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War can heavily damage the environment, and warring countries often place operational requirements ahead ofenvironmental concerns for the duration of thewar. Someinternational law is designed to limit this environmental harm.
War and military activities have obviousdetrimental impacts on the environment.[1] Weaponry, troop movements,land mines, creation and destruction of buildings, destruction of forests by defoliation or general military usage, poisoning of water sources, target-shooting of animals for practice, consumption of endangered species out of desperation etc., are just some of the examples of how both war and peacetime military activities (such as training, base construction, and transportation of weaponry) harm the environment. "Scorched earth" and "poisoning the well" are classical examples of such impact. Recent examples include theoil dump and fire by Iraq in Kuwait 1990/1991,depleted uranium use in Kosovo 1999,air fuel explosives use in Afghanistan since 2001.
From a legal standpoint, environmental protection during times of war and military activities is addressed partially byinternational environmental law. Further sources are also found in areas of law such as general international law, thelaws of war,human rights law and local laws of each affected country. However, this article is chiefly focused on the environment and as soon as two countries are battling it out, the issue becomes one of international concern. Thus, international environmental law that theUnited Nations Security Council enforces is the focus here. Thelaw of armed conflict is not very well developed in comparison to other areas of international law. Only theUnited Nations Security Council has theauthority and thejurisdiction to regulate its development and implementation, or to monitor its observance.
Customary international law and soft law documents address the protection of the environment during times of armed conflict and military activities. TheInternational Law Commission (ILC) has drafted a Code of Offences Against the Peace and Security of Mankind (1954).[2]
"Man and his environment must be spared the effects of nuclear weapons and all other means of mass destruction. States must strive to reach prompt agreement, in the relevant international organs, on the elimination and complete destruction of such weapons": Principle 26 of the1972 Stockholm Declaration[3] → Chapter 11 of the Brundtland Report: Peace, Security, Development, and the Environment. World Charter of Nature 1982: "Nature shall be secured against degradation caused by warfare or other hostile activities."
"Warfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary": Principle 241992 Rio Declaration → paragraph 39.6 of the Agenda 21: "measures in accordance with international law should be considered to address, in times of armed conflict, large-scale destruction of the environment that cannot be justified under international law".
UN General Assembly Resolution 47/37 (1992) provides:[4] "[D]estruction of the environment, not justified by military necessity and carried out wantonly, is clearly contrary to existing international law."
SeveralUnited Nations treaties, including theFourth Geneva Convention, the 1972World Heritage Convention and the 1977Environmental Modification Convention have provisions to limit the environmental impacts of war or military activities.
Iraq was liable under international law for the 'environmental damage and the depletion ofnatural resources' resulting from the unlawful invasion and occupationof Kuwait:United Nations Security Council Resolution 687 (1991).
"Destruction of the environment, not justified by military necessity and carried out wantonly, is clearly contrary to existing international law":UN General Assembly Resolution 47/37 (1992).
TheEnvironmental Modification Convention is an international treaty prohibiting the military or other hostile use of environmental modification techniques having widespread, long-lasting or severe effects. The Convention bans weather warfare, which is the use of weather modification techniques for the purposes of inducing damage or destruction. This treaty is in force and has been ratified (accepted as binding) by leading military powers.The treaty has only limited ratification. It prohibits parties from engaging in 'military or anyother hostile use of environmental modification techniques havingwidespread, longlastingor severe effects as the means of destruction,damage or injury' to any other party ←Agent Orange use in Vietnam.
The starting point is that the natural environment is a civilian object under international humanitarian law. Unless otherwise provided, inhabitants and belligerents are "under the protection and the rule of the principles of the lawof nations, as they result from the usages established amongcivilised peoples, from the laws of humanity and the dictates ofpublic conscience": 'Martens Clause' (Preamble,1907 Hague Convention IV Respecting the Laws and Customs of War on Land). Art. 22 limits the right of belligerents to adopt means of injuring the enemy.
Arts. 35(3) (prohibition of methods) and 55 (due care) of1977 Additional Protocol I to theGeneva Conventions (wide but not universal ratification) provide additional protection for the environment. "Taken together, these provisions embody a general obligation toprotect the natural environment againstwidespread, long-termand severe environmental damage; theprohibition of methods and means of warfare which are intended, or may be expected, to cause such damage; and the prohibition of attacks against the natural environment by way ofreprisals": para 31, ICJAdvisory Opinion on Nuclear Weapons 1996; see also ICJ applicationsYugoslavia v UK 1999,DR Congo v Rwanda 2002.
"Uganda, by acts of looting, plundering andexploitation of Congolese natural resources committed by members ofthe Ugandan armed forces in the territory of the Democratic Republic of the Congo and by its failure to comply with its obligations as an occupying Power in Ituri district to prevent acts of looting, plundering andexploitation of Congolese natural resources, violated obligations owed tothe Democratic Republic of the Congo under international law":ICJ judgmentDR Congo v Uganda (Armed Activities on the Territory of the Congo) 2005.
"Works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations, shall not be made the object of attack, even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population.": art. 15 of the1977 Additional Protocol II (non-international armed conflicts, less widely ratified than AP I); similarly art. 56(1) of the 1977 Additional Protocol I for international armed conflicts.
"Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated" is a war crime, being a "serious violations of the laws and customs applicable in international armed conflict, within the established framework of international law": art. 8(2)(b)(iv)Rome Statute of the International Criminal Court.
To summarize: "The general principles on the conduct of hostilities apply to the natural environment: A. No part of the natural environment may be attacked, unless it is a military objective. B. Destruction of any part of the natural environment is prohibited, unless required by imperative military necessity. C. Launching an attack against a military objective which may be expected to cause incidental damage to the environment which would be excessive in relation to the concrete and direct military advantage anticipated is prohibited": ICRCCustomary IHL Rule 43 (Application of General Principles on the Conduct of Hostilities to the Natural Environment). Some statesinsist such rules (incl. Additional Protocol I) only apply to conventional weapons and do not apply to nuclear weapons. See also Rules44 (due regard) and45 (serious damage).
ILC Draft Principles onprotection of the environment in relation to armed conflicts: Special Rapporteur Marie G. Jacobsson considered from 2013 to 2015 obligations before, during, and after an armed conflict and proposed 5 draftjus in bello principles (proportionality, distinction, precaution, no reprisal, protected zones) among others.Special RapporteurMarja Lehto continued in 2018 with some21 draft principles covering all 3 phases plus occupation. As of mid-2019, some28 principles (incl. re non-state actors) have been provisionally adopted by the Drafting Committee with the following parts: Introduction – Principles of general application – Principles applicable during armed conflict – Principles applicable in situations of occupation – Principles applicable after armed conflict.
Some environmental treaties have express provisions about military and conflicts; others need to rely onrebus sic stantibus (art. 62 VCLT) to interpret during wartime →2011 ILC Draft Articles on the Effects of Armed Conflict on Treaties: environmental treaties continue unless express provision otherwise.
TheInternational Court of Justice advisory opinion on the Legality of the Threat or Use of Nuclear Weapons considered the environment as a minor issue in regard to the legality of thermonuclear war but it did not find allthermonuclear war to be prohibited.
"The Court does not consider that the treaties in question could haveintended to deprive a State of the exercise of its right of self-defence under international law because of its obligations to protect the environment. Nonetheless, States must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives. Respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality": para 30,ICJAdvisory Opinion on Nuclear Weapons 1996.
International organisations with environmental mandates may be called upon during times of armed conflict to assist with mediating or remedying damage caused by armed conflict, e.g.UN Environment Programme (UNEP), theWorld Health Organization, theInternational Civil Aviation Organization, theInternational Maritime Organization (IMO), and theInternational Committee of the Red Cross.[5] TheUN Security Council has also demonstrated environmental concern in deliberations on recent conflicts, for example, during the 1991Gulf War. UNEP and IMO were also involved in this conflict, attempting to remedy the most serious of the environmental impacts.
