Over the past few weeks, President Biden has reversed course on a number of military policies that further erode what feel like profoundly weakened international humanitarian law rules and norms. He authorized the use of Army Tactical Missile Systems (ATACMs) for cluster mine use in Russia and shortly thereafter authorized the transfer of anti-personnel landmines for use in Ukraine. In light of pervasive violations by Russia as well as profound disrespect for civilian protections in the Israel-Hamas conflict, Burma, Syria, and Sudan, why should these particular departures draw attention? Ukraine and Western allies invested heavily in the notion that supporting Ukraine meant supporting the international legal order and rejecting might makes right international politics and policies. Given that framing, I suggest Biden’s new policies allowing case-by-case justifications in violation of relatively stable norms and Ukraine’s clear violation of the Landmine Ban Treaty speak to the frailty of international humanitarian law in this moment.
In a follow-up post, I will explore Russian President Vladimir Putin’s assertion that the use of ATACMs renders the United States and NATO parties to the conflict under international humanitarian law. While North Korea’s contribution of troops does make it a party and thus its combatants and military objects may be lawfully targeted, the mere provision of a weapon system to Ukraine does not render a country a party to the ongoing conflict. This matters as Putin is relying on the claim of joint attacks and direct participation to justify his new nuclear doctrine. I am not so naïve to think that debunking his legal claims will change his behavior, but clarity is a virtue all its own.
I. What happened?
At the beginning of the Ukraine-Russia conflict, Ukraine requested a variety of weapons and other military assistance. As I wrote in prior posts, the U.S. resisted sending cluster munitions (and landmines) because of the risk of civilian casualties and the international pressure in favor of landmine and cluster munition prohibitions. But in July 2023, after over 50 denials, the Biden administration relented and sent cluster munitions, following up with mid-range Army Tactical Missile Systems (ATACMS—a supersonic guided cluster munitions delivery missile system) in September 2023 and longer range ATACMS in April 2024.
In initially sending cluster munitions, the U.S. cited a combination of alternative munition shortages, the importance of cluster munitions in generating a successful offensive, and a number of restrictions on usages including prohibitions on use when civilians were present and use outside of Ukrainian territory, given the high risk of civilian casualties with cluster munitions. Biden said he trusted Zelensky and Ukrainian forces to make weapons decisions carefully as regarding their own citizens. Ukraine began using ATACMS with cluster munitions, and as far as reported, generally consistent with U.S. limits. The munitions were not decisive and the offensive largely turned into a stalemate.
But what of using cluster munitions in Russian territory? After the initial cluster mine transfer, Ukraine requested repeatedly to use ATACMS to deliver cluster munitions across the border which the U.S. repeatedly denied. In September 2024, President Putin declared that the use of U.S. or other allies’ long-range missiles in the conflict would constitute direct participation by those countries. He also said “aggression against Russia by any nonnuclear state, but with the support of a nuclear state, is proposed to be considered as their joint attack on Russia.” Putin also updated Russia’s nuclear doctrine to “include potential responses to an attack that poses a critical threat to the sovereignty of Russia carried out by a nuclear power with the participation or support of a nuclear power . . . .as well as when receiving reliable information about a massive launch of means of aerospace attack and their crossing of our state border.”
Meanwhile, events over the last month have changed the some of the conflict’s dynamics. North Korean troops joined Russian troops on the battlefield, with the possibility of 100,000 more to follow. Russia launched a missile attack on Ukrainian energy infrastructure, a particularly worrisome development given the impending winter, and its amassing of troops for launch a 50,000 soldier counteroffensive in Kursk. Donald Trump won the U.S. presidency promising to end the conflict between Russia and Ukraine.
On November 17, due to some combination of the aforementioned recent facts, the Biden administration officials disclosed its authorization for Ukraine to use ATACMS against Russian and North Korean forces and other targets in Kursk with the possibility of future authorizations elsewhere. Biden officials describe this as a “policy decision[] based on the circumstances we identify on the battlefield.” I found no explicit administration reference to international law nor international norms.
One day after the authorization, Ukraine did in fact use ATACMS along with drones to successfully strike a logistics arsenal in Russia.
On November 20, the Washington Post revealed that President Biden will also provide anti-personnel landmines to Ukraine. This will be the first U.S. administration to transfer landmines to another country post Landmine Ban Treaty. Of course, as I’ve written about before, the U.S. did not ratify the ban, but largely abided by its dictates as a matter of policy.[1] The Biden administration had previously declined numerous requests for anti-personnel landmines given concerns about harms to civilians both during and after the conflict. In reversing course, the administration noted that it would only be sending self-destructing or self-neutralizing mines, which in theory become inert at a specific time. Notably, the dud rates of the last landmines used by the U.S. were reported between 7 and 10 percent with other evidence suggesting a significantly higher rate despite their self-destructing or self-neutralizing mechanisms. Russia has been extensively using landmines throughout the conflict and many suspect Ukraine of doing so, though it had not been announced as official policy. Like with earlier cluster munitions transfers, Ukraine promised not to use landmines outside of Ukraine nor in highly populated areas.
II. International Humanitarian Law
A. Violations
Neither Ukraine, nor the United States are members of the Cluster Munitions Treaty Ban here. As I’ve discussed in a prior post, the prohibitions in the treaty have not yet crystallized into international customary law. International Humanitarian Law does not per se prohibit landmine use, though their use against civilians or civilian targets, their disproportionate use in light of anticipated civilian harms, and the failure to take sufficient care to protect civilians would all be violations.
In contrast, Ukraine is a member of the Landmine Ban Treaty. Ukraine has referenced its right to self-defense as its justification for the landmine transfer and potential use. Yet the treaty commits state parties to “never under any circumstance[]” acquire nor use anti-personnel mines. While article 20 of the landmine ban provides for withdrawal, the treaty also dictates a six-month waiting period from depositing the instrument of withdrawal. Ukraine has not deposited said instrument. Even if it had, the treaty further dictates that the withdrawal is only prospective, and the withdrawal only takes effect after the end of any of the State Party’s ongoing armed conflicts. Thus, Ukraine’s request for and any future use of said landmines in this conflict violate its obligations under the Landmine Ban Treaty.
The treaty has generally high rates of compliance which Biden’s transfer of landmines undermines. More broadly, it signals that the United States and its allies will support and even facilitate non-compliance. It communicates that case-by-case justifications are again the coin of the realm despite explicit promises otherwise. It reinforces the incorrect idea that international humanitarian law is fundamentally rooted in reciprocity. By its actions Ukraine is saying that despite the text, if the other side systematically flouts international humanitarian law, it must be free to do so as well. The U.S. and Ukraine might fairly counter that the conditions on the weapons transfers require a commitment to respecting civilians. But the whole point of ban treaties is that states writ large cannot be trusted to provide fulsome civilian protection when the temptation to do otherwise is too high and real-time detection and deterrence of non-compliance is too difficult.
B. Norm Weakening
The United States and Ukraine might also point out that neither Russia nor the United States nor Ukraine joined the cluster munitions treaty and the United States and Russia never joined the landmine ban. Thus, but for Ukraine’s possible future landmine use, none are violating their own legal obligations. Fair point, but the Biden administration’s decision to transfer cluster munitions and landmines after a significant period of non-use and non-transfer that erode the possibility of such customary law solidifying. Of course, the U.S. support for these norms has always been policy based and President Clinton reserved the possibility of reversing course. But President Obama had set the United States on the path to eventually ratify the landmine ban. While President Trump did eliminate this policy, he did not in fact authorize their use nor their transfer during his presidency. President Biden restored something like the Obama policy and held firm for the 1,000 days of the Russia-Ukraine conflict. But not anymore.
Many might see this as a necessary evil or even an unproblematic good. Countries facing unscrupulous opponents who view harms to civilians as a feature rather than a bug of conflict must be countered aggressively. They might say dickering over the niceties of International Humanitarian Law—its treaties, its norms, its values, is simply a luxury that imperiled states cannot afford anymore. I’ve received a number of, ahem, emphatic emails espousing this view after prior posts lamenting violations. What I think this view misses how easy the slide, how difficult to restore these rules, norms, and values. Think here how the positions have slowly shifted, each change seeming to pave the way for the next. At first, only cluster munitions, only missiles that could disperse them in Ukrainian territory. Then longer-range missiles that could reach Russia, but no authorization. Then authorization, but only for limited territory. Then a transfer of landmines. First Ukraine and Russia. Then potentially the next conflict and the conflict after that. And then the overall limits on states using landmines collapse. I’ve written extensively on the horrors landmines and cluster munitions pose to civilians; thinking of undoing all the good work here is truly dispiriting.
I’ll follow up in a few days with a post regarding President Putin’s claim that use of the long range ATACMS makes the United States and other NATO countries parties to the conflict and thus legitimate targets for Russia’s potentially nuclear response.
[1] Notwithstanding Trump’s reversal of Obama’s policy on landmines, he did not in fact authorize their use nor their transfer during his Presidency.
