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Addressing landmine pollution: how the ‘polluter pays’ principle can help

, Accountability / Analysis / Conduct of Hostilities / Emerging Voices / Generating Respect for IHL / IHL / Special Themes / Weapons 14 mins read

Goran Sandić  Junior Researcher, University of Belgrade, Faculty of Political Science

Addressing landmine pollution: how the ‘polluter pays’ principle can help

Landmines, a persistent threat in post-conflict zones, pose severe risks to both human lives and the environment. These explosive devices, often buried underground, remain dormant for years, contaminating soil and water and causing long-term ecological damage. While robust legal frameworks governing landmines exist under international humanitarian law (IHL), landmine instruments have only recently begun to incorporate more explicit environmental protections. 

In this post, and as part of the Emerging Voices series, Goran Sandić, Researcher at the University of Belgrade and Coordinator of the Belgrade International Law Circle, argues that the “polluter pays” principle – originally formulated in international environmental law – can serve as an interpretive lens to reinforce the responsibility of states and other actors for environmental harm arising from landmine use. By weaving this principle into existing processes, we can more effectively address the ongoing costs of landmine remediation and underscore the responsibility of parties that violate fundamental obligations under IHL. This approach aims to support environmental justice while enhancing the legal framework for armed conflicts, which could influence post-conflict recovery efforts and mine action globally.

Imagine walking through a field once vibrant with life, now silent with hidden dangers. Long after the echoes of war have faded, landmines remain, waiting to claim their next victim. Landmines represent a significant and enduring means of warfare. These explosive devices, strategically buried underground, scattered on the surface, or even remotely delivered (e.g., via artillery), are designed to detonate upon being triggered, typically through pressure. As defined by Article 2 of the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Amended CCW Protocol II), a mine “means a munition placed under, on or near the ground or other surface area and designed to be exploded by the presence, proximity or contact of a person or vehicle”.

One of the most troubling aspects of landmines is their potential to cause indiscriminate damage; they do not distinguish between civilians and combatants. Post-conflict, landmines can remain dormant for years, even decades, until they are inadvertently triggered by a victim, or cleared through demining operations. During this time, landmines can contaminate the environment, affecting both soil and water, harming ecosystems and human health alike.

Gaps still remain – while the current framework clearly defines the identification and allocation of costs for landmine identification and clearance, expenses related to further environmental remediation remain undefined. This post proposes that the “polluter pays” principle, (PPP) drawn from international environmental law (IEL), can complement the existing international humanitarian law (IHL). Far from competing with or dismissing the substantial legal tools already in place, the PPP can serve as a complementary interpretive tool. While PPP could, in theory, be applicable to any environmental damage caused by warfare or other actions of a party to an armed conflict, this post focuses on landmine pollution.

Landmines and international humanitarian law

IHL not only regulates the use of landmines but also provides some rudimentary protection for the environment from their effects. Over the past three decades, the international community has made significant progress in regulating landmines. The Anti-Personnel Mine Ban Convention (APMBC) outlaws the use, production, and stockpiling of anti-personnel mines for its 164 states Parties. Furthermore, the Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-Traps and Other Devices as amended on 3 May 1996 (Amended CCW Protocol II) imposes restrictions on use of mines, and specifies requirements to record mine locations, mark mine areas and take other measures to minimize risks to civilians. Finally, as means of warfare, the use of landmines must comply with the fundamental rules of IHL: distinction, proportionality, precautions in attack and against the effects of attacks.

Beyond direct prohibitions, IHL contains rules on protecting the environment during hostilities. Customary IHL governs the conduct of hostilities, due regard for the natural environment in military operations, means and methods that cause serious damage  to the environment, while treaty provisions are found in Additional Protocol I, and the ENMOD Convention. Despite the ICRC’s interpretation that these two treaty sources set a  maximum of permissible environmental damage, they still enable states to claim very high and permissive thresholds.

The International Law Commission (ILC) adopted 27 principles on Protection of the Environment in Relation to Armed Conflicts (PERAC), after a decade of work. These principles cover the entire conflict cycle and apply to various actors, aiming to enhance environmental protection and complement existing international law. The ILC’s approach integrates insights from various fields of international law and does not differentiate between international and non-international armed conflicts. It underscores the growing awareness of the international community and offers (at the very least) interpretative guidance on mitigating wartime environmental damage.

Moreover, recent review conferences and action plans under the APMBC – including the  ‘Siem Reap – Angkor action plan’ adopted in late November 2024 – have begun to incorporate environmental aspects into mine clearance and victim assistance processes. This trend highlights an emerging recognition among states parties that environmental protection is an integral part of comprehensive mine action.

Landmines and the environmental crisis

Some have argued that landmines, over time, have caused more fatalities than nuclear and chemical weapons combined, yet their environmental impact only began to be studied in the 1990s. While comparisons are fraught with methodological challenges – particularly around long-term radiation or chemical effects – the staggering toll from landmines is well documented. The environmental impact of landmines extends beyond immediate physical destruction, leading to long-term ecological and socio-economic consequences as people cannot derive benefits from resources in landmine-affected areas. For example, a 2006/2007 study showed landmines contributing to biodiversity loss, affecting both animals and plants. Non-biodegradable toxic substances from landmine casings or unexploded remnants can leach into the soil and underground water, presenting dangers as both explosive remnants of war (ERW) and toxic remnants of war (TRW) leading to chemical contamination.

A more recent study confirmed that “landmine contamination is a vital contributor to long-lasting destructive effects on terrestrial ecosystem” with soil “heavily polluted with hazardous non-biodegradable toxic chemicals” from landmines casing and contents. Finally, climate change itself exacerbates the environmental impact of landmines (and explosive remnants of war), posing risks to both people and ecosystems. Recognizing these challenges, the updated International Mine Action Standard (IMAS) 07.13 incorporates climate change considerations into mine action programs and emphasizes the need for environmental data collection and community engagement.

Recent scholarship on “late modern war” highlights a doubly destructive relationship between military technology and the Earth. War’s environmental toll begins with the mining of essential metals and minerals (the “beforemath”) and culminates in toxic legacies in post-conflict lands (the “aftermath”). In the context of landmines, this helps us appreciate that these devices are not standalone objects of harm: their production and subsequent contamination are tied to a continuum of environmental damage.

Polluter pays principle: a complementary lens

Rooted in in Rio Principle 16, PPP posits that polluters should bear the full environmental and social costs of their activities, and that states should take necessary actions to ensure this, as explained by Hunter et al. Some authors contend that “polluter pays principle is arguably a general principle of law, if not a norm of customary international law derived from Principle 21 [of the Stockholm Declaration]”. While not a stand-alone enforcement mechanism, PPP is widely used in domestic and international environmental law to allocate remediation expenses.

Still, one might ask: why would states comply with this principle if they already struggle with existing IHL obligations? In reality, any rule of international law faces similar compliance challenges. Yet, the PPP serves as a normative and interpretive guide for allocating costs and operationalizing reparations. It could be integrated into reporting requirements in treaty frameworks – for instance, states could refer to PPP in their APMBC reports, or highlight it in CCW discussions, thereby building further state practice and support for this approach.

State responsibility and ILC PERAC principle 9

To apply the PPP, it is necessary to explore the intersection of IHL, IEL, and the law of state responsibility. IHL restricts the use of landmines but offers limited specific protections addressing the environmental harm of landmines. IEL and secondary rules of state responsibility can therefore clarify liability for environmental damage from unlawful landmine use and strengthen existing obligations.

Under CCW Amended Protocol II, each party must clear, remove, destroy, or maintain mines in areas under its control, irrespective of whether they employed the mines. While this establishes a baseline duty of clearance and removal, it does not address the broader environmental harm mines cause nor does it clarify reparation for violating states. The protocol primarily focuses on minimizing ongoing threats to civilians (rather than combatants) through clearance obligations, leaving environmental remediation and cost allocation to the PPP.

From the standpoint of general law of state responsibility, the Articles on Responsibility of States for Internationally Wrongful Acts and ILC PERAC Principle 9 go further. Principle 9(1) insists that a state whose internationally wrongful act “causes damage to the environment” must provide full reparation for that damage, “including damage to the environment in and of itself.” This broad wording allows the injured state or affected communities to legitimately seek restoration of ecosystems, going beyond just clearance operation.

The International Court of Justice (ICJ) confirmed in the Nuclear Weapons advisory opinion the existence of the “general obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States… [as a] part of the corpus of international law relating to the environment”.

Historically, peace or armistice agreements often required each party to clear the mines laid within its own territory. In contrast, PPP shifts the financial burden for remediation to the polluting state if its mine-laying actions breach customary rules. This need not displace existing frameworks; but provides legal basis for compensation by mine-laying (polluting) states to territorial states. Integrating PPP with current approaches strengthens accountability and ensures responsible actors bear environmental restoration costs, aligning with broader environmental mainstreaming in mine action.

To strengthen compliance and implementation, states can formally acknowledge the PPP in their national legislation and mine action plans, making clear that if a party is found to have violated IHL, it should bear the cost of clearance and ecological restoration. This approach could also be encouraged through bilateral or multilateral agreements in post-conflict situations and by requiring parties to report how they have integrated PPP into remediation efforts when submitting national reports under the APMBC or during CCW review conferences.

Reparation for environmental damage

The Chorzów Factory case identified three main forms of reparation: restitution, compensation, and satisfaction. I argue that, in the context of landmine pollution, monetary compensation is the most feasible form of reparation – covering, for example, clearance operations, ecosystem restoration, and direct losses to affected communities. Yet, recent developments in post-conflict environmental reparation and restoration reveal a growing recognition that reparation may need to go beyond purely financial remedies and consider the environment’s intrinsic value and cultural significance to local communities.

Reflecting a similar view, the ICJ 2022 judgment in DRC v. Uganda underscored that compensation can be due for damage to fauna and other natural resources – even absent an easily quantifiable market value. The Court reaffirmed that environmental harm “in and of itself” is compensable and that this view “is consistent with the principles of international law governing  the consequences of internationally wrongful acts, including the principle of full reparation”.

Similarly, the UN Compensation Commission (UNCC) – established under the UN Security Council Resolution 687/91 – was tasked with evaluating claims for environmental harm, including oil spills, burning oil wells, and damage to Kuwait’s coastal areas and marine environment. Although Resolution 687/91 did not specifically address landmines, it established a framework for addressing environmental damage caused by armed conflicts. Key takeaways that could be applied to landmine-related environmental damage include: recognition of the impact of armed conflict on the environment, including damage to ecosystems, loss of biodiversity, and contamination of water and soil; and the responsibility of states to mitigate environmental damage caused by conflict and to provide assistance for environmental restoration.

The PPP, though not a standalone enforcement mechanism, existing reparation and compensation regimes (e.g., under the law of state responsibility, or treaty bodies) in allocating costs for environmental remediation. In this way, CCW Amended Protocol II and ILC PERAC Principle 9 can work together. The Protocol establishes a baseline duty of clearance for all mines in areas under a party’s control, but does not specify financial burden when mine use violated international law and caused unlawful damage. The PPP can help interpret financial or logistical burdens for cleanup and environmental restoration should be allocated and inform that the state should cover costs like soil decontamination and ecosystem rehabilitation.

By emphasizing full reparation for violations of IHL rules–including obligations under the APBMC–PERAC Principle 9 and ARSIWA principles align neatly with the PPP. Together, they indicate that when a state’s illegal actions harm the environment, the polluter pays principle can guide the practical implementation of reparation: the polluting state must foot the bill for clearing and restoring the environment it damaged.

Ultimately, a version of this concept has already gained traction with some states. The Special Rapporteur on Protection of the Environment in Relation to Armed Conflict noted in her Third Report that the Netherlands referenced developments in international environmental law, including the “polluter pays” principle, which could be relevant to clearing war remnants and may indicate customary international law obligations for states. The growing acceptance of PPP suggests states should bear responsibility for pollution costs, including environmental harm from armed conflicts.

Conclusion

The use of landmines during armed conflict has serious environmental consequences that can last for decades. The polluter pays principle provides a good interpretative lens for a remedy for the environmental damage caused by landmines to be achieved. This synergy should be considered by the international community as a means of holding states accountable and responsible for their actions during armed conflicts. By adopting this approach, we can address the current gaps in and ensure that those responsible bear the costs of remediation and restoration.

The international community must take concrete steps to integrate the polluter pays principle into international humanitarian law and policy. This not only promotes environmental justice but also strengthens the legal framework governing armed conflicts, ultimately leading to more responsible behavior by states and a healthier, safer environment for affected communities. By doing so, we can take a significant step towards mine risk education and mitigation of the risks of the hidden costs of war and ensuring a more sustainable and just future for all.

 

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