Warfare and the Environment: How to strengthen the Protection of
Nature in Times of Armed Conflict?
A humanitarian law research on armed conflict, environmental degradation and climate change: the pressing need for more effective mechanisms in times of rising temperatures.
Amber Bosse
Master Thesis Public International Law Department International Humanitarian Law Supervisor: Dhr. Dr. J. van den Boogaard Word count: 12.975
2 To ignore the potential for environmental damage is to ignore the risk that this damage could threaten not only various plant and animal species with extinction, but also mankind itself. (Michael Diederich, Law of War and Ecology - A Proposal for a Workable Approach to
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List of Abbreviations
AP I Additional Protocol I to the Geneva Conventions BWC Biological Weapon Convention
CCW Certain Conventional Weapons Convention CWC Chemical Weapon Convention
ENMOD Environmental Modification Convention
GC Geneva Convention
GHG Green House Gases
IEL International Environmental Law ICC International Criminal Court
ICL International Criminal Law
IHL International Humanitarian Law
ICRC International Committee of the Red Cross
IPCC International
UNCLOS United Nations Convention on the Law of the Sea MARPOL Convention for the Prevention of Pollution from Ships NATO North Atlantic Treaty Organization
OILPOL Convention for the Prevention of Pollution of the Sea by Oil SIPRI Stockholm International Peace Research Institute
UK United Kingdom
UN United Nations
UNGA United Nations General Assembly
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Abstract
This thesis presents the position of environmental protection in the humanitarian law framework. Strong protection of nature under the law of armed conflict contributes remarkably to the overall security of biodiversity and healthy ecosystems. As we currently face a change in our global climate, the protection of nature has become increasingly important. This progress is generally reflected in the development of International Environmental Law, however, has not found an equivalent representation in the law of warfare. This thesis will identify this gap, by assessing the existing IHL provisions that afford direct and indirect protection to the environment. On the basis of this framework, it will question whether these provisions are in need of renewal or reinterpretation on the basis of increased scientific knowledge that confirm the severe climate related risks deriving from environmental degradation. The objective of this research is to recognize the difficulties with strengthening environmental protection in armed conflict on a global scale due to political feasibility, however, to nevertheless identify opportunities to increase this protection in unconventional manners. It argues for the reinterpretation of the established threshold for damage by incorporating new scientific knowledge on climate change, for the introduction of an environmental delegate representing the interests of the intrinsic value of nature, and for the inclusion of natural heritage into the Cultural Property Convention.
Key words: Law of warfare, environmental degradation, climate change, protection of nature.
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Table of Contents
CHAPTER 1: INTRODUCTION ... 6 1.1CONTEXT ... 6 1.2STRUCTURE ... 8 1.3METHODOLOGY ... 9CHAPTER 2: ARMED CONFLICT AND ENVIRONMENTAL DAMAGE ... 10
2.1INTENTIONAL DAMAGE ... 10
2.1.1 Direct military advantages ... 10
2.1.2 Environmental warfare ... 11
2.2UNINTENTIONAL DAMAGE ... 11
2.2.1 Collateral damage ... 11
2.2.2 Nuclear damage ... 12
2.3EXPLOITATION OF NATURAL RESOURCES ... 12
2.4CONTEMPORARY CHALLENGES: CLIMATE CHANGE ... 13
CHAPTER 3: HUMANITARIAN LAW AND ENVIRONMENTAL PROTECTION ... 15
3.1DIRECT PROTECTION ... 15
3.1.1 Additional Protocol I to the Geneva Conventions of 1949 ... 15
3.1.2 ENMOD ... 16 3.1.3 Custom ... 17 3.1.4 Case law ... 17 3.1.5 Military Manuals ... 18 3.2 INDIRECT PROTECTION ... 18 3.2.1 Treaty law ... 18
3.2.2 Means and methods of warfare ... 19
3.2.3 General principles ... 21
3.3INTERSECTIONAL ... 22
3.3.1 International Environmental Law ... 22
3.3.2 International criminal law ... 23
3.4ILCDRAFT ARTICLES ON ENVIRONMENTAL PROTECTION IN ARMED CONFLICT ... 24
3.4.1 Purpose and structure ... 24
3.4.2 Enforcement and Authority ... 24
CHAPTER 4: ASSESSMENT OF THE LAW: GAPS & OPPORTUNITIES ... 25
4.1GAPS ... 25
4.1.1 AP I: the unrealistic threshold ... 25
4.1.2 Other forms of protection: a decent enhancement? ... 26
4.1.3 New challenges, old solutions – the problem of political feasibility ... 27
4.1.4 Identifying the gap ... 28
4.2OPPORTUNITIES ... 28
4.2.1 Introducing the opportunities ... 28
4.2.2 A call for reinterpreting damage ... 28
4.2.3 Representing the commons: The Earth Cross ... 29
4.2.4 Natural property ... 30
CHAPTER 5: CONCLUSION ... 32
APPENDIX ... 33
RELEVANT EXCERPTS OF LISTED ARTICLES ... 34
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Chapter 1: Introduction
For as long as the history of war, the environment has been silently suffering from the trail of destruction left by armed conflict. Polluted seas, incinerated forests, burning oil wells: war inevitably contributes to environmental degradation. Not all harm is done intentional. More often, the environment endures collateral damage. With the increased use of weapons of mass destruction, natural areas are destroyed even when not marked as military targets. Moreover, in the heat of a battle, it is hard to strike a fair balance between the need for long-term environmental preservation and immediate military advantages: a dilemma that is central in a discussion that deals with imperative interests on both sides of the coin.
Recent developments exacerbate this dilemma. Climate change moved to the top of the international agenda, generating more attention on the protection of biodiversity and nature. The growing body of International Environmental Law (IEL) reflects this development. However, even though numerous examples demonstrate the severity of environmental harm in war torn areas, humanitarian law does not contain a stringent framework for protection. Can sufficient protection be awarded via the application of general principles, such as military necessity and proportionality, or has the past proven them inadequate?
There are some preliminary questions to address when examining the intersection of war and environmental protection. Firstly, there is the issue of damage. What gradation of damage should be protected? A careful consideration is required, as damage simply functions as a core element of warfare. How much damage is allowed, and is there a need to adjust this amount in line with contemporary challenges such as climate change? Secondly, there is the question of how to approach nature. The system of humanitarian law is mostly anthropocentric – the environment is often protected as a civilian asset. This can be beneficial. If it becomes a mainstream belief that flourishing nature is an indispensable necessity for preserving human life, it should be evident that effective environmental protection is guaranteed in all related legal regimes. But it can turn into a weak argument, too. Secluded vulnerable environments that exist outside of human settlements do not directly influence the health of the populations. However, damage in these environments can destabilize ecosystems, with drastic consequences as an inevitable result. But how do we weigh in indirect damages such as these, perhaps occurring afterwards? And, if damage does not directly affect humans, does that mean there is no damage? Protecting the environment only for its intrinsic value however is politically sensible, calling for a careful balance.
1.1 Context
In its 5th assessment report, published in 2014, the Intergovernmental Panel on Climate Change
(IPCC) states that “recent climate changes have had widespread impacts on human and natural systems.”1 Generated by scientific research, the last years has been characterized by a global
call for more sustainable governance, with the 2015 Paris Agreement as leading document. When it comes to warfare however, we can state that armed conflict is in essence unsustainable. To illustrate, the United States (US) Department of Defence alone has a larger annual carbon footprint than most countries on earth, among which are developed countries
1 IPCC, Climate Change 2014: Synthesis Report, Summary for the Policymakers, Contribution of Working Groups I, II and III to the 5th Assessment Report of the Intergovernmental Panel on Climate Change, Geneva, Switzerland, October 2014, SPM 1.
7 such as Sweden.2 However, coming to wartime specific damages, there is little data available
on the exact CO2 emission war related activity emits. A recent project of Brown University on “The Costs of War” tries to shed light on these hidden conflict costs. According to their findings, the US alone emitted 1,2 billion ton of GHG in the war on terror since 2001, equivalent to an annual emission of 257 million cars.3
However, GHG emissions are far from being the only relevant factor in the battle against climate change. Equally important are natural preservation, the protection of biodiversity and the conservation of ecosystems – all not easily guaranteed during armed conflict. Meanwhile, over 80% of the worlds’ conflicts take place in biodiverse hotspots, supporting more than half of the world’s plants and many rare species.4 During the Vietnam
War, the United States destroyed an estimated 15% of Vietnam’s forests, including more than 50% mangroves.5 The war in the Congo in 1996 and 1997 led to an escalation in poaching and
loss of habitat for national species, wiping out the elephant population by 50%, the hippo population by 95 %, and the buffalo population by 75%.6 Near the end of the First Gulf War,
Iraq burned hundreds of oil wells and dumped massive amounts of oil into the Persian Gulf, emitting large numbers of CO2 and destroying a complex underwater ecosystem.7
Over the last decades, the international community has slowly started to acknowledge the damage armed conflict inflicts on the environment. In 1991, the issue of environmental protection in armed conflict was put on the agenda of the UN, and the General Assembly (UNGA) invited the International Committee of the Red Cross (ICRC) to start working on the issue.8 Through the years, they have adopted a Military Guideline on the issue and explored
customary rules for environmental protection. In 1996, the International Court of Justice (ICJ) acknowledged the general obligation of States to ensure that the well-being of the environment is respected in conflict situations.9 Following these developments, the International Criminal
Court (ICC) has pledged to prioritize crimes that result in the “destruction of the environment” and the “exploitation of natural resources”,10 and the UN Environmental Program (UNEP) has
published several reports on environmental protection in armed conflict, of which the most recent in November 2009, containing an analysis of the full legal framework on environmental protection in armed conflict.11 Last year, the ILC has adopted 29 Draft Principles on
environmental protection pre, during and post armed conflict, that “aim to enhance the protection of nature in the future and create clarity on the existing legal framework.”12 All
favourable developments, however, with one question in common: has it been, and will it be, effective enough?
2 Neta Crafford, Pentagon Fuel Use, Climate Change, and the Costs of War, Watson Institute International and Public Affairs, Providence, United States, 12 June 2019.
3 Watson Institute for International and Public Affairs, Costs of War, Brown University, Providence, United States, 2010,
retrieved online 28 March 2020, via: www.watson.brown.edu/costsofwar/.
4 ICRC, Natural environment: Neglected victim of armed conflict, Geneva, Switzerland, 5 June 2019.
5 Stockholm International Peace Research Institute (SIPRI), Warfare in a fragile world: Military Impact on the Human Environment, Taylor & Francis Ltd, London, United Kingdom, 1980, p.81-83.
6 Ibid 4.
7 Daniel Bodansky, Effects of Military Activity on the Environment, University of Georgia School of Law, E. Schmidt publishers, Berlin, Germany, 2003, p.13-14.
8 ICRC, Report submitted by the ICRC to the 48th session of the United Nations General Assembly, 17 November 1993.
9 ICJ, Nuclear Weapons Case, Advisory Opinion, The Hague, The Netherlands, 8 July 1996, paragraph 29.
10 ICC, Office of the Prosecutor, Policy paper on case selection and prioritization, The Hague, The Netherlands, 15 September 2016.
11UNEP, Protecting the environment during armed conflict: An inventory and analysis of international law, Nairobi, Kenia,
November 2009, p.11.
8 1.2 Structure
The aim of this research is to explore ways for strengthening the protection of the environment in international humanitarian law. For that reason, the main research question elaborates on how this ambition could be achieved. As with regards to the sub questions, there are three main points to be examined: 1) What are environmental damages and in what form do these damages occur during armed conflict? 2) What laws govern environmental protection in armed conflict, both direct as indirect? And 3) Can we incorporate climate change into the discussion on environmental protection in the law of warfare, and why is it necessary to do so?
Even though the discussion on environmental protection in armed conflict is one that has been held already for many decades, scholars have thus far not included climate change into the topic’s discourse. However, most relevant provisions on environmental protection entered into force around 1970 and the climate crisis is imposing a far larger threat on humanity today, this thesis will try to display the relation between environmental degradation, humanitarian law, armed conflict and climate change.
Concepts
“Environment” as “natural environment”
Following the ICRC Commentary on Additional Protocol I (AP I), the environment should be “understood in the widest sense to cover the biological environment in which a population is living.”13 This covers all living and non-living things occurring naturally in a region, without
(much) human interfering. “Degradation”
Environmental degradation is the deterioration of the environment through human interference and includes the depletion of resources such as air, water and soil, the destruction of ecosystems, the extinction of wildlife and pollution.
“War” as “armed conflict”
As defined by common Article 2 to the 1949 Geneva Conventions (GCs): “all cases of declared
war or of any other armed conflict between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.”14
13 ICRC, Protocol Additional to the Geneva Conventions of 12 August 1949: Commentary of 1987, Protection of the natural environment: Article 55(1), Geneva, Switzerland, under 2126, p. 661.
9 1.3 Methodology
The questions posed in this thesis call for an analysis of international law, in specific customary and codified humanitarian law. Therefore, the method used for this thesis will be mainly descriptive. The purpose of this method is to gather and describe cases as well as the law, as to give some commentary on whether or not these laws are effective in achieving their purpose. By using this method, it will be possible to draw certain conclusions and indicate certain gaps within the legal framework. Nevertheless, the descriptive method will fall short with answering the last sub question, where the question “why” is central: why is it necessary to incorporate climate change into the IHL discourse on environmental protection? The core ambition of this thesis is to examine creative (new) insights on how – and why – we should strengthen environmental protection during armed conflict, calling for a normative approach. For the purpose of this thesis, therefore, both methods will be combined, as the first part asks for profound examination of the current framework, and the last part for using that framework to come to solutions.
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Chapter 2: Armed Conflict and Environmental Damage
War and damage are inextricably linked. So are humans and the environment: for that reason, it is unambiguous that all forms of armed conflict harm nature in some kind of way. Fortunately, not all harm is of similar scale. For the purpose of this research, the focus is on damage that is caused during armed conflict, in the form of attacks and reverberating (after)effects. Without the intention to cover all possible harm, the most evident and destructive categories will be listed in this Chapter.
We can distinguish different sources of damage. The first category is intentional damage: direct attacks on the environment for military advantages. This can serve two purposes: 1) Direct attacks to achieve instant military advantages; such as burning down a forest where the belligerent is hiding.15 2) Hostile environmental contamination with the intention of
causing amplified damage, using the environment as a mode of warfare, or “environmental warfare.”16
The second category of damage is that of unintentional harm, or “collateral damage”. In those cases, the damages are caused by attacks that did not have the environment as their specific target, but inevitably harm the area by the use of weapons of mass destruction. Finally, there is a residual category of effects that are not directly caused by military attacks, but do relate to them, such as the exploitation of natural resources and complications in the transition to peace.17
2.1 Intentional damage
2.1.1 Direct military advantages
Vegetation:
Burning is used for several military purposes. Natural areas are mostly burned for the purpose of depriving the cover of the belligerent, as well as to create smoke to frustrate air attacks.18
Apart from the loss of vegetation, significant long-term damage to the ecosystem is caused by persistent burning. Recovery takes decades,19 and sometimes is irreversible,20 as soil erosion
causes rainwater run-off, with barren soil that does not support regrowth of flora as likely result. Water:
Historically, water has widely been used in direct attacks, mostly in the form of flooding.21
Purposes of flooding are to eliminate the belligerent party settled in a lower lying area, using the water as a natural blockade, or to destroy vegetation.22 Negative effects of flooding on the
15 Bodansky, 2003, p.11.
16 Arthur Westing, Pioneer on the Environmental Impact of War, Springer Briefs on Pioneers in Science and Practice 1, Springer, New York, United States, 2013, p.77-86.
17 By way of integrality, in armed conflict situations, these categories are not as absolute as presented in this Chapter. Often, the destruction of natural areas is part of a military tactic, or has multiple justifications. For the sake of overview, the damages are simplified into categories.
18 Bodansky, 2003, p.11-12. 19 Westing, 2013, p.83. 20 SIPRI, 1980, p.78-84.
21 But water was also used in other ways, for example the Dutch “waterlinie” served as a defense mechanism.
22 For example: the Chinese dynamited the Huayuankow dike of the Yellow River in June 1938 in order to stop the advance of the Japanese. See SIPRI, 1980, p.17 at 17.
11 environment are, among others: loss of animals, destruction of agricultural land, reduction of biodiversity, riverbank erosion, degradation of water quality and dispersal of nutrients.23 2.1.2 Environmental warfare
Weather modifications:
Weather modification is the act of intentionally manipulating the weather, in context of war to, for example, frustrate the other party’s infrastructure. The technique has been hostilely used in the form of cloud seeding during the Vietnam war, to increase rainfall and trigger flooding.24
Chemical poisoning:
Chemical herbicides are used to spray over forests or other large-scale vegetation in order to disrupt agricultural production or to destroy natural resources. Short-term damage occurring in sprayed forests are leaf and fruit abscission and wildlife mortality due to absence of food and shelter.25 On the long-term, high biodiverse forests will often be replaced by low-diversity
grasslands and mudflats due to “nutrient-drains” and soil erosion.26 The use of herbicides also
has large effects on underwater ecosystems, such as mangroves. When the poison destructs weed-bearing, old trees, full recovery can take up to an estimated decennium, as we have seen particularly with Agent Orange in the Vietnam War.27 Since mangroves often provide breeding
grounds for offshore water animals, severe damage can too be measured far outside of the direct environment.28
2.2 Unintentional damage
2.2.1 Collateral damage
There are many forms of collateral damage to the environment caused by the usage of bombs,29
landmines,30 and other weapons (of mass destruction). The reverberating effects of explosive
weapons are those effects “that are not directly and immediately caused by the attack, but are nevertheless the product thereof.”31 These effects can outweigh the immediate damage caused
23 John Gardiner, Environmental impact of floods, in: Coping with Floods, NATO ASI Series, volume 257, Kluwer Publishers, Dordrecht, The Netherlands, 1994, p.529-548.
24 In the Vietnam war, the US seeded clouds to increase rainfall in an attempt to extend the monsoon season. As this action led to the fast adoption of the Environmental Modification Convention (see Ch. 3 Section 3.1.2): because of this, there are not many similar examples.
25 Westing, 2013, p.44.
26 Jeffrey Mcneely, War and Biodiversity: An Assessment of Impacts, in: The Environmental Consequences of War: Legal, Economic, and Scientific Perspectives, Cambridge University Press, Cambridge, United Kingdom, October 2000, p.362. 27 Sophie Arnaud-Haond, Genetic recolonization of mangrove: Genetic diversity still increasing in the Mekong delta 30 years after Agent Orange, Marine Ecology Progress Series, Inter-Research Publishers, Volume 390, 2009, pp.129-135.
28 Westing, 2013, p.45.
29 Bombs form craters, soil erosion and contamination due to hazardous residue waste, via: Asit Biswas, The Scientific Assessment of the long-term Environmental consequences of War, in: The Environmental Consequences of War, October 2000, p.304.
30 Exploding landmines are destructive, but the machines used for mine clearance are worse: they plough the soil and with that destroy all vegetation growing in the clearing area. Via: U. C. Jha, Armed Conflict and Environmental Damage, Vij Books India Pvt Ltd, New Delhi, India, 2014, p.159.
31 Isabel Robinson and Ellen Nohle, Proportionality and precautions in attack: The reverberating effects of using explosive
12 by the attack. When it comes to the destruction of natural resources, cumulative harm often exacerbates the reverberating damage, which can permanently disbalance local ecosystems.32
Two examples to illustrate this category: 1) In the 1990-91 Gulf war, Iraqi forces attacked Kuwaiti oil well heads and tankers, and dumped crude oil into the Persian Gulf, in an attempt to destroy sources of income for Kuwait and prevent US forces to land on Kuwait’s beaches. The attack released 60 million gallons of oil which led to fires that caused soot emissions of 5000 tons a day. A comparison drawn by Michael Schmitt: “Daily soot release
into the atmosphere was the equivalent of 10% of global biomass burning, while the sulfur dioxide output approximated 57% of the emissions from electrical utilities. Carbon dioxide production was at the level of 2% of the fossil fuel burning that occurs worldwide on a daily basis.”33 2) The NATO-allies in Kosovo destroyed large parts of the country’s infrastructure
and industrial facilities by targeting them as military objectives.34 This devastation resulted in
flooding due to damaged dykes, high levels of chemical waste and sulphur emissions from ruined petroleum refining facilities, and the disturbance of ecosystems due to fire and polluted rivers.35
2.2.2 Nuclear damage
Nuclear waste is devastating for the environment. Westing numerates the ecological collateral damage of nuclear warfare as: “wildfires, radioactive fallout, enhanced ultraviolet radiation,
loss of atmospheric oxygen, gain in atmospheric carbon dioxide, and reductions in sunlight and temperature.”36 Apart from the destructive damages that lead from an actual nuclear exchange,
manufacturing and storing nuclear weapons produces large quantities of hazardous waste. Likewise, the testing of nuclear weapons has as result that large collective doses of radiation discharge in the marine environment, where among other negative results, bioaccumulation causes serious problems in the food chain cycle of marine animals.37
2.3 Exploitation of natural resources
Both figuratively as literally speaking, fuelling war puts a lot of pressure on natural resources. Asit Biswas notes that: “The fuel used by an F-16 training jet in less than one hour is nearly
equivalent to what an average US motorist uses over a period of two years. [Furthermore], annual global military consumption of aluminium, copper, nickel, and platinum is higher than the total consumption of these metals by all the developing countries of the world combined.”38
Natural resources are also closely related to armed conflict in a different respect. As Phoebe Okawa describes:“Almost all recent large-scale non-international conflicts, for
example those in Liberia, Congo and Sierra Leone, were almost exclusively funded by these
32 For example, in Syria, a combination of pollution, deforestation, and refugee influxes cumulatively lead to a decrease of 18,600-hectare tree cover, threatening a large part of the native animal species. Jennifer Dathan, The reverberating environmental effects of explosive weapon use in Syria, Action on Armed Violence, retrieved online via:
https://aoav.org.uk/2019/environmental-effects-syria/.
33 Michael Schmitt, Green War, Yale Journal of International Law, volume 22(1), Yale Law School, Connecticut, United States, 1997, p. 19.
34 Bodansky, 2003, p.16.
35 UNEP, UN Centre for Human Settlements, The Kosovo Conflict: Consequences for the Environment and Human Settlements, 1999.
36 Westing, 2013, p.90.
37 SIPRI, 1980, p.159-163, together with Westing, 2013, p.94. 38 Biswas, 2000, p.306.
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countries’ natural resources.”39 Valuable minerals are often exploited by rebel groups to
finance munition and other military equipment.40
Apart from minerals, forests and wildlife are too regularly exploited during (mostly non-international) armed conflict, either as a material for trade or to provide for basic needs such as firewood and housing. The latter are usually related to large numbers of refugees that are forced to settle in resource-scarce natural areas, putting extra pressure on existing ecosystems.41
2.4 Contemporary challenges: climate change
It is not just for war that we are facing severe challenges with regards to our climate. However, militarism’s contributions to climate change are underrepresented in the public and political debate – while they undeniably have a large share in the factors that drive climate change, such as deforestation, GHG emissions, destruction of ecosystems, loss of biodiversity and pollution.
There are numerous specific, illustrative examples of the relation between war and climate change. A calculation of the UN Environment Management Group in 2008 says that only UN peacekeeping missions emit 1,75 million tons of CO2 annually.42 The reforestation of
the 600,000 hectares of Vietnamese forests that were destroyed with defoliants during the Vietnam war has taken about five decades so far, and despite some successes in recovery, the decrease in biodiversity and native plants are visible up until today.43 Besides large scale
damage, small, sometimes invisible changes such as a decrease in plankton in the ocean due to nuclear radiation, are cumulatively pressing to the climate issue: as plankton, for example – similarly with regards to trees – are photosynthetic organisms that fix carbon emissions.44
Simply put, environmental destruction during wartime comes at a high price: and pressures on the climate challenge we currently face.
Besides the damage, the relation between war and climate change is twofold. As the exploitation of resources limits the chances on successful peacebuilding on the short-term, another effect is suggested by several scholars and organizations: climate change leads to conflict, too.45 The UN Development Program (UNDP) suggests that sea level rise could
threaten 5 million km of coastal areas; home to more than a billion people – causing mass migration and food insecurity.46 A Science Magazine research on the Influence of Climate on
Human Conflict estimates that warmer temperatures and more extreme rainfall increases the frequency of interpersonal violence with 4% and the intergroup conflicts with 14%.47 In
summary: climate change, environmental damage and conflict are closely interconnected, and operate in a vicious cycle. Without the assumption of offering a new scientific formula, the 39 Phoebe Okowa, Natural Resources in Situations of Armed Conflict: Is there a Coherent Framework for Protection, International Community Law Review, Volume 9, Martinus Nijhoff Publishers, 2007, p.237.
40 Ibid, p.239.
41 U C Jha, 2014, p.30, under “second”.
42 UNEP, Greening the Blue Helmets: Environment, Natural Resources and UN Peacekeeping Operations, 2012, p.8. 43 Michael Tatarski, Vietnams forests on the upswing after years of recovery, Mongabay Series: Forests, retrieved online 12 April 2020, via: https://news.mongabay.com/2016/12/vietnams-forests-on-the-upswing-after-years-of-recovery/.
44 U C Jha, 2014, p.307.
45 See for example: Nils Gleditsch, Whither the Weather? Climate Change and Conflict, Journal of Peace Research, volume 49(1), The peace Research Institute, Oslo, Norway, January 2012 & Anne Dienelt, After the War is Before the War: The Environment, Preventive Measures under International Humanitarian Law, and their Post-Conflict Impact, in: Environmental Protection and Transitions from Conflict to Peace, Oxford University Press, Oxford, United Kingdom, 2017. 46 UNDP, Climate change, migration and displacement: The need for a risk-informed and coherent approach, New York, United States, November 2017.
47 Solomon Hsiang & Marshall Burke, Edward Miguel, Quantifying the Influence of Climate on Human Conflict, Science Magazine, Volume 341, Issue 6151, American Assosciation for the Advancement of Science, Washington, 13 Sep 2013.
14 relation between these factors seem a simple sum: more conflict induces more environmental damage, contributing to climate change (causes), with the long-term result of climate change generating new, and more, conflict. Thus: a pressing need to strengthen environmental protection during armed conflict in times of rising temperatures.
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Chapter 3: Humanitarian Law and Environmental Protection
There are multiple ways in which IHL provisions influence the protection of the natural environment. However, relatively few of them have the specific intent to limit environmental harm; in most situations, protection of the environment is a by-product of restrictions that aim to limit damage on humans or human objects.48 This makes it more complex to offer a full set
of rules on environmental protection. In order to do so, one must not solely look at specifically designed rules, but additionally to general principles of humanitarian law, as well as to articles that are centred on civilian protection.
This Chapter will provide an overview on the most evident regulations that are specially affecting the well-being of the environment. This will include both direct and indirect protection via codified humanitarian law, general principles, custom and case law. Additionally, this Chapter will look at other relevant sources, such as environmental law and its applicability during armed conflict. Lastly, the recently adopted ILC Draft Principles on environmental protection in armed conflict will be examined, both in context of their purpose as with regard to authority.
Whether the existing framework for protection is sufficient, would to some extent rely on personal opinion, and can thus only be limitedly objectified. In order to separate both rule of law and value, this Chapter will primarily list the sources of protection, without evaluating them in terms of sufficiency. In summary, this Chapter will examine the efficiency and integrality of the legal framework for environmental protection in armed conflict.
3.1 Direct protection
3.1.1 Additional Protocol I to the Geneva Conventions of 1949
Article 35(3):
The text of Article 35(3) AP I reads the following: “It is prohibited to employ methods or means
of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.”49 Several components of this Article are considered in more detail below.
Article 35(3) is the first provision that recognizes a non-anthropocentric view on the well-being of the environment.50 When examining the drafting history of the Article, it becomes
clear that the concept of natural environment is originated in a proposal from the Biotope group, set up by Committee III to help establish the content of the Article.51 This is important, because
their proposal contained the prohibition to employ means and methods of warfare which were intended or expected to “damage the environment in such a way that the stability of the ecosystem is disturbed.” Eventually, the Committee did not follow this proposal, but did stick to “natural environment” rather than “human environment” – confirming the intrinsic value of environmental protection regardless of its human interest.
48 Bodansky, 2003, p.19.
49 ICRC, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977.
50 Before 1976, the word ‘environment’ could not be found in any treaty on the law of war: See Adam Roberts, The Law of War and Environmental Damage, in: The Environmental Consequences of War, p.49.
16 Article 35(3) addresses intentional and unintentional (collateral) harm.52 The article
applies only to situations where the damage was foreseeable, thus in cases of “realized” or “ought to have realized” damage.53 The protection extents to damage in the territories of all
State parties, thus not only that of the enemy.54 The Article contains a strict cumulative
threshold: the environmental damage has to be widespread, long-term, and severe. The concepts are not explicitly defined in AP I and its commentaries, but looking at the drafting history of the Article, suggestions are that “long-term” is to be interpreted as “for a period of decades”.55
There is no consensus on the definition of “severe” and “widespread”, apart from the conception that the threshold is very high. “Severe” is sometimes explained as “prejudicing the survival of
the population” – thereby adding an anthropocentric element.56 In line with the foreseeability
requirement, the interpretation of “means and methods of warfare” is rather perceived as “tactic as a whole” than a single act or bullet.
Article 55:
The main difference between Article 55(1) and 35(3) AP I is the anthropocentric component in the text of Article 55, by adding the phrase “and thereby to prejudice the health or survival of the population” to the otherwise fairly similar content of Article 35(3). Furthermore, the scope of the article seems broader by not addressing specifically the means and methods of warfare, but “care shall be taken in warfare to protect the natural environment”. The term “care” is not further defined in the Protocol nor its commentaries.57
Both articles remain fairly uncertain in terms of defining their threshold. Additionally, there is the question of effectiveness: military-important States (such as US, Iran, Israel, Pakistan, India) are not (yet) parties to AP I.58
3.1.2 ENMOD
The formally titled “Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques” embodies prohibitions in the category of “ecological warfare”. There are some important differences between ENMOD and AP I.
Firstly, as contrary to Article 35(3) and 55 AP I, on the basis of Article I ENMOD, hostile environmental modification techniques are prohibited when they have “widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State party.” Two aspects here differ: the scope is limited to the environment of the other signatory parties only,59 and the damage threshold is alternative, not cumulative.
Secondly, environmental manipulation processes should be deliberate, thus applying exclusively to intentional actions.60 In comparison to the provisions in AP I, the threshold of
widespread – defined in ENMOD as several hundred kilometres, long-lasting – months, 52 UNEP, 2009, p.11.
53 Cymie Payne, The Protection of the Natural Environment, in: The Oxford Guide to International Humanitarian Law, Oxford University Press, Oxford, United Kingdom, March 2020, p.218.
54 Bodansky, 2003, p. 28. 55 Schmitt, 1997, p. 71. 56 Ibid.
57 It has been argued by scholars that this provision functions as a wartime equivalent of peacetime obligations, since “care” is often used in environmental law documents, but no acknowledgement has been made by the ICRC so far in this direction. 58 ICRC, Treaties State Parties and Commentaries, AP I, retrieved online 12 May 2020.
59 Article 1 ENMOD: “any other State Party”, irrespective whether this is a neutral or belligerent party. 60 Article 2 ENMOD, See also Schmitt, 1997, p.84.
17 maximum a season, and severe – significant disruption of natural and economic resources, is lower, and is regardless of military advantage.61 However, ENMOD is limited to environmental
modification techniques only, when the environment is used as an “instrument of war”, such as with cloud seeding or changing ocean currents.62 Whether the use of herbicides or incendiary
weapons to destroy a forest that functions as a cover would fall within the scope of the convention is argued, though remains unclear, and unlikely.63 Until today, no party has been
accused of violating the ENMOD convention.
3.1.3 Custom
The content of Article 35(3) and ENMOD is reflected in the ICRC Customary Law Study as Rule 45. According to the ICRC Study, the rule has emerged into customary international law, with only the US marked as persistent objector.64 However, some scholars remain sceptical
about the customary status of Rule 45. Schmitt has argued that the very reason many military powerful states have not ratified AP I, is because it has not evolved into a customary norm yet.65
Yet the ICRC argues that the prohibition is laid down in “virtually all” military manuals across the globe, supporting its customary status.66 Although not opposing the rule per se, France and
the UK have clearly stated that the rule does not apply to the use of nuclear weapons.67
Additional to Rule 45 of the Study is Rule 44: “In the conduct of military operations, all
feasible precautions must be taken to avoid and minimize incidental damage to the environment.” According to the ICRC, the content of Rule 44 inherently relates to the
development of environmental law and the increased importance of environmental well-being. The Rule is reflected in the ICRC Military Guideline on the Protection of the Environment in Times of Armed Conflict,68 but the scope is rather imprecise.
In both the Gulf war as the NATO-bombing in Kosovo, AP I was not considered applicable, because the conflict parties did not ratify the Protocol. As no party relied on the content of Rule 44 and 45, doubts were generated on their practical influence.69
3.1.4 Case law
The ICJ suggested in Nuclear Weapons that Article 35(3) and 55 AP I were not part of customary law, when it referred to the applicability of the provisions only to States that had subscribed to them.70 However, in the 1997 Gabčíkovo-Nagymaros Project case, the ICJ argued
that the protection of a State’s ecological balance was an “essential interest” and that the
61 UNGA, Understanding Relating to Article I, Report of the Conference of the Committee on Disarmament, 31st Session, Supranote 27, p.91-92.
62 Sigrid Johansen, The Military Commander's Necessity: The Law of Armed Conflict and its Limits, Cambridge University Press, Cambridge, United Kingdom, 2019, Chapter 17.10, p. 379.
63 Karen, Hulme, War Torn Environment: Interpreting the Legal Threshold, Martinus Nijhoff Publishers, Leiden, The Netherlands, 2004.
64 ICRC, Practice Relating to Rule 45, Volume II, Chapter 14, Section C, under “Summary”.
65Schmitt, War and the Environment: Fault Lines in the Prescriptive Landscape, in: the Environmental Consequences of
War, 2000.
66 Ibid, Practice Relating to Rule 45, Part III, under “Military Manuals”. 67 Ibid 63.
68 ICRC, Guidelines for Military Manuals and Instructions on the Protection of the Environment in times of Armed Conflict, International Review of the Red Cross, Cambridge University Press, Number 311.
69 Thomas Carson, Advancing the Legal Protection of the Environment in Relation to Armed Conflict: Protocol I’s Threshold of Impermissible Environmental Damage and Alternatives, Nordic Journal of International Law 82, Martinus Nijhoff Publishers, 2013, p.99.
18 obligation to respect this interest belongs to the area of customary law.71 Unfortunately, no
international court has applied the threshold of the provisions in AP I nor Customary Rule 44/45 yet, because, as suggested by the ICTY: “It would appear extremely difficult to develop a prima
facie case upon the basis of these provisions, [since] their conditions for application are extremely stringent and their scope and contents imprecise.”72
3.1.5 Military Manuals
In 1996, the ICRC published a Military Guideline for the Protection of the Environment in Armed Conflict. The guideline is a “summary of the existing applicable international rules which must be known and respected by members of the armed forces.” It reflects the overall standing point of the ICRC that “existing law, if properly implemented and respected, provides adequate protection.”73 The document itself does not offer much additional information, but the
ICRC has been documenting the content of military manuals as part of their customary law study for decades. The reflection of the law in military manuals is valuable, as it directly influences the military strategic of that State – yet they are not globally uniform. To illustrate, the Handleiding Humanitair Oorlogrecht of the Netherlands specifically states that environmental damage is only prohibited when it meets all the conditions laid down in Article 35(3) AP I, victimizing the environment particularly when the health of the population is impaired.74 In comparison, the Australia’s LOAC Manual states that “those responsible for
conducting military operations have a duty to ensure that the natural environment is protected.”75 In short, one can assume that overall the content of military manuals are
compatible with the applicable legal framework – while serving as an indicator for customary practice at the same time.
3.2 Indirect protection
3.2.1 Treaty law
Apart from specific provisions, there are multiple (treaty) obligations that indirectly protect the natural environment in armed conflict. Most of them are reflected in limitations of military targets or the use of certain weapons. These provisions generally have an anthropocentric focus, in which the protection of human beings and their surroundings are central. Adam Roberts suggests that: “Paradoxically, [Protocol I's] provisions that do not specifically mention the
environment are more useful as a basis for assessing the legality or otherwise of particular practices than are those that do make such mention.”76
To substantiate with a few examples: Article 54(2) AP I limits damage to natural resources and their sustenance value to the civilian population. According to the Article, it is prohibited to attack or destroy useless objects indispensable to the survival of the civilian population, such as crops, livestock and drinking water installations, if the specific purpose is
71 ICJ, Case concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia), Judgement, 25 September 1997, p.41. 72 ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, at paragraph 15.
73 Antoine Bouvier, Protection of the natural environment in armed conflict, International Review of the Red Cross (IRRC), Number 285, p. 567-578.
74 Netherlands, Humanitair Oorlogsrecht: Handleiding, voorschriftnummer 27-412, Militair Juridische Dienst, 2005, Chapter 0464.
75 Australia, The Manual of the Law of Armed Conflict, Australian Defense Doctrine, 11 May 2006, Chapter 5.50. 76 Roberts, 2000, p.64.
19 to deny them to the civilian population or the adverse Party.77 Article 53 GC IV prohibits the
“scorched earth policy”: a military tactic that aims to destroy anything that might be useful for the enemy, including dykes or forests when they are of economic value.78 Article 55 of the 1907
Forth Hague Convention prohibits the principle of “usufruct”: an Occupying party may exploit natural resources, but may not destroy the fundamental assets.79 Other provisions can be
generally divided into three categories: 1) limitations on weapons, targets, and areas, 2) protection via general IHL principles, and 3) the prohibition on wanton damage, all respectively considered more in detail below.
3.2.2 Means and methods of warfare
Weapons:
Limiting specific destructive weapons works very effectively in protecting the environment. Multiple conventions have tried to restrict the use of, inter alia, biological, chemical and nuclear weapons and that of landmines, herbicides and poison. Most of these conventions date back to before the 21st century and do not address recently developed weapons. However, Article 36
AP I guards that: “any new weapon, or means or method of warfare, does not contravene with
existing rules of international law” – including the prohibition to cause widespread, long-term
and severe damage to the natural environment. This Section considers the most relevant provisions that limit the use of weapons that are specifically damaging to the environment.
The 1972 Bacteriological Weapons Convention (BWC) and the 1993 Chemical Weapons Convention (CWC) prohibit the use, development and production of chemical and biological weapons.80 As these Conventions also require the destruction of existing chemical
and biological weapons, it is noteworthy that they entail strict restrictions on dumping, storage and land burial, in order to limit environmental harm.81 Both Conventions apply in
non-international armed conflicts via their customary equivalent.82 The use of herbicides is restricted
under these Conventions when they contain biological or chemical agents and are used for hostile purposes. Additionally, the use of herbicides is prohibited when they are designed to harm humans or animals,83 are used to destroy vegetation that is not marked as military
objective,84 or crops when these are indispensable for the survival of the civilian population.85
Hence, even though the use of herbicides would be controversial, hostile use is not per se prohibited.
The indiscriminate use of anti-personnel landmines is regulated via the 1996 additional Protocol II to the Certain Conventional Weapons Convention (CCW).86 Customary Rule 83
furthermore establishes the obligation to facilitate the removal of landmines after the end of 77 Schmitt, 1997, 77-78.
78 “Except where such destruction is rendered absolutely necessary by military operations.” This includes acts that were “reasonably believed to be necessary”. See the Nuremberg Tribunal case law, in specific The Hostages Trial, Case number 47, 19 February 1948.
79 At Nuremberg, this provision was used as the basis of liability for German troops involved in the over-exploitation of Polish forestry. See Schmitt, 1997, p.64.
80 UNGA, The Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, 10 April 1972, and the Chemical equivalent, 13 January 1993.
81 For example, Article 4 CWC and Article 2 BWC: both oblige State Parties to ensure environmental protection during storage and destruction.
82 Rule 73 & 74 of the ICRC Customary Law Study. 83 Rule 74.
84 Rule 14. 85 Rule 53 & 54.
20 active hostilities by the party that laid the landmines. The 1997 Ottawa treaty prohibits the use, stockpiling, production and transfer of anti-personnel mines, but almost all states that are actively taking part in armed conflict today have not signed the treaty.87 There are no obligations
towards an environmentally-considered clearance process; although this is a major contributor to environmental damage caused by landmines. Protocol III to the CCW regulates the use of incendiary weapons, as Article 2(1) prohibits any kinds of plants to be the subject of attack when they are not used to cover combatants or are marked as military objectives.
There are no general prohibitions against the use of nuclear weapons. The peacetime 1963 Partial Test Ban Treaty bans nuclear weapon tests in the atmosphere, outer space and underwater and is said to have had a “significant effect in limiting atmospheric testing and thereby reducing radioactive fall-out.”88 It does however not apply during armed conflict.89
Targets:
Certain limitations on targets indirectly protect the natural environment. Daniel Bodansky lists the following three categories: 1) Objects indispensable to the civilian population, 2) Installations containing dangerous forces, and 3) Cultural objects.90
The main Articles in the first category are Article 51 and 52 AP I, which prohibit attacks on civilian objects. If the environment cannot be qualified as a military objective under paragraph 2 of Article 52, and is in its nature, location, purpose or use not making an effective contribution to military action, it is protected as long as its destruction does not offer a definite military advantage. The second category contains Articles that limit collateral damage resulting from destroying dams, dykes and nuclear power plants. Article 56 AP I prohibits attacks on “works or installations that contain dangerous forces” in case the attack “may cause the release of dangerous forces and consequent severe losses among the civilian population” – even when these objects are marked as military objectives. The prohibition does not entail attacks on oil tankers and petrochemical factories.91 The third category is codified in the 1954 Cultural
Property Convention and prohibits belligerents from targeting property that is of “great importance to the cultural heritage of every people”, except when “military necessity imperatively requires.”92 Natural heritage is only specially protected in peacetime,93 hence only
very limited natural areas – only that in the immediate surroundings of cultural sites – are protected from targeted attacks in armed conflict.94
Area’s:
In line with the principle of lex specialis, AP I limits its applicability to warfare on land, and thus not regulate environmental damage in air or on the High Seas.95 However, it is generally
87 UN, Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction (Ottawa Treaty), 18 September 1997.
88 Bodansky, 2003, p.52
89 Article 12, Article 16(d), specifically excludes regulating implements of war. 90 Bodansky, 2003, see Chapter 6, (a)(b)(c).
91 ICRC, Commentary of 1987, Article 56 AP I, Paragraph 1, under 2149: despite multiple suggestions, oil tankers where specifically left out of the draft.
92 UNESCO, Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention, The Hague, Netherlands, 14 May 1954.
93 UNESCO, Convention for the Protection of the World Cultural and Natural Heritage, 17 December 1975. 94 Hulme, 2004, p.113-116.
95 Sonja Boelaert-Suominen, International Environmental Law and Naval War, ProQuest LLC Publishers, Michigan, United States Staten, 2014, p.104.
21 accepted as a rule of customary law that the basic principles of IHL also apply to naval warfare.96 The 1994 San Remo manual encourages States to not conduct hostilities in marine
areas when rare or fragile ecosystems are present, or destruction will threaten endangered marine life, however, the provisions are not binding.97 Apart from protection based on general
principles, there is little hard law on environmental protection in naval warfare.
Another specific protected area is the Artic on the basis of the 1959 Antarctic Treaty: all activity of military nature is prohibited, including the testing of weapons and nuclear explosions, covering the full area south of 60 degrees South Latitude.98 The 1991 Protocol on
Environmental Protection, in force since 1998, further increases environmental protection, in specific with regard to marine pollution, flora and fauna, waste management and the prohibition of all activities relating to the hostile exploitation of mineral resources.
3.2.3 General principles
On the basis of custom, humanitarian law principles applicable to all military activity such as the principle of distinction, necessity and proportionality, apply, also in specific, to the natural environment.99 To determine the influence these principles have on the
complemen-tary protection of the environment in practice – in specific under the threshold of “widespread, long-term and severe damage” – the most important are considered briefly below.
Distinction:
Often proposed as the “corner stone” of civilian protection in IHL, the mandatory distinction between civilian and military objectives can contribute to the protection of the environment: (protected) natural areas are most of the time non-military. In practice however, it is not that straightforward. When a forest is used as a belligerent’s cover, and it makes an effective contribution to military action – as the distinction principle requires – destroying it will directly offer a military advantage and thus be lawful.100 Even more complex to determine are industrial
factories, oil tankers or natural areas with high-value minerals when they fuel, financially or literally, the ongoing conflict. In short, many attacks that cause environmental damage will still pass the “distinction test”, making the protection rather “shaky”.101
Necessity:
Attacks that serve no military purpose are in principle restricted under the prohibition of wanton damage. To be lawful, at least a reasonable connection between the destruction and the overcoming of the enemy forces is required.102 This does not mean that the necessity principle
96 ICRC, How does law protect in war, Naval warfare.
97 Institute of International Humanitarian Law, San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994, inter alia Article 34, 35, 44.
98 Secretariat of the Antarctic Treaty, Antarctic Treaty System, Article 1.
99 Rule 43, “The general principles on the conduct of hostilities apply to the natural environment.” 100 Following the wording of Article 52 AP I, in which the distinction principle is codified.
101 Dieter Fleck, The Protection of the Environment in Armed Conflict: Legal Obligations in the Absence of Specific Rules, Nordic Journal of International Law 82, Martinus Nijhoff Publishers, 2013, p.10.
22 prohibits the destruction of the natural environment in general, but it does require that the attack constitutes a military purpose for the damage not to qualify as “wanton”.103
Proportionality:
Even if an attack serves a military purpose, the expected collateral damage should not be excessive compared to the direct military advantage.104 In the Nuclear Weapons Advisory
Opinion, the ICJ stated that: “respect for the environment is one of the elements that go to
assessing whether an action is in conformity with the principles of necessity and proportionality” – acknowledging the applicability to environmental damage.105 The
prohibition to cause excessive damage to the natural environment has also emerged in the content of the Rome Statute as Article 8 8(2)(b)(iv), and as Rule 43C of the ICRC Customary Law study.
Ambituity:
Erik Koppe argues for the identification of a fifth fundamental principle.106 The principle of
Ambituity provides “an absolute limitation to the necessities of war” in the interest of the environment.107 It alters the principle of humanity to the prohibition of excessive collateral
damage to the environment. Koppe suggests that this principle is a pure reflection of AP I’s Article 35(3) and 55 – and can help establish their applicability on sea and in the atmosphere, as well as contribute to their reflection in customary international law.
3.3 Intersectional
The expansion of international law to a multi-regime framework sometimes leads to complications. The intersection between the regimes that cover environmental protection in armed conflict exists foremost of international environmental law, humanitarian law and criminal law. Questions often arise. To what extent do environmental treaties apply in armed conflict? How does ICL function as an enforcement mechanism for IHL provisions? This section will shorty discuss both regimes to the extent that they are relevant for environmental protection in armed conflict.
3.3.1 International Environmental Law
In principle, International Environmental Law is not designed for wartime situations. Many Multilateral Environmental Agreements (MEA’s) even contain specific exemption clauses, in which the convention or agreement has been made inapplicable in armed conflict situations, often in the form of limitation,108 suspension,109 or the immunity of warships.110 The remaining part of the MEA’s include no reference to their applicability in wartime at all – whether this means that for that reason they ought to be inapplicable, is contested.111 UNEP concluded the 103 Bodansky, 2003, p.32.
104 Rule 14.
105 ICJ, Nuclear Weapons, paragraph 140.
106 Erik Koppe, The Principle of Ambituity and the Prohibition against Excessive Collateral Damage to the Environment
during Armed Conflict, Nordic Journal of International Law, Volume 82, 2013, p.53-82.
107 Ibid, p.54.
108 For example, UNCLOS Article 88. 109 OILPOL, Article XIX.
110 MARPOL, Article 3(3).
111 See discussion in Richard Falk, The Inadequacy of the Existing Legal Approach to Environmental Protection, in: The Environmental Consequences of War, 2013, p.137-155.
23 following in their 2009 report: “It appears to be generally accepted that IEL does not automatically terminate with the onset of hostilities. Potential factors influencing whether an MEA remains in force include the original intent of the signatories, the type of MEA and the context in which it was reached.”112
Furthermore, there are many non-binding soft law instruments. For example, the 1982 World Charter for Nature includes the “obligation” that nature shall be secured against degradation caused by hostile activities.113 A similar limitation can be found in Principle 24 of
the Rio Declaration: states ought to respect international law that protects the environment, also in armed conflict.114 Only when provisions like this would crystalize into customary
international law, they could function as enforceable obligations in practice. There are scholars that argue that principles such as the environmental pollution prevention or the right to a healthy environment are already emerging as principles of customary law.115 However, there is little
state practice to substantiate this.
In short, many aspects of IEL are not suitable for wartime dilemmas. Firstly, as concluded by Schmitt: “even when MEA’s are deemed applicable during armed conflict, they cease to be when they become inconsistent with IHL.”116 Secondly, there is almost no state
practice that supports the applicability of environmental law in armed conflict.117 In the 2019
ILC Draft Principles, examined in detail in Section 3.4, no specific reference is made to the applicability of environmental law. Principle 13 seems to stand with the overarching scholarly view, namely: “The natural environment shall be respected and protected in accordance with applicable international law and, in particular, the law of armed conflict.”118
3.3.2 International criminal law
Environmental destruction constitutes a war crime. To meet the threshold of Article 8 (b)(iv) of the Rome Statute, the attack should be intentional, with “the knowledge that such attack will cause widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.” The standard of this article has been critiqued for its fairly unreachable threshold.119 It functions
as an enforcement mechanism for inter alia Article 35 (3) AP I, but requires additionally the attack to be “excessive” to the anticipated military advantage, and demands actual knowledge of the caused damage, not just a reasonable expectation.120 For the purpose of this research, it
will suffice to not go into further detail, however it is important to realize that an individual that committed or has been complicit in the commission of causing very severe environmental harm can only be persecuted under this very high standard of proof.
112 UNEP, 2009, p.47.
113 UNGA, World Charter for Nature, 9 November 1982.
114 UNGA, Rio Declaration on Environment and Development, Principle 24. 115 UNEP, 2009, p.40.
116 Schmitt, 1997, p.38, besides following from Article 73 Vienna Convention on the Law of Treaties. 117 ILC, A/CN.4/674, page 6 under “responses”.
118 ILC, Text and titles of the draft principles provisionally adopted by the Drafting Committee on first reading, A/CN.4/L.937.
119 Julian Wyatt, Law-making at the intersection of international environmental, humanitarian and criminal law: the issue of damage to the environment in international armed conflict, IRRC, Volume 92, Number 879, September 2010, p.639-640. 120 Ibid, p.626.
24 3.4 ILC Draft Articles on Environmental Protection in Armed Conflict
Already in mid 2013, the ILC started drafting Articles on the protection of the environment in armed conflict.121 Today, their list contains 29 draft principles, that were provisionally adapted
on first reading, 8th July last year (2019). The principles are partly a codification of custom,
partly a reflection of existing conventions such as ENMOD and AP I, and partly progressive development.
3.4.1 Purpose and structure
The purpose of the Draft Principles is to offer a framework for environmental protection that covers three phases of armed conflict: pre, during and post.122 As all three phases are included
in the text, the relevant regime is not limited to IHL, resulting in a mixture of human rights law, environmental law, and criminal law. This approach recognizes the intersectionality of conflict, and the timelessness of environmental damage, however, fails to focus on damages that occur
during armed conflict. The distinction between Part Two “General Principles” and Part Three
“Principles applicable during Armed Conflict” is slightly confusing, as it seems as if only Part Three could be applied as lex specialis in armed conflict situations, and this Part does not contain many “new” suggestions, but rather reflects existing norms. Apart from that, the mere existence of the document and the research that has been executed by the Special Rapporteur has contributed greatly to put the topic on the agenda, again, even though the Principles do not involve a specific connection to contemporary global challenges.
3.4.2 Enforcement and Authority
The drafting documents demonstrate a valuable overview of political feasibility for enhancing the protection of nature in times of warfare. The ILC extensively consulted the opinion and practice of States on several issues that relate to environmental protection pre, during and post armed conflict, hereby laying the path for hard law to develop. Despite the non-obligatory character of the Draft Principles, they are helpful in building awareness on the issue, as well as in examining the opportunities and weaknesses of the current framework for protection.
However, the Principles do not have binding authority yet, and are not to be confused with hard law regulations that offer compelling protection during wartime. It would not benefit the environment if these Draft Principles would be accepted by the global community, if they are then followed by disregard and ignorance of the pressing need for unconditional obligations with clear and explicit thresholds – a need that is present, as will be argued in the next Chapter.
121 ILC, A/CN.4/674, 30 May 2014, paragraph 49 and further.
