Protection of the environment in time of armed conflict
Report submitted by A. Bouvier, ICRC, to the 47th session of the United Nations General Assembly.
On 9 December 1991, the United Nations General Assembly concluded its deliberations on item 140 of its agenda ( " Exploitation of the environment as a weapon in times of armed conflict and the taking of practical measures to prevent such exploitation " ) with the adoption of decision 46/417, which reads as follows:
" The General Assembly :
(a) Takes note that the protection of the environment in times of armed conflict is to be addressed at the Twenty-Sixth International Conference of the Red Cross and Red Crescent;
(b) Decides to request the Secretary-General to report to the General Assembly at its forty-seventh session on activities undertaken in the framework of the International Red Cross with regard to that issue;
(c) Also decides to include in the provisional agenda of i ts forty-seventh session the item entitled'Protection of the environment in times of armed conflict'" .
The international community has given the International Committee of the Red Cross a mandate " to work for the understanding and dissemination of knowledge of international humanitarian law applicable in armed conflicts and to prepare any development thereof " (Art. 5, para. 2(g), of the Statutes of the International Red Cross and Red Crescent Movement), and the ICRC has declared itself ready to undertake work aimed at protecting the natural environment in wartime. It is also prepared to submit the results of its work to the 47th session of the General Assembly. The present report has thus been drawn up in response to the request contained in paragraph (b) of the decision quoted above.
The present report begins by recalling the main provisions of existing law (I). It then goes on to list the results of the principal activities carried out recently by various organizations (II) or under ICRC auspices (III). Section IV describes the ICRC's position on issues related to protection of the natural environment in time of armed conflict, and section V discusses what remains to be done in the future.
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, incl uding objects belonging to the natural 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.
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 war is to weaken the military forces of the enemy (...) " .
Article 35, para. 1, of Protocol I (see point 3 below) expresses 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 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.
The rules of IHL have been drawn 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 States.
The following paragraphs review the major international legal rules which are relevant to the protection of the environment in time of war.
Like 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 or in the 1949 Geneva Conventions, and none of those treaties addresses specific environmental issues. However, Article 23(g) of the Hague Regulations states that it 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, as far as the destruction of property is concerned. 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 insta llations 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 (Art. 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 wilful or unjustified destruction of property.
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 IHL.
These rules are Articles 35, para. 3, and 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
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) using the environment as an instrument of warfare.
Articles 35, para 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, damage to the environment is unavoidable in war. The point at issue, therefore, is where to set the threshold.
The question as to what constitutes " widespread, long-term and severe " damage and what is acceptable damage to the environment is open to interpretation. There are substantial grounds, including from the travaux préparatoires of Protocol I, for interpreting " long term " to refer to decades rather than months. On the other hand, it is not easy to know in advance exactly what the scope and duration of some environmentally damaging acts will be; and there is a need to limit as far as possible environmental damage even in cases where it is not certain to meet a strict interpretation of the criteria of " widespread, long-term and severe " . Because Protocol I, as at present interpreted, does not necessarily cover all cases of damage to the environment, the earlier rules, especially those of the Hague 1907 and Geneva 1949, continue to be very important.
Besides Articles 35, para. 3, and 55, other provisions of Protocol I touch incidentally on protection of the environment in armed conflict. In particular, Article 56 deals with the danger t o 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 environnement.
Finally, Article 36 obliges the parties to Protocol I to determine whether the acquisition, development or use of a new weapon would be compatible with international law. Of course, the rules on the protection of the environment are to be taken into account during this assessment.
In conclusion, the provisions of Protocol I usefully supplement earlier principles and rules of IHL, and contain some important rules prohibiting a wide range of acts destructive of the environment in time of armed conflict.
At present, 113 States are parties to Protocol I. Its provisions on environmental protection are therefore binding international law for the majority of States, but not yet for all of them.
A number of other international instruments have a direct bearing on 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 Convention " ), of 10 December 1976.
This treaty, which was drafted under the auspices of the Committee on Disarmament and the United Nations, 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 " (Art. 1).
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. It has three annexed protocols dealing with (a) non-detectable fragments, (b) mines, booby-traps and other devices, and (c) incendiary weapons. The second and third of these should make a useful contribution to protecting the environment in time of armed conflict.
Furthermore, all international rules limiting the development, production, testing or use of weapons of mass destruction make a significant contribution to that same objective. Special mention should be made of the draft Chemical Weapons Convention drawn up under the auspices of the Conference on Disarmament.
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 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) contains no provisions relating directly 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 " . Other legal provisions regarding the environment, for examples rules of general or bilateral international treaties, are likely to remain applicable to a state in which there is an internal conflict.
The treaties of international humanitarian law provide various mechanisms - some of them very complex - for implementing their substantive provisions. Among these mechanisms we mention the following: (1) the system of Protecting Powers; (2) the Intern ational Fact-Finding Commission; (3) specific functions assigned to the ICRC to interpret and monitor the implementation of international humanitarian law; (4) the obligation to " ensure respect for " that law; (5) the principle of individual penal responsibility; (6) the obligation of States to ensure that the provisions of the Geneva Conventions and their Additional Protocols are known as widely as possible.
In addition, other international institutions and treaties bearing on environmental issues have their own monitoring and implementation mechanisms, which may be important in dealing with a wide range of cases of environmental damage.
Under the 1949 Conventions and their Additional Protocols, the role of Protecting Powers is to attend to the implementation of the provisions of those treaties and to safeguard the interests of the Parties to a conflict and of their nationals on enemy territory.
This Commission has the mandate, in the event of an alleged violation of IHL during 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, this Commission could render invaluable service should there be wartime damage to the environment in time of armed conflict.
The Commission's competence depends on a special declaration of acceptance (Art. 90, para. 2). Twenty-nine States have no w made that declaration, and the Commission was constituted in June 1991.
The ICRC is a neutral and independent humanitarian institution the mission of which is to provide assistance and protection to the victims of armed conflict. The international community has given it a number of mandates that are precisely defined in the Geneva Conventions. The institution thus may find itself acting as a substitute for Protecting Powers. It also has a recognized right of initiative that assigns it a role in monitoring the implementation of international humanitarian law.
Article 1 common to the four Geneva Conventions and to Protocol I stipulates that the Contracting States are under an obligation " to ensure respect for " those treaties. This emphasizes the shared responsibility of all Parties to the Conventions and Protocol I to make sure that humanitarian obligations are met by each and every State, in particular by the States parties to an armed conflict. The duty to protect the natural environment in time of armed conflict is one of those obligations.
The States party to the Geneva Conventions and their Additional Protocols are required to take all possible measures to ensure that their obligations are properly discharged in time of war. One of the most important of these measures is the adoption of provisions at the national level for penal sanctions.
1949 Geneva Convention IV, Article 147 (and similar articles in Conventions I and II) establish clearly that unjustified destruction of property is a war crime. Although causing widespread, long-term and severe damage to the environment is not as such a grave breach of Protocol I, it may be part of grave breach of other provisions.
Each State party to the Geneva Conventions or to their Additional Protocols must ensure that the text of these treaties is disseminated as widely as possible throughout its territory in both peacetime and wartime. The States must inter alia incorporate study of the subject into their programmes of military and, if possible, civilian instruction.
Much important work was undertaken in the early 1970s in connection with protecting the environment in time of whom conflict. The ICRC participated actively in this process, which led to the adoption of the main international rules governing this area, in particular, the " ENMOD " Convention, Articles 35, para. 3, and 55 of Additional Protocol I of 1977, and certain provisions of the 1980 Convention to prohibit or restrict the use of certain conventional weapons. In subsequent years, there was little discussion on the protection of the environment in time of armed conflict, although certain conflicts had caused serious environmental damage, due in particular to the large-scale and indiscriminate use of mines, the bombing and shelling of whom areas and attacks on oil-producing installat ions, resulting in severe pollution.
The need to protect the natural environment in time of armed conflict was brought home to the world suddenly and tragically during the Gulf conflict in 1990-1991. In the months that followed that conflict, the ICRC took part in a number of meetings and symposiums held to discuss the question whether existing law offers an adequate response to environmental disasters (1).
This is not the place for a detailed discussion of those meetings (on which complete reports have been published). It is nevertheless necessary to briefly recall their main conclusions and the principal questions they defined.
Generally speaking, the idea of creating an entirely new body of international rules for the protection of the environment was ruled out. Most experts insisted on the importance of existing law (see section I) while acknowledging that there are a number of gaps in the rules currently applicable. The first step, therefore, is to ensure that even more States accede to or ratify existing treaties, that they observe their existing obligations and, at the same time, enact coordinate domestic legislation.
The content of this body of law has been discussed on many occasions. These discussions show that protection of the environment in time of armed conflict is not provided for only by specific existing rules on this subject (see section I) but that other international rules also make a contribution, for example certain fundamental principles of humanitarian law - whether treaty-based or customary - the rules of international environmental law and certain rules governing international responsibility.
Close attention was also paid to the implementation of existing law. Emphasis was laid on a number of means of encouraging proper implementation. Particular mention was made of dissemination, i.e. measures to make the law as widely known as possible, a nd the very useful role that could be played by the International Fact-Finding Commission, the recently constituted body provided for by Article 90 of Protocol I.
It was felt that while a new body of codified law on the subject would not be justified, there was nevertheless a need to develop or clarify existing law to deal with certain issues such as:
(a) harmonization of the interpretation of the specific provisions of the " ENMOD " Convention and Protocol I of 1977;
(b) the simultaneous applicability of the rules of international environmental law and humanitarian law;
(c) determining what body of law is applicable between a belligerent and States which are not party to the conflict but are nevertheless affected by means of warfare harmful to the natural environment;
(d) the need to do more to protect the natural environment as such and to find better ways of preventing damage to the environment in time of armed conflict.
The General Assembly also dealt with this question at its 46th session. As a detailed report was drawn up by the Secretary-General on the Assembly's work in this area, there is no need to mention it here except to recall decision 46/417, which was adopted by the Assembly on 9 December 1991 and the text of which appears at the beginning of the present report.
Finally, problems relating to environmental protection in time of armed conflict were also discussed at the United Nations Conference on Environment and Development. These discussions led to the adoption of several texts relating to protection of the environment in time of armed conflict.
Among them one should mention paragraph 39.6 of Agenda 21 which states: " Measures in accordance with international law should be considered to address, in times of armed conflict, large-scale dest ruction of the environment that cannot be justified under international law. The General Assembly and the Sixth Committee are the appropriate forums to deal with this subject. The specific competence and role of the International Committee of the Red Cross should be taken into account. "
To discharge the mandate assigned to it by the General Assembly in its decision 46/417, the ICRC convened a meeting of experts to study the problem of protecting the environment in time of armed conflict. The meeting, which was held in Geneva from 27 to 29 April 1992, brought together over 30 experts from the armed forces, the scientific community, academic circles and governments as well as representatives of governmental and non-governmental organizations. All were invited on a personal basis.
The goals of the meeting were as follows:
1. to define the content of existing law;
2. to identify the main problems involved in implementing this law;
3. to identify any gaps in existing law;
4. to determine what should now be done in this area.
The preparatory reports sparked an initial general debate during which the participants examined whether or not the rules of international environmental law are applicable in time of armed conflict. Most concluded that they could be presumed to be applicable at least to a certain extent, insofar as they do not contain specific disclaimer, but that further research on this question was necessary.
The importance and relevance of the currently applicable rules (whether of treaty-based or customary international humanitarian law, environmental law, or rules based on the principles of public international law governing international responsibility) were clearly reaffirmed, as was the need to make them more widely known, in particular by means of handbooks expressly drawn up for members of the armed forces.
The participants also concluded that there was a need to clarify certain aspects of applicable law and to look for ways of protecting the natural environment in time of non-international armed conflict.
Finally, there was large support for the proposal made by some among them to protect - subject to conditions that remain to be set - nature reserves, which could be likened to demilitarized zones or other protected areas.
The participants then went on to draw up a list of the most important matters requiring study. There was not enough time to deal with everything on the list but conclusions were nonetheless reached on some of them. While these conclusions cannot be considered final, they are very useful.
The following is a summary of the discussions that took place on specific issues of this list.
1. The notion of the global interest of the international community as a whole for the protection of the environment in the provisions of nternational Humanitarian Law (IHL).
The experts concluded that there was a general interest - going well beyond that of the parties to the conflict themselves - in preserving the natural environment. Even in time of armed conflict, this general interest should be taken into account by the belligerents when selecting methods and means of warfare.
2. Balance between protection of the environment and military necessity (including the principle of proportionality) : need for specific provisions or clarifications.
In reply to this second question, the participants stressed the need to take environmental protection into account when assessing the military advantages to be expected from an operation. They reaffirmed the importance and relevance with regard to environmental protection of the accepted principles concerning the conduct of hostilities. These include:
- the prohibition of actions causing damage which is not warranted by military necessity;
- the obligation when possible to choose the least harmful means of reaching a military objective;
- the obligation to respect proportionality between the military advantage expected and the incidental damage on the environment
3. Rules of customary international law (including those of Protocol I)
The importance of customary rules was recognized by all. Indeed, some participants even felt that these rules were the key to protecting the
environment in time of armed conflict as they prohibited attack on the environment as such. However, some expressed doubt about the customary nature of certain provisions of Protocol I of 1977.
4. Relationship between IHL and international environmental law (regional and universal regulations); similarity with the relationship between IHL and Human Rights Law ?
a) between a State non Party to the conflict and belligerents;
b) between belligerents.
The relationship between international environmental law and humanitarian law was closely studied. Echoing what had been said during
the general debate, experts expressed the opinion that the instruments of international environmental law remained or should remain largely applicable in periods of armed conflict. There was a need, they felt, for each of the main treaties of en vironmental law to be studied with this in mind. They also recommended that whenever feasible any new treaty adopted in this area should contain a provision specifically stipulating that it was applicable in time of armed conflict. The participants went on to remark that there was a certain analogy between the implementation in time of conflict of human rights law and of environmental law. They thus accepted that the applicability of certain provisions of environmental law could be suspended in time of conflict but that the most important among them (comparable to the " hard core " provisions of human rights law) must be complied with in all circumstances.
5. Role of the Martens clause in the protection of the environment
The Martens clause states that in cases not covered by the specific provisions, civilians and combatants remain under the protection and authority of the principles of international law derived from established customs, from the principles of humanity and from the dictates of public conscience. The experts recognized that this clause could indeed make a very useful contribution to protecting the environment in times of armed conflict.
6. Interpretation and relations of the rules of Protocol I and ENMOD
The participants recalled the respective raisons d'être of those provisions of Protocol I and the 1976 Convention on environmental modification techniques. Some felt the need to ensure that the terms employed in these two treaties would be interpreted in the same way. However, neither the legal nor the procedural means of accomplishing this task has yet been found.
Other considerations dealt with in a preliminary fashion included:
7. Acceptability of self inflicted damages to the environment; scorched earth policy and use of the environment for its own protection and on its own territory
8. Protection of the environment in sea warfare. Influence of the general law at sea
9. When should damages to the environment be qualified as " grave breaches " ? State responsibility and compensation
10. Applicability of the principle of precaution to the protection of the environment in time of armed conflict
11. Influence of the protection of the environment in the interpretation and in the drafting of legal instruments limiting or prohibiting the use of specific weapons; influence in the development of new weapons (art. 36, P. I)
12. Protection of the environment in time of non international armed conflict : content and scope of applicable law; difference with the provisions applicable in international armed conflict
13. Means to ameliorate the implementation of the rules on the protection of the environment: " Green Cross " ; " Green helmets " ; role of the ICRC; protected areas; dissemination, instruction and military Manuals; possible role of the International Fact-Finding Commission;
mechanisms for the settlement of disputes, further means
Finally, the experts encouraged the ICRC to carry on its work to clarify and, where necessary, develop the rules to protect the natural environment in time of armed conflict.
The ICRC agrees to a great extent with the initial conclusions reached in the various meetings of experts organized in recent months.
It has reservations about proposals to undertake a new process of codification of the rules protecting the en vironment in time of armed conflict. For one thing, the ICRC feels that the result would be of dubious value and could even be counter-productive. Moreover, the institution believes that if several aspects of the existing law were elaborated on and if that law were more fully implemented, it would provide adequate protection of the environment in time of armed conflict.
The ICRC therefore wishes to see a particular effort made to increase compliance with existing rules and to improve their implementation. This naturally requires the greatest possible number of States to become party to the treaties now in force and to use the specific means of implementation provided for by the instruments of international humanitarian law.
Though it is convinced that faithful implementation of existing law should go a very long way to limiting environmental damage in time of conflict, the ICRC is quite aware that this law is in need of interpretation, clarification and development. Thus, the meaning of certain terms should be agreed on and made to conform between different treaties, and a number of specific issues (such as the applicability in time of conflict of rules of environmental law essentially intended for peacetime and the content of the law applicable to non-international armed conflicts) should be studied more closely.
The ICRC is also very much in favour of proposals to do more to protect natural reserves in times of conflict. Likewise, it feels that careful attention should be paid to the problem of environmental damage caused by the indiscriminate and unrecorded laying of mines.
Finally, the use on the battlefield of certain specific weapons represents, in the ICRC's view, a growing risk to the natural environment. The law of armed conflict must therefore take these technical developments into account and keep their effects within tolerable limits. It should be stated very plainly that many me thods and means of warfare available today will, if used, inevitably harm the environment. Though means should obviously be found to provide a degree of protection for the environment, this should in no way be allowed to relieve those concerned of the duty to settle disputes peacefully.
Recent deliberations have clearly demonstrated the need to continue looking for ways of protecting the natural environment in time of armed
conflict and have made it possible to identify a number of very important problems to which realistic and effective solutions must quickly be found. The only way of doing this is to call on experts from a range of different fields to help.
Since its foundation as a neutral and impartial institution, the ICRC has played a central role in developing and interpreting the rules of international humanitarian law, and many of the provisions of that law currently in force originated in such work carried out under its auspices.
The ICRC is thus willing to actively contribute to the search for adequate means of protecting the environment in time of armed conflict by providing the international community with solutions to current problems in this area. It has already decided to pursue its consultation of experts in order to study a number of specific and still unresolved matters and to set up a programme of further activities.
In particular, the ICRC is ready to work in the preparation of a handbook of model guidelines for military Manuals.
The deliberations of the 46th General Assembly proved the importance of this issue. They also demonstrated the need to clarify a number of questions . The ICRC is prepared to make a contribution to this process of clarifying and interpreting existing rules with the help of the most
competent experts in the area.
The ICRC believes that its activities will help States to take the well-informed political decisions required to protect the natural environment in time of armed conflict.
(1) In particular, there was (a) " Conference on a fifth Geneva Convention " organized in June 1991 by Greenpeace International, the London School of Economics and the Centre for Defence Studies; (b) the " Conference of Experts on the Use of the Environment as a Tool of Conventional Warfare " , organized by the Canadian government and held in Ottawa in July 1991; c) the " Consultations on the Law Concerning the Protection of the Environment in Times of Armed Conflict " , convened by the International Union for Conservation of Nature and Natural Resources (now World Conservation Union) and the International Council of Environmental Law and held in Munich in December 1991.
Ref. DDM/JUR 92/1055