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Commentary - Protection of the natural environment
    [p.661] Article 55 -- Protection of the natural environment

    [p.662] 2124 As we have said before, one of the great merits of the Diplomatic Conference is that it condemned methods of total warfare: the prohibition of starvation is followed by this prohibition on causing damage to the natural environment. (1)

    2125 Once again, this is a new feature. Respect for the environment, even in peacetime, has only recently become a matter of concern, (2) but today it is foremost in the conscience of nations. Threatened at all times by natural disasters, such as drought, or human scourges such as pollution, what would become of mankind if in time of conflict, wilful destruction resulting from man's ruinous actions were added to all this?

    2126 The concept of the natural environment should be understood in the widest sense to cover the biological environment in which a population is living. It does not consist merely of the objects indispensable to survival mentioned in Article 54 ' (Protection of objects indispensable to the survival of the civilian population) ' -- foodstuffs, agricultural areas, drinking water, livestock -- but also includes forests and other vegetation mentioned in the Convention of 10 October 1980 on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, (3) as well as fauna, flora and other biological or climatic elements.

    2127 On 10 December 1976 the United Nations General Assembly approved the text of the Convention on the Prohibition of Military or any Other Hostile Use of Environmental Modification Techniques. The following definition is contained in Article 2 :

    "[...] the term environmental modification techniques refers to any technique for changing -- through the deliberate manipulation of natural processes -- the dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere, and atmosphere, or of outer space."

    2128 The protection of the environment was already dealt with in Article 35 ' (Basic rules), ' paragraph 3, of this Protocol and we refer to the commentary on that article.

    Paragraph 1

    2129 The ICRC draft did not contain provisions aimed at safeguarding the environment specifically, although several of the articles proposed, in calling for general protection, implied respect for natural resources and, in particular, for objects indispensable to the population.

    [p.663] 2130 However, several delegations considered that this concern should be mentioned explicitly in a separate provision. As a result two proposals were put forward. (4) The Working Group of Committee III, to which these amendments were referred after a debate in Committee, drew up a text which finally became Article 55 after being adopted by consensus by the Committee and in plenary. (5)

    2131 The text drawn up by the Working Group contained in the first paragraph the words "to such a degree as to disturb the stability of the ecosystem". Committee III decided to delete these words. On the other hand, it decided to retain the second part of the phrase "health or", though a proposal had been made to delete it. (6)

    2132 The Conference had also been presented with similar proposals with regard to Article 33 (the present Article 35 -- ' Basic rules '); they were examined at the same time as those which resulted in Article 55 . Finally, on the basis of the report of its Working Group, (7) Committee III decided to adopt the two articles proposed. (8) According to the report of the Working Group, the use of the same words, "widespread, long-term and severe damage", ensures that the two provisions are coherent.

    2133 While Article 35 ' (Basic rules) ' broaches the problem from the point of view of methods of warfare, Article 55 concentrates on the survival of the population, so that even though the two provisions overlap to some extent, and their tenor is similar, they do not duplicate each other. (9) It will be noted that the text begins with the words "care shall be taken in warfare to protect the natural environment". To some extent this formula seems to reduce the effect of the provision by allowing some latitude of judgment. However, the second sentence of the paragraph refers explicitly to a ' prohibition, ' which strengthens the provision. Moreover, that sentence emphasizes the duty incumbent upon Parties to be vigilant. It should be noted that the expression "care shall be taken" is not used in Article 35 ' (Basic rules), ' paragraph 3, which is therefore more stringent. On the other hand, it is used in Article 57 ' (Precautions in attack), ' paragraph 1.

    2134 It will also be noted that the population is mentioned without the use of the qualifying adjective "civilian", the way in which the expression is used in many other articles in the Protocol. According to the report of Committee III, this omission is deliberate; it serves to emphasize the fact that damage caused to the environment may continue for a long time and affect the whole population without any distinction. (10)

    2135 The word "health" is used to indicate that the provision is concerned not only with acts which jeopardize the survival of the population, but also with those which could seriously prejudice health, such as congenital defects, degenerations [p.664] or deformities. Temporary or short-term effects are not taken into account in the prohibitions laid down in this article. (11)

    2136 In the final debate several delegations indicated that in their opinion the words "widespread, long-term and severe" do not have the same meaning in the Protocol as the corresponding words in the Convention on the Prohibition of Military or any Other Hostile Use of Environmental Modification Techniques. (12)

    2137 One delegation stressed that in its opinion the article clearly prohibited all forms of ecological warfare. (13)

    2138 Finally, mention should be made of the efforts made during the Diplomatic Conference with regard to the protection of natural resources. The Working Group of Committee III submitted a draft Article 48 ter which was as follows:

    "' Article 48 ter '
    Publicly recognized nature reserves with adequate markings and boundaries declared as such to the adversary shall be protected and respected except when such reserves are used specifically for military purposes." (14)

    2139 This proposal was not unanimously accepted in the Working Group (15) and did not meet with a very enthusiastic response in Committee III. The report of that Committee on its second session mentions its referral to the Working Group (16) but since then the Offical Records of the Conference have remained silent on this draft article, which is not contained in the final text of the Protocol.

    Paragraph 2

    2140 This provision specifies that attacks against the environment made by way of reprisals are also prohibited.

    2141 In this respect we refer to the commentary on Article 51 ' (protection of the civilian population), ' paragraph 6. On the general problem of reprisals, reference can be made to the introduction to Part V, Section II (infra, p. 981).

    ' C.P./J.P. '

    NOTES$ (1) [(1) p.662] See G. Herczegh, "La protection de l'environnement naturel et le droit humanitaire", and A. Kiss, "Les Protocoles additionnels aux Conventions de Genève de 1977 et la protection des biens de l'environnement", in ' Studies and Essays in Honour of Jean Pictet, ' op. cit., p. 725 and p. 181 respectively;

    (2) [(2) p.662] The ecological concerns expressed previously by isolated but prophetic thinkers were recognized at an international level in 1972 (Stockholm Declaration). The massive use of defoliants during the war in Viet Nam is not unrelated to this;

    (3) [(3) p.662] In its Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons, Art. 2, para. 4;

    (4) [(4) p.663] O.R. III, pp. 220-221, CDDH/III/60 and CDDH/III /64;

    (5) [(5) p.663] O.R. XIV, p. 406, CDDH/III/SR.38, para. 17; O.R. VI, p. 209, CDDH/SR.42, para. 28;

    (6) [(6) p.663] O.R. XIV, pp. 405-406, CDDH/III/SR.38, paras. 16-17;

    (7) [(7) p.663] O.R. XV, p. 358, CDDH/III/275;

    (8) [(8) p.663] O.R. XIV, pp. 404-406, CDDH/III/SR.38, paras. 7 and 16-17;

    (9) [(9) p.663] Cf. commentary on Art. 35, where these problems are studied in detail, as well as the relationship between the Protocol and the Convention on the Prohibition of Military or any Other Hostile Use of Environmental Modification Techniques (supra, pp. 410-420);

    (10) [(10) p.663] O.R. XV, p. 360, CDDH/III/275;

    (11) [(11) p.664] Ibid., p. 281, CDDH/215/Rev.1, para. 82;

    (12) [(12) p.664] O.R. VI, pp. 208-209, CDDH/SR.42, paras. 20-21 and 25-27; p. 219, ibid., Annex (Argentina). See also supra, note 9;

    (13) [(13) p.664] Ibid., p. 228, CDDH/SR.42, Annex (Hungary);

    (14) [(14) p.664] CDDH/III/276 (this draft article is not contained in the Official Records);

    (15) [(15) p.664] O.R. XV, p. 358, CDDH/III/275;

    (16) [(16) p.664] O.R. XIV, pp. 406-407, CDDH/III/SR.38, paras. 18-27; O.R. XV, p. 266, CDDH/215/ Rev.1, para. 16;