Naval Mines and International Humanitarian Law, by Ximena Galvez, Eurasia Desk Officer and Legal Advisor
1st April 2019 |
Relatively little attention has been paid to naval mines for quite some time, because they have rarely been used in recent years. They are known as inexpensive, self-contained explosive devices with significant tactical, operational and strategic value. Despite their military qualities, they continue to pose a risk for civilian populations and commercial shipping in times of armed conflict. Their reappearance and employment by armed actors in places such as the Red Sea, the Mandeb Strait and the Sea of Azov, warrants Geneva Call’s attention due to their harmful impact for civilians. For this purpose, a short analysis on this weapon’s historical background and the applicable normative framework to sea minelaying practices and their use will be set out.
Uses of Naval Mines
Naval mines continue to be a weapon of choice in modern naval warfare. Unfortunately, civilians and commercial shipping vessels continue to suffer from the unrestricted use of naval mines across the globe. Their origin dates back to the 16th century when the first prototype mine was created to target pirates operating off the coast of China.[i] Naval mines have become a common means of naval warfare since the Russo-Japanese War in 1904-5. The recurrent use of sea mines and their negative impact on commercial shipping led states to agree on specific international legal restrictions on the use of naval mines, currently embodied in the Hague Convention VIII on the Laying of Automatic Submarine Contact Mines (Hague Convention VIII).[ii]
Naval mines are designed to destroy or damage ships although, more often, their use is intended to prevent the enemy from accessing operationally significant sea areas.[iii] In times of armed conflict, the purposes of minelaying may include protective and defensive mining (i.e. in internal waters to protect passages, ports and their entrances) or offensive mining (i.e. in hostile territorial or internal waters or waters controlled by the counterparty).[iv] This weapon has been used by state armed forces in various international armed conflicts (IAC) including the Crimean war (1853-6), the war between China and France (1884-5), the Vietnam War (1955-1972), the war between Iran and Iraq (1980-1988) and in almost every major maritime conflict that has occurred during the twentieth and twenty-first centuries.[v] In non-international armed conflicts (NIAC), naval mines have been used in the American civil war (1861-5), the Spanish civil war (1936-9), Nicaragua’s conflict (1979-1990), the Sri Lanka conflict (1983-2009), and Libya’s armed conflict (2011), among others. Most recently, sea mines have been reported in the Bab el-Mandeb Strait and the Red Sea near Yemen in 2017-8, and the Sea of Azov (internal waters of both Ukraine and the Russian Federation) since the beginning of active military operations in 2014.[vi] Minelaying in these locations has not gone without consequences, as civilians have been affected by these artefacts and they continue to pose a risk to their lives.[vii]
International legal framework
There is no international law definition of what constitutes a naval mine. However, NATO defines naval mines as ‘an explosive device laid in the water, on the seabed or in the subsoil thereof, with the intention of damaging or sinking ships or of deterring shipping from entering an area’.[viii] Generally, naval mines can be categorized into six types of mines: moored mines,[ix] drifting or floating mines, bottom mines,[x] remotely controlled mines, submarine launched mobile mines,[xi] and rising or rocket mines.[xii] In addition, there are pre-laid mines, which can be armed remotely or manually. Contrary to anti-personnel mines, which are a proscribed weapon for states that have ratified the Ottawa Convention,[xiii] states consider naval mines as a lawful weapon with their employment restricted and regulated by treaty law and customary international humanitarian law (IHL). Based on the understanding that the Ottawa Convention does not apply to naval mines, the relevant rules for the laying of all types of sea mines for both state and non-state armed actors are found in the laws governing naval warfare. These laws present some differences with the dispositions governing IACs insofar as naval warfare also affects states not parties to an armed conflict and which adopt a neutral status.
The sources of the law of naval warfare are the 1907 Hague Conventions VI,[xiv] VII,[xv] VIII and the 1995 San Remo Manual on International Law Applicable to Armed Conflicts at Sea (San Remo Manual). Of these sources, Hague Convention VIII remains the only treaty governing the use of naval mines, containing five substantive dispositions applicable to the use of naval mines.[xvi] Under Hague Convention VIII, any mode of sea minelaying prior to or after an armed conflict has initiated is subject to the principles of effective surveillance, risk control and warning. In addition, feasible measures of precaution shall be taken for the safety of peaceful navigation.[xvii] Deduced from articles 3 and 5 of the Hague Convention VIII, the principle of effective surveillance specifically requires minelaying parties to record minefield locations and test that mines have been programmed or tethered correctly. This will, in turn, facilitate warning and mine clearance duties.[xviii] It can be inferred from articles 1 and 3 of the Hague Convention VIII, that minelaying parties must effectively manage the dangers which minefields constitute for peaceful shipping. The types of measures may vary, depending on the mines used.[xix] The duty to warn is triggered as soon as effective control of the risk involved is lost. The belligerent party is obliged to notify danger zones or the position of mine zones only if ‘military exigencies permit’.[xx] On the precautionary measures that can be adopted by the minelaying belligerent, in principal, a belligerent is required to allow peaceful shipping to leave the sea area that is or will be mined. This may include granting safe passages or providing piloting.
The San Remo Manual, widely accepted as a reflection of customary international law, complements the 1907 Hague Conventions, notably by introducing the principle of distinction in naval warfare and reflecting the contemporary law of the sea (1982 UN Convention on the Law of the Sea). It is important to recall that the applicable legal regime depends on the territorial location in which naval mines are being laid.[xxi] In general terms, according to the San Remo Manual (articles 82-86), the rules governing the laying of mines applicable to both IACs and NIACs require that belligerents only lay mines that are effectively neutralized once they become detached or when control is lost over them. Laying naval mines is not usually considered a violation of the IHL prohibition of indiscriminate attack. However, the law of naval mine warfare contains a specific rule on undiscerning attacks, which overtly prohibits the use of free-floating mines, unless they are directed against a military objective and they become harmless within an hour after loss of control over them. The laying of armed mines or the arming of pre-laid mines[xxii] must be notified unless they can solely detonate against vessels which are military objectives. Specific rules signal the prohibition of parties to the conflict from deploying mines in neutral waters or using mines in a way that will prevent passage between neutral waters and international waters.[xxiii] In sea areas beyond the outer limit of the territorial sea, belligerent parties may use naval mines only if they are directed against a military objective.[xxiv]
Geneva Call’s work is characterised by its singularity and unique approach, in that it intends to prevent harmful behaviour perpetrated by belligerent parties. We carry out our preventive work by engaging in a dialogue with armed actors on humanitarian norms and we believe that all such entities need to be reminded of their obligations in armed conflict. Geneva Call remains concerned over the situation of civilians in armed conflicts across the globe and recent patterns of naval minelaying. Geneva Call reminds all parties to armed conflicts, both state and non-state, that the use of sea mines is restricted by certain provisions enshrined in international law. As with many armed entities that have adopted Geneva Call’s Deed of Commitment on the total ban of anti-personnel mines, Geneva Call encourages them to commit to the observance of sea minelaying regulations and welcomes special humanitarian agreements or unilateral declarations entailing further and broader obligations on the matter. Geneva Call is ready to support such efforts and to work with all armed entities towards the enforcement and dissemination of these measures.
[i]International Law Applicable to Naval Mines (Chatham House October 2014) 2.
[ii] International Law Applicable to Naval Mines (Chatham House October 2014) 2.
[iii] International Law Applicable to Naval Mines (Chatham House October 2014) 3.
[iv] Wolff Heintschel von Heinegg, ‘The law of armed conflict at sea’ in Dieter Fleck (ed), The Handbook of Humanitarian Law in Armed Conflict (OUP 1995) 446.
[v] David Letts, ‘Naval mines: Legal Considerations in Armed Conflict and peacetime’ (2016) 98 (2) International Review of the Red Cross, 543-565 at 548.
[vi] ‘SBU: Russia lays mines in Azov Sea near Mariupol’ Unian Information Agency (13 November 2014) < https://www.unian.info/society/1008768-sbu-russia-lays-mines-in-azov-sea-near-mariupol.html> accessed 13 March 2019; ‘Как взорвали пограничный катер под Мариуполем’ focus (8 June 2015) <https://focus.ua/politics/331460/> accessed 13 March 2019; ‘Катер пограничников подорвали боевики: военные предупреждают об опасности мин в Азовском море’ focus (8 June 2015) <https://www.segodnya.ua/regions/donetsk/kater-pogranichnikov-podorvali-boeviki-voennye-preduprezhdayut-ob-opasnosti-min-v-azovskom-more-621920.html> accessed 13 March 2019; ‘Осторожно, мины! Жители Виноградного увидели в море взрывоопасные предметы (ВИДЕО)’ 0629 (5 February 2018) <https://www.0629.com.ua/news/1943971/ostorozno-miny-ziteli-vinogradnogo-uvideli-v-more-vzryvoopasnye-predmety-video> accessed 13 March 2019.
[vii] ‘Рыбак подорвался на взрывчатке в Азовском море’ focus (31 May 2015) <https://focus.ua/politics/331010/> accessed 13 March 2019; ‘«Опасно! Морские мины»: Украинцы не боятся отдыхать на прифронтовых курортах Донетчины (Фото)’ Donetsk News (15 August 2017) <https://dnews.dn.ua/news/638458> accessed 13 March 2019; Taylor Rogoway, ‘Naval mines are a growing threat Near the Mandeb Strait’ The Drive (12 May 2017) < http://www.thedrive.com/the-war-zone/10235/naval-mines-are-a-growing-threat-near-the-mandeb-strait> accessed 17 March 2019; ‘Ships at risk from sea mines near Yemen’ The Maritime Executive (24 January 2018) <https://www.maritime-executive.com/article/ships-at-risk-from-sea-mines-near-yemen> accessed 13 March 2019.
[viii] Wolff Heintschel von Heinegg, ‘The law of armed conflict at sea’ in Dieter Fleck (ed), The Handbook of Humanitarian Law in Armed Conflict (OUP 1995) 445.
[ix] Secured to the bottom of the seabed by an anchor, hovering beneath the surface of the sea and usually detonated on contact with a vessel.
[x] Resting on the sea bed and operated on the basis of magnetic, electric, acoustic or pressure signatures from passing vessels.
[xi] Designed to be laid in target areas that are difficult to reach, including inner harbors, dockyards and upstream of rivers.
[xii] Anchored to the bottom of the seabed, programmed to release either a floating or fired payload, based on specific targeting criteria.
[xiii] Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and Their Destruction (1997).
[xiv] Relating to the Status of Enemy Merchant Ships at the Outbreak of Hostilities.
[xv] Relating to the Conversion of Merchant Ships into War-Ships.
[xvi] International Law Applicable to Naval Mines (Chatham House October 2014) 2.
[xvii] Wolff Heintschel von Heinegg, ‘The law of armed conflict at sea’ in Dieter Fleck (ed), The Handbook of Humanitarian Law in Armed Conflict (OUP 1995) 446.
[xviii] Wolff Heintschel von Heinegg, ‘The law of armed conflict at sea’ in Dieter Fleck (ed), The Handbook of Humanitarian Law in Armed Conflict (OUP 1995) 447.
[xix] Wolff Heintschel von Heinegg, ‘The law of armed conflict at sea’ in Dieter Fleck (ed), The Handbook of Humanitarian Law in Armed Conflict (OUP 1995) 447-448.
[xx] Wolff Heintschel von Heinegg, ‘The law of armed conflict at sea’ in Dieter Fleck (ed), The Handbook of Humanitarian Law in Armed Conflict (OUP 1995) 449.
[xxi] Locations may include internal waters (waters on the inner side of the baseline of the territorial sea), territorial sea (extending 12 nautical miles from the baseline), international waters (areas of the sea which are not under the jurisdiction of any country), and neutral waters (internal waters, territorial sea, and, where applicable, the archipelagic waters, of neutral States) among others.
[xxii] Though rules encompassed within The Hague Convention VIII and the Sam Remo Manual read as if they apply to armed mines solely, even if unarmed, there may be no visual difference with armed ones and their menacing nature.
[xxiii] David Letts, ‘Naval mines: Legal Considerations in Armed Conflict and peacetime’ (2016) 98 (2) International Review of the Red Cross, 543-565 at 550.
[xxiv] Wolff Heintschel von Heinegg, ‘ Methods and Means of Naval Warfare in Non-International Armed Conflicts’ in Watkin and Norris Non-International Armed Conflict in the Twenty-First Century Vol 88 (Naval War College 2012) 221-222.