Stepping away from rules

By Richard Moyes

The US’s decision to transfer antipersonnel landmines to Ukraine will harm civilians and is a landmark step away from international rules and norms. Ukraine is one of the 164 states that are party to the 1997 Mine Ban Treaty that prohibits antipersonnel mines: so this move marks a direct rejection of international legal treaties as constraining behaviour in conflict. Already five days later, the failure of the UK government so far to speak out against this decision is a stark contrast to the leadership of the Labour government in the late 1990s, that worked alongside Princess Diana to make that treaty a reality.

The last 25 years have seen the growth of a strong global norm against using antipersonnel landmines. By the 1990s the proxy battlefields of the Cold War and other conflicts had left vast areas of South-East Asia, Africa, the Balkans and Central Asia littered with landmines – which claimed a continuous daily toll of civilians lives and limbs. Recognition of this pattern of massive civilian harm, lost livelihoods and impeded recovery, led to a global partnership of states, international organisations and civil society coming together to reject these weapons and to clear the minefields that had been left behind.

For a long time the US teetered on the brink of joining this treaty. It stopped using antipersonnel mines in its own combat operations but cited its commitment to maintaining certain border minefields between North and South Korea a barrier to it embracing the landmine ban more fully. In making the policy decision to send antipersonnel mines to Ukraine, the US is now straightforwardly rejecting that treaty, and with that undermining the framework of legal treaties are intended to protect civilians from inhumane weapons.

Not only is the US promoting the use of landmines, it is also inducing Ukraine to violate the international legal obligations that it has signed up to. After a year of massive civilian harm in Gaza and more broadly, whilst US and European leaders appealed for the parties to ‘fully comply’ with international law, now the pretence of prioritising legal adherence is being dropped. Legal treaties, it seems, can simply be ignored.

The UK under the previous Conservative government was strongly supportive of Ukraine – but still spoke out in opposition to the US decision to send cluster munitions to the conflict zone. As yet there has been no objection from the current Labour Government to this decision on antipersonnel landmines.

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Many of the justifications offered in support of the US’s decision to transfer anti-personnel landmines to Ukraine assert two main points:

That these new antipersonnel landmines are ‘different’ to the old antipersonnel landmines due to their self-neutralising capabilities.
Given this confidence, these anti-personnel landmines are wholly compatible with international legal rules.

Yet self-destructing and self-neutralising antipersonnel landmines existed when the 1997 Mine Ban Treaty was adopted. The claim that these weapons provide a solution to the problem was considered, discussed and rejected during those negotiations. This is not some sort of miracle cure that has only been found now. Self-neutralising landmines are still incapable of determining if the pressure that bears down on them comes from an enemy soldier or an aid worker delivering humanitarian relief, from a combatant or child. Hundreds of thousands of landmines have been laid in the past by people who kept records of where they were, and who intended to remove them later, only for the exigencies of conflict to make those remedial actions impossible. And whilst modern self-neutralising mechanisms may have become more reliable, the history of weapons is full of claims about technical fixes that have not borne out in reality. Once laid, clearance operators will still have to undertake clearance operations on the assumption that they are clearing hazardous weapons – there are no assurances that these mines are safe. Clearance operations are risky, expensive and time-consuming, and laying more mines this will only add to the immense scale of the task that Ukraine will face in clearing its land.

The latter of the claims above simply ignores the fact that this transfer puts Ukraine in direct violation of specific legal treaty obligations, and that abandoning legal treaties is contributing to a continuing downward spiral for efforts to protect civilians in conflict. Making vague appeals to the general rules of law whilst violating specific legal treaty obligations is the worst kind of legalism: you cannot continue to claim to be adhering to the law whilst directly abandoning the law at the same time. Such rhetoric is contributing to a debasement of legal structures which will only produce more civilian harm. More specifically, this decision and the accompanying silence of many European states, makes it more likely that antipersonnel mines will be used by others. And if antipersonnel landmines can be used, why not other prohibited weapons?

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International humanitarian law, or the law of armed conflict is probably suffering its most acute crisis since its modern reformulation in the late 1970s. The general legal rules seek to protect civilians from the worst of conflicts’ harms and to protect soldiers from cruel and degrading treatment if they are captured or injured. Specific legal treaties, like the 1997 Mine Ban Treaty, provide rules on certain weapons – and although different states have joined different such treaties, there is at least a recognition across all states that there are limits to the types of weapons that can be used.

Beyond the battlefield, the language of humanitarian law has come to infuse political discussions around international conflict. World leaders will insist that their forces are complying with the law, other leaders will ‘demand compliance’ from others, or identify attacks that they perceive as legal violations. But from within these ubiquitous appeals to the law a crisis has developed. It is a crisis that comes from ethical detachment and political double standards: of clinging to the words of the law but neglecting its humanitarian purpose; of asserting that adversaries are violating the law but being unable to see the same violations in your allies.

If states that claim to stand on the side of law and international rules do not speak out when allies ignore legal treaties we are simply spiralling ever closer to a world without rules and norms. Many conflict-affected civilians are already living in that world – and enduring its horrors as best they can. Their plight is not served by continuing this spiral. And with the abandonment of legal structures we slowly return to a notion of international boundaries as dictated only by brute force, which is the logic some states have come to openly embrace anyway.

We can understand arguments that demand, “wouldn’t you want landmines if it was your lands and towns that were being taken?” We can recognise that war forces people into desperate situations and from situations of desperation people may choose a little more safety today even if it raises the risk for others tomorrow. Part of the purpose of legal rules is to settle those questions from a position of better judgement – to give weight to the voices of those that will be harmed when those voices cannot be heard over the clamour of battle.

States that wish to protect civilians in conflict and to support international law in the world need to speak for those communities now. It is the voices of all civilians in conflict that are being drowned out.