Protection of the Natural Environment

Oxford Handbooks Online

Protection of the Natural Environment

Jean-Marie Henckaerts and Dana Constantin
The Oxford Handbook of International Law in Armed Conflict
Edited by Andrew Clapham and Paola Gaeta

Print Publication Date: Mar 2014 Subject: Law, Environment and Energy Law
Online Publication Date: Jun DOI: 10.1093/law/9780199559695.003.0019
2014

Abstract and Keywords

Armed conflicts pose a threat to the natural environment, such as when hazardous substances are released as a
result of attacks on industrial sites, or when biological, chemical, and nuclear weapons are used by the
combatants. The international effort to protect better the natural environment from the ill-effects of armed conflict
occurred in three phases: during the Vietnam War, during the Gulf War of 1990–91, and the adoption of the
International Committee of the Red Cross’s Guidelines for Military Manuals and Instructions on the Protection of the
Environment in Times of Armed Conflict. This chapter discusses the existing legal protection for the natural
environment during armed conflict, first by considering the specific and general rules of international humanitarian
law (IHL). It then examines some of the gaps and deficiencies in the law and presents possible remedies to
strengthen the legal protection provided by IHL for the environment. It also focuses on multilateral environmental
agreements that are applicable and not applicable during armed conflict, as well as multilateral agreements that are
silent on the matter.

Keywords: natural environment, armed conflict, legal protection, international humanitarian law, multilateral agreements, Vietnam War, Gulf War,
International Committee of the Red Cross

1 Introduction
*ARMED conflicts have always been a threat to the natural environment and thereby also to the survival and well-

being of those who depend on it for their livelihood, during the conflict and long thereafter. These threats may take
a variety of forms, among them:

• direct attacks on the environment, such as the use of Agent Orange, a herbicide and defoliant, during the war
in Vietnam; the consequences of the use of this substance, most notably the prevalence of congenital
deformities, are being felt to this day;
• the release of hazardous substances as a result of attacks on industrial sites, such as those which took place
in Kosovo in 1999 and in Lebanon in 2006;
• the actual or potential use of certain means or methods of warfare, such as biological, chemical and nuclear
weapons; and
• the exploitation of natural resources (diamonds, gold, copper, coltan, timber, etc) to finance armed forces and
buy weapons, or for personal enrichment, which has recently become a major source of concern for the
international community.
(p. 470)

The international effort to better protect the natural environment during armed conflict can be roughly divided into
three phases.

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 Protection of the Natural Environment

The first time the issue became a major concern was during the war in Vietnam. This eventually led to the adoption
of the Convention on the Prohibition of Military or any Hostile Use of Environmental Modification Techniques of 1976
(the ENMOD Convention).1 A year later, the first norms of international humanitarian law explicitly addressing the
issue of environmental protection during armed conflict came into being: these were the two provisions—Articles
35(3) and 55—that had been included for that particular purpose in Protocol I of 8 June 1977 additional to the
Geneva Conventions (AP I).2

A second phase is discernible during the Gulf War of 1990–91, when the adequacy of the existing legal framework
was called into question: retreating Iraqi armed forces had caused massive damage to oil wells in Kuwait, but
despite its scale, the destruction they had wrought appeared to fall below the threshold established by Articles
35(3) and 55 of AP I (‘widespread, long-term and severe damage’). As a result, attention shifted to the general
principles and rules of international humanitarian law: more precisely, their applicability to the natural environment.

In 1994, a third phase began when these principles and rules were restated in the ICRC’s Guidelines for Military
Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict.3 Assessing the legality of
incidental damage to the natural environment is beset with difficulties and concern is mounting over the role natural
resources and environmental degradation play in armed conflict. For these and other reasons, efforts to increase
protection for the natural environment during armed conflict are being made with renewed intensity.

This Chapter seeks to give an overview of the existing legal protection for the natural environment during armed
conflict. Part 1 focuses on general rules of international humanitarian law and Part 2 on specific rules. Part 3
identifies some of the gaps and deficiencies in the law and presents possible remedies, including efforts currently
under way.

It may be useful to begin with a precise description of the object of our analysis. International law does not contain
a uniform definition of the ‘natural environment’. (p. 471) Having evaluated existing environmental treaties and
given the value of everything that surrounds, and in some respects, precedes human activity it seems that the
concept should be understood in the widest sense possible. The ‘natural environment’ should include everything
that is not man-made: the atmosphere, the oceans, and other bodies of water, soil, rocks, plants and animals.4
Quite remarkably, then, while perhaps 95 per cent of what exists on our planet today would fall under this definition,
international humanitarian law is for the most part concerned with the protection of the remaining 5 per cent—man-
made structures such as roads, bridges, and buildings.

2 General Rules of International Humanitarian Law Applicable to the Natural Environment

The first strand of protection provided by international humanitarian law for the natural environment consists of a
number of general rules, ie rules that were not adopted specifically with that end in mind, but which do in fact
provide such protection. It is widely agreed that a number of general rules of international humanitarian law are
applicable and provide protection for the natural environment. These (p. 472) include: (a) the rules protecting
enemy property from wanton destruction, (b) the prohibition against pillage, (c) the rules protecting civilian objects
during hostilities, (d) the rules protecting objects indispensable to the survival of the civilian population, and (e) the
rules regulating the use of weapons during armed conflict.5

A. Protecting enemy property from wanton destruction

The first general rule protecting the natural environment prohibits the destruction or seizure of enemy property
except for reasons of imperative military necessity. This rule goes back to the 1899 and 1907 Hague Regulations.6
It was restated in the Fourth Geneva Convention of 1949 (GC IV).7 Under the 1998 Rome Statute of the International
Criminal Court (the Rome Statute), ‘[d]estroying or seizing the enemy’s property unless such destruction or seizure
be imperatively demanded by the necessities of war’ amounts to a war crime in both international and non-
international armed conflicts.8 This rule is now considered to reflect customary international law in both types of
conflict.9

In addition, GC IV states that ‘extensive destruction and appropriation of property, not justified by military necessity
and carried out unlawfully and wantonly’ amounts to a grave breach of the Convention.10 Such destruction and
appropriation also constitutes a war crime under the Rome Statute.11

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 Protection of the Natural Environment

The general rule prohibiting destruction of enemy property unless imperatively required by military necessity is
equally applicable to the natural environment.12 (p. 473) Unlike Articles 35(3) and 55 of AP I, which prohibit only
high-level damage (‘widespread, long-term, and severe damage’), this general rule applies regardless of the
amount of damage. This also adds to the practical relevance of the rule, particularly during conventional warfare.
For example, although it was a subject of controversy whether the destruction of oil wells during the Gulf War
reached the high level of damage prohibited under AP I (‘widespread, long-term, and severe damage to the natural
environment’), it was more plausible to conclude that the destruction amounted to a violation of the prohibition
against the wanton destruction of enemy property.13

B. The Prohibition against pillage

The prohibition against the destruction or seizure of enemy property except for reasons of imperative military
necessity is complemented by the prohibition against pillage in the Hague Regulations,14 GC IV,15 and Protocol II of
8 June 1977 additional to the Geneva Conventions (AP II).16 This prohibition is now considered to reflect customary
international law in both international and non-international armed conflict.17 Under the Rome Statute, ‘[p]illaging a
town or place, even when taken by assault’ constitutes a war crime in both international and non-international
armed conflict.18 This prohibition has a particular bearing on the exploitation of natural resources by conflicting
parties.19 A recent study by the United Nations (p. 474) Environment Programme (UNEP) concluded that such
exploitation was a major driving force behind many contemporary armed conflicts.20

C. Protecting civilian objects during hostilities

The natural environment is also implicitly protected by the general rules protecting civilian objects during the
conduct of hostilities, namely the principles of distinction, proportionality, and precaution.21 In theory, the
constituent elements of the natural environment should qualify as civilian objects, unless they make, by their
location or use, ‘an effective contribution to military action and [unless their] total or partial destruction, capture or
neutralization, in the circumstances ruling at the time, offers a definite military advantage’.22 The general rules
involved are, most notably, these: the prohibition of direct attacks against civilian objects,23 the prohibition of
indiscriminate attacks,24 the principle of proportionality according to which ‘an attack which may be expected to
cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which
would be excessive in relation to the concrete and direct military advantage anticipated’ is unlawful,25 and the
obligation to take precautions in attack.26 These rules are now generally considered to be of a customary nature in
both international and non-international armed conflicts.27 (p. 475)

While the applicability of the general rules for protecting civilian objects seems largely uncontested with respect to
the natural environment, problems may arise with their application in specific cases. This is especially true of
cases involving the principle of proportionality: they necessitate difficult assessments in which variables that
cannot be compared have to be balanced. These difficulties may be seen in a number of instances of incidental
damage to the natural environment, such as the bombardment of the Pancevo industrial complex and of a
petroleum refinery in Novi Sad by NATO forces during the war in Kosovo in 1999, which led to the release of some
80,000 and 73,000 tons of crude oil into the soil.28 More recently, during the war in Lebanon in 2006, the Israeli
attack on the Jiyeh power plant south of Beirut led to the release of an estimated 12,000 to 15,000 tons of burning
fuel oil into the Mediterranean Sea.29 Whether the incidental damage caused to the natural environment in these
cases was proportionate to the military advantage may not be easy to assess. Defining and quantifying precisely
the variables involved in the comparison, ie the extent of the environmental damage caused in relation to the
expected military advantage gained, may be difficult.30 In addition, the decisive elements of comparison are the
damage that is expected and the advantage that is anticipated on the basis of the information reasonably
available to the military commander at the time of the attack. Even when these variables can be correctly
identified, they are so different in nature as to make a simple quantitative comparison impossible; what emerges is
a value judgement.31 (p. 476)

D. Protecting objects indispensable to the survival of the civilian population

Rules protecting objects indispensable to the survival of the civilian population are also of relevance to the
protection of the natural environment. These rules were first introduced in the two Additional Protocols of 1977.

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 Protection of the Natural Environment

Article 54(2) of AP I makes it unlawful to ‘attack, destroy, remove or render useless objects indispensable to the
survival of the civilian population, such as food-stuffs, agricultural areas for the production of food-stuffs, crops,
livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for
their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to
starve out civilians, to cause them to move away, or for any other motive.’32 Article 14(2) of AP II contains a similar
provision that makes it unlawful to ‘attack, destroy, remove or render useless [for the purpose of starving out
civilians] objects indispensable to the survival of the civilian population’.33 Article 54(2) of AP I is subject to some
exceptions,34 but Article 14(2) of AP II is not. Both provisions are also considered to reflect customary international
law.35 The relevance of these rules for the natural environment is self-evident, as they protect agricultural areas,
drinking water supplies, and livestock, which are constituent elements of the natural environment.

In 2005, the Eritrea–Ethiopia Claims Commission found that Ethiopia had violated the customary law rule expressed
in Article 54(2) of AP I by carrying out air strikes on the Harsile water reservoir in February 1999 and June 2000. In
the Commission’s view, the government of Ethiopia had been well aware that the reservoir was a vital source of
water for the city of Assab. From this the Commission drew the following conclusions: that Ethiopia’s purpose in
targeting the reservoir was to deprive Eritrea of the sustenance value of its water and that it did not do so on the
erroneous assumption that the reservoir provided water solely to the Eritrean armed forces, as required by Article
54(3)(a). Although this provision was not formally applicable because Eritrea was not party to the Protocol when the
air strikes took place, the (p. 477) Commission nevertheless considered the protection of objects indispensable to
the survival of the civilian population to be part of customary international law.36

E. Weapons law

Lastly, the rules regulating the use of weapons during armed conflict may also benefit the natural environment.
Among these rules, the following must be mentioned: the prohibition against ‘employ[ing] poison or poisoned
weapons’ expressed in the Hague Regulations,37 the prohibition against biological weapons established by the
Geneva Gas Protocol of 1925,38 and the Biological Weapons Convention of 1972 (hereinafter ‘Biological Weapons
Convention’),39 and the prohibition against chemical weapons established by the Geneva Gas Protocol and the
Chemical Weapons Convention of 1993 (hereinafter ‘Chemical Weapons Convention’).40

The Chemical Weapons Convention specifically protects humans and animals as the Convention bans toxic
chemicals, which it defines as ‘any chemical which through its chemical action on life processes can cause death,
temporary incapacitation or permanent harm to humans or animals’.41 Furthermore, by recognizing the prohibition
against using herbicides as a method of warfare, the Chemical Weapons Convention grants protection to plants, at
least implicitly.42 The use of chemical agents to attack plants can have devastating effects on the natural
environment; the use of herbicides during the war in Vietnam is a well-known example.43 In addition, the Chemical
Weapons Convention obliges states parties to ‘assign the highest (p. 478) priority to ensuring the safety of
people and to protecting the environment’ during the implementation of the Convention.44 Similarly, the Biological
Weapons Convention stresses the need for states parties to observe ‘all necessary safety precautions’ to ‘protect
populations and the environment’ in implementing their obligations.45

As regards the legal review of new means and methods of warfare, Article 36 of AP I provides that ‘[i]n the study,
development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is
under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this
Protocol or by any other rule of international law applicable to the High Contracting Party’.46 This includes
assessing the environmental effects of such means and methods of warfare to the extent that the rules of AP I and
other rules of international law protect the natural environment.47

3 Specific Protection Provided by International Humanitarian Law for the Natural Environment

The second strand of protection provided by international humanitarian law for the natural environment during
armed conflict consists of those rules that specifically provide such protection. As far as treaty law is concerned,
the only two provisions in this category are Articles 35 and 55 of AP I, both of which protect the environment only
against ‘widespread, long-term and severe damage’.

Article 35(3) of AP I makes it unlawful to ‘employ methods or means of warfare which are intended, or may be

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 Protection of the Natural Environment

expected, to cause widespread, long-term and severe damage to the natural environment’. Article 55(1) of AP I
complements Article 35(3) by providing the following:

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 (p. 479) 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.

The prohibition to use methods or means of warfare that are intended, or may be expected, to cause widespread,
long-term, and severe damage to the natural environment is considered to reflect customary international law in
international and, arguably, also in non-international armed conflicts.48 In this regard, it is noteworthy that the
preamble to the Conventional Weapons Convention (hereinafter ‘CCW’) contains the reminder ‘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’.49 The related war crime in the Rome Statute is formulated
differently, stating that the ‘widespread, long-term and severe damage to the natural environment […] be clearly
excessive in relation to the concrete and direct overall military advantage anticipated’.50

The exact meaning of ‘widespread, long-term and severe damage’ is not entirely clear. According to the 1975
report of Committee III of the Diplomatic Conference on the Reaffirmation and Development of International
Humanitarian Law applicable in Armed Conflicts of 1974–77,

the time or duration required (i.e., long-term) was considered by some to be measured in decades. References to
twenty or thirty years were made by some representatives as being a minimum. Others referred to battlefield
destruction in France in the First World War as being outside the scope of the prohibition. The Biotope report states
that ‘Acts of warfare which cause short-term damage to the natural environment, such as artillery bombardment,
are not intended to be prohibited by the article,’ and continues by stating that the period might be perhaps for ten
years or more. However, it is impossible to say with certainty what period of time might be involved.51

(p. 480)

But even if the lower threshold of ten years was applicable, this standard would still be highly impracticable as the
full extent of the environmental effects of an attack may become apparent only gradually.52 In fact, even in the
case of the burning oil wells in Kuwait there was no agreement on whether the threshold of Article 35(3) of AP I had
been met.53

Interestingly, the same three conditions—widespread, long-term, and severe—are used in Article I(1) of the ENMOD
Convention, which makes it unlawful to ‘engage 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 State Party’. Unlike Articles 35(3) and 55 of AP I, the ENMOD Convention affirms that the three criteria are
disjunctive. According to the ‘understandings’ annexed to the Convention, for the purposes of the Convention—
and only for its purposes—‘longlasting’ means ‘lasting for a period of months, or approximately a season’. The
threshold stipulated by the ENMOD Convention is thus significantly lower than that of Articles 35(3) and 55 of AP I,
which, owing to the vagueness and cumulative nature of their requirements, have remained on the whole of rather
marginal importance, certainly with regard to conventional warfare.54

A more workable alternative might be the concept of ‘ecocide’, which emerged in the wake of the war in Vietnam.
Ecocide—criminalized by the legislation of several states—is defined as ‘the mass destruction of the flora and
fauna and poisoning of the atmosphere or water resources, as well as other acts capable of causing an ecological
catastrophe’.55 The damage caused to the environment at the end of the Gulf War in 1991 could very well have
fallen within this definition, and thus constituted ‘ecocide’, even though it might not have amounted to ‘widespread,
long-term and severe damage’.

Moreover, a general duty of due regard for the natural environment—even beyond the threshold of ‘widespread,
long-term and severe damage’—has now (p. 481) emerged and must be taken into account in all military
operations (attacks, preparations, etc). Arguably, it extends also to non-international armed conflicts.56 This
obligation reflects the international community’s ever-growing recognition that the environment is an ‘essential
interest’.57 It is also reflected in the general trend to comprehensively review actions from an environmental

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 Protection of the Natural Environment

perspective, which may now be discerned among states and their armed forces, the United Nations and its
agencies and specialized organizations, and humanitarian organizations.58 As far as the principle of precaution is
concerned, lack of scientific certainty about the environmental consequences of certain military operations does
not absolve parties to a conflict from taking proper precautionary measures to prevent undue damage to the
environment.59 This appears to be particularly pertinent for legal reviews of new means and methods of warfare,
such as the use of depleted uranium, for which no specific treaty regulation yet exists.60 (p. 482)

Finally, the protection offered by international environmental law might usefully supplement that offered by
international humanitarian law. However, of the multilateral environmental treaties in existence, only a few
specifically address the issue of their applicability to situations of armed conflict. Some others address the subject
implicitly, while the remaining instruments are completely silent on the issue. Even among those treaties that do
continue to apply during armed conflict, some allow for exceptions the exact scope of which is not always entirely
clear. Questions may also arise about the adequacy of the stipulations contained in these treaties as they are
usually not drafted to bear specifically on the conduct of military operations.61 Overall, there is thus little certainty
about the value of these instruments for protecting the natural environment during armed conflict.62 The situation
can be summarized as follows: 63

(i) Multilateral Environmental Agreements Applicable during Armed Conflict:

• UN Convention on the Law of the Sea (LOSC) (1982)64
• International Convention for the Prevention of Pollution of the Sea by Oil (OILPOL) (1954)65
• International Convention for the Prevention of Pollution from Ships (MARPOL) (1973)66
• Convention for the Protection of the Marine Environment and the Coastal Region of the Mediterranean
and its Protocols (Barcelona Convention) (1976/1995)67
• Convention for the Protection and Development of the Marine Environment of the Wider Caribbean
Region (Cartagena Convention) (1983)68 (p. 483)
• Convention on Wetlands of International Importance especially as Waterfowl Habitat (Ramsar
Convention) (1971)69
• Convention Concerning the Protection of the World Cultural and Natural Heritage (World Heritage
Convention) (1972)70
• Convention on Long-Range Transboundary Air Pollution (LRTAP) (1979)71
• African Convention on the Conservation of Nature and Natural Resources (Revised) (2003)72
• Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter (London
Convention) (1972)73
• UN Convention on the Law of the Non-Navigational Uses of International Watercourses (International
Watercourses Convention) (1997).74
(ii) Multilateral Environmental Agreements Not Applicable During Armed Conlict:
• Convention on Civil Liability for Damage Resulting from Activities Dangerous to the Environment (1993)75
• Convention on Third Party Liability in the Field of Nuclear Energy (1960)76
• Vienna Convention on Civil Liability for Nuclear Damage (1963)77
• International Convention on Civil Liability for Oil Pollution Damage (1971).78
(iii) Multilateral Environmental Agreements Silent on the Matter:
• Convention on Early Notification of a Nuclear Accident (1986)79
• Convention on Biological Diversity (1992)
• Control of Transboundary Movements of Hazardous Wastes and their Disposal (Basel Convention)
(1989)80 (p. 484)
• UN Convention to Combat Desertification (1994)81
• Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (1973)82
• Vienna Convention for the Protection of the Ozone Layer (1985)83
• Montreal Protocol on Substances that Deplete the Ozone Layer (1987)84

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 Protection of the Natural Environment

• United Nations Framework Convention on Climate Change (1992)85

• Stockholm Convention on Persistent Organic Pollutants (2001)86
• Convention on the Conservation of Migratory Species of Wild Animals (CMS) (1979)87
• Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and
Pesticides in International Trade (1998).88

4 Strengthening the Legal Protection Provided by International Humanitarian Law for the
Environment

In view of the foregoing and given the growing concern over environmental protection during armed conflict and in
other contexts—as manifested, for instance, in the 1992 UN Conference on Environment and Development in Rio
de Janeiro and in follow-up Conferences—there seems to be significant room and also a need for improvement in
this regard. Indeed, there has been, for a few years now, a renewed interest in protecting the environment during
armed conflict. For example, UNEP has made the issue of ‘disasters and conflicts’ one of the six priority areas that
‘define [its] focus on the environmental challenges of the 21st century’.89

In March 2009, the ICRC and UNEP organized a joint expert workshop in Nairobi, which called upon the ICRC to
update its 1994 Guidelines to reflect developments in the law and practice.90 After the workshop, in November
2009, the (p. 485) Secretary-General of the United Nations, Ban Ki-moon, called on member states in an address
on the occasion of the International Day for Preventing the Exploitation of the Environment in War and Armed
Conflict ‘to clarify and expand international law on environmental protection in times of war’.91 In addition, the ICRC
carried out an internal research study on the current state of international humanitarian law in order to identify
gaps or weaknesses in the law of armed conflict and devise possible solutions in terms of legal development or
clarification. Gaps or weaknesses in the current legal framework were found to exist in four main areas, one of
which was protection for the natural environment.92

Against this background, eight different areas for further development can be identified:

(i) Disseminating, implementing, and enforcing the law. The existing rules must be better disseminated,
implemented, and enforced by states and international organizations. This is probably the case for all rules of
international humanitarian law. However, it seems especially pertinent for the rules protecting the natural
environment. Updating the ICRC’s Guidelines for Military Manuals and Instructions on the Protection of the
Environment in Times of Armed Conflict will be helpful. The Guidelines were elaborated by the ICRC after
consultation with a group of international experts and submitted to the United Nations in 1994. While it did not
give the Guidelines its formal approval, the UN General Assembly invited all states to disseminate them widely
and ‘to give due consideration to the possibility of incorporating them into their military manuals and other
instructions addressed to their military personnel’.93 The Guidelines should be updated to reflect
developments since 1994 in international humanitarian law, including the adoption of new treaties and the
evolution of customary international law.
(ii) Clarifying the law. The existing legal framework—particularly rules relating to the conduct of hostilities
and the practical applicability of these rules to the environment—could usefully be clarified on a number of
points. Most notably, (p. 486) the principle of proportionality should be clarified in terms of operational
impact and precise scope of application with respect to environmental damage.
The notion of ‘widespread, long-term and severe damage’ should also be further clarified. Clear definitions are
needed for each of these terms if they are to have any practical value.94 In this connection, another issue
requiring closer examination concerns the extent to which the high threshold of ‘widespread, long-term and
severe damage’ is still pertinent today. As Bothe, Bruch, Diamond, and Jensen have observed:

Natural resources and the environment are essential to post-conflict peacebuilding, and significant
environmental damage can undermine efforts to provide for livelihoods, promote economic recovery,
and allow society to return to a ‘normal’ peacetime way of life. A framework that is too permissive of
environmental damage during armed conflict can thus undermine long-term peace. One can ask
whether this high threshold is still valid, or whether it has fallen into desuetude in light of the
continually increasing recognition of environmental concerns in international relations. This is
arguable, but not certain.95

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Protection of the Natural Environment

It would be useful to establish with more certainty whether the threshold has fallen into disuse and, if not,
whether it can be replaced by stricter and more protective, yet realistic standards. This might entail the
development of new norms in addition to clarifying existing law.
(iii) Further developing the law of non-international armed conflict. As far as the development of new norms
is concerned, it should be mentioned that there is a particular dearth of specific norms in the law of non-
international armed conflict, which contains no provisions comparable to Articles 35 and 55 of AP I. The ICRC
study of 2005 considers the corresponding customary norm to be only ‘arguably’ part of customary
international humanitarian law.96 Given the fact that most armed conflicts today are of a non-international
character, this difference in regulation does not reflect well on the clarity and coherence of international
humanitarian law and on the protection it grants to the natural environment.97
(iv) Place-based protection. In order to better protect areas of great environmental importance existing rules
should be supplemented by provisions specifically intended to protect such areas against environmental
damage. This would overcome an inherent weakness in the protection granted to the natural environment as
a civilian object, namely that such areas can be turned into military objectives by the presence of
combatants.98 This weakness is reflected (p. 487) in Protocol III of 1980 (on Prohibitions or Restrictions on
the Use of Incendiary Weapons) to the CCW, which specifically deems it unlawful ‘to make forests or other
kinds of plant cover the subject of 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’.99
A proposal to protect publicly recognized nature reserves has already been made, during the Diplomatic
Conference of Geneva of 1974–77 that led to the adoption of Additional Protocols I and II. A Working Group of
Committee III submitted a draft Article 48ter providing that ‘[p]ublicly recognized nature reserves with
adequate markings and boundaries declared as such to the adversary shall be protected and respected
except when such reserves are used specifically for military purposes’. This proposal was not, however,
received with great enthusiasm in Committee III of the Diplomatic Conference and was ultimately dropped.100
In 1995, the International Council of Environmental Law and the Commission on Environmental Law of the
International Union for the Conservation of Nature produced the Draft Convention on the Prohibition of Hostile
Military Activities in Protected Areas, which provided among other things that:
[e]ach resolution adopted by the Security Council under Chapter VII of the UN Charter, in response to a
situation of armed conflict shall include a list of the relevant internally protected areas, thereby designated as
non-target areas in which all hostile military activities shall not be permitted during the armed conflict in
question.101
This draft has remained without effect, but UNEP and the ICRC have recently revived the idea of granting
place-based protection to areas of great environmental importance.102 (p. 488)
(v) International cooperation. When environmental damage occurs, there is an urgent need to contain it as
much as possible and clean up affected areas.103 As cleaning up such damages may be a challenging task
that might exceed the resources of the country or region concerned, particularly during armed conflict,
consideration should be given to the establishment of international cooperation schemes, regardless of legal
responsibility. In this regard, the 1997 Convention on the Prohibition of the Use, Stockpiling, Production and
Transfer of Anti-Personnel Mines and on their Destruction (hereinafter ‘Anti-Personnel Mine Ban Convention’)
and the 2008 Convention on Cluster Munitions may serve as models. Both instruments specifically provide for
international cooperation and assistance in the implementation of their obligations.104 The 2008 Convention
on Cluster Munitions, for example, grants each state party ‘the right to seek and receive assistance’ in
fulfilling its obligations under the Convention and envisages, as far as possible, the provision of ‘technical,
material and financial assistance to State Parties’.105 The spirit of these provisions fits well with the needs
encountered in areas that have suffered significant environmental damage during armed conflict.
(vi) Victim assistance. Better protection must also be afforded to the victims of environmental damage: they
should not be left without assistance, material or non-material. This is particularly important because the
natural environment and natural resources are vital for the existence and wellbeing of present and future
generations. If the natural environment is damaged and resources depleted, the civilian population may
struggle and need assistance to rebuild their livelihoods. Once again, the Anti-Personnel Mine Ban Convention
and the Convention on Cluster Munitions provide guidance as both contain innovative provisions on victim
assistance. The Convention on Cluster Munitions requires each state party ‘with respect to cluster munition
victims in areas under its jurisdiction or control’ to ‘adequately provide age- and gender-sensitive assistance,

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 Protection of the Natural Environment

including medical care, rehabilitation and psychological support, as well as provide for their social and
economic inclusion’.106 The Convention also obliges each state party ‘in a position to do so’ to ‘provide
assistance for the implementation of the obligations referred to in Article 5 [victim assistance]’ and ‘to
contribute to the economic and social recovery needed as a result of cluster munition use in affected States
Parties’.107 Again, (p. 489) the spirit of these provisions fits well with the problems encountered after
environmental damage.
(vii) Compensation. In order to enforce the law and assist those in need, it is necessary to develop better
mechanisms for providing victims with compensation for damages. Such compensation schemes could be
based either on liability for violations or simply on victims’ needs.108
(viii) International monitoring. Finally, on the institutional level, international mechanisms should be created
to monitor and assess the nature and extent of environmental damage caused by armed conflicts.
Mechanisms of this kind may also be given the task of conducting legal reviews of responsibility to ensure
better enforcement of existing rules.109 In this regard, UNEP has recommended that ‘[a] permanent UN body
to monitor violations and address compensation for environmental damage […] be considered’.110 According
to UNEP, this body could then be given a mandate to:
• investigate and decide on alleged violations of international law during international and non-
international armed conflicts;
• handle and process compensation claims related to environmental damage and loss of economic
opportunities as well as remediation activities; and
• develop norms and mechanisms on victim assistance, international assistance, and cooperation to
assess and redress the environmental consequences of armed conflict.111

The existence of such a body with comprehensive authority would have far-reaching consequences for the
effective implementation of a number of proposals formulated here—not only with regard to monitoring, but also for
international cooperation, victim assistance, and compensation. The ICRC has also called for new mechanisms and
procedures in this respect.112

There are mixed signs as for the prospects of success of these different areas. A recent consultation of states on
the ICRC’s initiative aimed at strengthening legal protection for victims of armed conflict brought to light ‘no clear
trend in favour of one or the other possible options’ and concluded that, notwithstanding some support, ‘States
were apparently not yet ready to undertake an exercise aimed at (p. 490) strengthening the international law
protecting the natural environment in time of armed conflict’.113

On the other hand, at its sixty-fifth session, in 2013, the International Law Commission decided to include the topic
‘Protection of the environment in relation to armed conflicts’ in its programme of work, on the basis of the
recommendation of the Working Group on the long-term programme of work.114 The Commission decided to
appoint Marie Jacobsson as Special Rapporteur for the topic. The outcome of the ILC work in this area remains to
be seen but it may contribute to further clarification and strengthening of the legal protection of the environment in
time of armed conflict.

5 Conclusion

Over the last few decades, international law has been widened and deepened to protect the natural environment.
This may be attributed to increased awareness of the dangerous degradation of the natural environment brought
about by man. The development of international environmental law has not, however, been tailored to the specific
protection needs of the natural environment and resources during armed conflict. As a result, the applicability of
existing environmental treaties during armed conflict is quite often uncertain.

Moreover, international humanitarian law has not developed to the same degree as international environmental law.
As the above overview of the existing rules of international humanitarian law has made clear, there are still only
two provisions in humanitarian treaty law that deal specifically with environmental protection (Articles 35(3) and 55
of AP I). Because of their high threshold (‘widespread, long-term and severe damage’), these provisions have been
of limited importance in practice. Meanwhile, the law of non-international armed conflict does not contain any
corresponding provisions.

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However, a number of general rules of international humanitarian law, both treaty law and customary law, also
protect the natural environment or certain aspects of it. Because these general rules protect the natural
environment at lower levels of damage, they may be of greater practical importance. In general, these rules must
be (p. 491) better disseminated, implemented, and enforced; and in some instances they must be clarified to
reveal their scope and the practical implications for the protection of the natural environment and resources.

Gaps in international law and institutions continue to exist. With regard to preventive action, there are no
established rules or mechanisms for designating areas of great ecological importance as specially protected areas.
Such rules or mechanisms also do not exist for post-conflict recovery of affected areas or for international
cooperation to accomplish such undertakings. Agreed mechanisms for victim assistance and compensation are
also lacking. Finally, effective and permanent monitoring mechanisms that could have a role in all of the above
currently do not exist.

For the sake of the natural environment and the people who depend on it for their livelihood and well-being, it is
imperative that the international community address the issues identified in this Chapter.

Notes:

(*) The views expressed in this Chapter are personal and do not necessarily reflect those of the ICRC.

(1) Convention on the Prohibition of Military or any Hostile Use of Environmental Modification Techniques, adopted
by UN General Assembly Res 31/72, 10 December 1976, 1108 UNTS 151.

(2) Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of
International Armed Conflicts (Protocol I) of 8 June 1977, 1125 UNTS 3.

(3) International Committee of the Red Cross (ICRC), ‘Guidelines for Military Manuals and Instructions on the
Protection of the Environment in Times of Armed Conflict’, Geneva, 1994, UN GAOR, 49th Sess, Annex, Agenda Item
139, 49–53, UN Doc A/49/323 (1994), reprinted in H.-P. Gasser, ‘For Better Protection of the Natural Environment in
Armed Conflict: A Proposal for Action’, 89 American Journal of International Law (1995) 637–44 at 641–3. Some
thought was also given to the possibility of a ‘Fifth Geneva Convention’ dealing with environmental protection, see,
in particular, G. Plant (ed), Environmental Protection and the Law of War—A ‘Fifth Geneva’ Convention on the
Protection of the Environment in Time of Armed Conflict? (London: Belhaven Press, 1992).

(4) On the antagonism between the ‘anthropocentric’ and ‘intrinsic’ approach to environmental protection and the
discussions during the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian
Law applicable in Armed Conflicts of 1974–77, see K. Mollard-Bannelier, La Protection de l’Environnement en
Temps de Conflit Armé vol 53 (Paris: Pedone, 2001), 76ff. While Art 55 of Additional Protocol I reflects at least at the
outset the former approach, Art 35(3) of the Protocol clearly protects the environment as such; see with regard to
Art 55, Commentary AP I and II, para 2126: ‘The concept of the natural environment should be understood in the
widest sense to cover the biological environment in which a population is living. It does not consist merely of the
objects indispensable to survival mentioned in Article 54 […]—foodstuffs, agricultural areas, drinking water,
livestock—but also includes forests and other vegetation mentioned in the Convention of 10 October 1980 on
Prohibitions or Restrictions on the Use of Certain Conventional Weapons, as well as fauna, flora and other biological
or climatic elements.’ Article 35(3), on the other hand, ‘even continues to apply in the absence of any direct threat
to the population or to the flora and fauna of the enemy State. It is the natural environment itself that is protected. It
is common property, and should be retained for everyone’s use and be preserved’ (Commentary AP I and II, §
1462). See also Art 2 of the ENMOD Convention which defines ‘environmental modification techniques’ as ‘any
technique for changing—through the deliberate manipulation of natural processes—the dynamics, composition or
structure of the Earth, including its biota, lithosphere, hydrosphere, and atmosphere, or of outer space’.

(5) See eg J.-M. Henckaerts and L. Doswald-Beck (eds), Customary International Humanitarian Law, Volume I:
Rules (Cambridge: ICRC and Cambridge University Press, 2005) (hereinafter ‘Customary International Humanitarian
Law Study’). Rule 43 provides: ‘The general principles on the conduct of hostilities apply to the natural
environment’.

(6) Convention (II), with respect to the Laws and Customs of War on Land, Annex, Regulations respecting the Laws

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 Protection of the Natural Environment

and Customs of War on Land, The Hague, 29 July 1899; Convention (IV) respecting the Laws and Customs of War
on Land and its annex: Regulations concerning the Laws and Customs of War on Land, The Hague, 18 October
1907 (hereinafter ‘the Hague Regulations’). Article 23(g) of both the 1899 and 1907 Hague Regulations forbids: ‘To
destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the
necessities of war.’

(7) Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, 75 UNTS
287. Article 53 prohibits ‘[a]ny 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 […], except where such destruction is rendered absolutely necessary by military
operations’.

(8) Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 90, Art 8(2)(b)(xiii) and (e)(xii) (the war
crime for non-international armed conflicts refers to ‘the necessities of the conflict’).

(9) See Customary International Humanitarian Law Study (n 5), Rule 50: ‘The destruction or seizure of the property
of an adversary is prohibited, unless required by imperative military necessity.’

(10) GC IV (n 7), Art 147.

(11) Rome Statute (n 8), Art 8(2)(a)(iv).

(12) See Customary International Humanitarian Law Study (n 5), Rule 43(B): ‘Destruction of any part of the natural
environment is prohibited, unless required by imperative military necessity.’ See also UN General Assembly, Res
47/37, 9 February 1993, Preamble, fifth paragraph (‘Stressing that destruction of the environment, not justified by
military necessity and carried out wantonly, is clearly contrary to existing international law’). But see R. Desgagné,
‘The Prevention of Environmental Damage in Time of Armed Conflict: Proportionality and Precautionary Measures’,
3 Yearbook of International Humanitarian Law (2000) 109–29 at 115 (sceptical at least as far as the treaty
provisions (‘enemy property’) are concerned).

(13) See eg Y. Dinstein, ‘Protection of the Environment in International Armed Conflict’, 5 Max Planck Yearbook of
United Nations Law (2001) 523–49 at 544 (referring to Art 23(g) of the Hague Regulations and Art 53 of the Fourth
Geneva Convention); K. Hulme, War Torn Environment: Interpreting the Legal Threshold (Leiden: Martinus Nijhoff,
2004), 176ff (‘arguably’); US Department of Defense, ‘Conduct of the Persian Gulf War: Final Report to Congress’,
Appendix O, The Role of the Law of War, 10 April 1992, [1992] 31 ILM 615 at 633 (finding a violation of Art 23(g) of
the Hague Regulations as well as Art 53 of the Fourth Geneva Convention, amounting to a grave breach under Art
147 of that Convention).

(14) See 1899 and 1907 Hague Regulations (n 6), Art 28 (on hostilities) and Art 47 (on occupied territory).

(15) GC IV (n 7), Art 33(2).

(16) 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 8 June 1977, 1125 UNTS 609, Art 4(2)(g).

(17) See Customary International Humanitarian Law Study (n 5), Rule 52: ‘Pillage is prohibited.’

(18) Rome Statute (n 8), Art 8(2)(b)(xvi) and (e)(v).

(19) See eg International Court of Justice, Case Concerning Armed Activities on the Territory of the Congo
(Democratic Republic of the Congo v Uganda), Judgment of 19 December 2005, [2005] ICJ Reports 168, § 245
(‘Thus, whenever members of the UPDF were involved in the looting, plundering and exploitation of natural
resources in the territory of the DRC, they acted in violation of the jus in bello, […] The Court notes in this regard
that both Article 47 of the Hague Regulations of 1907 and Article 33 of the Fourth Geneva Convention of 1949
prohibit pillage.’). For a more detailed discussion of the law governing pillage and its application to the exploitation
of natural resources most notably with regard to violations committed during World War II, see J.G. Stewart,
‘Corporate War Crimes: Prosecuting Pillage of Natural Resources’ (Open Society Foundations, October 2010),
available at <http://www.soros.org>.

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 Protection of the Natural Environment

(20) UNEP, ‘From Conflict to Peacebuilding. The Role of Natural Resources and the Environment’ (Nairobi, 2009),
available at <http://www.unep.org/pdf/pcdmb_policy_01.pdf>, Table 1, at 11.

(21) See also C. Droege and M-L Tougas, ‘The Protection of the Natural Environment in Armed Conflict—Existing
Rules and Need for Further Legal Protection’, 82 Nordic Journal of International Law (2013) 21–52.

(22) See AP I (n 2), Art 52(2). See also M. Bothe, C. Bruch, J. Diamond, and D. Jensen, ‘International Law Protecting
the Environment During Armed Conflict: Gaps and Opportunities’, 92 International Review of the Red Cross (2010)
569–92 at 576: ‘Elements of the environment are most often civilian objects.’

(23) See AP I (n 2), Arts 48 and 52(1).

(24) See AP I (n 2), Art 51(4).

(25) See AP I (n 2), Art 51(5)(b).

(26) See AP I (n 2), Art 57.

(27) See Customary International Humanitarian Law Study (n 5), Rules 7, 11, 14, and 15. On their applicability to the
environment see: Rule 43(A) (‘No part of the natural environment may be attacked, unless it is a military
objective’), Rule 43(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’), and Rule 44, second sentence, arguably also applicable to non-international
armed conflicts (‘In the conduct of military operations, all feasible precautions must be taken to avoid, and in any
event to minimize, incidental damage to the environment’). See also International Court of Justice, Legality of the
Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, [1996] ICJ Rep 226, § 30 (‘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’).

(28) See UNEP, ‘Protecting the Environment During Armed Conflict. An Inventory and Analysis of International Law’
(Nairobi, November 2009), available at <http://www.unep.org/PDF/dmb/ProtectEnvDuringConflict_en.pdf>, 19 and
25.

(29) See UNEP, ‘Protecting the Environment During Armed Conflict’ (n 28), 23. See also UN General Assembly Res
61/194, 20 December 2006, § 1 (the UN General Assembly expresses its deep concern over the incident).

(30) Equally stressing this aspect Bothe, Bruch, Diamond, and Jensen (n 22), 577f.

(31) See Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign
Against the Federal Republic of Yugoslavia, available at
<http://www.icty.org/x/file/About/OTP/otp_report_nato_bombing_en.pdf>, § 19 (‘It is difficult to assess the relative
values to be assigned to the military advantage gained and harm to the natural environment, and the application of
the principle of proportionality is more easily stated than applied in practice’). See also §§ 20ff with the conclusion
that, based on information at that time available to the Committee, no investigation into the collateral environmental
damage caused by the NATO bombing campaign should be commenced. For further analysis of the attack on the
Pancevo industrial complex, see Hulme (n 13), 200ff.

(32) AP I (n 2), Art 54(2).

(33) AP II (n 16), Art 14(2).

(34) See AP I (n 2), Art 54(3) (attacks against objects indispensable for civilian survival may be lawful if the objects
in question ‘are used by an adverse Party (a) as sustenance solely for the members of its armed forces; or (b) if
not as sustenance, then in direct support of military action, provided, however, that in no event shall actions
against these objects be taken which may be expected to leave the civilian population with such inadequate food
or water as to cause its starvation or force its movement’). A further exception may be made pursuant to Art 54(5)
when, required by imperative military necessity, a state applies a so-called ‘scorched earth’ tactic in defence of its
national territory against invasion.

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 Protection of the Natural Environment

(35) See Customary International Humanitarian Law Study (n 5), Rule 54: ‘Attacking, destroying, removing or
rendering useless objects indispensable to the survival of the civilian population is prohibited.’

(36) Eritrea–Ethiopia Claims Commission, Partial Award, Western Front, Aerial Bombardment and Related Claims—
Eritrea’s Claims 1, 3, 5, 9–13, 14, 21, 25, and 26, Decision of 19 December 2005, [2009] XXVI Reports of
International Arbitral Awards 291, §§ 104f.

(37) 1899 and 1907 Hague Regulations (n 6), Art 23(a). See also Customary International Humanitarian Law Study
(n 5), Rule 72: ‘The use of poison or poisoned weapons is prohibited.’

(38) Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological
Methods of Warfare, Geneva, 17 June 1925.

(39) Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological)
and Toxin Weapons and on their Destruction, London, Moscow and Washington, DC, 10 April 1972, 1015 UNTS
163. See also Customary International Humanitarian Law Study (n 5), Rule 73: ‘The use of biological weapons is
prohibited.’

(40) Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and
on their Destruction, 13 January 1993, 1974 UNTS 45. See also Customary International Humanitarian Law Study (n
5), Rule 74: ‘The use of chemical weapons is prohibited.’

(41) Chemical Weapons Convention (n 41), Art II(2). See also UN General Assembly Res 2603 (XXIV) (A) of 16
December 1969: ‘Declares as contrary to the generally recognized rules of international law, as embodied in the
[Geneva Gas Protocol], the use in international armed conflicts of: (a) Any chemical agents of warfare—chemical
substances, whether gaseous, liquid or solid—which might be employed because of their direct toxic effects on
man, animals or plants; […]’ (emphasis added).

(42) Chemical Weapons Convention (n 41), Preamble. See also Customary International Humanitarian Law Study (n
5), Rule 76.

(43) See Hulme (n 13), 4ff.

(44) Chemical Weapons Convention (n 41), Art VII(3), see also Arts IV(10) and V(11).

(45) Biological Weapons Convention (n 40), Art II, second sentence.

(46) AP I (n 2), Art 36.

(47) See eg International Committee of the Red Cross, ‘A Guide to the Legal Review of New Weapons, Means and
Methods of Warfare: Measures to Implement Article 36 of Additional Protocol I of 1977’, Geneva, January 2006,
available at <http://www.icrc.org/eng/assets/files/other/icrc_002_0902.pdf>, 17 (‘In order to be capable of
assessing whether the weapon under review […] contravenes one or more of the general rules of IHL applicable to
weapons, means and methods of warfare […], the reviewing authority will have to take into consideration a wide
range of military, technical, health and environmental factors.’) See also 19f on environment-related
considerations.

(48) See Customary International Humanitarian Law Study (n 5), Rule 45: ‘The use of methods or means of warfare
that are intended, or may be expected, to cause widespread, long-term and severe damage to the natural
environment is prohibited. Destruction of the natural environment may not be used as a weapon.’ But see K. Hulme,
‘Natural Environment’, in E. Wilmshurst and S. Breau (eds), Perspectives on the ICRC Study on Customary
International Humanitarian Law (Cambridge: Cambridge University Press, 2007), 204–37 at 232 (concluding that
Rule 45 ‘may have been more appropriately worded as “arguably” custom even for international armed conflict’);
Y. Dinstein, ‘The ICRC Customary International Humanitarian Law Study’, 36 Israel Yearbook of Human Rights
(2006) 13–14; J. Bellinger and W. Haynes, ‘A US Government Response to the International Committee of the Red
Cross Study Customary International Humanitarian Law’, 89 International Review of the Red Cross (2007) 455–60
at 443.

(49) Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be Deemed

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 Protection of the Natural Environment

to be Excessively Injurious or to have Indiscriminate Effects, Geneva, 10 October 1980, 1342 UNTS 137, Preamble.

(50) Rome Statute (n 8), Art 8(2)(b)(iv) (emphasis added).

(51) Official Records of the Diplomatic Conference on the Reaffirmation and Development of International
Humanitarian Law Applicable in Armed Conflicts vol XV (Bern: Federal Political Department, 1978), 268f
(CDDH/215/Rev.1, § 27).

(52) See eg Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign
Against the Federal Republic of Yugoslavia (n 32), § 17 (‘Moreover, it is quite possible that, as this campaign
occurred only a year ago, the UNEP study may not be a reliable indicator of the long term environmental
consequences of the NATO bombing, as accurate assessments regarding the long-term effects of this
contamination may not yet be practicable’).

(53) See Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign
Against the Federal Republic of Yugoslavia (n 32), § 15 (‘In any case, Articles 35(3) and 55 have a very high
threshold of application. Their conditions for application are extremely stringent and their scope and contents
imprecise. […] This may partly explain the disagreement as to whether any of the damage caused by the oil spills
and fires in the 1990/91 Gulf War technically crossed the threshold of Additional Protocol I’). See also Mollard-
Bannelier (n 4), 94; Hulme (n 13), 170ff; Dinstein (n 13), 545ff.

(54) On a possible lowering of the threshold since the adoption of Protocol I in 1977 see Bothe, Bruch, Diamond,
and Jensen (n 22), 576; Desgagné (n 12), 112ff; and most favourable to this proposition, É. David, Principes de
Droit des Conflits Armés (4th edn, Brussels: Bruylant, 2008), § 2.101.

(55) See Customary International Humanitarian Law Study (n 5), 158. The definition used stems from the penal
codes of a number of countries of the former Soviet Union, as well as Vietnam.

(56) See Customary International Humanitarian Law Study (n 5), Rule 44: ‘Methods and means of warfare must be
employed with due regard to the protection and preservation of the natural environment.’ See also Bothe, Bruch,
Diamond, and Jensen (n 22), 575 (‘The “due regard” principle formulated in Rule 44 seems to be well accepted’);
Program on Humanitarian Policy and Conflict Research at Harvard University (HPCR), ‘Manual on International Law
Applicable to Air and Missile Warfare’, Bern, 15 May 2009, available at
<http://ihlresearch.org/amw/HPCR%20Manual.pdf>, Rule 89 (‘When planning and conducting air or missile
operations, due regard ought to be given to the natural environment’); United Kingdom, The Manual of the Law of
Armed Conflict, Ministry of Defence, 1 July 2004, § 15.20 (‘Regard must be had to the natural environment in the
conduct of all military operations’), §§ 12.24 (air operations) and 13.30 (maritime warfare). But see K. Hulme,
‘Taking Care to Protect the Environment Against Damages: A Meaningless Obligation?’, 92(879) International
Review of the Red Cross (2010) 675 at 686 and 691.

(57) See International Court of Justice, Case Concerning the Gabčíkovo-Nagymaros Project (Hungary/Slovakia),
Judgment of 25 September 1997, [1997] ICJ Rep 7, § 53.

(58) See eg the ‘Environmental Guidebook for Military Operations’ of March 2008 developed by a multinational
working group consisting of representatives from the defence organizations of Finland, Sweden and the United
States, available at <http://www.denix.osd.mil/international/Publications.cfm>; see also International Court of
Justice, Nuclear Weapons (Advisory Opinion) (n 27), § 29 (‘The existence of the general obligation of States to
ensure that activities within their jurisdiction and control respect the environment of other States or of areas
beyond national control is now part of the corpus of international law relating to the environment’).

(59) See ICRC, Customary International Humanitarian Law Study (n 5), Rule 44, third sentence (‘Lack of scientific
certainty as to the effects on the environment of certain military operations does not absolve a party to the conflict
from taking such precautions’). For a critical assessment, see Hulme (n 49), 227.

(60) See eg UN General Assembly Res 62/30 of 5 December 2007, Preamble and Res 63/54 of 2 December 2008,
Preamble (the General Assembly takes into consideration ‘the potential harmful effects of the use of armaments
and ammunitions containing depleted uranium on human health and the environment’ (emphasis added)). In the
latter resolution, the General Assembly declares itself moreover ‘[c]onvinced that as humankind is more aware of

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the need to take immediate measures to protect the environment, any event that could jeopardize such efforts
requires urgent attention to implement the required measures’ (Preamble, § 5). See also A. McDonald, J. Kleffner,
and B. Toebes, Depleted Uranium Weapons and International Law: A Precautionary Approach (The Hague: T.M.C.
Asser Press, 2008).

(61) In this sense, see also D. Bodansky, Legal Regulation of the Effects of Miltiary Activity vol 5/03 (Berlin: Erich
Schmidt Verlag, 2003), 63f.

(62) Similarly Bothe, Bruch, Diamond, and Jensen (n 22), 570. See in detail 579 ff. including an overview of the
existing theories in legal doctrine.

(63) Information taken from UNEP, ‘Protecting the Environment During Armed Conflict’ (n 28), 34ff.

(64) 10 December 1982, 1833 UNTS 3. But see the partial exception for warships and other state-operated vessels
and aircraft in Art 236.

(65) 12 May 1954, 327 UNTS 3. But see the possibility to suspend the operation of the Convention in case of war or
other hostilities provided by Art XIX(1).

(66) 2 November 1973, 1340 UNTS 184, as amended by the Protocol of 1978 Relating to the International
Convention for the Prevention of Pollution from Ships, 17 February 1978, 1340 UNTS 61. But see Art 3(3) which
contains an exception similar to that of Art 236 of the UN Convention on the Law of the Sea.

(67) Convention for the Protection of the Mediterranean Sea against Pollution, 16 February 1976, 1102 UNTS 27,
amended and renamed Convention for the Protection of the Marine Environment and the Coastal Region of the
Mediterranean, 10 June 1995. Article 3(5) of the amended Convention contains an exception similar to that of LOSC
and MARPOL. The International Maritime Organization invoked the Barcelona Convention as a basis for providing
assistance to Lebanon following the bombing of the facility at Jiyeh during the 2006 conflict. See UNEP, ‘Protecting
the Environment During Armed Conflict’ (n 28), 36.

(68) 24 March 1983, 1506 UNTS 157.

(69) 2 February 1971, 996 UNTS 245. But see Art 2(5) that provides for the deletion or restriction of the boundaries
of wetlands because of ‘urgent national interests’ of the Contracting Parties.

(70) 23 November 1972, 1037 UNTS 151. UNESCO has been running a pilot project in the Democratic Republic of
Congo since 2000 to try to use the Convention as an instrument to improve the conservation of World Heritage
sites in regions affected by armed conflict. See UNEP, ‘Protecting the Environment During Armed Conflict’ (n 28),
38.

(71) 13 November 1979, 1302 UNTS 217.

(72) 11 July 2003, 1001 UNTS. Article XV(1) establishes specific obligations for times of armed conflict reiterating
and expanding upon the basic protection provided under international humanitarian law. See also Art XV(2).

(73) 29 December 1972, 1046 UNTS 120.

(74) Adopted by UN General Assembly Res 51/229 of 21 May 1997. According to Art 29, ‘[i]nternational
watercourses and related installations, facilities and other works shall enjoy the protection accorded by the
principles and the rules of international law applicable in international and non-international armed conflict and
shall not be used in violation of those principles and rules’.

(75) 21 June 1993, 32 ILM 1228. See Art 8(a).

(76) 29 July 1960, amended 28 January 1964, 956 UNTS 264. See Art 9. Austria and Germany, however, made
reservations to this provision (Annex I).

(77) 21 May 1963, 1063 UNTS 266. See Art IV(3)(a).

(78) 29 November 1969, 973 UNTS 4. See Arts III and XI.

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(79) 26 September 1986, 1439 UNTS 276.

(80) 22 March 1989, 1673 UNTS 126.

(81) 17 June 1994, 1954 UNTS 3.

(82) 3 March 1973, 993 UNTS 243.

(83) 22 March 1985, 1513 UNTS 293.

(84) 16 September 1987, 1522 UNTS 3.

(85) 9 May 1992, 1771 UNTS 107.

(86) 22 May 2001, 2256 UNTS 119.

(87) 23 June 1989, ILM 19 [1980] 15.

(88) 10 September 1998, 2244 UNTS 337.

(89) See <http://www.unep.org/>.

(90) See also UNEP, ‘Protecting the Environment during Armed Conflict’ (n 28), 52f. Recommendation 2 provides
that ‘[t]he ICRC Guidelines on the Protection of the Environment during Armed Conflict (1994) require updating
and subsequent consideration by the UN General Assembly for adoption, as appropriate’ (emphasis removed). The
update was on going at the time of completion of this Chapter. As soon as it is released, it will be available at
<http://www.icrc.org/eng/war-and-law>.

(91) Message of the UN Secretary-General, Ban Ki-moon, on the occasion of the International Day for Preventing
the Exploitation of the Environment in War and Armed Conflict, 6 November 2009, available at
<http://www.un.org/en/events/environmentconflictday/2009/sgmessage2009.shtml>.

(92) Strengthening Legal Protection for Victims of Armed Conflict. The ICRC Study on the Current State of
International Humanitarian Law, Address by Dr Jakob Kellenberger, President of the International Committee of the
Red Cross, 21 September 2010, reprinted in 92(879) International Review of the Red Cross (2010) 799. The other
areas identified in the study are the protection of persons deprived of liberty, especially in situations of non-
international armed conflict, the implementation of humanitarian law and reparation for victims of violations, and the
protection of internationally displaced persons.

(93) UN General Assembly, Res 49/50, 9 December 1994, § 11.

(94) See UNEP, ‘Protecting the Environment during Armed Conflict’ (n 28), 52 (recommending that the definitions
used for the 1976 ENMOD Convention should serve as the minimum basis for these definitions).

(95) Bothe, Bruch, Diamond, and Jensen (n 22), 576.

(96) See Customary International Humanitarian Law Study (n 5), 156–7.

(97) See ICRC, ‘Strengthening legal protection for victims of armed conflict’, Report for the 31st International
Conference of the Red Cross and Red Crescent, Doc No 31IC/11/5.1.1, Geneva, October 2011, 15.

(98) See Bothe, Bruch, Diamond, and Jensen (n 22), 576–7 (‘Elements of the environment are most often civilian
objects. As such, they are protected against attacks. […] This protection is, however, shaky, as environmental
elements can easily become military objectives. Once armed forces are located in a protected area, the area may
contribute effectively to military action and its neutralization may offer a definite military advantage. […] In the case
of herbicide use in Vietnam, the trees provided cover for the enemy. Their defoliation constituted a definite military
advantage, and the trees—more precisely their leaves—became a military objective’).

(99) Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons, to the Convention on Prohibitions or
Restrictions on the Use of Certain Convention Weapons which may be Deemed to be Excessively Injurious or to
have Indiscriminate Effects (Protocol III), Geneva, 10 October 1980, 1342 UNTS 171, Art 2(4) (emphasis added).

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(100) See Commentary AP I and II, paras 2138ff.

(101) Article 2, cited in A.S. Tolentino, Jr, ‘The Law of Armed Conflict Vis-à-Vis the Environment’, in B. Vukas and
T.M. Šošić, International Law: New Actors, New Concepts—Continuing Dilemmas. Liber Amicorum Božidar Bakotić
(Leiden: Martinus Nijhoff, 2010), 595–606 at 603.

(102) See UNEP, ‘Protecting the Environment during Armed Conflict’ (n 28), 54 (‘A new legal instrument granting
place-based protection for critical natural resources and areas of ecological importance during international and
non-international armed conflicts should be developed’); Address of Dr Jakob Kellenberger (n 92), 803 and ICRC,
‘Strengthening legal protection for victims of armed conflict’ (n 97), 17; see also Droege and Tougas (n 21), 43–5.

(103) See Kellenberger (n 92), 803.

(104) Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on
their Destruction, 18 September 1997, 2056 UNTS 211; Convention on Cluster Munitions, 30 May 2008, CCM/77.

(105) Convention on Cluster Munitions (n 104), Art 6(1) and (2). The Anti-Personnel Mine Ban Convention (n 104),
Art 6 contains similar provisions.

(106) Convention on Cluster Munitions (n 104), Art 5(1).

(107) Convention on Cluster Munitions (n 104), Art 6(7) and (8). See also Anti-Personnel Mine Ban Convention (n
104), Art 6(3).

(108) See eg the United Nations Compensation Commission that was established by Security Council Res 687 of 3
April 1991 to pay compensation for losses and damage resulting from Iraq’s invasion and occupation of Kuwait (§§
16 and 18f) even though the Commission was not concerned with breaches of the ius in bello.

(109) On the absence of mechanisms for the implementation of state responsibility for environmental damage, see
generally Mollard-Bannelier (n 4), 391ff.

(110) UNEP, ‘Protecting the Environment during Armed Conflict’ (n 28), 53.

(111) UNEP, ‘Protecting the Environment during Armed Conflict’ (n 28), 53.

(112) ICRC, ‘Strengthening legal protection for victims of armed conflict’ (n 97), 16. See also Droege and Tougas (n
21), 45–6.

(113) ICRC, ‘Strengthening legal protection for victims of armed conflict’ (n 97), 26. As a result, the 31st
International Conference of the Red Cross (Geneva, 28 November–1 December 2011) in Resolution 1
‘Strengthening legal protection for victims of armed conflict’ invited the ICRC to ‘pursue further research,
consultation and discussion’ in two of the four areas the ICRC had identified—detention and compliance—but not
the protection of the environment (§ 6).

(114) See <http://www.un.org/law/ilc>.

Jean-Marie Henckaerts
Jean-Marie Henckaerts is a Legal Adviser in the Legal Division of the International Committee of the Red Cross (ICRC). He was
head of the ICRC’s project on customary international humanitarian law from 2000-2010 and is currently heading the ICRC’s
project to update the Commentaries on the 1949 Geneva Conventions and their Additional Protocols of 1977.

Dana Constantin
Dana Constantin is a research assistant at Europa-Kolleg Hamburg.

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