The Trump administration released an updated policy on landmine use on January 31, 2020, significantly changing the prior U.S. policy. Whereas previously the United States supported landmine use only on the Korean peninsula, the revised policy now allows for the universal use of “non-persistent” landmines, i.e., those that have self-destruction mechanisms and self-deactivation features. This policy significantly diverges from provisions of the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction (Ottawa Convention), a treaty to which the United States is not a party but which has widespread international support.
The Ottawa Convention, which was finalized in 1997 and currently has 164 states parties, requires the discontinuance of all landmine use, the cessation of the development and acquisition of landmines, the destruction of all landmines in a state party's possession or control, and abstention from aiding other actors’ development or use of landmines.Footnote 1 Although the United States was an early leader in advancing the notion of a universal ban on landmine use, it did not sign the Ottawa Convention and has not acceded to it.Footnote 2 The Obama administration nonetheless sought to increase the alignment between U.S. practice and the provisions in the Ottawa Convention.Footnote 3 In particular, in 2014, the administration declared that it would generally discard its stockpiles of landmines and refrain from using landmines that are in its control.Footnote 4 Yet, due to what it described as a “‘unique situation’” on the Korean peninsula, the administration created an exception to this policy as it refused to destroy landmines “‘required for the defense of the Republic of Korea.’”Footnote 5
On January 31, 2020, the Trump administration released an updated landmine policy, retreating from the Obama administration's disapproval of landmines and moving the United States further away from alignment with the Ottawa Convention.Footnote 6 In contrast to the previous U.S. policy, the “ability to employ non-persistent landmines will [now] not have any expressed geographic limitations.”Footnote 7 The Department of Defense defined non-persistent landmines as those that “possess self-destruction mechanisms and self-deactivation features.”Footnote 8 Use of these landmines is now approved “when necessary for mission success in major contingencies or other exceptional circumstances” as determined by combatant commanders.Footnote 9 When asked to specify what constitutes an exceptional circumstance, however, a Department of Defense official responded, “war is exceptional” and “an exceptional circumstance[] is when you have to put troops in harm's way.”Footnote 10 Although this new policy greatly expands the military's opportunity to use landmines, the policy expressly provides that the Department of Defense “will continue to adhere to all applicable international legal obligations concerning landmines.”Footnote 11 This includes the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices joined by the United States in 1999, which is more commonly known as the Amended Mines Protocol.Footnote 12 As stated by Secretary of Defense Mark Esper: “Consistent with the Amended Mines Protocol, the Military Departments and Combatant Commands will take feasible precautions to protect civilians from the use of landmines, record all necessary information concerning mined areas, and address such mines without delay after the cessation of active hostilities.”Footnote 13
A Department of Defense official described this policy change as stemming from a shift in the “strategic environment … that requires our military to become more lethal, resilient, and ready for future contingencies.”Footnote 14 The official further stated:
Landmines … remain a vital tool in conventional warfare that the United States military cannot responsibly forgo, particularly when faced with substantial and potentially overwhelming enemy forces in the early stages of combat. Withholding a capability that would give our ground forces the ability to deny terrain temporarily and therefore shape an enemy's movement to our benefit irresponsibly risks American lives.Footnote 15
The Trump administration previously used parallel reasoning in 2017 when, in reversing a 2008 policy established by the George W. Bush administration, it decided to allow the “employ[ment] [of] cluster munitions”—weapons that, once detonated, explode and fire dozens to hundreds of small submunitions towards a target—including those with a detonation failure rate of more than 1 percent.Footnote 16 Similar to the new landmine policy, the administration justified its support of the use of such weaponry as being necessary for a “qualitative and quantitative competitive advantage against potential adversaries” in light of “important changes in the global security environment.”Footnote 17
The Obama administration, in comparison, promulgated the previous U.S. policy limiting the use of landmines because it concluded that any military advantage that landmines would generate was outweighed by the harm to civilians that these instruments of war have the potential to cause.Footnote 18 Many international actors, including leaders of the Ottawa Convention, have expressed concern about the danger to civilians that may result from the new U.S. landmine policy. Osman Abufatima Adam Mohammed, the president of the Eighteenth Meeting of States Parties to the Ottawa Convention, described this new policy as “a step in the wrong direction” and explained that it will “only drift the US further apart from 80% of the world's States who have committed to protect civilians from these treacherous weapons.”Footnote 19 The treaty's Secretariat Director Juan Carlos Ruan also responded to the new landmine policy by explaining that “[t]here is no such thing as responsible use of anti-personnel mines” because “any perceived or limited military utility of anti-personnel mines is grossly outweighed by the humanitarian consequences of their use.”Footnote 20 The European Union, comprised of member states who are all parties to the Ottawa Convention, released a statement similarly disapproving the United States’ new policy and describing the use of landmines “anywhere, anytime, and by any actor” as “completely unacceptable to the European Union.”Footnote 21 Further, a collection of U.S. and international nongovernmental organizations signed a joint letter “strongly condemn[ing]” the policy and requesting that Congress “take immediate measures” to prevent any further military action in accordance with the policy.Footnote 22 Presumably anticipating these responses to its policy change, the Department of Defense in its initial press release denied that the new policy would “exacerbate the problems associated with unexploded munitions” and stated that its policy authorizing the use of landmines does not lessen the U.S. commitment to “international humanitarian demining efforts.”Footnote 23
