Rapport sur la protection de l'environnement en période de conflit armé dans le cadre de la Décennie des Nations Unies pour le droit international
Assemblée générale des Nations Unies, 48ème session, sixième commission, point 142 de l'ordre du jour. Intervention du Comité international de la Croix-Rouge (CICR) le 17 novembre 1993
Foreword and Introduction
The present Report, submitted to the forty-eighth session (1993) of the United Nations General Assembly, follows on a report prepared by the International Committee of the Red Cross (ICRC) in 1992 and examined by the General Assembly at its forty-seventh session. (1)
On that occasion, the General Assembly invited the ICRC to pursue its work on the subject and to report to it at its next session.
This Report supplements document A/47/328 by including a review of work of experts conducted under ICRC auspices over the past year. As a follow-up to a request made at the forty-seventh session of the General Assembly, it also contains a set of basic rules as " Guidelines for Military Manuals and Instructions on the Protection of the Environment in Time of Armed Conflict " (Annex I).
For maximum clarity, the ICRC has opted for an overall report on the issue. The present document therefore takes up - at times in a slightly summarized form - the main elements of document A/47/328, which may be considered as an interim report, superseded by this Report.
In recent decades, many armed conflicts have involved a wide range of threats to the environment. These have included long-lasting chemical pollution on land; maritime and atmospheric pollution; despoliation of land by mines and oth er dangerous objects; and threats to water supplies and other necessities of life. The consequences have affected not only belligerents, but also civilians and neutral States; and they have sometimes continued long after the end of the armed conflict. Such threats to the environment expose many difficult problems. Protection of the environment is of course only one of many considerations which must be borne in mind by those involved in armed conflicts, but it is an important one. The subject has come to be extensively discussed in national and international fora, including the United Nations.
On 9 December 1991, the United Nations General Assembly concluded its deliberations on item 140 of its agenda (2) 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 its forty-seventh session the item entitled'Protection of the environment in time of armed conflict'" .
The international community has given the ICRC 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 " (3) . The ICRC has declared itself ready to undertake work aimed at protecting the environment in wartime and has submitted the results of its work to the forty-seventh session of the General As sembly. This report, (4) drawn up in response to the request contained in paragraph (b) of the decision quoted above, has been examined by the Sixth (Legal) Committee during the forty-seventh session. (5)
There is no need to review in detail the debate which took place in the Sixth Committee, since records of its proceedings are available. (6)
Mention should be made, however, of some of the items which were examined more thoroughly, and of the main conclusions reached by the Committee.
Most of the States which took part in the debate (as well as the ICRC) recognized the importance and relevance of existing rules and called for them to be implemented and respected.
Some States felt that the existing rules were sufficient and that what was needed was ensuring greater compliance with them. However, most of the States represented thought it also necessary to clarify and interpret the scope and content of some of those rules, and even to develop other aspects of the law relating to the protection of the environment in time of armed conflict. These include the need for better protection of the environment as such, the need for stricter application of the principle of proportionality (and, to this end, for a more precise definition of its scope in specific situations), the importance of defining more precisely the threshold of application of the rules, the need for a clear decision regarding the applicability in wartime of provisions of international environmental law, and the advisability of setting up a mechanism to sanction breaches thereof.
The suggestions aiming for a complete overhaul of existing law were not deemed opportune.
The debate led to the adoption of Resolution A/47/37 (7), which called on States to accede to the treaties in force and apply their provisions, in particular by incorporating them in their military manuals. Further more, the resolution invited the ICRC to continue its work on the question, to prepare a handbook of model guidelines for military manuals and to submit to the forty-eighth session of the General Assembly a report to be examined under the item of the agenda devoted to the United Nations Decade of International Law.
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) and under ICRC auspices (III). Section IV describes the ICRC's position on issues relative to the protection of the environment in time of armed conflict, and section V presents some conclusions.
As mentioned above, the Annex to this report contains "Guidelines for Military Manuals and Instructions on the Protection of the Environment in Time of Armed Conflict".
I. Report on existing law
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.
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 (...) " .
Restating Article 22 of the Hague Regulations of 1907 (8), Article 35, paragraph 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 (9), 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 envir onment against acts of warfare.
The rules of international humanitarian law 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 armed conflict.
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, Article 23, paragraph 1 g) of the Hague Regulations (10) 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 " .
The destruction of property in time of armed conflict is also restricted by customary international law. The Principles of International Law Recognized in the Charter of the Nuremberg Tribunal and in the Judgement of the Tribunal, which were unanimously affirmed by the United Nations General Assembly have codified this customary law. (11) The sixth of these Principles lists crimes whic h are punishable as crimes under international law, divided into three categories: crimes against peace, war crimes and crimes against humanity. At the end of the list of war crimes in paragraph (b) appears " wanton destruction of cities, towns or villages, or devastation not justified by military necessity " . In its comments the ILC noted that the Nuremberg Tribunal had pointed out that the war crimes defined in Article 6 (b) of its Charter were already recognized as war crimes under international law. This was because the rules set out in the Hague Convention of 1907, particularly Article 23, paragraph 1 (g), thereof which prohibits destruction which is not " imperatively demanded by the necessities of war " , had in 1939 acquired the status of customary rules of international law.
In the event of military 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 is worth quoting:
" 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 cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations. "
A Party to a conflict that destroys, for example, property protected by the Fourth Geneva Convention and in so doing causes damage to the environment violates the Fourth Convention, if such destruction is not rendered " absolutely " necessary by military operations. If such destruction is " extensive " , the act becomes a grave breach of that same Convention (Article 147), i.e. a war crime.
The rules discussed in this section do not relate to environmental issues explicitly, but they do pro tect the environment by prohibiting the wanton 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 international humanitarian law.
Those rules are Article 35, paragraph 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. "
" 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.
Article 35, paragraph 3, and Article 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 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, paragraph 3, and Article 55, other provisions of Protocol I touch incidentally on 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 beari ng on the protection of the environment.
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 international humanitarian law, and contain some important rules prohibiting a wide range of acts destructive of the environment in time of armed conflict.
As at 16 June 1993, 125 States are party 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 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 weapon s 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.
- Convention concerning the Protection of the World Cultural and Natural Heritage, of 23 November 1972.
- 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 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 other international rules limiting the development, production, testing or use of weapons of mass destruction make a significant contribution to the protection of th e environment in time of 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 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, contains no 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. Other legal provisions regarding the environment, for example rules of general or bilateral international treaties, remain applicable in principle 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 it is worth mentioning the following: (1) the international responsibility of States; (2) the principle of individual criminal responsibility; (3) the obligation of States to ensure that the provisions of the Geneva Conventions and their Additional Protocols are known as widely as possible; (4) the system of Protecting Powers; (5) the International Fact-Finding Commission; (6) specific functions assigned to the ICRC to interpret and monitor the implementation of international humanitarian law.
In addition, other international - including regional - 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 in time of armed conflict, although for the moment their mandates do not clearly extend beyond peacetime situations.
Article 1 common to the four Geneva Conventions and to Protocol I stipulates that the contracting States are under an obligation " to respect and to ensure respect for " those instruments. Beyond that, and on a more general level, a State is responsible for every act or omission attributable to it and amounting to a breach of an international obligation incumbent on it, including in the field of the international protection of the environment. States affected by such a breach are entitled to insist on the implementation of such rules of State responsibility, including cessation of the unlawful conduct, restitution and reparation.
The principle of the individual criminal responsibility of the perpetrator of certain breaches of international law, including those bearing on the environment in time of armed conflict, as well as of the person ordering the commission of such acts, is of critical importance. It is firmly rooted in both customary and treaty law, such as the Regulations annexed to the Hague Convention IV of 1907 and the provisions of the Geneva Conventions relating to grave breaches.
Under international law, States have a clear duty to bring to justice all persons suspected of having committed or ordered the commission of such acts. Moreover, trials have been conducted (Nuremberg and Tokyo) or are planned to take place (for the former Yugoslavia, under Security Council Resolutions 808 and 827) on the international level.
Additionally, the International Law Commission of the United Nations is working on a draft treaty for the establishment of a permanent international criminal jurisdiction, which may be called upon, inter alia, to ensure respect for rules of international law bearing on the protection of the environment in time of armed conflict.
Each State party to the Geneva Conventions or to their Additional Protocols must ensure that the text of these treaties is dissemina ted as widely as possible throughout its territory in both peacetime and wartime.
These States must, inter alia, incorporate study of the subject into their programmes of military and, if possible, civilian instruction.
Under the 1949 Conventions and their Additional Protocol I of 1977, 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 international humanitarian law 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 violations causing damage to the environment in time of armed conflict. The Commission's permanent competence depends on a special declaration of acceptance (Article 90, paragraph 2). Thirty-four States have now made that declaration, and the Commission was constituted in June 1991. States that have not made such a declaration may also make use of the services of the Commission on an ad hoc basis.
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. The institution may find itself acting as a substitute for Protecting Powers. It also has a recognized right of initiative. In addition, the ICRC can also count on the support of the National Red Cross and Red Crescent Societies and of their Federation. Its role in monitoring the implementation of international humanitarian law may indeed include aspects related to the protection of the environment.
Other international or non-governmental organizations involved in emergency work during armed conflict may also help prevent damage or take remedial action.
II. Principal activities in recent years
Much important work was undertaken in the early 1970s in connection with protecting the environment in time of armed conflict. This process led to the adoption of the main international rules governing this area, in particular the ENMOD Convention, Article 35, paragraph 3, and Article 55 of Additional Protocol I of 1977, and certain provisions of the 1980 Convention on 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 whole areas and attacks on oil-producing installations, resulting in severe pollution.
The need to protect the 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 the conflict, a number of meetings and symposia were held to discuss the question whether existing law offers an adequate response to environmental disasters. (12)
This is not the place for a detailed discussion of those meetings (on which reports have in most cases been published). It is nevertheless necessary to recall briefly the principal questions they addressed and their main conclusions. At these meetings, generally speaking, the idea of creating an entirely new body of international rules for the protection of the environment was rejected. 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 observe their existing obligations, that they accede to or ratify existing treaties and, at the same time, enact coordinate domestic legislation, including rules in their military manuals.
The content of this body of law has been discussed on many occasions. These discussions showed that protection of the environment in time of armed conflict is not provided for only by specific rules on this subject (see section I), but that other international rules also make a contribution to that end, 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, and the very useful role that could be played by the International Fact-Finding Commission, constituted under Article 90 of 1977 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) interpretation of the specific provisions of the ENMOD Convention and Protocol I;
(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 n ot party to the conflict, but are nevertheless affected by means of warfare harmful to the environment;
(d) the need to do more to protect the environment as such and to find better ways of preventing damage to the environment in time of armed conflict.
As mentioned in the introduction to this Report, the UN General Assembly also addressed these questions at its forty-sixth and forty-seventh sessions.
A fundamental shift in focus on international cooperation for socio-economic development and environmental protection was recorded at the United Nations Conference on Environment and Development (UNCED), at which 178 States convened in Rio de Janeiro (1992). UNCED established the prime United Nations objective of " sustainable development " . The Declaration of Rio de Janeiro contained three articles on armed conflict, and the UNCED Action Plan, entitled Agenda 21, made explicit reference to armed conflict in paragraph 39.6. Both these documents were subsequently adopted at the forty-seventh session of United Nations General Assembly.
Among them, one should mention Principle 24 of the Rio Declaration and paragraph 39.6 of Agenda 21 which state respectively:
" Warfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary. "
" Measures in accordance with international law should be considered to address, in times of armed conflict, large-scale destruction of the environment that cannot be justified under international law. The General Assembly and its Sixth Committee are the appropriate forums to deal w ith this subject. The specific competence and role of the International Committee of the Red Cross should be taken into account. "
Protection of the environment in time of armed conflict was also discussed at the Second Review Conference of the ENMOD Convention, held in Geneva in September 1992. (13) On that occasion, the Convention's field of application - and especially the type of environmental modification techniques which should be prohibited - was discussed at length, but the participants did not reach a unanimous conclusion. The question might be submitted to the Consultative Committee of Experts which could be convened at the request of one or more States Parties under Article 5 of the ENMOD Convention.
III. Work carried out under ICRC auspices
To discharge the mandate assigned to it by the General Assembly in its Decision 46/417 and by its Resolution 47/37, the ICRC convened three meetings of experts to study the problem of protecting the environment in time of armed conflict. The first meeting, 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 international governmental and non-governmental organizations. All were invited in their personal capacity.
The second and third meetings, held in Geneva in January and June 1993 respectively, brought together the same group of experts and several other participants ensuring broader geographical representation.
The goals of the meetings 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;
5. to draft Model Guidelines for military manuals.
Reports presented by several experts sparked an initial general debate, during which was examined inter alia the question of whether or not the rules of international environmen tal law were applicable in time of armed conflict. Most participants concluded that these rules could be presumed to be applicable at least to a certain extent, insofar as they do not contain specific disclaimers, 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, international environmental law, or rules governing international responsibility) were clearly reaffirmed, as was the need to make these rules more widely known, in particular by means of Guidelines expressly drawn up for members of the armed forces.
The need to clarify certain aspects of applicable law and to look for ways of protecting the environment in time of non-international armed conflict was recognized.
Finally, there was large support for the proposal made by some experts to protect - subject to conditions that remain to be set - nature reserves, which could be likened to demilitarized zones or other protected areas. The United Nations list of parks and equivalent reserves and UNESCO's designated biosphere reserves provide available references for identifying such nature reserves on maps for reference with military manuals. Priorities might be selected from these lists.
During these meetings a list of the most important matters to be discussed was drawn up. The following is a summary of the discussions on the specific issues listed.
1. The notion of the global interest of the international community for the protection of the environment in the provisions of international humanitarian law
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, this general interest should be taken into account by the belligerents when select ing 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
It is necessary to underline the need to take environmental protection into account when assessing the military advantages to be expected from an operation. The accepted principles concerning the conduct of hostilities are important and relevant with regard to environmental protection. These include:
- the prohibition of acts 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 expected military advantage and the incidental damage to the environment.
3. Rules of customary international law
Customary rules are of great importance. Indeed, some experts even felt that these rules were the key to protecting the environment in time of armed conflict, in particular as they prohibited attack on the environment as such.
4. Relationship between international humanitarian law and international environmental law (regional and universal regulations); similarity to the relationship between international humanitarian law and human rights law?
a) between a State not party to the conflict and belligerents;
b) between belligerents.
The relationship between international environmental law and humanitarian law should be studied in greater depth. In principle the instruments of international environmental law remain applicable in time of armed conflict, although the question of their legal applicability had either not been contemplated or had been avoi ded in the treaties themselves. There is a need for a study of environmental agreements in general, bearing in mind their applicability in time of armed conflict. Whenever feasible, any new treaty adopted in this area should contain a provision specifically stipulating that it is applicable in time of armed conflict. In addition, new instruments should clearly reaffirm that the duties of States party to an international armed conflict to third States and relating to the protection of the environment are, as a matter of principle, not affected by the existence of an armed conflict.
5. Role of the Martens clause in the protection of the environment
The Martens clause (14) states that in cases not covered by 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. Its validity in the context of the protection of the environment in time of armed conflict is indisputable.
6. Interpretation of and relationship between the rules of Protocol I and the ENMOD Convention
The respective raisons d'être of the provisions of Protocol I and of the 1976 Convention on environmental modification techniques are different.
The need to interpret more clearly the terms employed in these two treaties might be included on the agenda of the Consultative Committee of Experts under ENMOD, which might be convened by 1995.
7. Acceptability of self-inflicted damage to the environment; scorched earth policy and use of the environment by States for their own protection and on their own territory
A distinction should be made between environmental destruction by belligerents on enemy territory, as opposed to environmental destruction on their own territory.
Self-inflicted damage would occur mainly on a State's own territory. Although the basic rule in such cases is the full sovereignty of the State over its territory, it was noted that this rule is undergoing gradual erosion.
Generally speaking, damage to the environment inflicted outside a State's own territory is covered by existing international environmental law and humanitarian law and the present trend towards regulating the protection of the civilian population in enemy territory should be extended to the protection of the environment as such. On the other hand, the question of damage caused by a State on its own territory is more problematical. The answer to it should be found in the law applicable in peacetime, which imposes particular obligations on States to protect their own environment.
8. Protection of the environment in naval warfare
Three main questions have to be addressed: (a) the degree to which customary rules of the law of the sea and the 1982 Law of the Sea Convention, in particular its provisions on the preservation and protection of the marine environment, should apply in time of armed conflict; (b) the applicability in time of armed conflict of current international legislation for the preservation and protection of the marine environment, especially the conventions adopted by regional organizations or under the auspices of the International Maritime Organization; (c) the applicability to naval warfare of general treaties of international humanitarian law, particularly 1977 Protocol I.
It is necessary to continue studies under way in the law of naval warfare and to clarify the content and scope of the customary and conventional law of the sea, especially the 1982 Law of the Sea Convention. This would make for greater protection of the environment since it is recognized that, while the 1982 Convention is nearing entry into force, many of its rules are already considered to be of customary nature and have been incorporated into several military manuals.
The organizations which have sponsored treaties for the preservation and protection of the marine environment should be requested to examine the applicability of such treaties in time of armed conflict.
The general principles of international humanitarian law, in particular those of proportionality and distinction, are applicable to naval warfare. In addition, certain provisions of general treaties of international humanitarian law should apply to naval warfare, notably some of those of Protocol I of 1977, but present texts may be inadequate in the context of naval warfare and could or should be adapted to the marine environment. This might be the case, for instance, of Articles 52 ( " General protection of civilian objects " ) and 55 ( " Protection of the natural environment " ) of 1977 Protocol I. Article 56 ( " Protection of works and installations containing dangerous forces " ) could play (in particular its paragraph 6, providing for the conclusion of further agreements) an important role in the protection of the marine environment. The possible addition of oil rigs and pipelines to the list of works and installations containing dangerous forces might be in particular studied in the context of naval warfare.
Furthermore any action against civilian nuclear-powered vessels and ships carrying oil, liquid gas or other dangerous substances should be carried out taking into account the above-mentioned principle. The possibility to declare marine areas of recognizable environmental importance non-targets could be envisaged.
9. When should damage to the environment be qualified as a " grave breach " ? State responsibility and compensation
Any violation of either treaty-based or customary rules attributable to a State would create an obligation on the part of the offending State towards the State or States whose environment suffered damage.
According to Article 3 of Hague Convention IV of 1907 and to Article 91 of 1977 Protocol I, a State violating an international obligation may be liable to pay compensation.
Some violations of Article 53 of the Fourth Geneva Convention of 1949 are listed as grave breaches in Article 147 of the same Convention and thus constitute war crimes, just like violation of Article 23 of Hague Convention IV.
Some experts felt that the violations of Articles 35 and 55 of 1977 Protocol I should be made as grave breaches.
The importance and relevance of the current work of the International Law Commission has to be underlined, in particular of Article 19 of the Draft Articles on State responsibility prepared by this Commission.
10. Applicability of the precautionary principle to the protection of the environment in time of armed conflict
This principle is an emerging, but generally recognized principle of international law. The object of the precautionary principle is to anticipate and prevent damage to the environment and to ensure that, where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason to postpone any measures to prevent such damage.
This principle appears mainly in recent treaties and other instruments designed for peacetime. Its possible applicability in armed conflict needs further study even if the precautionary principle is indeed already partially present in international humanitarian law treaties, in particular in Article 36 of Protocol I which governs the development of new weapons.
Despite the existence of the precautionary principle and of Article 36 of Protocol I, it is felt that environmental co ncerns had been largely ignored during the negotiation of most recent arms control treaties and that the latter had failed to prevent the development of new weapons.
Some experts were thus of the opinion that Article 36 of 1977 Protocol I was inadequate to ensure control of the development of new weapons, and that additional control mechanisms should be proposed. One expert suggested that an international body therefore be set up.
11. 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
Although neither Article 3 common to the 1949 Geneva Conventions nor Protocol II of 1977 established a specific protection for the environment in time of non-international armed conflict, the environment is nonetheless protected by general rules of international humanitarian law. (15) Among them, it is worth mentioning Articles 14 and 15 of 1977 Protocol II, and provisions of the World Heritage Convention of 1972. The latter, applicable in all armed conflicts, could play an important role; greater efforts should therefore be made to ensure its full implementation.
In addition to these rules of humanitarian law, most peacetime obligations resulting from universal or regional treaties remain applicable in time of non-international armed conflict.
In some cases, environmental treaties have indeed been applied and respected during non-international armed conflicts.
In several countries it has been decided to instruct soldiers to apply the same rules, regardless of whether the conflict was international or non-international. This practice, which makes up for the absence of specific provisions applicable in non-international conflict and corresponds to the Marte ns clause, (16) should be more widely applied.
12. Means to ameliorate the protection of cultural and natural heritage sites in times of armed conflict
This topic was recently discussed by a Meeting on Protection of Cultural and Natural Heritage Sites. (17)
The objectives of the meeting were to make existing treaties (18) more effective at the practical level and to encourage greater participation in these instruments, under which lists should be drawn up and deposited with the United Nations or UNESCO.
A number of practical measures were recommended, including the preparation of detailed maps of protected areas, the elaboration of material for the dissemination of the relevant treaties, and the drafting of guidelines for military manuals.
The renewed interest in this field shown by UNESCO was also mentioned. It was hoped that this would enhance the level of participation and improve the implementation of the treaties.
The experts took note with interest of those new developments. The importance of establishing strict procedures for the designation of protected sites in the sea as well as on land was emphasized, as was the fact that a protected area should be free of weapons.
At the end of their work, the experts encouraged the ICRC to pursue its work to clarify and, where necessary, develop the rules aiming to protect the natural environment in time of armed conflict.
IV. The position of the ICRC
The ICRC agrees to a great extent with the conclusions reached in the various meetings of experts organized in recent years and in particular in the three meetings organized under its auspices.
It has reservations about proposals for a new process of codification of the rules protecting the environment 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 the 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 special 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 international humanitarian law treaties and to use the specific means of implementation provided for by these instruments and by other treaties and resolutions.
Though it is convinced that faithful implementation of existing law should go a very long way to limiting environmental damage in time of armed conflict, the ICRC is quite aware that this law is in need of interpretation, clarification and development. The meaning of certain terms should be agreed on, and a number of specific issues (such as the a pplicability in time of conflict of rules of international 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 nature reserves in time of armed 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. This question should be examined in the review process of the 1980 Convention on conventional weapons.
Finally, the use on the battlefield of certain weapons represents, in the ICRC's view, a growing risk to the environment. The law of armed conflict must therefore take technical developments into account and contain their effects. It should be stated very plainly that many methods and means of warfare available today will, if used, inevitably cause serious harm to 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 their duty to settle disputes peacefully, a course which was already advocated by the 1899 Hague Convention on the Peaceful Settlement of Disputes.
Recent deliberations have clearly demonstrated the need to continue to seek ways of protecting the natural environment in time of armed conflict, and have identified a number of important problems to which realistic and effective solutions must quickly be found and on which specific follow-up action may be taken.
The following questions could be examined by the Sixth (Legal) Committee:
1. Relationship between the ENMOD Convention and 1977 Additional Protocol I, in particular, definition of the terms " widespread, long-lasting/long-term and severe "
These terms call for interpretation and clarification. The Consultative Committee of Experts provided for in Article 5 of the ENMOD Convention should examine this question.
2. Applicability in armed conflict of international environmental law; general clarification and action in case of revision of the treaties
Further study is needed on this matter, and should take into account customary law, international environmental agreements, including the Convention on the Law of the Sea, and regional instruments. It could be carried out by a specialized organization such as the International Council of the Environment, if it were given the necessary resources, and should be based on a review of the most important environmental treaties. The various bodies in charge of the treaties co ncerned could also play a role, especially with respect to review procedures.
3. Protection of the environment and restriction on the use of mines; action to be taken during the Conference for reviewing the 1980 Convention
First of all, States should become party to the 1980 Convention.
The forthcoming Conference for reviewing the 1980 Convention on conventional weapons should take in due account of the damage to the environment caused by the use of conventional weapons such as mines and incendiary weapons, as well as new weapons. Attention should also be drawn to the obligation to determine the legality of the use of any new weapon. (19)s
Existing principles and customary rules should be strictly observed.
4. Protection of cultural sites and nature reserves and parks
The first step in ensuring protection of natural and cultural sites might be to draw up maps identifying them. IUCN and UNESCO could undertake this task. The guidelines laid down in the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict, which established a mechanism for the definition and the registration of sites, could be followed. It might also be necessary to develop existing law in order to afford better protection to sites which are already specifically protected.
5. Protection of the environment in time of non-international armed conflict; possible application of the rules applicable in time of international armed conflict
This matter requires close attention as the environment must be protected in non-international armed conflicts also. Two observations seem to be especially relevant:
a) it is difficult to contemplate that acts prohibited in international armed conflicts might be permitted in non-international armed conflicts;
b) in some cases, global environmental considerations should prevail over a State's sovereignty.
6. Means of implementing provisions on the protection of the environment in time of armed conflict; possible role of the International Fact-Finding Commission provided for in Article 90 of 1977 Protocol I
The newly established Fact-Finding Commission should play a role in matters relating to the environment, and when necessary call on the service of experts in the matter. Other institutions (including Protecting Powers or the ICRC) responsible for the implementation of international humanitarian law should take due account of the provisions on the protection of the environment.
Relevant questions should also be inserted in the questionnaires which are part of the reporting systems under various environmental law instruments.
7. Dissemination of provisions protecting the environment in time of armed conflict
Environmental aspects must be taken into account when disseminating the rules of international law relating to armed conflicts and vice versa. Under international humanitarian law, dissemination of these provisions is an obligation. This is not the case with respect to international environmental law, but it should be encouraged.
The importance of public awareness of the existence of the relevant provisions should be stressed. The need to teach those provisions to soldiers and others directly involved in armed conflict should also be emphasized.
8. Procedure for drafting Guidelines for Military Manuals and Instructions (see Annex)
The Guidelines which are submitted herewith have been drawn up in consultation with experts, with two main objectives in view:
- to harmonize the Guidelines with the above list of suggested fol low-up measures;
- to provide help governments formulate their own national texts.
Future work of the ICRC
The ICRC is of the opinion that work in this area must continue. It is determined to fulfil its mandate to work for the understanding and the dissemination of knowledge of international humanitarian law applicable in armed conflicts and to prepare any development thereof.
It is thus prepared to continue to contribute actively to the search for appropriate means of protecting the environment in time of armed conflict, by proposing solutions to current problems in this area.
The ICRC is in particular ready to take three measures which should have a positive impact on the protection of the environment in time of armed conflict:
- organization of meetings of experts, as it did in 1974 and 1976, to prepare the review conference of the 1980 Convention on Conventional Weapons;
- extension of its dialogue with military and legal circles so as to examine in depth the practical problems encountered in armed conflicts in implementing the rules governing the conduct of hostilities, including those relevant to the protection of the environment, and thus to clarify the meaning of those rules;
- further cooperation in the drafting of rules on the protection of the environment in time of armed conflicts for inclusion in military manuals, on the basis of the annexed Guidelines.
Ref. DDM/JUR 93/00/15
Notes and Annex
(1) See Document A/47/328 (31 July 1992), entitled " Protection of the environment in times of armed conflict " .
(2) " Exploitation of the environment as a weapon in time of armed conflict and the taking of practical measures to prevent such exploitation " .
(3) See Article 5, paragraph 2(g), of the Statutes of the International Red Cross and Red Crescent Movement.
(4) Doc. A/47/328, 31 July 1992, " Protection of the environment in times of armed conflict " .
(5) Item 136 of the agenda.
(6) See Doc. A/47/591 of 29 October 1992: " Protection of the environment in times of armed conflict " and Doc. A/C.6/47/SR. 8, 9 and 19 Summary records of meetings of the Sixth Committee.
(7) " Protection of the environment in times of armed conflict " , of 25 November 1992.
(8) See point 2 below.
(9) See point 3 below.
(10) See Hague Convention IV respecting the Laws and Customs of War on Land, of 18 October 1907 with the Regulations annexed thereto. Hague Conventions V and XIII, of 18 October 1907 on the rights and duties of n eutral Powers also contain relevant provisions.
(11) See Resolution 177 (II) of 21 November 1947, formulated by the International Law Commission (ILC) and submitted to the governments of Member States by the General Assembly in its Resolution 488 (V) of 12 December 1950.
(12) In particular, the " Conference on a'Fifth Geneva Convention'on Protection of the Environment in Time of Armed Conflict " organized in June 1991 by the London School of Economics, Greenpeace International and the Centre for Defence Studies; 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; the " Consultations on the Law concerning the Protection of the Environment in Times of Armed Conflicts " , convened by the International Union for Conservation of Nature and Natural Resources (now IUCN-World Conservation Union) Commission on Environmental Law and the International Council of Environmental Law, held in Munich in December 1991; the workshop on " Protected areas, war and civil strife " at the IV World Congress on Natural Parks and Protected Areas (Caracas 1992); the " Senior Legal Experts Meeting on Protection of Natural and Cultural Heritage Sites in Times of Armed Conflict " , organized by the International Council of Environmental Law, the IUCN- Commission on Environmental Law and the World Travel and Tourism Council, held in Amsterdam in December 1992; and the " Informal brainstorming session on the ENMOD Convention " , organized by Canada and Switzerland and held in Geneva in January 1993.
(13) See Doc. ENMOD/CONF II/11, of 17 September 1992, " Final Document of the Second Review Conference " .
(14) See Preamble of the 1907 Hague Convention IV, Article 1 of Protocol I of 1977 and Preamble of Protocol II of 1977.
(15 ) See section I.1 above.
(16) See section III.5 above.
(17) See section II above.
(18) See, in particular, the 1954 Convention on Cultural Property, the 1971 Ramsar Convention on Wetlands of International Importance and the 1972 Convention concerning the Protection of the World Cultural and Natural Heritage.
(19) See Article 36 (New weapons) of 1977 Protocol I.