War and environmental law

Last updated

War can heavily damage the environment, and warring countries often place operational requirements ahead of environmental concerns for the duration of the war. Some international law is designed to limit this environmental harm.

Contents

Flooding in Kherson after the Kakhovka Dam, under control by Russia's military during the Russian invasion of Ukraine, was blown up. Flooding in Kherson after the destruction of the Kakhovka Dam 2023.jpg
Flooding in Kherson after the Kakhovka Dam, under control by Russia's military during the Russian invasion of Ukraine, was blown up.

War and military activities have obvious detrimental impacts on the environment. [1] Weaponry, troop movements, land mines, creation and destruction of buildings, destruction of forests by defoliation or general military usage, poisoning of water sources, target-shooting of animals for practice, consumption of endangered species out of desperation etc., are just some of the examples of how both war and peacetime military activities (such as training, base construction, and transportation of weaponry) harm the environment. "Scorched earth" and "poisoning the well" are classical examples of such impact. Recent examples include the oil dump and fire by Iraq in Kuwait 1990/1991, depleted uranium use in Kosovo 1999, air fuel explosives use in Afghanistan since 2001.

From a legal standpoint, environmental protection during times of war and military activities is addressed partially by international environmental law. Further sources are also found in areas of law such as general international law, the laws of war, human rights law and local laws of each affected country. However, this article is chiefly focused on the environment and as soon as two countries are battling it out, the issue becomes one of international concern. Thus, international environmental law that the United Nations Security Council enforces is the focus here. The law of armed conflict is not very well developed in comparison to other areas of international law. Only the United Nations Security Council has the authority and the jurisdiction to regulate its development and implementation, or to monitor its observance.

Sources of rules

Customary international law and soft law

Customary international law and soft law documents address the protection of the environment during times of armed conflict and military activities. The International Law Commission (ILC) has drafted a Code of Offences Against the Peace and Security of Mankind (1954). [2]

"Man and his environment must be spared the effects of nuclear weapons and all other means of mass destruction. States must strive to reach prompt agreement, in the relevant international organs, on the elimination and complete destruction of such weapons": Principle 26 of the 1972 Stockholm Declaration → Chapter 11 of the Brundtland Report: Peace, Security, Development, and the Environment. World Charter of Nature 1982: "Nature shall be secured against degradation caused by warfare or other hostile activities."

"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": Principle 24 1992 Rio Declaration → paragraph 39.6 of the Agenda 21: "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".

UN General Assembly Resolution 47/37 (1992) provides: [3] "[D]estruction of the environment, not justified by military necessity and carried out wantonly, is clearly contrary to existing international law."

Treaty law

Several United Nations treaties, including the Fourth Geneva Convention, the 1972 World Heritage Convention and the 1977 Environmental Modification Convention have provisions to limit the environmental impacts of war or military activities.

Iraq was liable under international law for the 'environmental damage and the depletion of natural resources' resulting from the unlawful invasion and occupation of Kuwait: United Nations Security Council Resolution 687 (1991).

"Destruction of the environment, not justified by military necessity and carried out wantonly, is clearly contrary to existing international law": UN General Assembly Resolution 47/37 (1992).

1977 Environmental Modification Convention

The Environmental Modification Convention is an international treaty prohibiting the military or other hostile use of environmental modification techniques having widespread, long-lasting or severe effects. The Convention bans weather warfare, which is the use of weather modification techniques for the purposes of inducing damage or destruction. This treaty is in force and has been ratified (accepted as binding) by leading military powers. The treaty has only limited ratification. It prohibits parties from engaging in 'military or any other hostile use of environmental modification techniques having widespread, longlasting or severe effects as the means of destruction, damage or injury' to any other party ← Agent Orange use in Vietnam.

Other relevant treaties

Application of the law

International law of war and armed conflict and general rules of environmental protection

The starting point is that the natural environment is a civilian object under international humanitarian law. Unless otherwise provided, inhabitants and belligerents are "under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilised peoples, from the laws of humanity and the dictates of public conscience": 'Martens Clause' (Preamble, 1907 Hague Convention IV Respecting the Laws and Customs of War on Land). Art. 22 limits the right of belligerents to adopt means of injuring the enemy.

Arts. 35(3) (prohibition of methods) and 55 (due care) of 1977 Additional Protocol I to the Geneva Conventions (wide but not universal ratification) provide additional protection for the environment. "Taken together, these provisions embody a general obligation to protect the natural environment against widespread, long-term and severe environmental damage; the prohibition of methods and means of warfare which are intended, or may be expected, to cause such damage; and the prohibition of attacks against the natural environment by way of reprisals ": para 31, ICJ Advisory Opinion on Nuclear Weapons 1996; see also ICJ applications Yugoslavia v UK 1999, DR Congo v Rwanda 2002.

"Uganda, by acts of looting, plundering and exploitation of Congolese natural resources committed by members of the Ugandan armed forces in the territory of the Democratic Republic of the Congo and by its failure to comply with its obligations as an occupying Power in Ituri district to prevent acts of looting, plundering and exploitation of Congolese natural resources, violated obligations owed to the Democratic Republic of the Congo under international law": ICJ judgment DR Congo v Uganda (Armed Activities on the Territory of the Congo) 2005.

"Works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations, shall not be made the object of attack, even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population.": art. 15 of the 1977 Additional Protocol II (non-international armed conflicts, less widely ratified than AP I); similarly art. 56(1) of the 1977 Additional Protocol I for international armed conflicts.

"Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated" is a war crime, being a "serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law": art. 8(2)(b)(iv) Rome Statute of the International Criminal Court.

To summarize: "The general principles on the conduct of hostilities apply to the natural environment: A. No part of the natural environment may be attacked, unless it is a military objective. B. Destruction of any part of the natural environment is prohibited, unless required by imperative military necessity. C. Launching an attack against a military objective which may be expected to cause incidental damage to the environment which would be excessive in relation to the concrete and direct military advantage anticipated is prohibited": ICRC Customary IHL Rule 43 (Application of General Principles on the Conduct of Hostilities to the Natural Environment). Some states insist such rules (incl. Additional Protocol I) only apply to conventional weapons and do not apply to nuclear weapons. See also Rules 44 (due regard) and 45 (serious damage).

ILC Draft Principles on protection of the environment in relation to armed conflicts: Special Rapporteur Marie G. Jacobsson considered from 2013 to 2015 obligations before, during, and after an armed conflict and proposed 5 draft jus in bello principles (proportionality, distinction, precaution, no reprisal, protected zones) among others. Special Rapporteur Marja Lehto continued in 2018 with some 21 draft principles covering all 3 phases plus occupation. As of mid-2019, some 28 principles (incl. re non-state actors) have been provisionally adopted by the Drafting Committee with the following parts: Introduction – Principles of general application – Principles applicable during armed conflict – Principles applicable in situations of occupation – Principles applicable after armed conflict.

International environmental law during war and armed conflict

Some environmental treaties have express provisions about military and conflicts; others need to rely on rebus sic stantibus (art. 62 VCLT) to interpret during wartime → 2011 ILC Draft Articles on the Effects of Armed Conflict on Treaties: environmental treaties continue unless express provision otherwise.

Thermonuclear war

The International Court of Justice advisory opinion on the Legality of the Threat or Use of Nuclear Weapons considered the environment as a minor issue in regard to the legality of thermonuclear war but it did not find all thermonuclear war to be prohibited.

"The Court does not consider that the treaties in question could have intended to deprive a State of the exercise of its right of self-defence under international law because of its obligations to protect the environment. Nonetheless, States must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives. Respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality": para 30, ICJ Advisory Opinion on Nuclear Weapons 1996.

Organisations

International organisations with environmental mandates may be called upon during times of armed conflict to assist with mediating or remedying damage caused by armed conflict, e.g. UN Environment Programme, the World Health Organization, the International Civil Aviation Organization, the International Maritime Organization, and the International Committee of the Red Cross. [4] The UN Security Council has also demonstrated environmental concern in deliberations on recent conflicts, for example, during the 1991 Gulf War. UNEP and IMO were also involved in this conflict, attempting to remedy the most serious of the environmental impacts.

Related Research Articles

<span class="mw-page-title-main">Environmental Modification Convention</span> 1977 international treaty on environmental modification

The Environmental Modification Convention (ENMOD), formally the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, is an international treaty prohibiting the military or other hostile use of environmental modification techniques having widespread, long-lasting or severe effects. It opened for signature on 18 May 1977 in Geneva and entered into force on 5 October 1978.

Arms control is a term for international restrictions upon the development, production, stockpiling, proliferation and usage of small arms, conventional weapons, and weapons of mass destruction. Historically, arms control may apply to melee weapons before the invention of firearm. Arms control is typically exercised through the use of diplomacy which seeks to impose such limitations upon consenting participants through international treaties and agreements, although it may also comprise efforts by a nation or group of nations to enforce limitations upon a non-consenting country.

The Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare, usually called the Geneva Protocol, is a treaty prohibiting the use of chemical and biological weapons in international armed conflicts. It was signed at Geneva on 17 June 1925 and entered into force on 8 February 1928. It was registered in League of Nations Treaty Series on 7 September 1929. The Geneva Protocol is a protocol to the Convention for the Supervision of the International Trade in Arms and Ammunition and in Implements of War signed on the same date, and followed the Hague Conventions of 1899 and 1907.

<span class="mw-page-title-main">Fourth Geneva Convention</span> One of the treaties of the Geneva Convention

The Convention relative to the Protection of Civilian Persons in Time of War, more commonly referred to as the Fourth Geneva Convention and abbreviated as GCIV, is one of the four treaties of the Geneva Conventions. It was adopted in August 1949, and came into force in October 1950. While the first three conventions dealt with combatants, the Fourth Geneva Convention was the first to deal with humanitarian protections for civilians in a war zone. There are currently 196 countries party to the 1949 Geneva Conventions, including this and the other three treaties.

<span class="mw-page-title-main">Law of war</span> International regulations of warfare

The law of war is a component of international law that regulates the conditions for initiating war and the conduct of hostilities. Laws of war define sovereignty and nationhood, states and territories, occupation, and other critical terms of law.

<i>Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons</i> 1996 International Court of Justice case

Legality of the Threat or Use of Nuclear Weapons[1996] ICJ 3 is a landmark international law case, where the International Court of Justice gave an advisory opinion stating that while the threat or use of nuclear weapons would generally be contrary to international humanitarian law, it cannot be concluded whether or not such a threat or use of nuclear weapons would be lawful in extreme circumstances where the very survival of a state would be at stake. The Court held that there is no source of international law that explicitly authorises or prohibits the threat or use of nuclear weapons but such threat or use must be in conformity with the UN Charter and principles of international humanitarian law. The Court also concluded that there was a general obligation to pursue nuclear disarmament.

International humanitarian law (IHL), also referred to as the laws of armed conflict, is the law that regulates the conduct of war. It is a branch of international law that seeks to limit the effects of armed conflict by protecting persons who are not participating in hostilities and by restricting and regulating the means and methods of warfare available to combatants.

Customary international law are international obligations arising from established or usual international practices, which are less formal customary expectations of behavior often unwritten as opposed to formal written treaties or conventions. Customary international law is an aspect of international law involving the principle of custom. Along with general principles of law and treaties, custom is considered by the International Court of Justice, jurists, the United Nations, and its member states to be among the primary sources of international law.

<span class="mw-page-title-main">Protocol I</span> 1977 amendment protocol to the Geneva Convention

Protocol I is a 1977 amendment protocol to the Geneva Conventions concerning the protection of civilian victims of international war, including "armed conflicts in which peoples are fighting against colonial domination, alien occupation or racist regimes". In practice, Additional Protocol I updated and reaffirmed the international laws of war stipulated in the Geneva Conventions of 1949 to accommodate developments of warfare since the Second World War (1937–1945).

<span class="mw-page-title-main">Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict</span> International treaty

The Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict is the first international treaty that focuses exclusively on the protection of cultural property in armed conflict. It was signed at The Hague, Netherlands, on 14 May 1954 and entered into force on 7 August 1956. As of July 2021, it has been ratified by 133 states.

The laws of state responsibility are the principles governing when and how a state is held responsible for a breach of an international obligation. Rather than set forth any particular obligations, the rules of state responsibility determine, in general, when an obligation has been breached and the legal consequences of that violation. In this way they are "secondary" rules that address basic issues of responsibility and remedies available for breach of "primary" or substantive rules of international law, such as with respect to the use of armed force. Because of this generality, the rules can be studied independently of the primary rules of obligation. They establish (1) the conditions of actions to qualify as internationally wrongful, (2) the circumstances under which actions of officials, private individuals and other entities may be attributed to the state, (3) general defences to liability and (4) the consequences of liability.

Military necessity, along with distinction, and proportionality, are three important principles of international humanitarian law governing the legal use of force in an armed conflict.

International law is the set of rules, norms, and standards that states and other actors feel an obligation to obey in their mutual relations and generally do obey. In international relations, actors are simply the individuals and collective entities, such as states, international organizations, and non-state groups, which can make behavioral choices, whether lawful or unlawful. Rules are formal, often written expectations for behavior and norms are less formal, customary expectations about appropriate behavior that are frequently unwritten. It establishes norms for states across a broad range of domains, including war and diplomacy, economic relations, and human rights.

Distinction is a principle under international humanitarian law governing the legal use of force in an armed conflict, whereby belligerents must distinguish between combatants and protected civilians. Combatant in this instance means persons entitled to directly participate in hostilities and thus are not afforded immunity from being directly targeted in situations of armed conflict. Protected civilian in this instance means civilians who are enemy nationals or neutral citizens outside of the territory of a belligerent power.

<span class="mw-page-title-main">Martens Clause</span> International law human rights statement

The Martens Clause is an early international law concept first introduced into the preamble of the 1899 Hague Convention II – Laws and Customs of War on Land. There are differing interpretations of its significance on modern international law, with some scholars simply treating the clause as a reminder international customary law still applies after a treaty is ratified while others take a more expansive approach where the clause provides that because international treaties cannot be all encompassing, states cannot use that as a justification for an action.

Air warfare must comply with laws and customs of war, including international humanitarian law by protecting the victims of the conflict and refraining from attacks on protected persons.

The Nuclear Terrorism Convention is a 2005 United Nations treaty designed to criminalize acts of nuclear terrorism and to promote police and judicial cooperation to prevent, investigate and punish those acts. As of January 2024, the convention has 115 signatories and 124 state parties, including the nuclear powers China, France, India, Russia, the United Kingdom, and the United States. Most recently, Palau ratified the convention on January 19, 2024.

New physical principles weapons are a wide range of weapons or systems created using emerging technologies, like wave, psychophysical, and genetic weapons.

The Luanda Agreement is a 2002 ceasefire and normalization of relations between the government of Uganda and the Democratic Republic of the Congo (DRC), signed in Luanda, Angola. It sought to end the ongoing Second Congo War and had far-reaching implications for regional peace. The Luanda Agreement became a baseline for peace accords in Africa and is viewed favorably by outside entities, such as the United Nations and the European Union.

References

  1. "EarthTrends: Feature - Armed Conflict, Refugees, and the Environment". March 8, 2006. Archived from the original on 8 March 2006.
  2. "Code of Offences Against the Peace and Security of Mankind" (PDF).
  3. "A/RES/47/37 - E - UN General Assembly Resolution 47/37 (1992)". undocs.org.
  4. "Guidelines on protection of natural environment in armed conflict". International Committee of the Red Cross. September 21, 2020.