In 2013, the UN International Law Commission included the topic “Protection of the Environment in Relation to Armed Conflict” into its programme of work (see my previous post). The inclusion of the topic brings hope for a desired development, as the environmental protection provided under the law of armed conflict has been widely criticized by the legal scholarly community as being vague and inadequate. The Special Rapporteur, Ms. Marie G. Jacobsson has proposed to clarify the applicability of and the relationship between the law of armed conflict and other areas of law including international criminal law, international environmental law and human rights law, albeit she has affirmed that the law of armed conflict applies as lex specialis during armed conflict. The core problem is that environmental damage is complex and may have long-term, severe and even irreversible implications that may not be foreseeable or even be visible at first, which is not an aspect considered under the law of armed conflict. At the same time, international environmental law has developed as a response to tackle complex global environmental problems. Thus, looking at other areas of law, especially international environmental law will be a welcomed contribution to wartime environmental protection.
The law of armed conflict permits far-reaching environmental damage in favour of military operations. In international armed conflicts, the environment receives an absolute protection in case where an attack is expected to cause “widespread, severe and long-term” environmental damage in accordance with Articles 35(3) and 55(1) in the Additional Protocol I to the Geneva Conventions. The environment also receives protection as a far as it can be considered as a civilian object. However, collateral damage to the environment is still permitted. As long as the anticipated military advantage of an attack outweighs the collateral environmental damage, such damage is lawful according to the IHL principle of proportionality. Military advantage might legitimately outweigh large-scale serious collateral damage to the environment. There is no clear assertion as to what degree of environmental damage that can be tolerated and how it should be evaluated in relation to the anticipated military advantage. Furthermore, the proportionality principle operates on the basis of foreseeable and expected harm. Only known risks would be relevant for assessing the legality of a decision to launch an attack. Environmental damage is often uncertain and unforeseeable, and the exact effect is almost impossible to establish and isolate. Even though the obligations under the law of armed conflict do recognize the environment’s need for particular protection, there is much room for discretion to the law-applier to neglect environmental concerns in favour of military operations due to vague formulations in the rules protecting the environment. Because of the complexity of environmental damage, international environmental law has taken preventative and also precautionary measures as a way to manage the uncertainty of such damage. It advances new legal requirements and enables innovative strategies that take into account the particularities of an environmental damage for the purpose of protecting it on a long-term basis.
At this year’s ILC session, the Special Rapporteur presented her second report, in which she proposed a set of Draft Principles applicable primarily during armed conflict. The Drafting Committee discussed and revised the proposals and presented a set of provisionally adopted Draft Principles to the Commission as a whole. The Draft principles will be accompanied with commentaries to be included in next year’s ILC Report.
The Drafting Committee´s report consists of an introductory part and six Draft Principles. The Draft Principles follow a temporal outline that divides them into principles applying prior, during and after an armed conflict. This means that the obligations focus on preventative measures prior to the outbreak of an armed conflict, measures to minimizing damage during the hostilities, and restorative measures to be undertaken in a post-conflict context. The adopted Draft Principles of this year’s session (and also the first set of adopted Draft Principles on this topic) mainly relate to the ‘during armed conflict’-part and mirror customary law obligations under the law of armed conflict. As this is a work in progress, further Draft Principles will be adopted. It will be interesting to see whether the deficiencies in wartime environmental protection can be remedied by the Commission’s work, possibly by joining obligations of international environmental law with those of the law of armed conflict. This task relates to the topic of the Effects of Armed Conflict on Treaties, in regard to which the Commission assumed environmental treaties continue to apply in times of armed conflict. Hopefully, the Commission will be able to offer some further guidance on how they can be applied together with the obligations under the law of armed conflict. By doing so, the protection of the environment during and after armed conflict would better reflect a contemporary understanding of the environment as provided under existing international law.
The Draft Principles adopted at this year’s session already indicate some advancement towards enhanced environmental protection in relation to armed conflict under international law. To address both international armed conflict and non-international armed conflict brings the obligations under the two categories of armed conflict closer. This suggestion by the Special Rapporteur follows the progressive approach adopted by the International Red Cross Committee in its 2005 Customary Law Study on the law of armed conflict. Furthermore, Draft Principle II-3 obligates parties to an armed conflict to take environmental considerations into account with a proportionality assessment and as well as when applying the rules on military necessity. This reference makes the environment an explicit concern in targeting decisions. However, it is not entirely clear what the practical impacts such considerations would have on the battlefield. Does it mean that environmental considerations would include also environmental consequences that are of uncertain character to be taken into account when referring to what is proportionate and necessary? Could environmental considerations also refer to unforeseeable long-term environmental impacts in a proportionality assessment?
Lastly, the Draft Principle II-5 providing for designation of protected areas of major ecological and cultural importance is an interesting development. To designate protected areas is a conservation tool used under several international environmental treaties such as the World Heritage Convention, the Ramsar Convention for Wetland of International Importance, and the Biological Diversity Convention. By including this obligation seems to be an attempt to cross-fertilize tools of international environmental treaties into the law of armed conflict to protect the environment in times of armed conflict. It will be interesting to see the types of progressive normative steps the Commission will be willing to take in the up-coming years to address the issue of environmental protections in time of armed conflict.