International humanitarian law and sustainable development

 

  Contents:     1. Introduction    |        2. General principles    |        3. Protection of property and specific objects    |        4. Protection of the natural environment    |        5. Other relevant rules    |        6. The special case of non-international armed conflict    |        7. Customary international law    |        8. Practical measures    |        9. Role of the ICRC    |      Notes    
 
 
  1. Introduction 
 

" Warfare is inherently destructive of sustainable development " says Principle 24 of the 1992 Rio Declaration . Actually, armed conflicts can have a long lasting negative impact on most aspects of sustainable development, be it economic growth, health, education or environment. In recent decades, many armed conflicts have involved a wide range of threats to a sustainable development in many countries and societies. The consequences may affect not only belligerents, but also civilians and neutral States; and can sometimes continue long after the end of the armed conflict.

However, international humanitarian law sets limits to the methods and means of warfare. If properly respected, it can therefore significantly contribute to the preservation of sustainable development during armed conflicts. This paper identifies the rules of international humanitarian law, which are especially relevant. It also proposes practical measures to ensure better respects of these rules.

 
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  2. General principles 
 

Ever since its inception, international humanitarian law has set limits on the right of belligerents to cause suffering and injury to people and to wreak destruction on objects, including objects belonging to the environment. It has traditionally been concerned with limiting the use of certain kinds of weapons or means of warfare which continue to do damage even after a war is over, or which may injure people or property of States which are completely uninvolved in the conflict.

This fundamental rule is expressed in the 1977 Additional Protocol I to the Geneva Conventions of 1949 as follows:

 "In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited" [1 ] .  

Additional Protocol I codified another basic long-standing rule of international humanitarian law: the principle of distinction .

“In order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.” [2 ]

The concept of proportionality also sets important limits on warfare: the only acts of war permitted are those that are proportional to the lawful objective of a military operation and actually necessary to achieve that objective.

These fundamental rules are now part of customary international law, which is binding on the whole community of nations. They are also applicable to the protection of the environment against acts of warfare. There is a general interest - going well beyond that of the parties to the conflict themselves - in preserving the environment. Even in time of armed conflict, the belligerents should take this general interest into account when selecting methods and means of warfare.

The following paragraphs review the major international legal rules, which are relevant to the mitigation of destructive effects of armed conflict on sustainable development.

 
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  3. Protection of property and specific objects    
 

International humanitarian law protects civilian objects against direct attacks [3 ] . Since its first codification in 1864, a detailed law has developed conferring special protection to specific objects . In the context of sustainable development the rules relatin g to the protection of

· hospitals, medical establishments [4 ] ,

· institutions dedicated to religion, charity and education [5 ] ,

· objects indispensable to the survival of the civilian population, such as food-stuffs, agricultural areas for the production of food-stuffs, crops, livestock, drinking water installations and supplies and irrigation works [6 ] ,

· works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations [7 ] , as well as

· cultural property [8 ]

are particularly important. Additionally, in occupied territory, the Occupying Power must not destroy real or personal property belonging to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, except where such destruction is rendered absolutely necessary by military operations (Article 53 of the fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 1949). Article 147 of the fourth Geneva Convention defines extensive destruction and appropriation of protected property, not justified by military necessity and carried out unlawfully and wantonly, as a grave breach requiring penal proceedings against the perpetrators .

 
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  4. Protection of the natural environment    
 

Like the rest of international law, international humanitarian law has been slow in recognizing that the environment requires protection by a set of rules of law specific to it. Thus, the word " environment " does not appear in the Hague Regulations or in the 1949 Geneva Conventions, and none of those treaties addresses specific environmental issues. However, under the 1907 Hague Regulations it is forbidden " to destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war " [9 ] . It is true, this rule does not relate to environmental issues explicitly, but it does protect the environment by prohibiting the wanton or unjustified destruction of property . Further rules of a like nature may be found in the 1907 Hague Regulations and the fourth Geneva Convention, for example the above mentioned Articles 53 and 147.

The 1977 Additional Protocol I includes two provisions which deal directly with the dangers that modern warfare represents for the environment . They protect the environment as such, although they do so in relation to human beings, who are the principal concern of international humanitarian law.

Those rules are Article 35 (3) and Article 55.

Article 35 - Basic rules

" 3. 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. "

Article 55 - Protection of the natural environment

" 1. Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage . This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population. "

Article 35 sets out the general rule applicable to all acts of warfare, whereas Article 55 is intended to protect the civilian population from the effects of warfare on the environment. In both cases the following are prohibited: (a) attacks on the environment as such, and (b) using the environment as an instrument of warfare.

Because Protocol I, as at present interpreted, does not necessarily cover all cases of damage to the environment and because not all States are party to it, the earlier conventional and customary rules, especially those of The Hague (1907) and Geneva (1949), continue to be very important.

Besides Article 35 (3) and Article 55, other provisions of Additional Protocol I , which have been mentioned before, touch incidentally on the protection of the environment in armed conflict . In particular, Article 56 deals with the danger to the environment resulting from the destruction of dams, dykes or nuclear electrical generating stations . Under the heading " Protection of objects indispensable to the survival of the civilian population " , Article 54 prohibits in certain circumstances the destruction of, among other things, agricultural areas or irrigation works . Articles 52 ( " General protection of civilian objects " ) and 57 ( " Precautions in attack " ) have also an important bearing on the protection of the environment.

 
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  5. Other relevant rules    
 

A number of other international instruments have a direct bearing on the protection of the environment, particularly important objects and vital infrastructure in time of armed conflict. Without going into detail, the following treaties should be mentioned:

  • Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, of 17 June 1925.

  • Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction, of 10 April 1972.

  • Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, of 13 January 1993. This Convention should play a most important role, considering the fact that some chemical weapons may have very long-lasting, widespread and severe effects.

  • Convention for the Protection of Cultural Property in the Event of Armed Conflict, of 14 May 1954 and its second Pro tocol of 26 March 1999.

  • Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques ( " ENMOD Convention " ), of 10 December 1976.

The last-mentioned Convention, which was drafted under the auspices of the Committee on Disarmament, is intended to prohibit military or any other hostile use of " environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party " (Article I).

The Convention is thus primarily concerned with prohibiting the use of the forces of the environment as weapons. In so doing, of course, it inevitably outlaws damage to the environment resulting from the use of such methods of warfare.

  • Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects, of 10 October 1980.

This Convention was concluded under United Nations auspices and is intended, as its name implies, to prohibit or restrict the use of certain weapons. To date, it has four annexed protocols dealing with (a) non-detectable fragments, (b) mines, booby-traps and other devices, (c) incendiary weapons, and (d) blinding laser weapons. The second and third of these should make a useful contribution to protecting the environment in time of armed conflict.

  • Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, of 18 September 1997 (Ottawa Treaty).

This latter convention together with the Amended Mines Protocol annexed to the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons should limit the unacceptable effects of landmines, in particular anti-personnel landmines. The ICRC has always fully supported the opinion that anti-personnel landmines may be one of the most widespread, lethal and long-lasting forms of pollution the world has yet encountered. Indeed, these weapons render large tracts of land dangerous to both humans and animals alike and unusable for habitation or agriculture for decades after the end of conflicts. This in turn intensifies the overuse and environmental degradation of remaining available land. The denial of access to land and river areas often results in significant economic disruption, increased hunger and disease in the countries affected.

  • Rome Statute of the International Criminal Court, of 17 July 1998.

This treaty defines as a war crime inter alia “intentionally launching an attack in 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. In addition, destruction of or attacks on most of the objects mentioned under section 2. above also constitute war crimes.

Furthermore, all other international rules limiting the development, production, testing or use of weapons of mass destruction make a significant contribution to the protection of the environment in time of armed conflict.

 
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  6. The special case of non-international armed conflict    
 

The rules protecting the victims of non-international armed conflict are less well developed than those governing international armed conflict.

Article 3 common to the four Geneva Conventions of 1949 does not say anything about protecting specific objects or the environment during civil wars; it addresses only humanitarian issues in the strictest sense.

The Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), of 1977, protects some specific objects, but does not contain any provision relating explicitly to the environment . However, Article 14, on the protection of objects indispensable to the survival of the civilian population , has a direct impact on warfare and the environment, with its prohibition of attacks on agricultural areas, irrigation works, etc.

The same applies to Article 15, which protects "works and installations containing dangerous forces" . These two provisions are applicable in the event of non-international armed conflict, their scope and content being very similar to those of Articles 52, 54 and 56 of Protocol I, applicable in international armed conflicts.

In addition medical establishments and transports [10 ] , as well as cultural property and places of worship [11 ] are particularly protected.

Some of the treaties mentioned under 4 are also relevant in non-international armed conflicts, in particular the following.

  • Convention for the Protection of Cultural Property in the Event of Armed Conflict, of 14 May 1954 and its second Protocol of 26 March 1999.

  • Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, of 13 January 1993.

  • The amended mines protocol of 3 May 1996 annexed to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons.

  • Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on their Destruction, 18 September 1997 (Ottawa Treaty).

 
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  7. Customary international law    
 

The fact that the treaties mentioned under 3., 4. and 5. have not yet been universally ratified is an impediment to full protection of property/specific objects and the environment in times of armed conflict. Most importantly, to the Convention on the Prohibition of Military or Any Hostile Use of Environmental Modification Techniques presently 68 States have adhered, to Protocol I Addi tional to the 1949 Geneva Conventions 159 States, to Protocol II Additional to the 1949 Geneva Conventions 152 States, to the Convention on Certain Conventional Weapons and its Protocols II as amended and III on Mines, Booby-Traps and other Devices and on Incendiary Weapons 65, 81 States respectively, and to the Ottawa Treaty 125 States. However, it should be stressed that the above mentioned objects (see section 2.) and property as well as the environment are also protected – directly or indirectly – by a strong body of customary international law , which binds all States, independently of whether they have ratified or not the before-mentioned treaties. The ICRC is currently about to finalize its study on customary international law, which will identify in more detail the applicable rules.

 
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  8. Practical measures    
 

Leaving aside the importance of humanitarian assistance during and after an armed conflict for sustainable development, which is not subject of this paper, there are a number of measures stemming from international humanitarian law, which should be taken in peacetime and in times of armed conflict in order to reduce the destructive impacts of armed conflicts on sustainable development .

Especially efforts should be undertaken to better respect and ensure respect for the rules of international humanitarian law , which aim at protecting objects indispensable of the survival of the civilian population, the natural environment, either against attacks on the environment as such or against wanton destruction causing serious environmental damage, cultural property, places of worship, and civilian objects in general. This may be achieved in particular

  • by spreading as widely as possible knowledge of the underlying humanitarian principles and the relevant rules, including through educational programs [12 ] ;

  • by integrating the teaching of international humanitarian law in the regular training of armed forces;

  • by taking into account the protection of these objects and goods when assessing the military advantages to be expected from a military operation, and

  • by ensuring implementation and enforcement of all relevant Conventions of International Humanitarian Law.

In addition, efforts to mitigate the long-term consequences of armed conflicts caused by the use of landmines and by unexploded ordnance (explosive remnants of war) should be made

  • by strictly adhering to the applicable rules of international humanitarian law, in particular the amended Mines Protocol to the 1980 Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons (CCW)) and 1997 Ottawa Treaty; and

  • by participating actively in the work of government experts established by the second Review Conference of the CCW of December 2001, which are currently addressing the issue of explosive remnants of war, with a view to starting negotiations on a new Protocol on explosive remnants of war early 2003.

 
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  9. Role of the ICRC    
 

The ICRC is a neutral and independent humanitarian institution, the main mission of which is to provide assistance and protection to the victims of armed conflict. The international community has given it a number of precisely defined mandates in the Geneva Conventions and Additional Protocols thereto. Its role in monitoring the implementation of international humanitarian law does indeed include aspects related to the preservation of sustainable development . The major challenge facing international humanitarian law today is implementation. There is a particularly blatant contrast between the highly developed rules of international humanitarian law, many of which enjoy almost universal acceptance, and their repeated violations in conflicts around the world. The ICRC, therefore, focuses its efforts on various aspects of implementation : namely, improving national implementation through training of military personnel, incorporation of international norms into national law , and ensuring respect by repressing violations of international humanitarian law. This multi-faceted approach has also been followed with regard to those rules of international humanitarian law that offer protection to the environment.

With the assistance of the experts consulted, the ICRC developed - as a follow-up of the Rio summit - guidelines for military manuals and instructions on the protection of the environment in times of armed conflict . The Guidelines have been published as an annex to UN Doc. A/49/323 (1994) [13 ] . Without formally adopting these guidelines, the General Assembly has invited all States " to disseminate widely " the Guidelines developed by the ICRC and " to give due consideration to the possibility of incorporating them into their military manuals and other instructions addressed to their military personnel. " [14 ] . Subsequent efforts have been made to spread knowledge of these Guidelines, concentrating in particular on helping States to promote broad circulation of their content and to consider the possibility of incorporating them in their respective military instruction manuals, as invited by General Assembly Resolution 49/50 of 9 December 1994.

The Guidelines are a tool for making the existing international legal rules on the protection of the natural environment in times of armed conflict better known to those who must comply with them in the course of military operations, namely the members of the armed forces. It should be born in mind however that there is a need for States to slightly complement these guidelines because other treaties of international humanitarian law mentioned above, in particular relating to the use of landmines, were adopted and entered into force since the drafting of the guidelines.

 
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  Notes    
 

1. Art. 35 (1) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 1977 (in the following: Additional Protocol I), restating Article 22 of the Hague Regulations of 1907.

2. Art. 48.

3. Art. 52 of Additional Protocol I.

4. See the detailed rules in the first, second and fourth Geneva Conventions as well as in Additional Protocol I.

5. See for example Article 56 of the 1907 Hague Regulations.

6. Art. 54 of Additional Protocol I.

7. Art. 56 of Additional Protocol I.

8. See the 1907 Hague Regulations, the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict and Article 53 of Additional Protocol I.

9. Art. 23 (1)(g).

10. Art. 11 of Additional Protocol II.

11. Art. 16 of Additional Protocol II.

12. Each State party to for example the Geneva Conventions or to their Addit ional Protocols must ensure that the text of these treaties is disseminated as widely as possible throughout its territory in both peacetime and wartime. States must, inter alia, incorporate study of the subject into their programs of military and, if possible, civilian instruction.

13. They are reprinted in 311 International Review of the Red Cross pp. 230-237 (1996) which is also available on the ICRC web site
 

14. GA Res. 49/50 on the United Nations Decade of International Law (9 Dec. 1994).