Minefields
Ukraine seeks to 'pause' its membership in the Mine Ban Treaty. Why are so few pushing back?
It has been a difficult year for international law, but some treaties have been more heavily targeted than others. Earlier this year the Mine Ban Treaty — the celebrated, legally-binding convention to stop the global production and use of antipersonnel mines — suffered another attack following the departure of Poland, Finland and the three Baltic states, when Ukraine proposed that it would temporarily ‘suspend’ its 20-year membership. In an explanatory note submitted to the Ukrainian parliament, the country indicated it would like to leave the door open to rejoin when the war with Russia ends.
The move was challenged across civil society, who say that beyond the irony of suspending humanitarian law in wartime, the decision also lacks legal standing. While the departure of five states cannot offset the progress made by the treaty’s remaining 159 parties, there’s a worry lurking beneath this, that if the exit of eastern European states starts to erode the credibility of the Convention, it could trigger a domino effect.
“It’s not about bashing Ukraine. It’s about upholding those fundamental principles,” says Kasia Derlicka-Rosenbauer, the deputy director of the International Campaign to Ban Landmines. Appealing to countries, Derlicka-Rosenbauer added, “You are in there for good reason. The Convention applies in peacetime as well as in wartime. This is exactly what it was created for.”
Ukraine proposed to “suspend the operation” of the 1997 agreement in a communication on 17 July to the UN Secretary General, yet it didn’t surface completely out of the blue. Last year, under President Biden, the US — a non-party to the Convention — decided to supply Ukraine with antipersonnel landmines, despite the fact that the Mine Ban Treaty forbids state parties to use the weapons “under any circumstances” and is understood to have been established to end their use in warfare. Civil society groups were also alarmed when in November, Ukraine abstained on a resolution promoting the Mine Ban Treaty at the UN General Assembly in New York.
“It was a bad sign,” Derlicka-Rosenbauer says. “We have also seen reports talking about production of antipersonnel mines in Ukraine. So all of this paints a very bleak picture.”
When Ukraine lodged its suspension, legal experts immediately said it was unlawful. While the Mine Ban Treaty allows for withdrawal in peacetime, it doesn’t contain any language allowing states to pause or ‘suspend’ their membership in times of war. “Obligations cannot be waived during armed conflict,” says senior arms adviser Bonnie Docherty in the arms division at Human Rights Watch. “A state party should not seek to avoid the prohibition on the use of antipersonnel landmines, particularly at a time when such a prohibition is needed most.”
To justify its decision, Ukraine leaned on the Vienna Convention on the Law of Treaties, the so-called ‘treaty on treaties’ that regulates how these agreements are implemented between nations. Ukraine refers to an article in that convention which allows a country to withdraw from a treaty under a “fundamental change of circumstances”. But according to Human Rights Watch, the treaty also states that this exemption doesn’t apply if a country is engaged in conflict.
Derlicka-Rosenbauer called Ukraine’s decision “not only illegal but also illogical,” with research showing that landmines’ limited defensive utility is eclipsed by their enormous, lasting threat to civilian populations. Ukraine is already the most mine-contaminated country in the world and de-mining the region will cost almost $30 billion, one report estimated.
To understand Ukraine’s own reasons for disengaging with the treaty, an interview request was put to the country’s permanent mission in Geneva, but it went unacknowledged. Recently, a lieutenant colonel in the armed forces of Ukraine published an analysis sharing a view that Ukraine has weighed the harms being done anyway by Russian landmines littering the frontline, against the potential military gains of deploying their own, and has made the calculation that deploying more mines is worth it.
This aligns with statements Volodymyr Zelenskyy himself made during a UN General Assembly address in September, where he noted: “If a nation wants peace, it still has to work on weapons. It’s sick — but that’s the reality. Not international law, not cooperation — weapons decide who survives.”
Whatever its reasoning, Ukraine’s self-suspension remains “legally invalid,” says Steffen Kongstad, former ambassador of Norway and one of the original architects of the Mine Ban Treaty. This should have made it easy for countries to challenge the decision, he says — yet just five have spoken out so far: Austria, Belgium, Norway, Ireland, and Switzerland (which published an open objection of Ukraine’s plans.)
“We all know that people are hesitant to play into the hands of the Russians by criticising Ukraine,” Kongstad says, yet withholding criticism on this basis is “not being a good friend” to Ukraine.
While Kongstad believes the Convention is still functioning well at the global scale, he worries about its erosion in Europe. “I think this is just part of a much bigger picture where several countries are undermining not only this convention, but international law in general.” It’s important therefore to view Ukraine’s actions within this larger changing context, to understand that “there is more at stake,” he says.
Spoiler Alert is also aware of a statement the United Kingdom had jointly published with Australia which came across as a support of Ukraine’s decision, seeming to split them off from their usual like-minded allies.
Derlicka-Rosenbauer believes little can currently be done to reverse Ukraine’s decision, and the priority is to strengthen wider commitment to the treaty. The upcoming annual meeting of the state parties in early December will be critical for that, she thinks — and particularly, she says she will be watching out for language in the final meeting report to clarify that suspension from the treaty is not a road that countries can take. Without this, the Convention could be vulnerable to further reinterpretation by other embattled states, which could tip the world back into a brutal mode of conflict not widely seen for almost thirty years.
“This really needs to be de-politicised, and it cannot be about Ukraine. It needs to be about the principles, and the bigger picture, and if this is not squarely addressed, what it could mean for the future.”
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