IHL & Environment
Do not set fire to what the people
have accumulated; do not destroy
their houses, nor cut down the
trees at gravesites or altars…
Jiang Ziya (Taigong), Six Secret
Teachings
Ancient China, 11th century BC
IHL & Environment
■ The Prophet has prohibited
the believers from loot and
plunder. He said: “Do not
destroy the villages and
towns, do not spoil the
cultivated fields and
gardens, and do not
slaughter the cattle.”
(Bukhari, Abu Dawud)
04/24/2024 Law for Peace 2
IHL & Environment
■ Refrain from betrayal, extravagance,
perfidy or mutilation; never kill
small children, old men or women;
never cut or set fire to palm trees;
never cut fruit-bearing trees; never
slay a goat, a cow or a camel except
for food. If you pass by people
devoted to worship leave them to do.
■ Khalif Abu Bakr Al-Siddiq, the first
Caliph after the Prophet Muhammad
(PBUH), 6-7th century
04/24/2024 Law for Peace 3
IHL & Environment
■ “The environment is not an
abstraction, but represents the
living space, the quality of
life and the very health of
human beings, including
generations unborn.”
- ICJ in its advisory opinion on
the Legality of the Threat or
Use of Nuclear Weapons, 1996.
04/24/2024 Law for Peace 4
Defining Environment
Air, soil, water and all the living
components as well as the
interdependent nonliving components.
It encompasses both the features and
products of natural world and those
of human civilization.
It is broader than ‘ecology’, which
is a science related to the
environment and to nature and is
concerned with animals and plants.
What Environmental Law
Addresses?
■ Acid rain, ozone depletion,
climate change, loss of
biodiversity, toxic and
hazardous products and
wastes, pollution of river
and deletion of freshwater
resources etc.
04/24/2024 Law for Peace 6
Why International
Environmental Law is needed?
■ Ecological interdependence
does not respect national
boundaries
■ Domestic issues have
international implications
■ Transforming economic
activities entail more than
one state
04/24/2024 Law for Peace 7
Protections afforded to
the Environment by IHL
■ 1. Protection under Treaty
Law.
■ 2. Protection under Customary
Law
■ 3. Protection under Soft law
■ 4. Protection under Case law.
04/24/2024 Law for Peace 8
Protection under Treaty
Law
■ Provisions under treaty law can be
divided into three main categories.
■ I. Provisions specifically aimed at
protecting the environment during
armed conflict.
■ II. General Principles of IHL
applicable to the protection of the
environment during armed conflict.
■ III. IHL treaty provisions that
indirectly protect the environment
during armed conflict.
04/24/2024 Law for Peace 9
I. Provisions specifically aimed
at protecting the environment
during armed conflict
■ Art. 35(3) of AP I of GCs
provide that 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.
■ This art. protects the [Link].
per se.
04/24/2024 Law for Peace 10
I. Provisions specifically
aimed at protecting the
environment during armed
conflict
■ Art. 55 reads as follows:
Care shall be taken in warfare to
protect the natural environment
against widespread, long-term and
severe damage. This protection
includes a prohibition on 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 prejudice the health or
survival of the population.
04/24/2024 Law for Peace 11
I. Provisions specifically
aimed at protecting the
environment during armed
conflict
■ The ultimate goal of Art. 55 is to
protect human beings against the
effects of hostilities.
■ It provides specific protection for
the environment within the context of
the protection granted to civilian
objects.
■ It also explicitly prohibits attacks
on the environment by way of
reprisals.
04/24/2024 Law for Peace 12
UN Convention on the
Prohibition of Military or Any
Other Use of Environmental
Modification Techniques
(ENMOD), 1976
■ It was estd. as a reaction to
the military tactics employed by
the US during the Viet Nam war.
These included plans for
large-scale env. modification
techniques that had the ability
to turn the env. into a weapon.
04/24/2024 Law for Peace 13
ENMOD, 1976
■ Its object is not to protect
the environment form
hostilities, but rather to
prohibit the use of
environment as a weapon to
cause destruction, damage or
injury to other State
parties.
04/24/2024 Law for Peace 14
ENMOD, 1976
■ Art. 1(1) requires that each
state party to this Conv.
undertakes not to engage in
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.
04/24/2024 Law for Peace 15
ENMOD, 1976
■ ENMOD requires a much lower
threshold of damage, with
the triple cumulative
standard being replaced by
an alternative one:
“widespread, long-lasting or
severe”.
04/24/2024 Law for Peace 16
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 (CCW), and its
Protocol III on Prohibitions or Restrictions on
the Use of Incendiary Weapons, 1980
■ “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 nat. env.
■ An amendment to Art. 1 of the
Conv. extends its application to
NIAC.
04/24/2024 Law for Peace 17
■ Art. 2(4) of the CCW Protocol III also
indirectly addresses env. Protection,
as it prohibits “making forests or
other kinds of plant cover the subject
of an attack by incendiary weapons
except when such natural elements are
used to cover, conceal, or camouflage
combatant or other military objectives
, or are themselves military
objectives.”
04/24/2024 Law for Peace 18
General Principles of IHL applicable
to the protection of the environment
during armed conflict
■ Martens Clause
■ The Principle of distinction
■ The Principle of military
necessity ( as reflected in Art.
23g of Hague Conv. 1907 on enemy
property)
■ The Principle of
Proportionality.
■ The Principle of Humanity.
04/24/2024 Law for Peace 19
IHL provisions that indirectly
protect the environment during
armed conflict
■ Provisions regarding the
limitation on means or
methods of warfare.
04/24/2024 Law for Peace 20
Customary International
Humanitarian Law
■ 161 rules have been treated
as customary IHL in the ICRC
2005 multi-volume
explanation of customary
IHL.
■ Three of these rules relate
particularly to nat.
resources.
04/24/2024 Law for Peace 21
Customary International
Humanitarian Law
■ Rule 43- No part of nat. env. may be
attacked unless it is a military
objective.
■ Destruction of any part of the nat.
env. is prohibited unless required by
imperative military necessity.
■ Launching an attack against a military
object, if cause excessive incidental
damage in relation to the concrete and
direct military advantage, is
prohibited. s
04/24/2024 Law for Peace 22
Customary International
Humanitarian Law
■ Rule [Link] that methods and means of
warfare must be employed with due
regard to the protection and
preservation of the nat. env.
■ Rule 45 prohibits the methods or means
of warfare that are intended, or may
be expected, to cause widespread,
long-term and severe damage to the
nat. env.
■ Destruction of the nat. env. may not
be used as a weapon (applicable in IAC
& NIAC).
04/24/2024 Law for Peace 23
Case Law
■ ICJ decision on New Zealand
vs. France (1995) on nuclear
testing the court issued
interim relief which was
possibly based on
recognition of the
plaintiff’s right to env.
Protection.
04/24/2024 Law for Peace 24
Case Law
■ The ICJ 1996 Advisory opinion on
the Legality of the Threat or
Use of Nuclear Weapons
recognized that thee general
obligations of States to ensure
that activities within their
jurisdiction or control respect
the env. tof other states or
areas beyond national control is
now part of the corpus of int.
law relating to the env.
04/24/2024 Law for Peace 25
Soft Law Protecting
Environment During Armed
Conflict
Principle 26 of the 1972 Stockholm
Declaration on the Human
Environment provides that man and
his environment must be spared the
effects of nuclear weapons and all
other means of mass destruction.
Paras 5 & 20 of the World
Charter for Nature, 1982.
Nature shall be secured
against degradation caused
by warfare or other hostile
activities’ and that
‘military activities
damaging to nature shall be
avoided.
04/24/2024 Law for Peace 27
Rio Declaration on Environment
and Development, 1992
Warfare is inherently
■
destructive of sustainable
development and that states
shall therefore respect
international law providing
protection for the environment
in time of armed conflict and
co-operate in its further
development, as necessary.
[Principle 24]
04/24/2024 Law for Peace 28
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.
04/24/2024 Law for Peace 29
Practical Importance of
these principles
■ Limited by their non-binding
character and their vaguness.
■ The ICJ in the Nuclear Weapons
Advisory Opinion observes that
at least General Assembly
resolutions can, in certain
circumstances, provide evidence
important for establishing the
existence of a rule or the
emergence of an opinio juris.
04/24/2024 Law for Peace 30
Key Findings
■ 1. Articles 35 & 55 of AP I
to the 1949 GCs do not
effectively protect the
environment during armed
conflict due to the
stringent and imprecise
threshold required to
demonstrate damage.
04/24/2024 Law for Peace 31
Key Findings
■ 2. Provisions in humanitarian law that
regulate the means and methods of
warfare or protect civilian property
and objects provide indirect
protection of the environment.
■ 3. The majority of international legal
provisions protecting the environment
during armed conflict were designed
for international armed conflicts and
do not necessarily apply to the
internal conflicts.
04/24/2024 Law for Peace 32
Key Findings
■ 4. There is a lack of case law on
protecting the environment during
armed conflict because of the limited
number of cases brought before the
courts.
■ 5. There is no permanent international
mechanism to monitor legal
infringements and address compensation
claims for environmental damage
sustained during international armed
conflicts.
04/24/2024 Law for Peace 33
Key Findings
■ 6. The general humanitarian
principles of distinction,
necessity, and proportionality
may not be sufficient to limit
damage to the environment.
■ 7. Environmental damage that
contributes to war crimes,
crimes against humanity and
genocide is a criminal offence
under international law.
04/24/2024 Law for Peace 34
Key Findings
■ 8. Unless otherwise stated,
international environmental law
continues to apply during armed
conflicts and could be used as a
basis for protection.
■ 9. Human rights law, commissions
and tribunals can be used to
investigate and sanction
environmental damage caused
during international and
non-international armed
conflicts.
04/24/2024 Law for Peace 35
Key Findings
■ 10. There is no standard UN
definition of what
constitutes a “conflict
resource” and when sanctions
should be applied to stop
illegal exploitation and
trade of such resources.
04/24/2024 Law for Peace 36
Recommendations
■ 1. The terms widespread,
long-term and severe within Arts
35 & 55 of AP I of GCs should be
clearly defined.
■ 2. The ICRC Guidelines on the
Environment during Armed
Conflict (1994) require updating
and subsequent considerations by
the UNGA for adoption, as
appropriate.
04/24/2024 Law for Peace 37
Recommendations
■ 3. The International Law Commission
(ILC) should examine the existing int.
law for protecting the environment
during armed conflict and recommend
how it can be clarified, codified and
expanded.
■ 4. Int. legal practitioners should be
trained on enforcing the existing
international law protecting the
environment during armed conflict.
04/24/2024 Law for Peace 38
Recommendations
■ 5. Countries that wish to protect
the environment during armed
conflict should consider
reflecting the relevant
provisions of int. law in
national legislation.
■ 6. A permanent UN body to monitor
violations and address
compensation for environmental
damage should be considered.
04/24/2024 Law for Peace 39
Recommendations
■ 7. The int. community should
consider strengthening the role
of the Permanent Court of
Arbitration (PCA) to address
disputes related to
environmental damage during
armed conflict.
■ 8. The UN should define “conflict
resources” articulate triggers
for sanctions and monitor their
enforcement.
04/24/2024 Law for Peace 40
Recommendations
■ 9. A new legal instrument is needed
for place-based protection of critical
natural resources and areas of
ecological importance during armed
conflicts.
■ [Link] agreements and concessions
covering natural resource issued by
conflict parties often lack
legitimacy and should be reviewed at
the outset of the post-conflict
period.
04/24/2024 Law for Peace 41
Recommendations
■ 11. A summary report on the
environmental impacts of
armed conflicts should be
presented on an annual basis
to the UNGA, in conjunction
with the int. day for
Preventing the Exploitation
of the Environment in War
and Armed Conflict.
04/24/2024 Law for Peace 42
