Pulling at the ‘fine fabric’ of international humanitarian law The U.S. is sending antipersonnel landmines to Ukraine. Here’s why human rights groups are raising concerns.
Russia’s invasion has turned Ukraine into the most heavily mined country in the world. And this is just one reason why the Biden administration’s decision to provide Kyiv with antipersonnel landmines has provoked such strong backlash from human rights groups. The decision marks a policy reversal for the Biden administration, which committed to limiting U.S. use of these indiscriminate weapons in 2022, with the goal of ultimately joining the 1997 Mine Ban Treaty — the international convention prohibiting the use, stockpiling, production, and transfer of antipersonnel landmines.
The decision also marks a turning point for Ukraine, which is one of the more than 160 countries party to the Mine Ban Treaty. Russia, which has not joined the convention, has used antipersonnel mines extensively in Ukraine since February 2022, killing and injuring civilians. Human Rights Watch (HRW) has identified at least 13 types of antipersonnel mines used by Russian forces in violation of international humanitarian law, while also documenting apparent violations of the Mine Ban Treaty by Ukrainian troops. According to HRW’s findings, Ukrainian forces fired rockets carrying thousands of banned “petal” mines in attacks on Russian-occupied areas in and around the city of Izyum in 2022. HRW also uncovered further evidence of Ukraine using rocket-fired antipersonnel mines in another liberated area in the east.
Ukrainian officials have promised to “duly study” reports of the military’s use of these banned weapons. On November 20, however, U.S. Defense Secretary Lloyd Austin told journalists that Ukrainian troops are “fabricating their own antipersonnel landmines” and that Washington would instead provide Ukraine with “nonpersistent” ones that are “far safer” in the long run. The mines, Austin explained, would serve to “slow down” Russian infantry advances that “pave the way” for mechanized forces. In turn, Ukrainian President Volodymyr Zelensky thanked the United States for providing “mines to stop Russian assaults,” saying, “This will really strengthen our guys on the frontline.” That same day, the Landmine Monitor released its annual report, which documented more than 500 casualties from landmines and explosive remnants of war in Ukraine last year, including 151 casualties from antipersonnel mines.
For a humanitarian perspective on what the Biden administration’s transfer of antipersonnel landmines means for Ukraine, The Beet editor Eilish Hart spoke to Mary Wareham, the deputy director of the crisis, conflict, and arms division at Human Rights Watch.
The following Q&A has been lightly edited and abridged for length and clarity.
We don’t know what exact type of antipersonnel mines the U.S. has promised Ukraine except that they’re “nonpersistent.” What does that mean?
They’ve used different words for these types of landmines in the past: “short-lived,” “nonpersistent,” “smart.” Basically, we’re talking about features that would allow the mine to self-destruct (blow itself up) or self-deactivate or self-neutralize and turn itself off by the battery running out and expiring, and [the landmine] becoming inert. If the mine self-destructs, there’s generally nothing left of it. If it self-neutralizes or self-deactivates, there’s still a mine there.
This was something that the U.S. sought to exempt from the treaty banning landmines during the Oslo negotiations back in September 1997. The United States came to the negotiations with a number of red lines and when it didn’t get approval for those red lines, it withdrew from the negotiations. The rules were that a majority of countries had to agree to change the treaty text they were negotiating before a change could be made, and the U.S. couldn’t get the numbers because the countries participating were firmly committed to a strict prohibition on antipersonnel landmines. They knew that allowing certain types of mines wouldn’t really work and that it would look really bad if the high-tech mines were exempted and only the rich countries with that technology had those mines. They wanted to have a strict prohibition and so they rejected these features.
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But this happened because the U.S. had been investing a lot of money in the technology of self-destruct, self-deactivate, [and] self-neutralize features. We also had a lot of arguments on our side about failure rates and how these do not function as intended. And then for the self-neutralizing ones [there were] questions about their usefulness because from a clearance perspective, when you encounter a landmine and you’re trying to destroy it, you have to treat it as live regardless. You have to go through all the safety protocols, so the cost of clearing such a mine is exactly the same as it would be for a live landmine.
The other point that we’ve been trying to make around the announcement was that the last time the U.S. produced antipersonnel landmines was in 1997, so the stocks that it still holds are almost 30 years old. Most of them will expire in the early 2030s. Back in 2014, the Obama administration announced a series of measures to try and align the U.S. more closely with the landmine treaty, and one of them was to say we won’t acquire new landmines, replenish the stocks, or keep the stocks fresh, which means letting the batteries expire. So, they say these are high-tech mines but these are also very old mines that aren’t necessarily going to function as intended. They’re basically obsolete. The U.S. was going through this big process to destroy those stocks and now they’re sending them to Ukraine. This is the same thing that the U.S. has been doing with cluster munitions since [July] 2023. So, this is the Biden administration’s legacy.
U.S. Defense Secretary Lloyd Austin said Ukrainian forces are fabricating their own antipersonnel landmines and that the nonpersistent ones the U.S. will provide are safer. Is it true that nonpersistent mines are safer? What should we make of this claim?
I think treat it with great skepticism, just as we treated it that way 27 years ago when the [Mine Ban] Treaty was being negotiated. It’s constantly been the U.S. refrain that it has a high-tech solution and it really gets the backs up of the majority of countries because they’re like, Whatever happened to the goal of general and complete disarmament? Is it just about making bigger and better weapons here? There’s a desire to get rid of all mines, not to divide them into [persistent and] nonpersistent.
We had seen [open-source] evidence that the Ukrainians are fabricating their own antipersonnel landmines but we’d never seen it said the way Lloyd Austin said it. Ukraine has been repeating over and over again to us in civil society and to the other governments that are part of the treaty about how they comply with relevant international humanitarian law, how they take the Mine Ban Treaty extremely seriously, how they’re committed to abiding by its provisions — and one of those key provisions is that you will not produce antipersonnel landmines.
So, the U.S. just said that Ukraine is producing antipersonnel landmines, Ukraine does want antipersonnel landmines, and therefore we’re going to give Ukraine antipersonnel landmines — damn the treaty. And the United States is [saying], “We’re not part of the treaty,” but what they’re not saying is Ukraine is. And so, by accepting the U.S. antipersonnel mines and using them, unfortunately, Ukraine’s going to be in willful violation of the Mine Ban Treaty, and that’s a huge issue.
How have Ukrainian officials addressed the military’s alleged violations of the Mine Ban Treaty?
After this package [of U.S. military aid] was announced, Zelensky put out a video address and a tweet that said, “Thank you for the essential mines.” The U.S. sent them a lot of persistent antivehicle mines and it’s a big guessing game as to what antipersonnel mines were sent because they weren’t named in the announcement.
My interactions with Ukrainian officials have been with Ukraine’s delegation to the United Nations in Geneva and with officials who have come from Kyiv to the Mine Ban Treaty meetings. They say they’re undertaking an investigation but in none of those meetings have they openly said to us in civil society that [Ukraine needs] antipersonnel landmines because they know these are prohibited weapons and that’s forbidden under the treaty. But who knows what they’ve said to others behind closed doors up on the Hill or to the [Biden] administration.
You mentioned that the U.S. stockpile of antipersonnel mines is expected to expire by the early 2030s. Are there specific concerns for civilians in terms of Ukrainian forces potentially using mines that are so close to expiring?
They’re not going to function as intended. They’re not going to self-destruct as they’re supposed to [and] the ones that don’t self-destruct are going to sit there looking like a regular landmine, and you’re not going to know if it’s live or inert until you approach it. And if you’re a civilian or a child, it could end badly. If you’re a deminer, it’s going to be costly and expensive, and still as dangerous as it would be for someone else.
That’s why we’ve got to push back on the way [the Biden administration] is selling it. We see the administration pitching and selling the arms they send [to Ukraine] in different ways. On cluster munitions, [U.S. officials said] there was an artillery shortage and we had to bridge the gap and that the Ukrainians have promised to record where they’re using [cluster munitions], not to use them on Russian territory, only on Ukrainian territory, all that kind of stuff. Are [Ukrainian forces] following those rules? They’re using cluster munitions now inside Russia [and] we don’t see the evidence that they’re recording the locations. But who knows? Mine clearance operators might say differently on the ground.
Are there concerns that the Biden administration reversing its policy might lead other countries to re-evaluate their opposition to antipersonnel mines?
For sure. In July, the Lithuanian parliament passed a law to un-sign the convention on cluster munitions. Now, they’ve deposited their instrument of denunciation at the U.N. and there’s a six month waiting period, and then they’ll have withdrawn from the convention. Lithuania’s decision was shocking because it was the first country to withdraw from any of the big five humanitarian disarmament treaties (bioweapons, chemical weapons, landmines, cluster munitions, and nuclear weapons). Lithuania had joined all of those [treaties] but once you pull at the fine fabric of international humanitarian law, the whole thing could unravel.
Lithuania told us that before taking this decision, they had high level meetings with U.S. officials who did not object to [their withdrawal from the treaty on cluster munitions]. And so by not objecting and not defending international law, even though they’re not part of the treaty, the U.S. encouraged them to take that course. And other countries that neighbor Ukraine are nervous right now. We see debates in Finland, Poland, and the Baltic states about withdrawing from the Mine Ban Treaty. None of them have gotten to the point of passing the legislation in order to do that, but of course it’s definitely possible.
Interview by Eilish Hart