Protection of the natural environment in time of armed conflict
Contribution of the International Committee of the Red Cross (ICRC) to the Rio Conference, June 1992.
Ever since its inception, international humanitarian law (IHL) has set limits on the right of belligerents to cause suffering and injury to people and to wreak destruction on objects, including the natural environment.
The Declaration of St. Petersburg of 1868 expressed this idea in the following terms:
"the only legitimate object which States should endeavour to accomplish during the war is to weaken the military forces of the enemy...".
Article 35(1) of Protocol I (see point 3 below) gives expression to this fundamental rule as follows:
"In any armed conflict, the right of the Parties to the conflict
to choose methods or means of warfare is not unlimited".
The concept of proportionality also sets important limits on warfare: the only acts of war permitted are those that are pro portional 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.
The rules of IHL have been draw n up to address the specific problems caused by warfare. As such they are applicable as soon as an armed conflict breaks out.
In addition to the rules of law pertaining to warfare, general (peacetime) provisions on the protection of the environment may continue to be applicable. This holds true in particular for the relations between a belligerent State and third parties.
The following paragraphs review the major international legal rules which are relevant to the protection of the environment in time of armed conflict.
2. The Hague Convention respecting the Laws and Customs of War on Land, of 18 october 1907, with the Hague Regulations annexed thereto, and the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949 | the protection of property
In keeping with international law in general, IHL has been slow in recognizing that the environment requires protection by a set of specific rules of law. Thus, the word " environment " does not appear in the Hague Regulations nor in the 1949 Geneva Conventions, and these treaties do not address specific environmental issues.
However, Article 23(g) of the Hague Regulations states that is forbidden "to destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war".
In the event of belligerent occupation, Article 55 of the Hague Regulations and Article 53 of the Fourth Geneva Convention set limits to the discretion of the Occupying Power. The latter rule deserves to be quoted:
"Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or co|operative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations."
Thus an Occupying Power that destroys, for example, industrial installations in an occupied territory and in so doing causes damage to the environment violates the Fourth Convention, if such destruction is not rendered " absolutely " necessary by military considerations. If such destruction is " extensive " , the act becomes a grave breach of that same Convention (Article 147), i.e. a war crime.
The limits discussed in this section do not relate to environmental issues as such but they do protect the environment by prohibiting the destruction of property.
3. Protocol I of 1977 : Protocol additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts | the protection of the environment as such.
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 in relation to human beings who are the principal concern of IHL.
These rules are Articles 35(3) and 55:
Article 35 : Basic rules
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.
2. Attacks against the natural environment by way of reprisals are prohibited.
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) making use of the environment as an instrument of warfare.
Articles 35(3) and 55 prohibit only such damage to the environment as is "widespread, long|term and severe" , thereby making it clear that not all damage to the environment is outlawed. Indeed, in warfare damage to the environment is unavoidable. The point at issue, therefore, is where to set the threshold ?
The question as to what constitutes (prohibited) "widespread, long|term and severe" damage and what is acceptable damage to the environment is open to interpretation. Such interpretation has to take the whole context into account, and will vary with changes in expectations with regard to the general need to protect the environment. Of course, the "travaux préparatoires" have also to be taken into consideration where relevant.
Besides Articles 35(3) and 55, other provisions of Protocol I 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 power stations. Under the title Protection of objects indispensable to the survival of the civilian population, Article 54 prohibits under certain conditions the destruction of, among other things, agricultural areas or irrigation works.
Finally, Article 36 obliges the Parties to Protocol I to determine whether the use of a new weapon about to be developed, tested or acquired would be compatible with international law. Of course, the rules on the protection of the environment are part of that international standard.
In conclusion, the provisions of Protocol I, in particular Articles 35(3) and 55, set up a substantial legal bulwark against destruction of the environment in wartime.
Protocol I has now been accepted by 109 States. Its provisions concerning the protection of the environment are therefore binding international law for the vast majority of States, but not yet for all of them.
4. Other international instruments
A number of other international instruments deal with the protection of the environment in time of war. Without going into details, the following treaties are worthy of mention:
) 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 Military or any other Hostile Use of Environmental Modification Techniques (ENMOD), of 10 December 1976.
This treaty, which was drafted under United Nations auspices, 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 States Party" (Art. 1).
The Convention prohibits damage to the environment resulting from the use of "any technique for changing | through the deliberate manipulation of natural processes | the dynamics, composition or structure of the earth (...)" (Art. 2).
) 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.
Furthermore, all international rules which limit the develop ment, production, testing or use of weapons of mass destruction make a significant contribution to the same objective. And the ongoing negotiations with a view to strengthening the ban on chemical weapons are also worthy of mention.
5. The special case of non|international armed conflict
The international law that protects victims of non|international armed conflict is less well|developed than IHL governing international armed conflict.
Article 3 common to the four 1949 Geneva Conventions does not say anything about protecting the environment from attack in civil war. 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) contains no provis ions directly concerning 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.
6. The question of monitoring
As is the case for any other rule of law, compliance with international provisions relating to the protection of the environment in time of war must be assured. In the event of non|compliance, action must be taken to establish the facts, to redress the wrong and to prevent the recurrence of such violations.
Among the various procedures set up by IHL to guarantee the implementation of its rules, three may be mentioned in this context.
6.1. International Fact|Finding Commission (Protocol I, Article 90)
This Commission has the mandate, in the event of an alleged violation of IHL in the course of an international armed conflict,
) to ascertain the facts, and
) to offer its services to the parties concerned with a view to preventing further violations.
Obviously, the Fact|Finding Commission could render invaluable service should there be wartime damage to the environment.
The Commission's jurisdiction depends on a special declaration of acceptance (Article 90.2). This Commission was established in June 1991. Its juridiction has now been accepted by 27 States.
6.2. Individual penal responsibility
States Part y to the Geneva Conventions and Protocols are bound to take all possible measures to ensure their proper discharge of their obligations in time of war. Among such measures, one of the more important is the adoption of appropriate national rules on penal sanctions.
Although causing widespread, long|term and severe damage to the environment as such is not a grave breach of Protocol I, such acts may be part of a grave breach of other provisions.
6.3. Duties of all States Party to the humanitarian treaties
Article 1 common to the four Geneva Conventions and Protocol I stipulates that States Party are under an obligation " to ensure respect " for the said treaties. This underlines the shared responsibility of all Parties to the Conventions and Protocol I to make sure that humanitarian obligations are implemented by each and every State. The duty to respect the environment in time of war is one of those obligations.
7. Current work
Protecting the environment during armed conflict became a matter of worldwide concern in 1991 and a number of high|level scientific meetings were held to identify the main problems.
This subject was also discussed by the 46th session of the United Nations'General Assembly, in particular under item 140 of its agenda ("Exploitation of the environment as a weapon in time of armed conflict and the taking of practical measures to prevent such exploitation").
Having been assigned by the international community the task of "[working] for the understanding and dissemination of knowledge of international humanitarian law applicable in armed conflicts and [preparing] any development thereof" (Art. 5, para. 2 g of the Statutes of the International Red Cross and Red Crescent Movement) the ICRC has taken an active part in this work and has announced that it is prepared to bring together experts for the purpose of ascertaining the measures that could be taken to ensure protection of the environment during armed conflicts.
The 46th session of the General Assembly took note of the ICRC's readiness to act in this matter and asked the UN Secretary|General to report to the 47th session of the General Assembly on what the ICRC has undertaken (decision A/46/417 of 9 December 1991).
The ICRC therefore organized a meeting of experts to study the content and limits of existing legal rules aimed at protecting the environment during armed conflict and to identify any lacunae.
Over 30 experts (from the military, the scientific community, academia, governments and governmental and non|governmental organizations) accepted the ICRC's invitation and met in Geneva from 27 to 29 April 1992.
The meeting drew up a list of the main subjects requiring study and discussion. They included the following: the function and precise scope of the rules of customary law protecting the environment, interpretation of applicable treaty rules (in particular Art. 35, para. 3, and Art. 55 of Protocol I, and the provisions of the UN Convention on the prohibition of hostile use of environmental modification techniques), the applicability in wartime of international environmental law and problems relating to the implementation of and respect for the applicable rules.
It was not possible to study all these matters in detail but the lively discussions and constructive atmosphere enabled certain conclusions to be drawn. It is worth noting inparti cular that few experts pronounced themselves in favour of new codification; most stressed the need for measures to ensure more complete compliance with existing law and clarification of some of its provisions.
These discussions, on which a detailed report will be submitted to the 47th session of the General Assembly, revealed the extent of such problems and the need to undertake far|reaching measures.
8. Concluding remarks and future prospects
Modern international humanitarian law directly addresses threats to the environment that are specific to warfare. In particular, the 1977 Protocols additional to the Geneva Conventions have made an important contribution to the strengthening of the international rules intended to protect the environment in time of armed conflict. The two 1977 Protocols deserve to be ratified (or acceded to) by all States that have not yet done so.
The true significance of the new law for the preservation of the natural environment in war has yet to be fully grasped. Further studies must be undertaken on the national and international levels, taking into account not only recent experiences with attacks on the environment but also the growing international concern for environmental protection. Practical steps must be worked out with a view to ensuring that parties to an armed conflict comply with the new rules. The drafting of a Handbook of the relevant provisions to remind military commanders of their obligations in this respect might be a first step in ensuring full implementation of the rules on the protection of the environment.
Interpreting and developing international humanitarian law has always constituted one of the ICRC's main activities. Protecting the environment during armed conflicts is a subject that today poses important questions to which effective and realistic answers must be found. The ICRC is prepared to take part in this search and has already announced its intention to organize new meetings of experts on the subject.
Ref. DP (1992)18b