Understanding U.S. landmine policy: an expert speaks!

The Biden administration has announced it will keep in place the Trump administration’s January 2020 landmine policy as it studies whether or not to make changes.  In my experience, there’s a lot of confusion about this issue and most of it stems from a lack of understanding about the elements of the policy.  Fortunately, there’s an expert to help.

MAJ Tregle

She’s Army MAJ Heather L. Tregle, a military professor at the U.S. Naval War College Stockton Center for International Law who was one of the superb speakers at LENS’ recently completed 26th Annual National Security Law conference.  An Iraq veteran, her education includes a B.A. from Lindenwood University, a M.A. from the United States Naval War College, a J.D. from the University of LaVerne College of Law, and a L.L.M., from The Judge Advocate General’s Legal Center and School.

Since MAJ Tregle was one of the co-authors of an outstanding essay published last November on Articles of War entitled “The U.S. Landmine Policy Complies with International Law,” I was extremely pleased she agreed to share her insights as part of the conference’s “Law of War Developments” panel.

As it happens, I completely agree with her, and I may expound in a future post upon my reasoning as to why a change would be so detrimental to U.S.  interests.  However, MAJ Tregle’s clear and cogent explanation of the current policy is something you need to see now.

Here’s a very lightly-edited transcript of her presentation (and the headings are my adds):

U.S. Landmine Policy

Good morning. Thank you for having me, General Dunlap. It’s a pleasure to be here. I would first like to start with the disclaimer that the views expressed here are my own and do not represent those of the US Naval War College, Department of Navy, Army, Defense, or any part of the US government.

Distinguishing policy and law

Since its creation, the law of war has developed over time and will continue to do so. When we talk about developments in the law of war, those developments can sometimes be grounded in policy and sometimes they are grounded in legal obligation. Both can affect the rules that constrain the warfighter, but it’s important to understand whether a law of war development is based in policy or law.

The evolution of U.S. landmine policy

A great example of this dynamic is the evolution of the United States landmine policy. Last year, the Trump Administration changed the US landmine policy. This decision was met with much controversy throughout the international community as well as criticism here in the United States. The current landmine policy reversed a previous policy decision that prohibited the use of anti-personnel landmines outside the Korean peninsula.

Under the current policy, combatant commanders now have the authority to employ non-persistent landmines, including anti-personnel land mines when necessary for mission success in major contingencies or other exceptional circumstances.

The current policy reconfirms the United States commitment to the Amended Mines Protocol while recognizing the global security environment has changed from that of a counter-terrorism threat to the re-emergence of long term strategic competition.

Under the policy, all geographic limitations for the use of anti-personnel land mines were removed, and the US maintains its commitment to not use persistent landmines, namely those that do not incorporate self-destruct and self-deactivation features.

So while there was much controversy surrounding the Trump Administration’s change to the landmine policy and since then a subsequent change in administration, it is important to look at the underlying legal obligations that must control any landmine policy as well as the strategic implications for any potential future stance the United States may take regarding landmines.

The legal obligations

As to the legal obligations, there are two international treaties which control the use of anti-personnel landmines, the first one being the Amended Protocol II Annex to the Convention on Certain Conventional Weapons commonly referred to as the Amended Mines Protocol.

And the second treaty is the 1997 Anti-Personnel Landmines Convention, commonly referred to as the Ottawa Convention. So let’s examine what these treaties do.

The Amended Mines Protocol does not outright ban the use of anti-personnel landmines. In fact, it regulates their use. While the Ottawa Convention essentially acts as a blanket ban on anti-personnel landmines, the United States is party to the Amended Landmines Protocol — but is not party to the Ottawa Convention.

Thus, while the current landmine policy does not comply with the Ottawa Convention, it does not run afoul of the United States’ treaty obligations, nor would any future landmine policy be required to comply with the Ottawa Convention. So let’s look at the current policy and how it lines up with the United States’ treaty obligations.

Current U.S. policy goes further than required by the Amended Mines Protocol

Under the Amended Mines Protocol, the current landmine policy enacts more protections than those required by the Amended Mines Protocol. For instance, the Amended Mines Protocol does not place an outright ban on persistent anti-personnel landmines, and in fact, allows persistent landmines to be used under specific circumstances.

However, the US policy completely prohibits the use of any persistent landmines under any circumstances. Further, the Amended Mines Protocol only requires that remotely delivered anti-personnel landmines outside of marked areas self-destruct and self-deactivate within 30 days of emplacement.

While the US policy requires all landmines, no matter how delivered to be designed to self-destruct within 30 days of activation. Thus the current landmine policy complies with its legal obligations under the Amended Mines Protocol, but also as a policy decision provides more protection than required by international law.

Even though the movement to completely ban the use of anti-personnel landmines has considerably grown under the Ottawa Convention, a blanket prohibition hasn’t emerged as customary international law that would enjoin the United States’ continued landmine use.

U.S. peer competitors are not parties to the Ottawa Convention

For starters, while the majority of states are party to the Ottawa Convention, significant states such as the United States, Russia, and China, all of which are permanent members of the UN Security Council and over 30 other states are not party to the convention.

Further, some states party to the Ottawa Convention have reserved the right to conduct combined operations with non-party states that continue to use anti-personnel landmines.

This is significant because it demonstrates that even though states which have agreed to be obligated under the Ottawa Convention recognize that the treaty’s prohibitions are not binding on the non-party states as a matter of customary law.

Lastly, while the International Committee of the Red Cross does not have the authority to say what is and what is not binding under international law, even they have conceded that a blanket ban on the use of anti-personnel landmines doesn’t reflect customary international law.

Rationale for the current policy

While the United States under the Obama Administration previously indicated a potential desire to accede to the Ottawa Convention, that decision, while based in aspirational goals of eradicating all potential harm from landmines, was grounded in policy not legal obligation.

Further, the global security environment has dramatically changed since 2014 when the Obama Administration indicated the goal was to move into compliance with Ottawa.

Since then, the strategic posture of the United States has shifted from that of a counter-terrorism, counterinsurgency fight with non-state armed groups to an environment of great power competition and the need to ensure that the United States is prepared for any potential contingency involving state-on-state conflict with potential near peer adversaries.

Anti-personnel landmines can be an effective tool in conventional warfare. And they provide a critical capability to commanders on the battlefield. They can act as area denial systems that obstruct and channel, delay, or stop a numerically superior adversary and prevent them from outflanking friendly forces.

Potential rivals, principally Russia, China, Iran, and North Korea have been unwilling to accept broad restrictions on the use of landmines.

It makes little strategic sense to cede the advantage on the battlefield to potential rivals, especially when the United States is not legally obligated under international law to do so.

Current policy demonstrates U.S. commitment to the protection of civilians

Nevertheless, the current landmine policy demonstrates the United States commitment to the protection of civilians as the policy is grounded in the foundational principles of the law of armed conflict.

Those principles will continue to inform any use of anti-personnel landmines on the battlefield. So, the United States’ position regarding landmines has certainly evolved over time. And thus, the law of war for the warfighter has changed with it.

But in the end, the current policy is just that. It’s a policy decision of a previous administration. If the Biden Administration changes the United States’ position regarding landmines once more it will also be a policy decision and not due to any legal obligation under international law.

Still, remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!

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