Russian Landmines in Ukraine: The Most Relevant Treaty

These reports assert that many such mines and booby-traps were left in populated areas, including in streets, houses and automobiles, and on corpses and medical items. Ukrainian officials have accused Russia of air-dropping plastic “butterfly” mines. All this has reportedly endangered civilians and would necessitate extensive clearance efforts.

The press has frequently noted that Russia and the United States are not party to the 1997 Ottawa Convention, which prohibits most use and possession of anti-personnel landmines. What’s generally overlooked, however, is another important agreement that would prohibit these alleged Russian actions. That is the 1996 Amended Protocol II to the Convention on Certain Conventional Weapons — the Landmines Protocol (English; Russian). Russia, the United States and Ukraine are party to this Protocol, as is almost every other major country.

The Landmines Protocol does not prohibit landmines and booby-traps, but it does regulate them in important ways. Among other things, it prohibits directing mines and booby-traps against the civilian population or civilian objects. It prohibits any indiscriminate use, including use that may be expected to cause injury to civilians or damage to civilian objects that would be excessive in relation to the concrete and direct military advantage anticipated. It requires that “all feasible precautions” be taken to protect civilians, such as fencing, signs, warnings and monitoring. It prohibits anti-personnel devices that are not readily detectable; and it requires that such devices laid outside marked and monitored areas have self-destruct and self-neutralizing features that operate after a limited period of time. It specifically prohibits “in all circumstances” the use of booby-traps and other devices “in any way attached to or associated with” dead bodies, medical items, food, drink, and other similar objects. It has detailed technical specifications to enforce these requirements. What has been reported in the press would suggest that all these provisions may have been violated by Russia in Ukraine.

And quite apart from this, the reported Russian actions would appear to violate general norms of the law of armed conflict for which there is individual criminal responsibility. Uses of mines and booby-traps constitute war crimes if directed against civilians or civilian objects, or are indiscriminate in nature; they become crimes against humanity if part of a widespread or systematic attack against a civilian population.

The International Criminal Court does have jurisdiction over such war crimes and crimes against humanity because Ukraine has accepted the Court’s jurisdiction, and these are presumably among the crimes being investigated by the ICC Prosecutor. Ukraine has domestic criminal jurisdiction over such crimes, and can prosecute those responsible, either unilaterally or in conjunction with other like-minded states. Other states (like Germany) might also be able to prosecute the perpetrators on the basis of universal jurisdiction and in accord with the requirements of the Geneva Conventions. None of this guarantees that reported Russian violations would stop, or that their perpetrators would be punished; but every effort must be made toward these ends if the reports are correct.

For its part, the United States should cooperate fully with these efforts, which is important, given U.S. intelligence resources and its familiarity with mines and booby-traps. U.S. law also provides criminal penalties for violations of the Landmines Protocol, which was included in the U.S. War Crimes Act in 1996 at the request of the Executive Branch. But that Act does have an important limitation: it does not apply to foreign perpetrators found in the United States, if their victims were foreign nationals and their crimes occurred abroad.

This limitation should be remedied, and Senators Dick Durbin (D-IL) and Lindsey Graham (R-SC) are proposing legislation that would give U.S. courts jurisdiction to prosecute any offender (and any other war criminal) found in the United States, regardless of that person’s nationality or where the crimes were committed. The Executive Branch proposed such an amendment in 1996 for war crimes generally, but Congress did not adopt it.

Expanding the jurisdiction of the War Crimes Act would have several advantages with respect to landmines. It would enable the United States to take concrete action against any person found in the United States who had illegally laid mines or booby-traps anywhere in the world, including Ukraine. It would ensure the ability of the United States to fulfill its obligations under the 1949 Geneva Conventions, which require parties to act against any war criminals found within their jurisdiction. The Landmines Protocol itself includes such an obligation (in Article 14), and the President’s letter to the Senate in 1996 requesting its approval of ratification expressed support for legislation providing such jurisdiction to U.S. courts to enforce penal sanctions.

Expanding the War Crimes Act would also strengthen our ability to persuade other countries to take action against any individuals who were involved. And it would help avoid the possibility that the United States might find itself a legal haven for such perpetrators. (Of course it would have these advantages with respect to other war crimes as well.) For all these reasons, Congress should act on this as soon as possible, and the press should keep the public informed as to why the reported uses of landmines and booby-traps by Russia would be unlawful and criminal under international law.

The author was the U.S. Ambassador to the Conference which adopted the Landmines Protocol in 1996. He also testified in Congressional hearings in 1996 in favor of expansion of the U.S. War Crimes Act.