part of President Donald J. Trump’s steadfast commitment to ensuring our forces are able to defend against any and all threats, the President has canceled the Obama Administration’s policy to prohibit United States military forces from employing anti-personnel landmines outside of the Korean Peninsula. The Department of Defense has determined that restrictions imposed on American forces by the Obama Administration’s policy could place them at a severe disadvantage during a conflict against our adversaries. The President is unwilling to accept this risk to our troops.
The Department of Defense is issuing a new landmine policy. This policy will authorize Combatant Commanders, in exceptional circumstances, to employ advanced, non-persistent landmines specifically designed to reduce unintended harm to civilians and partner forces. […].”
In a first reaction, the Minister of State at the Federal Foreign Office, Niels Annen, stated on 1 February 2020:
“President Trump’s decision to ignore the prohibition of the use of landmines is a major setback for the long-standing international efforts to outlaw this deadly weapon. The United States would be well advised to reconsider its decision. After all, the affected States all too often have to struggle with the consequences of the use of landmines for many years after hostilities have ended. It is also for that reason that Germany remains committed to mine clearance in many countries.”
Two days later, during the regular government press conference, the spokesperson for the Federal Government reiterated that position, stating:
“The Federal Government regrets this decision by the American President. We see this as a setback for international efforts to achieve a worldwide ban on landmines. Germany is a party to the Ottawa Convention and, as such, is actively opposed to the use, production, stockpiling and transfer of anti-personnel mines and cluster munitions. In addition, we have been supporting mine and ordnance clearance projects for many years, since the early 1990s. This is the twofold approach which we as Federal Government will continue to take.”
Germany has been actively campaigning against the use, storage, production and transfer of APMs since the mid-1990s. It banned the use of landmines by its armed forces in 1996 and destroyed some 1.7 million APMs, meaning that it no longer possesses any of these weapons. Germany was amongst the first States to sign the Ottawa Convention on 3 December 1997, and ratified it on 23 July 1998. The Federal Government is working as a matter of priority to ensure that the Ottawa Convention is applied universally.
While there are 164 parties to the Ottawa Convention, the United States – like China and Russia – is not one of them. The statement of Minister of State Annen that President Trump had decided “to ignore the prohibition of the use of landmines” was thus at least misleading. There is no customary international law rule banning the use of APMs. As a non-party to the Ottawa Convention, the United States is not bound by the obligations under the Convention and, consequently, is not subject to a prohibition of the use of APMs.
The 2014 statement on U.S. anti-personnel landmine policy made by President Obama was at best a unilateral commitment. While such statements can create legal obligations, much depends on their content, the factual circumstances in which they are made and the reactions to which they gave rise. The U.S. policy was announced on 23 September 2014 by President Obama in a speech at the Clinton Global Initiative in New York where he said: “Outside of the unique circumstances of the Korean Peninsula – where we have a longstanding commitment to the defense of our ally South Korea – the United States will not use anti-personnel landmines.” Earlier that day, the White House Press Secretary had issued a “Fact Sheet: Changes to U.S. Anti-Personnel Landmine Policy” setting out the new policy in more detail. The Fact Sheet referred to “policy” changes, and President Obama spoke of the United States “going to continue to work to find ways that would allow us to ultimately comply fully and accede to the Ottawa Convention.” It seems at least doubtful whether these unilateral declarations manifested a will of the United States to bind itself internationally. In any case, even a unilateral declaration that has created legal obligations may be revoked, unless such revocation would be arbitrary or contrary to good faith. The adoption of a new APM policy, based on a changed military risk assessment, cannot be considered arbitrary. There is also no indication that other States relied in good faith on the United States no longer using APMs outside the Korean Peninsula.
While the change to U.S. anti-personnel landmine policy may be deplored as undermining the global fight against the use of APMs as a weapon of war, it does not ignore or even violate any prohibition of the use of landmines.
Category: Arms control and disarmament