International law protecting the

environment during armed

conflict: gaps and opportunities
Michael Bothe, Carl Bruch, Jordan Diamond, and
David Jensen
2010
Presentation by Mohsen Ebrahimi
What is IHL?
• Treaties + Customary IHL + Principles
• Other sources: Lieber Code + St Petersburg declaration + Hague
Regulations + Martens Clause
• LOAC
• Geneva Law vs. Hague Law

• Purpose of IHL: regulates wars= military necessity vs. humanity

• Temporal scope
• Direct vs. indirect protection of environment
Treaties
• 4 Geneva Conventions 1949 (universal ratification: 196 parties, including Iran)
• 2 Additional Protocols 1977:
• AP1: 174 parties: excluding Iran, Israel, US, ….
• AP2: 169 parties: excluding Iran, Iraq, Israel, US …

• France Reservation in 2001:

2. Se référant au projet de protocole rédigé par le comité international de la croix
rouge qui a constitué la base des travaux de la conférence diplomatique de 1974-
1977, le gouvernement de la république française continue de considérer que les
dispositions du protocole concernent exclusivement les armes classiques, et
qu'elles ne sauraient ni réglementer ni défense. interdire le recours a l'arme
nucléaire, ni porter préjudice aux autres règles du droit international applicables a
d'autres activités, nécessaires a l'exercice par la france de son droit naturel de
légitime
It’s Natural to have deficiency
General challenge: Why do you think they should renegotiate the treaties?
• ICRC: 1863
• GC I (war on ground): 1864
• GC II: (war at sea): 1907
• GC III: (POWs): 1929
• GC IV: (Civilians): 1949

Specific Challenge:
• Silent Spring by Rachel Carson: 1962
• Stockholm conference: 1972
• APs: 1977
• Rio conference: 1992
On the one side:
• Technologies: AWS
• Participants: NIAC
• Tactics: Urban Warfare

On the other side:

• Science Progress: Silent Spring 1962

1.You can’t expect them to rightly predicts

2. We do not make laws based on future prediction
Three key deficiencies in IHL
1. Unclear and restrictive definition of impermissible environmental
damage (direct protection).
2. legal uncertainties regarding the protection of elements of the
environment as civilian objects (indirect protection).
3. the application of the principle of proportionality where harm to
the environment constitutes ‘collateral damage’ is problematic (no
protection).
1.Unclear (not defined) and restrictive (high
threshold) definition (comparing to ENMOD)
• Article 35 (3):
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.

Article 55 (1):
Care shall be taken in warfare to protect the natural environment against
widespread, long-term and severe damage. This protection includes a
prohibition of the use of methods or means of warfare which are intended or
may be expected to cause such damage to the natural environment and
thereby to prejudice the health or survival of the population.
2. Unclear definition of environmental
military objective
• Elements of the environment are most often civilian objects. As such, they are
protected against attacks
• But elements of the environment are all too likely to become military objectives,
invalidating their protections as civilian objects.

Article 52 (2), API:

…military objectives are limited to those objects which by their nature, location, purpose
or use make an effective contribution to military action and whose total or partial
destruction, capture or neutralization, in the circumstances ruling at the time, offers a
definite military advantage

opportunity number two:

the transformation of environmental elements into military objectives must be prevented.
How can this be achieved? Articles 59 and 60 of Additional Protocol I (non-defended
localities and demilitarized zones) may serve as a model
3. Proportionality principle
• Formula:
Collateral damage should not be excessive in relation to the concrete and direct
military advantage anticipated as a result of the attack

Gaps:
Formula is unclear: How much pollution is proportion?
“Scientific Uncertainty” of “environmental impacts” of the collateral damage (e.g.
attacking oil installations)
Therefore it’s difficult to operationalize the formula:
• Current pollutions vs. resultant pollutions
• Direct vs. indirect impacts
• Immediate vs. long-term impacts
Opportunity number three:
New treaty?
• Political difficulty
• Scientific difficulty

Solutions:
• Create some general rules for assessment of environmental damage
• expert groups to analyse typical scenarios and develop a set of
criteria for determining proportionality
 IEL
• IEL is a well-established body of norms, rules and principles that protects
the natural environment

• Q: the question is whether and to what extent (lex specialis) these

provisions of IEL continue to apply during armed conflict and whether they
provide a meaningful protection against the specific risks of warfare?
• Answer: case-by-case basis (As emphasized by ILC draft articles on effects
of armed conflict on treaties)
• Challenging because: 1. IEL develops 2. it’s fragmentation of international
law
Continued application of IEL during an armed
conflict
MEA:
• Between a party to the armed conflict and a non-party to it:
• Between a party and ANSA
N.B: The clausula rebus sic stantibus and necessity as a circumstance
precluding wrongfulness may modify the relationship between parties
and nonparties to an armed conflict in comparison to their relationship
in time of peace
• Between two parties to the armed conflict
MEA continuation during armed conflicts:
• Explicit/implicit continuation/suspend
E.g World Heritage Convention’s Endangered List is indirectly implying that it
applies during armed conflicts. “Serious and specific dangers” may include ‘the
outbreak or the threat of an armed conflict
Or Ramsar Convention talks about “Urgent National Interests”

• Silence: Unfortunately, most MEAs fall into this category, so there is substantial
uncertainty
E.g. CBD (1992), UNCCD (1994) and Convention on the
Conservation of Migratory Species of Wild Animals (1979)
Commentary says CBD, is analogous to IHRL treaties, therefore continues to apply..
conclusion
• We should take some international actions for clarifications of
ambiguous provisions (Resolutions and expert groups)
• We should conduct more research to clarify IEL and IHL
relations.(precautionary principle? Private liability or state
responsibility? What about NIACs?)
• The perspective of the article was narrow. I don’t agree with all the
propositions.