In 2005, Ukraine joined this convention. In its arsenal of 6 million anti-personnel mines of various types, the country undertook not to produce new ones but to gradually destroy all its existing stocks.
For 17 years, Ukraine has consistently fulfilled the convention’s provisions, destroying 3 million anti-personnel mines. In particular, all its stocks of mines of PMN, POM-2, POM-3, and PMD-6. According to UN data, as of the end of 2020, Ukraine still had 3,364,433 mines of the PFM-1 and PFM-1C types.
At the same time, the Russian Federation continued to use this type of weapon extensively. In particular, in the 2014 war against Ukraine. Truth Hounds documented the use of POM-2 landmines by the Russians during an attack on a border post in Milove on 8 August 2014. In 2022, Human Rights Watch published three reports on Russia’s use of anti-personnel mines in Ukraine. In particular, particularly dangerous POM-3 “Medallion”, which, thanks to a seismic sensor, detonate even when a person approaches.
The consequence of the widespread use of mining practices was that during the nine years of the war, the territory of Ukraine became the most mined in the world.
The Ottawa Convention does not provide for a derogation mechanism. That is, a participating country cannot suspend the implementation of its provisions even during the repulsion of an unprovoked invasion.
In 2016 and 2018, long before the full-scale invasion, Ukraine appealed to the UN to develop a response algorithm in the event of armed aggression against a country that is a member of the Ottawa Convention by a country that is not a member of it. Obviously, Ukraine wanted to understand how to act if compliance with the norms of the convention threatens its sovereignty and the principles on which modern international law is based — the inviolability of borders and the territorial integrity of states. However, such mechanisms were never developed.
Continuing to reflect on IHL, it should be noted that from the point of view of the The Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices, to which both belligerent countries are parties, the use of anti-personnel mines is not always criminal. Yes, it can be concluded that this type of weapon should be treated like any other weapon of indiscriminate nature used in a conflict.
Each case of the use of anti-personnel mines should be evaluated from the perspective of the principle of proportionality. After all, an attack in the knowledge that it will cause harm to civilians will be criminal only if this harm would be clearly excessive in relation to the concrete and direct overall military advantage anticipated by the party that carried out the attack.
To make such an assessment, it is necessary in each case to additionally collect data, which advantage on the battlefield was obtained.
The above two arguments should lead to the realization that in order to assess events within the framework of an armed conflict, in addition to the direct application of IHL norms, one should additionally consider the set of circumstances that accompanied these events and the factors that led to them.