Center for International Policy

September, 2000. Revised December, 2000

Arnold & Porter Legal Opinion Clarifies Land-mine Treaty

Says anti-vehicle mines that act like antipersonnel mines are also banned

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The Washington law firm of Arnold & Porter has provided the Center for International Policy with a legal opinion on the question of anti-vehicle mines in the Ottawa mine-ban treaty. Dated September 2000, its key finding is:
. . . The most reasonable reading of the Ottawa Convention is that its ban on antipersonnel mines extends to anti-vehicle mines which, due to their fuse or anti-handling device designs, can be detonated by unintentional human contact such as stepping on a pressure plate or walking into a tripwire or tilt-rod. In effect, such anti-vehicle mines are antipersonnel mines according to the definitions contained in the Convention.1

To meet the objections of Western military establishments an exception for anti-vehicle mines was included in the treaty. The military forces of the major European signatories, while willing to part with their antipersonnel mines, insisted on this exception in order to protect their troops. Under the treaty, these anti-vehicle mines may also be equipped with anti-handling devices designed to prevent enemy troops from disabling them. But also under the treaty, these devices should not be able to be triggered by unintentional human contact; only actual "tampering," a deliberate effort to disturb or disarm the mine, should suffice to set it off. The technical difficulty of building an automatic sensor with such a high degree of discrimination has created a gray area of interpretation which some believe threatens the integrity of the entire treaty.
The anti-handling devices on some anti-vehicle mines still used by major European countries could be triggered by certain kinds of unintentional human contact short of deliberate tampering, converting them into gigantic antipersonnel mines. Since the treaty signing, two experts' meetings have been held to thrash out the problem, with no solution having been found.2

The problem was noted at the time of the treaty's signing. The International Campaign to Ban Land Mines (ICBL) expressed its concern that "a mine with an anti-handling device is going to function as an antipersonnel mine; it is going to pose extreme dangers to civilians and to humanitarian de-miners. Remotely-delivered, scatterable mines with anti-handling devices in particular will put civilians at risk."

To help the treaty signatories resolve this problem, the Center for International Policy asked the renowned law firm of Arnold & Porter to render a legal opinion of the exception. The question is important not just for the international signatories, but for the United States as well. Conscientious efforts by the signatories to perfect and comply with the treaty create further incentive for the United States to join promptly (it is administration policy to develop alternatives that would let the United States join by 2006). On the other hand, slipshod compliance creates an excuse for U.S. opponents of the treaty in Congress and the Pentagon to argue for further delay.

Arnold & Porter extensively reviewed the commonly-accepted principles of treaty interpretation. It concluded, in the same vein as cited above:

The first principle of treaty interpretation is that the ordinary meaning shall be given to the treaty's terms in their context and in light of the treaty's object and purpose. Application of this principle as a foundation for all other principles of interpretation and all canons of construction serves a crucial purpose; ensuring that treaties achieve the ends for which they were enacted in the first place. In the case of the Ottawa Convention, the end sought is clear -- to put a stop to the superfluous injury and unnecessary suffering visited indiscriminately upon civilians and combatants by antipersonnel mines. The means employed by the Convention to achieve this end is to impose a complete ban on such devices.
A plain reading of the terms of the Ottawa Convention, in its context and in light of its object and purpose, yields an unambiguous result: anti-vehicle mines, including those equipped with anti-handling devices, that may be detonated by unintentional human contact are banned under the Convention.

On September 11, 2000, the treaty signatories met in Geneva for a major review of compliance to date. Release of the Arnold & Porter report at the meeting by the Center for International Policy, in its role as a member organization of the International Campaign to Ban Land Mines, helped spur renewed discussion of those anti-vehicle mines that can be triggered by unintentional human contact. Countries such as France, Great Britain and Italy had argued that banning anti-vehicle mines equipped with anti-handling devices with antipersonnel effects "raised the bar" of what had been agreed to at Ottawa. At interim compliance meetings, some have argued for "universalization of the treaty by ambiguity." The Arnold & Porter report will reinforce the positions of countries such as Canada, the Netherlands, and Switzerland which have argued for a plain reading of the treaty text.

From the treaty text:
Article 2, paragraphs 1 and 3, which define "anti-personnel mine" and "anti-handling device" as follows:
2."Anti-personnel mine" means a mine designed to be exploded by the presence, proximity or contact of a person and that will incapacitate, injure or kill one or more persons. Mines designed to be detonated by the presence, proximity or contact of a vehicle as opposed to a person, that are equipped with anti-handling devices, are not considered anti-personnel mines as a result of being so equipped.
* * * *
3. "Anti-handling device" means a device intended to protect a mine and which is part of, linked to, attached to or placed under the mine and which activates when an attempt is made to tamper with or otherwise intentionally disturb the mine.

The U.S. role

The United States participated in the Geneva meeting as an observer. Release of the Arnold & Porter report and its application by states-parties helped the U.S. observer to report serious efforts toward perfection of the treaty. At the same time, there will be an increased incentive for the United States to join the treaty because the Pentagon has developed the technical prerequisites for anti-vehicle mines with anti-handling devices that successfully discriminate between intentional and unintentional contact. Mere superficial modifications could make these mines and fuses Ottawa-compliant.

The United States is one of two NATO countries who have not yet joined the Ottawa treaty.3 Along with Cuba, it is the only other nation in the Western Hemisphere not to do so. In the mid-1990s the United States was a leader in the anti-mine field, becoming the first major producer to refrain from exports (which remains U.S. policy). But objections from the Pentagon in 1995 caused the United States to relinquish its lead. The Pentagon insisted mines were necessary to prevent North Korea from overrunning the demilitarized zone. President Clinton reluctantly acceded to this Pentagon position. In so doing he showed lack of will and lack of understanding of the role of president as commander-in-chief of the armed forces (see "Commander-in-Chief," International Policy Report, November 1999). Clinton's predecessors from President Harding to Franklin D. Roosevelt had to face down the military in imposing a ban on poison gas and leading the world to international prohibition of the weapon. The emergence of antipersonnel mines as widespread indiscriminate killers in the decades since World War II placed a similar responsibility on President Clinton, which he ducked. Instead his decision was to state as policy that the United States would join by 2006 if it can find viable alternatives. The Pentagon and right-wing ideologues in Congress such as Sen. Jesse Helms have gained an effective veto on U.S. mines policy.

With the United States holding back, Russia, China and Pakistan, to name only three major mine producers and deployers, have stated that they will not join until the United States does, too. Russia used antipersonnel mines in the Chechnya war last year, skirting its obligations under a previous arms-control treaty it did sign, the Convention on Certain Conventional Weapons (CCW). So the retreat of the United States acts as a major obstacle to universalization of the treaty, paralleling the Senate's failure to ratify the Comprehensive Test Ban Treaty last year.

The U.S. chapter of the International Campaign to Ban Land Mines has opened a new campaign to get the United States to join the treaty. The major military objection, Korea, was already technically questionable (see presentation of Center for International Policy senior fellow Caleb Rossiter before the National Academy of Sciences panel charged with finding alternatives). It has been completely undermined by recent diplomatic progress on the peninsula.

Backdrop of success

The above recitation of problems should not obscure the signal success of the mine-ban treaty. The Ottawa convention became binding international law more quickly than any other treaty in history. It came into force on March 1, 1999. To date it has been signed by 138 countries and ratified by 101. Significantly, the treaty officially acknowledges the indispensable role of nongovernmental organizations such as the International Campaign to Ban Land Mines in creating the climate of opinion that impelled the major nations to sign.

There are over 120 million land mines currently deployed in over 60 countries around the world. Each year, over 2 million new land mines are laid, while only about 100,000 mines are cleared. Over 2,000 people (primarily civilians) are maimed or killed each month due to these menaces.

While there were serious mine-laying problems last and this year in Angola, Chechnya, Ethiopia, Eritrea, and Kosovo, in general the treaty is having its desired effect of reducing the number of mines being laid. There are few flagrant violations of any "core" prohibition (use, production, or trade) by states-parties. Although mines were used in thirteen conflicts last year, it was at a lower level. The deployers were the governments of Angola (a signatory), Russia, and Yugoslavia and ten rebel groups. Global use and production is on the wane; exports have halted completely.

Thus the treaty is generally being complied with, and a Canadian expert says that the mine-ban movement has created momentum toward "customary international law." Even those countries that use or retain the right to use do so with statements that imply only supreme military necessity would require use, and that they accept the general premise that these are indiscriminate weapons.

Abuse of anti-vehicle-mine exception

The German Initiative to Ban Land Mines released a study, "Why Anti-Vehicle Mines Should Also Be Banned." The paper noted the many types of anti-vehicle mines still in major signatories' inventories that function like antipersonnel mines. Anti-vehicle mines posed a major threat to the civilian population, especially since their explosive power made them even more devastating. They are unable to reliably distinguish between military and civilian vehicles. Even a fuse that cannot be triggered by unintentional human contact can be triggered by a large civilian vehicle such as a loaded bus or truck, and there are ghastly recent examples from Afghanistan to Angola. During the last eight months of 1995 some 111 casualties from anti-vehicle mines were reported in Angola, although this is suspected to be only a fraction of the true total.

The German paper pointed out, using German government expenditures as a primary example, that the anti-vehicle exception has in a way stimulated land-mine development by channeling it through this loophole. During 1990-94 Germany alone spent $1 billion modernizing its mines, and another $375 million is planned over the next few years. The German government said, "Abandoning the use of anti-tank mines in defense operations would increase the risk faced by forces on the ground to an unwarranted degree."

The study further noted that clearing anti-vehicle mines is significantly more difficult and dangerous than clearing antipersonnel ones. It also warned that Eastern European countries being admitted to NATO might surreptitiously dispose of their old mines on the international black market. Of the new or prospective NATO members, only Hungary and the Czech Republic have ratified the Ottawa Convention and Poland and Lithuania have signed. All produce and stockpile mines.

Furthermore, the paper noted the high rate of duds among scatterable mines (10 to 30 percent). There were examples in the Falklands, second Gulf, and Kosovo wars. Self-destruct mechanisms fail and the mines remain live for years. A German mine producer admitted that the dud rate for scatterable mines would increase.

The German anti-mine campaigners have a point in questioning whether technical modifications on anti-vehicle mines can themselves prevent civilian casualties. Even if the Ottawa parties modify their mines to meet the Ottawa definition affirmed by Arnold & Porter, "normal" activation of the mine, e.g. by a school bus filled with passengers, will cause civilian casualties. Unless marking of anti-vehicle mines becomes accepted practice, perhaps through an amendment to the convention on conventional weapons, a ban may prove to be the only feasible solution to the humanitarian problem.

Arnold & Porter and the Principles of Treaty Interpretation

The chief achievement of the firm's legal opinion is to confirm that a plain reading of the treaty text is valid and required. A careful, if untutored, reading of the two key definitional articles of the treaty reproduced above leads inevitably to the conclusion that anti-vehicle mines that could be unintentionally set off by a person are banned by the treaty. What the lawyers have done is to apply commonly-accepted principles of treaty interpretation to the case to see if there are any extenuating circumstances that would argue against giving the words their ordinary meanings in this case.

The firm lays out these four principles drawn from the Vienna Convention, which codifies customary international law of treaty interpretation:

1. Interpretation must be in accordance with the ordinary meaning of terms in their context and in light of the treaty's stated purpose.
2. This context includes the text, preamble, and annexes and any additional agreements made among the parties in connection with the treaty.
3. Subsequent agreements or practice are also to be taken into account, in context.
4. A special meaning is given to a term only if the parties so intended.
Applying these four principles to the Ottawa treaty the law firm found that allowing anti-vehicle mines that detonate due to unintentional human contact "would significantly undermine the Convention's object and purpose, and would render much of its language meaningless."

Ordinary meaning must be given to terms unless such interpretation would lead to something unreasonable or absurd, the law firm noted, citing a 1925 precedent. The firm also found that preparatory work -- working papers, meeting minutes, and drafts -- are also admissible as indicators of intent if the meaning of a provision or term is unclear or if the plain reading would lead to an absurd result. The first draft of the Ottawa convention, consulted by the lawyers, supports a plain reading of the text.

Endnotes

1. The Center for International Policy is grateful to Arnold & Porter for its superb pro bono publico work to elucidate the principles of interpretation of the land-mine treaty. In particular we wish to acknowledge the work of these distinguished associates of the firm: William Rogers, Stuart Land, Mark Piibe, Amy McCrae, and Stephen Jones.

2. For example, see the official report of the last such meeting: "The Committee discussed matters pertaining to Article 2, particularly matters related to anti-handling devices and the sensitivity of anti-vehicle mines' fusing devices. Ideas, like examining these issues through informal expert work and working towards the agreement by States Parties on an understanding on the matter were put forward. There was no agreement on proceeding with either idea at this time, although an ICRC initiative to discuss these matters was welcomed. Several States Parties affirmed their view (a) that mines equipped with anti-handling devices that activate when no attempt has been made to tamper with or otherwise intentionally disturb these mines are in fact anti-personnel mines as defined by the Convention and (b) that fusing mechanisms that cause anti-vehicle mines to function as anti-personnel mines are also anti-personnel mines as defined by the Convention."

3. The other is Turkey.