IHL and the environment
Articles
1) The Protection of the Natural Environment in Armed Conflict – Existing Rules and Need for
Further Legal Protection
2) International humanitarian law and the protection of the environment in time of armed conflict
by Philippe Antoine
3) The environment as a military target. How does international humanitarian law protect the
environment during international armed conflicts? Jade Sophie McKellar
4) The Protection of Environment during Armed Conflict: A Review of IHL Md. Jahidul Islam*
5) Environmental Protection in International Humanitarian Law (The environment has always been
a silent casualty of conflict (UNEP))
Table of Contents
Protection of the environment and IHL ........................................................................................................ 3
Article 4 ..................................................................................................................................................... 3
International Humanitarian Law (IHL) and the Protection of Environment ......................................... 3
Article 5 ..................................................................................................................................................... 3
General Principle of International Humanitarian Law on Environmental Protection .......................... 3
The Principle of Distinction ................................................................................................................... 4
The Principle of Military Necessity........................................................................................................ 4
The Principle of Proportionality ............................................................................................................ 4
The Principle of Humanity..................................................................................................................... 5
Principle of Limitation ........................................................................................................................... 5
Direct Protection ........................................................................................................................................... 6
Article 2 ..................................................................................................................................................... 6
Article 4 ..................................................................................................................................................... 8
IHL Provisions for Direct Protection of Environment during Armed Conflict ....................................... 8
Additional Protocol I ............................................................................................................................. 8
Convention on the Prohibition of Military or Any Other Use of Environmental Modification
Techniques (ENMOD) (1976) UN .......................................................................................................... 8
Prohibition on the Use of Certain Types of Conventional Weapons 1980 ........................................... 9
The Chemical Weapon Convention 1993.............................................................................................. 9
The Convention on the Anti-Personnel Mines 1997 ........................................................................... 10
The Bacteriological Weapons Conventions 1972 ............................................................................... 10
The Nuclear Weapon Treaty ............................................................................................................... 10
Indirect Protection ...................................................................................................................................... 12
Article 2 ................................................................................................................................................... 12
Additional Protocol I ........................................................................................................................... 12
Additional Protocol II .......................................................................................................................... 12
Protocol III on incendiary weapons..................................................................................................... 13
Limitation of International Humanitarian Law Regarding Environmental Protection ................................ 15
Article 4 ................................................................................................................................................... 15
Limitations to the Means and Methods of Armed Conflict or War .................................................... 15
Conclusion ................................................................................................................................................... 16
Article 1 ................................................................................................................................................... 16
Conclusion ........................................................................................................................................... 16
Article 3 ................................................................................................................................................... 16
Conclusions ......................................................................................................................................... 16
Article 4 ................................................................................................................................................... 18
Conclusion ........................................................................................................................................... 18
Protection of the environment and IHL
Article 4
International Humanitarian Law (IHL) and the Protection of Environment
The International Humanitarian Law is the first body of legislation for the protection of the environment,
according to Merrema et al. (2009) of UNEP. IHL is divided into four main categories: treaty law,
customary law, soft law, and case law. Firstly, the Treaty Law has three main branches for the protection
of environment during war. These directly protect the environment and are universal principles that
apply to all situations. Indirectly, these provisions also include provisions for environmental protection
during times of war.
Article 5
General Principle of International Humanitarian Law on Environmental Protection
The Martens Clause is one of the most significant tenets of Den Haag Law and was regarded as a
measure of effective protection for civilians and the environment from the advancement of technology
and weapons of war. Martens Clause concluded in the Preamble of Den Haag Convention, that:
“Until a more complete code of the laws of wars has been issued, the High Contracting parties deem it
expedient to declare that, in cases not included in the Regulations adopt by them, the inhabitants and
the belligerents remain under protection and the rule of the principles of the law of nations, as they
result from the usages established among civilized peoples, from the laws of humanity and the dictates
of the public consciences”.
The Martens Clause is a significant clause because, as recognized by civilized nations, the rules governing
international armed conflict are founded on both customary international law and principles of law as
well as on written international law. This led to a stressed-out public consciousness and new
developments in military technology, particularly in the face.14 Erlis Septiana Nurbani,
(2017),“Perkembangan Teknologi Senjata dan Prinsip Proporsionalitas”, JurnalIus (Kajian Hukum dan
Keadilan) Volume 5 Nomor 1 Tahun2017,p 24-29
According to the Martens Clause, which was governed by Additional Protocol I of the Geneva
Conventions in 1977, Article 1 paragraph 2, in situations not covered by this protocol or other
international agreements, citizens and combatants continue to be subject to the protection and
authority of the norms of international law derived from accepted custom, the principle of humanity,
and the wishes of the general public..
As per Martens Clause, if there is a vacuum in the framework of international relations that regulates
specific conditions the state must uphold the minimal standard that is set by humanity and the general
public. If there are no rules established by agreement or custom, the Martens Clause is typically
regarded as generating the fundamental principles of international humanitarian law.
Principle of distinction, military necessity, proportionality, and humanity are the cornerstones of
international humanitarian law. As described below, every principle is related to maintaining the
ecosystem while there is warfare. 15 UNEP, (2009), Protecting the Environment during Armed Conflict
(An Inventory and Analysis of International Law), UNEP, Kenya, p. 17.
The Principle of Distinction
A fundamental tenet of international humanitarian law is the principle of distinction, which is initially
applied in times of conflict to distinguish between civilians and combatants and forbid indiscriminate
and direct attacks on civilians and civilian objects. Military objectives are those that "by nature, location,
purpose, or use make an effective contribution to military action and whose total or partial destruction,
capture, or neutralization, in the circumstances prevailing at the time, offers a definite military
advantage," according to Article 52 paragraph (2) of Additional Protocol I 1977 on Geneva Conventions
1949.
But attacking industrial sites like power plants or chemical factories, which may have significant
environmental effects yet would be perceived as a direct support for current military activity, may seem
like a tough implementation of this idea in practice. Under such circumstances, the question of "Does
eroding a country's morale and political resilience represent a sufficiently distinct military advantage?"
would be pertinent to the interpretation of Protocol I.16 Bodansky in UNEP, Ibid.
Similar issues emerge, for instance, when the unauthorized use of highly valuable natural resources
affects a protected region (whether by rebels, government troops or foreign occupying forces). Would
the protected region be seen as a legitimate target in this circumstance, given that the proceeds from
this illicit commerce went into the war effort? 17 Ibid.
In this way, the application of the idea of differentiation in combat encounters certain challenges.
Attacks should be evaluated by the combatant using similar concepts. Together with the differentiation
principle, additional principles include the military necessity principle, the proportionality principle, and
others.
The Principle of Military Necessity
According to the military necessity principle, the use of force may only be justified when it is necessary
to advance specified military goals. Also, the concept of military necessity was designed to forbid any
military actions that could not possibly result in a military complaint.
According to The Hague Convention IV 1907's Article 23 paragraph (g) on enemy property, it is
prohibited to damage or capture an enemy's property unless doing so is absolutely necessary for the
conduct of war. This clause has important environmental implications since "enemy property" may
include high-value natural resources, protected areas, and environmental assets, all of which might get
indirect protection.18 Ibid.
The Principle of Proportionality
According to the prosecutor of the International Criminal Tribunal for the Former Yugoslavia. It is far
simpler to articulate the idea of proportionality in general terms than it is to apply it to a specific set of
circumstances, 19. David Akerson, (2014),“Applying Jus in Bello Proportionality in Drone
Warfare,”Oregon Review of International Law, Volume 16, p. 178 As a result, participants to an armed
conflict must be able to assess the military goal and the potential for civilian casualties when using a
certain tactic or weapon. Both the military goal and the harm to civilians must be proportionate.
The parties were required to seize any harm that the chosen technique or weapons could cause. So, an
assault or weapon is deemed proportionate if the risk of civilian injury or death is not overwhelming
compared to the need for the attack or weapon from a military standpoint.20 Erlis Septiana Nurbani,
Op.Cit
Attacks that are disproportionate are ones in which the "collateral damage" would be viewed as
excessive in comparison to the expected direct military benefit obtained, according to the concept of
proportionality stated in Article 57 of Additional Protocol I. For instance, it would be seen a
disproportionate approach in relation to the military benefit to completely destroy a hamlet or burn
down an entire forest to achieve a single small objective. Several instances of environmental harm might
be viewed as "disproportionate" responses to threats and hence be forbidden. Most analysts felt that
way regarding the tremendous pollution brought on by burning oil fields and the millions of gallons of oil
that were purposefully poured into the Gulf Sea during the 1990–1991Gulf war.21 UNEP, Op.Cit
The Principle of Humanity
Humanity's guiding concept forbids causing needless pain, harm, or devastation. Consequently, a Party
is prohibited from using famine as a form of warfare, as well as from attacking, removing, or making
unusable any things necessary for the existence of the civilian populace. This idea holds that "inhumane"
methods of warfare might include polluting water supplies, destroying agricultural lands, and cutting
down trees that are necessary for the survival of the population, as is the case with the current violence
un-Darfur.22 Ibid.
It should be noted that the Martens Clause likewise makes reference to "humanity law" in this way. The
International Union for Conservation of Nature's proposal to extend the clause to take environmental
considerations clearly establishes the humanity principle as "common awareness" to protect the
environment in the absence of a special agreement.23 Ibid
Principle of Limitation
The "principle of limitation" suggested restricting the parties involved in a conflict's access to weapons,
tactics, and strategies. This concept brings to a close the laws regarding the use of weapons that have
the potential to do great damage, without making a distinction between military and civilian targets.
Poisonous weapons, nuclear weapons, land mines, chemical weapons, expanding bullets, blinding lasers,
and other weapons that might subject combatants to needless suffering are examples of weapons that
would violate the concept of restriction. Moreover, weapons that cause long-term environmental
damage. 24 ICRC
Direct Protection
Article 2
Article 55 and Article 35, para. 3, of Protocol I guarantee the direct preservation of the environment. The
idea for this kind of safety was initially put up on March 21, 1972, at the ICRC-organized Meeting of
Government Specialists on the Reaffirmation and Development of International Humanitarian Law
Applicable in Armed Conflicts. The following draught articles were some of the texts that were
suggested:
"It is forbidden to use weapons, projectiles or other means and methods which upset the balance of the
natural living and environmental conditions".
"It is forbidden to use means and methods which destroy the natural human environmental conditions".
About the same time, the International Red Cross and Red Crescent Movement started to address this
issue. For instance, at the 22nd International Red Cross Conference, it was stated that: "With regard to
the property essential for the survival of the civilian population, emphasis was laid on the importance of
protecting the natural environment".13 (22nd International Conference of the Red Cross (Tehran,
1973), Commission on International Humanitarian Law, Doc. P/7/b, p. 8).
Despite the fact that the proposal put forth by the ICRC at the Diplomatic Conference of 1974–1977
(CDDH) did not contain any clauses specifically intended to safeguard the environment, many of its
requirements implied respect for natural resources, particularly things necessary for the survival of the
civilian population. Several delegations to the Conference agreed that it was important to raise
awareness of the environment and submitted suggestions to that effect. An unofficial working
committee called "Biotope," founded by Committee III, was tasked with evaluating various
environmental amendments put up by the States. These amendments exhibited two major trends. Draft
article 49 bis, titled "Protection of the natural environment," which the Australian delegation submitted
to the CDDH on March 19, 1974, serves as an example of the first.14 (According to P. Bretton, op.cit.,
p. 59, this was not unrelated to the problem of French nuclear testing which was taking place at the
time in the Pacific). It reads as follows:
 Without prejudice to the rights of a High Contracting Party in its own territory, it is forbidden to
despoil the natural environment as a technique of warfare.
 Attacks against the natural environment by way of reprisal are prohibited.
 A breach of this Article shall constitute a grave breach of the present Protocol.
The draught article's immediate goals were to provide explicit protection of the environment, among
other civilian property, and to forbid retaliatory strikes. Nonetheless, its main objective was to better
safeguard the civilian population from the effects of hostilities. This article served as the foundation for
Article 55 of Additional Protocol I, which was renumbered 48 bis and approved by agreement.
A combined proposal made by the delegates of three socialist countries, notably Czechoslovakia,
Hungary, and the German Democratic Republic, demonstrates the second tendency. This proposal
sought to guarantee the protection of the environment by limiting the ways and means of warfare
employed, as opposed to focusing on the survival and well-being of the civilian population. The creation
of the third paragraph of Article 35 of Protocol I, headed "Fundamental norms," was the result of the
second tendency, which was directly spurred by the extent of the environmental harm the United States
committed during the Vietnam War.16 (Ibid, CDDH/III/SR 13-40 of 15 December 1975, no. 10).
A clause identical to Article 55 of Protocol I regarding Additional Protocol II's non-international armed
conflicts (draught Article 48 bis) was approved by Committee III by a vote of 49 to 4 with 7 abstentions
but was ultimately rejected in plenary session.
Although the objectives of Article 35, paragraph 3, and Article 55, paragraph 1, of Protocol I differ, the
consistency of the prohibition they establish is assured by the shared application of the criterion of
"widespread, long-term, and severe damage."It is interesting to compare this wording with that of
Article 1(1) of the 1976 ENMOD Convention, which mentions "environmental modification techniques
having widespread, long-lasting or severe effects".
According to the differing conjunctions (and/or) used in the two texts, the ENMOD Convention forbids
all tactics or means of warfare that simultaneously violate all three of the conditions specified, unlike
Protocol I, which only forbids those. Thus, the Convention's scope of application is greater.
Moreover, the Convention particularly tries to prevent the hostile use of environmental modification
techniques, but the Protocol focuses on protecting the natural environment regardless of the weaponry
employed (for example, with respect to tidal waves, hurricanes or earthquakes). 17 (Commentary on
the Additional Protocols of 8 June 1977. to the Geneva Conventions of 12 August 1949, Sandoz, Y.,
Swinarski, C, Zimmermann, B., Eds. ICRC, Martinus Nijhoff Publishers, Geneva, 1987, pp. 414415, paras. 1450-1451, and pp. 416-417, para. 1454).
Also, it's vital to remember that the Protocol's restriction only applies during times of armed conflict,
whereas the Convention does so as well. Additionally, certain terminology have distinct definitions in
the two treaties. The term "widespread" should be understood to refer to an area of several hundred
square kilometers, the term "long-lasting" should be understood to refer to a period of months, or
roughly a season, and the term "severe" should be understood to refer to serious or significant
disruption or harm to human life, natural economic resources, or other assets. 18(Arrassen, M.,
Conduite des hostilites — droit des conflits armes ET desarmement (1983 thesis), Bruylant,
Brussels, 1986, p. 297; Commentary on the Additional Protocols, op.cit., p. 417, note 117).
Given that the Protocol's provisions safeguard the natural environment as a whole and are consequently
less detailed, it is considerably more difficult to provide a correct meaning of the terms used in the
Protocol (Committee III and its "Biotope" group did very little to clear up this point). However, it is
generally accepted that "widespread" denotes a region of less than a few hundred square kilometers,
"long-term" designates a period of at least ten years, and "severe" denotes "damage as would be likely
to prejudice, over a long term, the continued survival of the civilian population or would risk causing it
major health problems."19 (Arrassen, M., op.cit., pp. 294-295; Commentary on the Additional
Protocols, op.cit., pp. 416-417, para. 1454).
Since one work addresses geophysical warfare and the other addresses environmental warfare, the two
texts should not be viewed as being redundant but rather as being unique and complimentary. In their
statements following the adoption of different articles on the environment by the CDDH, a number of
delegations (including Argentina, Egypt, Mexico, and Venezuela) drew attention to this reality. IHL and
disarmament legislation differ greatly in this regard.
Article 4
IHL Provisions for Direct Protection of Environment during Armed Conflict
According to the report of UNEP (2009) there are many provisions directly aimed at environmental
protection during war. These are briefly discussed as followed:
Additional Protocol I
Additional Protocol I to the 1949 Geneva Conventions, Article 35(3) (Gaser, Hans-Peter (2014) “For
Better Protection of the Natural Environment in Armed Conflict: A Proposal for Action” The American
Journal of International Law, Vol. 89, No. 3 (Jul., 1995), pp. 637-644. Stable URL:
http://www.jstor.org/stable/2204184. Accessed: 04/10/2014) and Article 55(1) (Der, Van, Letetia, &
Booley, Ashraf (2011) “In Our Common Interest: Liability and Redress For Damage Caused to Natural
Environment During Armed Conlflict” Law Democracy and Development, Volume 15. Available at:
http://dx.doi.org/10.4314/ldd.v15i1.5. Accessed: 04/10/2014) (1977) directly deal with environmental
protection during war. Article 35 adds a new prohibition as a general restriction on warfare, according to
Hans-Peter Gasser (1997): "It is prohibited to deploy techniques and means of warfare which are
intended, or may be expected, to cause widespread, long-term, and serious damage to the natural
environment." Important terms like "widespread," "Long term," "serious damage," and "natural
environment" are used in this article. This article makes it very clear that using weapons and techniques
to wage war that seriously and permanently harm the "natural environment" is completely prohibited.
According to the UNEP Report (2009), American forces in the Vietnam War seriously and permanently
destroyed the environment.
Article 55 (1) (Der, Van, Letetia, & Booley, Ashraf (2011) “In Our Common Interest: Liability and
Redress For Damage Caused to Natural Environment During Armed Conlflict” Law Democracy and
Development, Volume 15. Available at: http://dx.doi.org/10.4314/ldd.v15i1.5. Accessed: 04/10/2014)
of additional Protocol I drills with the protection of natural environment. The article states that, “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.” It also added that “Attacks against the natural
environment by way of reprisals are prohibited.”
These two articles of the Geneva Convention's Additional Protocol I are applicable in international
armed conflict at least when it involves at least two states. Yet, the nature of conflict has evolved from
being international to internal in modern times. The "new war debate" among academics got off to a
strong start. The main flaw in these two articles is that they do not apply to military conflicts that are not
international. Whatever the case, these articles vehemently and strongly support the protection of the
environment during armed combat. Another issue mentioned by Merrema et al. is the lack of
explanation of "widespread," "long-term," and "severe" damage (2009).
Convention on the Prohibition of Military or Any Other Use of Environmental Modification
Techniques (ENMOD) (1976) UN
United Nations Conventions on the Prohibition of Military or Any Other Use of Environmental
Modification Techniques (ENMOD) was the second significant component of direct preservation of the
natural environment addressed in the UNEP (2009) Report (1976). The United Nations called for this
treaty as a result of the extensive environmental damage caused by American forces during the Vietnam
War. In order to cause earthquake, tsunami, and other natural disasters, the US military targeted the
environment. They attempt to employ nature as a weapon. The United States forces intended to do
significant harm to the Vietnamese people by destroying the environment or harming the environment.
The United States military's employment of environmental manipulation techniques in Vietnam
prompted the establishment of this treaty, which also included rules banning the use of such tactics in
combat. Article 1 of this convention states that, ““each State Party to this Convention 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.”
Article 35 of Additional Protocol I and Article 1 of ENMOD have certain parallels and differences. As for
the "Long Term" and "Long Lasting" effects, article 1 of the ENMOD is more supportive of environmental
protection than article 35 of Additional Protocol 1. The report claims that although "long lasting" in
article 1 refers to a season or a moth, "long term" in article 35 refers to decades. We can therefore
conclude that ENMOD provisions are superior efforts to protect the environment from the lethal path of
modern warfare.
Prohibition on the Use of Certain Types of Conventional Weapons 1980
In addition, the UNEP (2009) report correctly cited a second treaty that includes direct environmental
protection during combat, namely “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 also known as “Convention on Certain Conventional Weapons and the Inhumane Weapons
Convention). The preamble of this convention states 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”. Further amendments of this article in 2001 strengthen its
spectrum to Non-International Armed conflict also. In addition, Article 2(4) (International Committee of
Red Cross (ICRC),
http://www.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=E20CAD5E1C
078E94C12563CD0051DD24. Accessed: 04/12/2014 of the CCW Protocol III Environmental protection is
directly addressed by the Convention on Prohibitions or Restrictions on the Use of Incendiary Weapons,
which forbids "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 combatants or
other military objectives, or are themselves military objectives." The environmental protection during
armed conflict will be directly enforced by these three sets of laws, which include Additional Protocol I,
ENMOD, and CCW and its Additional Protocol III. International organizations must therefore strictly
enforce these three sets of guidelines.
The Chemical Weapon Convention 1993
Chemical weapons have a significant negative impact on both the environment and human life. Nations
were driven to outlaw chemical weapons due to their devastating consequences on both human life and
the environment. According to Poll, Bolley, and Pool (2011), that “the Chemical Weapons Convention
was adopted in January 1993; it only came into force in 1997.” All uses, development, and stockpiling of
chemical weapons are prohibited under the Chemical Weapons Convention. Environmental concern
must be estimated in the event that chemical weapons are destroyed. All uses, development, and
stockpiling of chemical weapons are prohibited under the Chemical Weapons Convention.
Environmental concern must be estimated in the event that chemical weapons are destroyed, “chemical
substances has both acute impact on natural environment” according to Mrema et al. (2009). .” In
addition, Bolley and Poll states that Articles 4(10) (Schmitt N. Michael (1999) “Humanitarian Law and
Environment”, International Environment Law and Policy, Vol. 28:3, University of Denver, USA), 5(11)
(United Nations Environmental Programme (UNEP) (2009) Protecting the Environment during the
Armed Conflict: An Inventory and Analysis of International Law, Published by UNEP in November
2009. This report was co-authored by Elijabeth Maruma and Mremea of UNEP) and 7(1) (Der, Van,
Letetia, & Booley, Ashraf (2011) “In Our Common Interest: Liability and Redress For Damage Caused to
Natural Environment During Armed Conlflict” Law Democracy and Development, Volume 1of the
Chemical Weapons Convention Mandate States Parties to ensure the protection of the environment
during transportation, sampling, storage, destruction and implementation of all chemical weapons.5.
Available at: http://dx.doi.org/10.4314/ldd.v15i1.5. Accessed: 04/10/2014) of the Chemical Weapons
Convention Mandate States Parties to ensure the protection of the environment during transportation,
sampling, storage, destruction and implementation of all chemical weapons. So, according to the
Chemical Weapons Convention, these three provisions provide the most significant environmental
protection. Also, the Convention forbids the use of chemical weapons under any circumstances in its
first article. Because of this, using chemical weapons to harm the environment is prohibited both in
times of war and peace.
The Convention on the Anti-Personnel Mines 1997
State parties are subject to restrictions or obligations on the use of anti-personnel mines under the AntiPersonnel Mine Convention. Its application in armed conflict was restricted once it was adopted in 1997.
According to Bolley and Pool, the regulation of anti-personnel mines was tied to the environment's
damage. The cost and risks to the environment should be calculated before the state parties destroy any
antipersonnel mines. The Anti-Personnel Mine Convention thus has a direct relationship to
environmental preservation. Another name for it is the Ottawa Treaty of 1977.
The Bacteriological Weapons Conventions 1972
The destruction of the environment is forbidden by the Bacteriological Weapons Convention. The
Security Council will take action based on the degree of degradation in any case. Moreover, Bolley and
Pool (2011:111) noted that, “the Bacteriological Convention of 1972 does not prohibit the use of
Bacteriological weapons as such as this is specifically provided for under the Protocol for the Prohibition
of the Use in War of Asphyxiating, Poisonous or Other Cases and of Bacteriological Methods of Warfare
of 1925. The Bacteriological Weapons Convention extends beyond the latter, however, in one significant
respect, namely by prohibiting the degradation of the natural environment.” By reducing environmental
dangers and destruction, the bacteriological convention promotes environmental protection.
The Nuclear Weapon Treaty
The Nuclear Weapons Treaty does not prohibit the use of nuclear weapons in hostilities, nor does it
contain any clauses that address environmental protection or concerns for future generations. Japan's
Hiroshima and Nagasaki provide as a stunning illustration of the immediate repercussions of nuclear
weapons. The Nuclear Weapon Treaty of 1968 is for nuclear disarmament, according to Bolley and Poll.
According to an ICJ ruling from 1996, using nuclear weapons would “serious danger for future
generation|” and has “potential to damage the future environment, food and marine ecosystem”,
including “genetic defects and illness in future generation.” Yet, by assessing the cost of military
necessity and proportionality, which implicitly involve the protection of the environment during armed
conflict, the decision backed the use of nuclear weapons in the event of self-defense rather than
outright prohibiting it.
Indirect Protection
Article 2
Additional Protocol I
A number of clauses in Additional Protocol I aim less directly to stop specific environmental threats
and instead offer a variety of indirect kinds of protection against such attacks.
For instance, Article 51 forbids indiscriminate attacks (paragraphs 4 and 5), attacks that "employ a
method or means of combat the effects of which cannot be limited as required by this Protocol"
(paragraph 4 (c)), and bombardment attacks that treat a number of clearly distinct and separate
military objectives as a single military objective (paragraph 5 (a)). Additionally, it upholds the
proportionality concept (paragraph 5(b)).
Attacks are strictly limited to military targets under Article 52, which deals with the general
protection of civilian objects (paras. 1 and 2).
Article 54 safeguards items "such as foodstuffs, agricultural lands for the production of foodstuffs,
crops, livestock, drinking water facilities and supplies, and irrigation works," which are necessary for
the life of the civilian population (para. 2).
In accordance with Article 56, "dams, dykes, and nuclear electricity generating plants" are among
the works and installations that are protected from dangerous forces (para. 1).
The charge that Americans had bombed dykes during the Vietnam War in order to cause
catastrophic flooding led to the introduction of the latter provision.
A number of safety measures are outlined in Article 57 with regard to attacks and their planning.
The belligerents are required to adopt a number of measures with regard to their own territory in
Article 58 to secure the protection of, among other things, civilian property.
Additional Protocol II
Many clauses proposed by Committee III that were identical to those in Protocol I were later rejected in
plenary session. The only provisions in Protocol II that provide indirect environmental protection are
Articles 14 (Protection of objects indispensable to the survival of the civilian population) and 15
(Protection of works and installations containing dangerous forces). This is understandable given the
desire for simplification that drove the creation of Protocol II.
The three protocols of the Convention of 10 October 1980 on the Ban or Limitation of the Use of Certain
Conventional Weapons which may be considered excessively lethal or indiscriminate in their
Consequences
Weapons themselves are not prohibited under Additional Protocols I and II of 1977, and neither are
certain types of weapons. Instead, they forbid the indiscriminate use of firearms.
The ICRC held two seminars for government experts as a result of this issue, one in Lucerne in 1974 and
the other in Lugano in 1976. A conference of government specialists should be held no later than 1979,
according to the CDDH's Resolution 22. Conferences were held in September 1979 and September 1980
as a result of this recommendation. The Convention on the Prohibition or Restrictions on the Use of
Certain Conventional Weapons Which May be Considered to be Excessively Injurious or to Have
Indiscriminate Effects and its three protocols—Protocol I on non-detectable fragments, Protocol II on
mines, booby traps, and other devices, and Protocol III on incendiary weapons—were adopted on
October 10, 1980, as a result of these negotiations.
It is disappointing that the 1980 Convention makes no mention of explosive bombs when it comes to the
environmental harm brought on by different forms of conflict. The extensive environmental harm
brought on by the widespread and heavy use of explosive bombs in Vietnam served as solid evidence
that this issue needed to be addressed.20
20 "A total of over 14 million tonnes of munitions was directed against the whole of Indo-China by the
USA", Stockholm International Peace Research Institute, World Armaments and Disarmament: SIPRI
Yearbook 1978, Taylor and Francis Ltd., London, 1978, p. 44, quoted in Arrassen, op.cit., p. 281, note
169.
The issue of weapons-related environmental harm has no bearing on Protocol I's discussion of
undetectable pieces.
Mines, booby traps, and other weapons are covered in Protocol II, which was created in response to the
widespread use of these weapons in the Second World War, the Indochina Wars, the Arab-Israeli Wars,
and more recently in Afghanistan.
Although while such weapons are not designed to harm the environment in a way that is widespread,
persistent, or severe, they can still be detrimental in many ways. Along with causing a variety of
accidents that result in the death or injury of humans and animals, they can also hinder the resumption
of agricultural and other production, deface the landscape by creating craters in the ground, and scatter
the wreckage of destroyed vehicles, barbed wire, and other war debris over large areas.
The use of mines and booby traps (Articles 3 to 6), the recording and publication of the locations of
minefields, mines, and booby traps (Article 7), the protection of United Nations forces and missions
from the effects of minefields, mines, and booby traps (Article 8), and international cooperation in the
removal of minefields, mines, and booby traps are all topics covered by Protocol II (Article 9).
Protocol III on incendiary weapons
Particularly interesting is Protocol III on incendiary weapons. Between the start of hostilities and March
1968, the American military is believed to have used approximately 100,000 tonnes of napalm in
Vietnam as part of a devastation plan. This tactic involved burning down huge areas with fire and
bulldozers driven by ground forces, deforesting plantations and forests, destroying rice paddies, and
incendiary bombardments.
The natural dampness of the region prevented fires from spreading quickly, despite the fact that tens of
thousands of square kilometers of vegetation and crops were destroyed during this environmental
warfare.
Concerning the deterioration of the environment, the conclusion of a 1973 United Nations report on
incendiary weapons reads: "Although the effects of widespread fire in these conditions are not well
understood, such attempts could result in irreversible ecological changes that have serious long-term
repercussions that are far worse than the effects that were initially sought. This threat, however mainly
unpredictable in its severity, is a reason to raise concern over the widespread use of incendiaries against
rural areas ".21
21 Napalm and other incendiary weapons and all aspects of their possible use, Report of the
Secretary-General, United Nations, New York, 1973, p. 55, para. 189.
It should be noted in this regard that Protocol III plays a significant role by stating that "it is prohibited in
all circumstances to make the civilian population as such, individual civilians, or civilian objects the
target of attack by incendiary weapons" (Article 2 (1)), thereby reaffirming the provisions of Articles 51
and 52 of Additional protocol
Furthermore, the 1980 Convention's Preamble reiterates verbatim Article 35, paragraph 3, of Additional
Protocol I, stating that "it is prohibited to employ methods or means of warfare which are intended, or
may reasonably be expected to cause, widespread, long-term, or severe damage to the natural
environment."
Limitation of International Humanitarian Law Regarding
Environmental Protection
Article 4
Limitations to the Means and Methods of Armed Conflict or War
The opposing forces cannot be harmed by the contending parties using any and all means. International
treaty law prohibits a wide variety of weapons. These forbidden tools and techniques endanger human
life as well as the physical and natural environments. The Hague Convention, which was signed in 1899
and 1907, for instance, declares in article 22 that "the rights of belligerents to choose means of hurting
the enemy are not unlimited." Moreover, the first Peace Conference of The Hague (1899) prohibited the
use of poison and poisoned weapons as well as "dum-dum" bullets. Both the environment and human
lives are greatly impacted by poison and hazardous gas.
The Hague conventions are particularly concerned with the issue of limiting the tools and techniques of
war. The UNEP report correctly noted that the rate of Hague law implementation is particularly
inadequate during times of war. Defense of Civilian Property and Items IHL has explicit provisions for the
protection of civilian property and objects. Broadly speaking, civilian things are those that are not being
used for military purposes or as military equipment. Therefore, the environment is not typically
employed for military purposes or as a weapon. Because of this, it is a civilian object. Environmental
resources are also finite and precious in nature. In general, humans are reliant on their surroundings.
The whole population of a territory may frequently be completely reliant on its natural resources.
Hence, hurting the environment also causes harm to the general public. Because of this, IHL indirectly
mandates environmental protection. The Defense of Cultural Assets Regarding the preservation of
cultural heritage, international humanitarian law contains a number of highly specific rules. Under the
sponsorship of United Nations Educational, Scientific, and Cultural Organizations, the Convention for the
Protection of Cultural Property in the Event of Armed War was adopted in 1954. Conflicting parties are
subject to limits under the Conventions when it comes to cultural assets and heritages during hostilities.
As if the protection of the natural environment is not explicitly mentioned in the convention but is
implied nonetheless.
Oil fields and petrochemical plants, for instance, are not specifically listed and may, according to UNEP,
"have been purposely excluded," Pool and Bolly continued. These clauses are forbidden in terms of noninternational armed conflict according to supplementary protocol II article 15. A criticism of these
clauses also highlights how difficult it would be for American forces to take over Iraq given the
availability of oil fields in Middle Eastern nations if the clause forbade attacking oil fields. Attacks are
limited based on the targeted area According to Pool and Bolly, there are three sorts of limitation based
on the intended area. This problem is also discussed in the UNEP Report. This topic was covered in other
literature on environmental protection during conflict. The three types are demilitarised zones, neutral
regions, and territories under occupation. IHL forbids attacks in these three locations. As a result,
provisions relating to these tree features are beginning to automatically protect the environment.
Conclusion
Article 1
Conclusion
In 1992, Agenda 21's paragraph 39.6 said that "actions consistent with international law should be
explored to counteract, in times of armed conflict, large-scale destruction of the environment that
cannot be justified under international law." The nations taking part in the United Nations Conference
on Sustainable Development in June 2012 reiterated their dedication to putting Agenda 21 into full
implementation. (134)
134) The Future We Want, supra note 8, para. 16. C. Droege and M.-L. Tougas / Nordic Journal of
International Law 82 (2013) 21–52
As was previously said, significant progress has been achieved in recent years in our understanding of
how hostilities affect the environment, and this progress should be helpful in our search for effective
strategies to increase the preservation of the environment during armed conflicts. Despite this, it
appears that, compared to what might have been anticipated after the experience of the Gulf War in
1991, little attention has been paid to the environmental consequences of hostilities, even though
national legislation and military manuals incorporate the IHL obligations with regard to the
environment. This article points out that there is definitely room for improvement, both in terms of
applying current laws more carefully and in terms of strengthening, defining, and broadening the
current legal system. Many methods could be used to increase protection.
Better adherence to current IHL standards for the protection of the environment is needed as a first
step, as is their explanation where necessary. Aspects of IHL need to be developed further as a second
stage, notably in order to offer specific protection to regions of significant ecological interest and to
create standards and methods to deal with the long- and medium-term environmental effects of
hostilities. Finally, more study is required to understand how international environmental law and
international human rights law protect the environment during armed conflict, as well as how these two
bodies of legislation relate to international humanitarian law (IHL).
Article 3
Conclusions
Although there are laws in place that deal with the protection of the environment during international
armed conflicts, both directly and indirectly, it is obvious that these laws are not actually applied or
enforced. There is little jurisprudence about the application or interpretation of these laws and rules,
and international legal agencies have not enforced them.
Being the "guardian" of IHL, the ICRC has defined these clauses in a number of texts, and these are
highly significant. They also draw attention to potential application issues and acknowledge that
precautions are not always used. The specific IHL requirements for environmental protection, as well as
the general IHL principles and how these could be applied and considered to give some level of
protection, were the main subjects of the research for this thesis. Several gaps and difficulties have been
noted and discussed. How these issues might be resolved in order to enhance the legal system and more
effectively implement rights in practise remains the key open topic in this field.
Notwithstanding the current safeguards, armed conflicts continue to harm the environment in different
parts of the world, and the effects of earlier armed wars are still being felt. The case study of
Afghanistan covered in this thesis provides an illustration of the effects of direct and indirect
environmental damages resulting from armed conflict and military operations. Long-term consequences
of this harm may include hazards to people's health, way of life, and security as well as the wellbeing of
biodiversity and ecosystems. When there is a need for and competition over natural resources in nations
with poor governance, laws, and institutions, it can also impede peacebuilding efforts once wars are
resolved.
It is obvious that the rules that do already exist and may potentially safeguard the environment have not
been successfully implemented. In actuality, Sections 35 and 55 of API do not offer adequate protection
because they have a purposefully high cumulative bar for damage proof that is also unclear. These
articles demand extensive, severe, and ongoing harm. To cross this line, each of these conditions must
be proven. The three-pronged threshold is very difficult to meet since these three standards are not
clearly defined, even if there is universal consensus that each one sets a high bar.
It might be better to define the phrases "widespread," "long-term," and "severe" in these articles. These
concepts are comparable to those in ENMOD, although they differ from ENMOD in that they are
cumulative. Understanding the precise parameters of the protection offered by this treaty would be
improved by a clarification of the meaning of these thresholds. For instance, the phrase "widespread" in
ENMOD is defined to include a region of several hundred square kilometers, and the term "long lasting"
refers to a period of months or a season. Similar requirements for Articles 35 and 55 could make them
more applicable in practise and increase the likelihood that they will be applied and enforced.
As there haven't been many environmental protection-related legal cases, there isn't much case law to
draw from. Since these clauses have not been used or brought before national, regional, or international
courts or tribunals, there are few instances addressing this topic. Lack of case law suggests resistance to
or difficulty in upholding relevant legal requirements. Setting norms while establishing clarity,
development, and building in this field is case law. The absence of a stable international framework to
track and punish legal violations may also make it more difficult to implement these standards. The
absence of case law and enforcement may also be considered as evidence that the international
community is ill-prepared to keep track of and assign blame for harm brought on by international
military conflicts. A permanent entity devoted to this issue would serve as a deterrence, but creating
such a body requires a coordinated political effort from governments.
Having qualified foreign legal professionals to uphold the law may be equally crucial. The corpus of case
law in this field might be improved by instructing attorneys in the prosecution of environmental crimes
committed during hostilities. Case law development is crucial for highlighting and guiding the proper
course for the development of this field of law as well as for clarifying the current provisions.
By being classified as a civilian object, the environment is given indirect protection. Environment-specific
restrictions on weapons and tactics of war and clauses protecting civilian goods and property are
possible, although they are rarely put into practise or enforced. Nearly all attention is given to
protecting people. There are international legal treaties that forbid the use of specific weapons and
techniques, but they do not cover all emerging technologies that may endanger the environment, such
as depleted uranium.
IHL and customary international law's general principles offer some protection and guidelines on
international standards and values during armed conflicts, but they might not be sufficient to address
the complexities of contemporary armed conflicts in their current form without further explanation and
implementation. Since there are no universally accepted standards for the principles, it is simple to
evade them or use military necessity as a justification for damages. Because there are no established
standards, these laws' practical usefulness is therefore constrained.
These broad guidelines may be clarified to make the thresholds more obvious, and making agreed-upon
norms part of customary international law would offer a great deal of protection because it would also
apply to nations that aren't necessary parties to formal treaties or agreements. Nonetheless,
international customary law adheres to widely recognised standards and state practises. It is not a place
where adjustments can be made quickly or precisely. To safeguard the environment in the short term, a
new instrument that builds on these concepts and clarifies the criteria may be more helpful.
Article 4
Conclusion
It is evident from the explanation above that international humanitarian law is the only tool available to
safeguard the environment during armed conflict. The protection of the environment during times of
conflict is not specifically covered by international environmental law because it only applies during
times of peace. There are not many general, explicit, or oblique provisions of international humanitarian
law that address environmental protection during armed conflict. These measures, however, are
insufficient to safeguard the environment from the scourge of lethal conflict. Thus, it is imperative to
pass new legislation to protect the environment from further huge harm caused by conflict. If not, the
lives of people and other creatures will be seriously imperilled. Finally, I want to conclude by the
following wording that “The General Assembly…invites all States to disseminate widely the revised
guidelines for military manuals and instructions on the protection of the environment in times of armed
conflict” (cited in Gaser, 2014).
Gaser, Hans-Peter (2014) “For Better Protection of the Natural Environment in Armed Conflict: A
Proposal for Action” The American Journal of International Law, Vol. 89, No. 3 (Jul., 1995), pp. 637644. Stable URL: http://www.jstor.org/stable/2204184. Accessed: 04/10/2014