GUIDELINES ON THE PROTECTION OF THE NATUREL ENVIRONMENT IN ARMED CONFLICT

views in the Working Group tasked with drafting provisions affording protection to the natural environment: "Some
delegates were of the view that the protection of the environment in time of war is an end In Itself, while others
considered that the protection of the environment has as its purpose the continued survival or health of the civilian
population."*' Ultimately, the provisions proposed by this Group resulted in the adoption of Articles 35(3) and 55
of Additional Protocol 1. While Article 9S reflects, at least mom the outset, the anthropocentric approach. Article
35(3) clearly protects the environment as such, and thus reflects the intrinsic approach. As noted In the i 7 ICRC
commentary on Article 35(3l, "l1]t is the natural environment itself that is protected. It is common property, and
should be retained for everyone's use and be preserved." The period after the iq9o- i99i Gulf War marked another
moment In this general trend towards the protection of the natural environment as such, and since then the Intrinsic
value approach has continued to gain ground.•*

2L As noted above, It is the 1CRC's view that all parts of the natural environment are civilian objects, unless they have
become military objectives. In this sense, there is no "grey zone" in which a part of the natural environment is
neither a military objective nor a civilian object. Accordingly, this view is the one adopted throughout these
Guidelines. However, the differences between the anthropocentric and intrinsic approaches should be borne in mind
as implications for how IHL rules apply to the protection of the natural environment may vary depending on the
approach taken. To return to the earlier example, a bush In the middle of an uninhabited desert may nor be
considered a clvlllan obJect under the anthropocentric approach and would not be protected as such under IHL. An
anthropocentric view alse arguably accords with certain common military practices by which armed forces direct
fire at or release a piece of ordnance on parts of tire natural environment in situations where such parts do not
necessarily fulfil the definition of military objective lfor example, calibrating attillety by fittng a shell at empty open
gtoutid or a group of trees in ordet to hxiptne accuracyl. The ICRC does not view States' affirmation of the civilian
character of the natural environment as intending to outlaw these standard practices, and the present Guidelines
likewise do not seeh to change them. * Nor, however, does the ICRC consider that it is sufficient practice to put into
question the intrinsic approach to the protection of the natural environment.

Existing obligations under IHL

In situations of armed conflici, ML treaty and customs rules provide the natural environment wifh speci/ie and
generat protection.

zi IHL protects the natural etivltonment in different ways. The first rype of protection consists of those rMes rhat
grant speci/ie protection.to the natural environment as such, in that they have.that as their purpose. These
ptotecuons are set out in Part I of these Guidelines and include nJles on prohibitions and restrictions on
methods and means of warfare that may cause widespread, long-ten and severe damage to the natural
environment, the prohibition of using the destruction of the natural environment as a weapon and the
pmhibition of attacldng the natural environment by way or reprisal.

z3. The second type of protection consists of general rules that protect, among other things, the natural environment,
without this being their specific purpose. Part Ii of the Guidelines sets out general protections that, In the lCRC‘s
vtew, are provided to all parts or elements of the natural environment as civilian objects by the principles of
distinction, propomonality and precauHons; protections provided by the rules on specially protected objects other
than the natural environment; protections provided ro parts of the natural environment as civilian objects by the
niles on enemy property; and certain additional protections under other general rules of tHL. Pan III of the
Guidelines theti sets out the general protections that, in the ICRC's view, ate provided to the natural envttonment
by rules on specific weapons. However, it should be noted that whether and how some of these rules apply to the
natural environment is the subject of debate.

z& Among the rules providing general protection to the natural environment, some protect the natural environment
directly, others indirectly. Direct protection is provided, for example, by the rules restricting attacks against the
natural environment by virtue of its civilian character. Indirect protection is provided, for example, by resuicttng

•' OQirfol Records o/ike Diplomoiic Con/eitnre o{Verva o/ i9y —i9y, VoL IV, CDf tt/IlI/275, p. 58. For a further dlscuscion of thls,
ace paiû - and hh i97-i99 of the present Giildellmi.
• SondoÿGwlriarskl/Zimmetman ri {edil, Comrnentory en lle dddftionol Pmtncolr, pp. io and po, paras i and ix6n Noie that
die original French edition of the Commentarp uœs flic Impentlve "must" nthtr than "sliouid": “C'est l'environnement
naturel ml-mé me qul est protégé. Blen commun à tous, 11 doft rester affeciè i l'usage de tous et é tre prèsereé." (Emphanls

ConduU o/NoTffffffrJ: be ffi¢id£n(¢If H0I•m Sfde o/ fhe AS¥eGsmcfil, ChAthAr¥t ?dotIE0, Loltdofl, De¢eDtbet 20t8, }t§. $6-$8, $rdr09 L -
t36 and references (in particular In. 1o9), noting that ”[t]oday, the prevailing view supports tke alternative, ’intrizssir value’

‘* For ftutber deta1ls on this issue, see Rule 5 où the preænt Guldeflnes, paras 1o4-1oç.
 GUIDELINES ON 'l'HE..PROTECTION OF THE NATURA1. ENV1R0NMENT EN ARMED CONFLICT

attacks against works or installations containing dangerous forces, on the basis that, while an installation such as a
nuclear electrical generating station is evidently nor part of the natural environment, an attack against it could have
severe effects on the surrounding natural environment.

The protection of the natural environment by bodies of international law other than IHL
in oddition ro ruJes of IHL, ottier rules a/ inrerooriono/ treary and customa law prorecring fhe natural environmen I
{including rules of international environmental low, inrernofiona/ human righrs low, the low' a/ tte sea and inrernarional
cnmino/ law) mod confinue to Oppiy dating internohonol and non -inrerrt0fiorto/ armed con//ic/s.

The present Guidelines and their .accompanying commentaries are based on rules of IHL; they do not analyse
questions of application and interplay with .other bodies of law and are without prejudice ro existing obligations
under other applicable bodies of international law.

26. The outbreak of an international or non-international armed conflict does not in and oJ itself terminate or suspend
the application or rules of International law (whether treaty or cue emery1 protecting the natural environment tri
peacetime, either between States party to the conflict or between a State party to the conflict and one that is not.‹°
Thus, other rules within different branches of international law may, depending on the context, and in whole or in
part, complement or inform the iHL rules protecting the natural environment in times of armed conflict. The
continued application of international environmental law and international human rights law, as two of the most
important complementary bodies of law, is briefly addressed below. While a comprehensive analysis of the
interplay between these bodies of law and IHL is heyond the scope of these Guidelines, it is considered in greater
detail by the ILC in its work on the protection of the environment in relation to armed conflicts.*

27. When deduclng whether treaty provisions continue to apply in situations of armed conflict, rire 11.C's son Draft
Articles on the Effects of Armed Conflicts on Treatles provide a framework for interpretation.'• As a point of
departure, where a treaty itself contains provisions on its operation in situations of armed conflict, those provisions
apply.w lu addition, to ascertain whether a treary is susceptible to .termination, withdrawal or suspension in the
event of an armed confiict, tegatd must be had to all relevant ïactors, including the nature of the treaq tin paatcular
its subject matter, its objert and purpose, its content and the number of Parties) and the characteristics of the armed
conflict (such as its territorial extent, ils scale and intensity, its duraô on and, in the case of non—international armed
confllct, also the degree nf outside involvement).s' lu respect of the nature of a treaty, when considering its subject
matter, Article 7 of the Draft Articles provides an indicative list of treaties the subject matter or which involves an
implication that they continue in operation, in whole or in part, during armed conflicC Ttiis list includes rreaties
relatlng to the international protection of the natural environmennv

"See ICC, Dzaft Ari:ichs oo N+e Effects of Arzned CoaAicrs on treaties (You), reproduced in UN General Asseatbty, Reporf a/ rkr
Ini•iuoiionoi Mw commission: sixty-a/r‹i xr sion frs Apt/-3 /»n• and4 y«g- •A«pict zo»), UN nec. A/66/›o, zou, Ardck , p.
i7s, pam. ieo, which states: “The existence of an armed conflict dors not ipuJorio terminate or suspend the operation of
treañ es: {a) as between States parties to thu conflict; {b) as between a statn party to tlse conBict and a State that is "
This is in line with Ardcle a of the resolution on "Effects of armed conflicts on treaties* adopted by the Institut de Droit
International at its Helsinki session in 1985, as well as with Article x of the Réglement Concernant les Effets de la Gurrre sur les
Trailer adopted try the lnnltut de Droit International at Its On-istianR session In i9w. On the continued appHcation •f eustot
ary taw, see ILC, Draft Articles on ihe Effects of Armed Conflicts on Treaties {zon), p. iy2, Article io, which states undrr the
heading "Obligations Imposed by international law lndeprndentlp of a treaty”: "The termioadon of or the withdrawal from a
treaty, or thu susprnsinn of its operation, as a consequmce of an armed conflict, shall not impatr In any way the duty of any
State to fulfil any obligation embodied in the treaty to whirh it would be subject under international law independently of that
treaty.” See, further, Finland, stntnioent on behalr of the 14ordIt Countries brfore the Sloth Committee of the Ux General
Assembly, b8th session, Agenda hem
8i, $ NoVemtrer 201a.
* The purpose of the present Guldelines is not to establish a comprehensive inventory of existing laws thac may protect the
natural eavtrenroent In tiroes of armed ronfllcL Ratf+er, It is txt enhance the clarity of N+e relevant rules of 1HL In order to
strengthen tAeLr implementaciorL For a roore extensive overview of other protective bodies of law, see the reports of the ILC's
Arst aad second special cappocteuzs oa tbe protemJan of che ertvtzooment la reladon to azzaed con0Jcts.referenced la to i6
above; and UNEP, Prolerting rfir Environment during Armed €onfti‹t.- An Inventory and Analysis a/InrernorionoI Low.
*• It aiust be noted, however, that, while the ILC's work on the eÏfects of amied conBicts on treaties is an important
clazificaiion el thi»complex subject, it d‹>es not address hom rules of customary intrmadonal law and princlples of intematiunal
law continua to br applicable in times of armed conflict.
•° ILfi, Draft Ardcles on die Effects of Amsed Confllcts on Treatles (aouJ, Artkle ¿, p. y5. Aute also Article s of the Draft Articles,
whirh provides that ”{IJhe rules of international law en treaty interpretation ahali be applied to establish whether a treaty is
susceptible to termiriation, withdrawal or suspeosion in the event of an armed conflict".
•• Ibid., Artkle 6.
'• The list also includes tmaties relating to internadorial watemoursea and related installations and facilities, aquifers and related
installadons and facilldes and relating to international human rights and International criminal law.

2O
 GUIOELINES ON THM P8OTECT1ON OF THE NATUREL ENVIRONMENT IN ARMED CONFLICT

z8. Separately, obligations concerning the protection of the environment that are bindlng on States not party ro an
armed conflict te.g. neighbouring States) and that relate to areas beyond the limits of national jurisdiction te.g. the
high seas) are not affected by the existence of the armed conflict to the extent that those obligations are not
inconsi‹tent with the applicable law of armed rr›nn irt.’•›

International emñronn ntal law

29. International environmental law sets down obligations of environmenial protection and regulates responsibility and
potential liability for environmental damage. It finds Its sources in treaties, general principles and customary
international law, as well as related jurisprudence (as a subsidiary means of determining rules of law). * Important
related sort law insmiments include the i922 Declaration of the UN Conference on the Human Environment
{Stockholm Declaration), the 1982 World Charter for Nature, the i99z Declaration on Environment and Development
{Rio Declaration) and relevant resolutions of the UN General Assembly and the UN Environment Assembly.•*

30. The fact that international norms relating to the protection of the environment must be taken into account in
situations of armed conflict has been recognized by the lfiJ›° and is a presumption from which the work of the
lLC on the protection of the envlroiunent in relation tn atined conflicts proceeds."' However, determining the
extent to which international environmental law applies in parallel to I HL is a more complex question.

33. The 1LC’s Dtaft Articles on the Effects of Armed tionfllcts on Treaties ptnvide essential guidance in this respect. in
line with Article I of the Draft Articles, the starting point as to the continued application of an international
environmental law rreaty is whether the terms of a treaty address its applicability in armed conflict. The lLC's special
rapporteur has found that multilateral environmental treaties that directly or indirectly tmeaning either by
express statement or by inferences provide for their application in times of armed conflict include:••
• International Convention for the Prevention of Pollution of the Sea by Oil IOILPOL) (i95$)'•
• Convention concerning rhe Protection of the World Cultural and Natural Heritage (World Heritage Conventions
(3972)°"
• Convention on thr Prevention of Marlne Pollution by Dumplng of Wastes and Other Matter (London
Convention) l i978)°'
• lntemational Convention for the Prevention of Pollution from ships tMnRPoL) {i923}*°

*' In tÏsls respect, see ILC, Draft Articles on tÏse Mfecl:s of Armed Con!?l°*• on 3’reaties (2O1t), Ardcle y(b); and ÏCRC, Guide!fnes/or
Atililaey Mondale and/nsrructïons on zAe Protection of Oie £nvl onmeni la Zïmes ofArxried Con/licz, Guidelioe ç.
"* For en overview of key multilateral agreements, principles, customary law, and soft law Instruments of !ntemaJonat
environmental law, see UNEP, Prorerring thr Mvironmenr during Armed Con/icz: An Inventory andAnalysis a/lntemorionoIIow,
pp. -ñ3. •or a further analysis of envfronroental principles and c•o‹ epts, see also IN, Prelimfnory report by 5pecf4J Ropporfeuf
Marie Ifi. }orodsson, pcras H7-156.
^ See e.g. url Geoezal Assembly, Res. 47/37, ProtectJoo of the eovizooasent in tiotes of artoed con0ict, ¥5 Novetobet \qqz; LfN
Mnenl Assembly, Res. 4g/So, United Nations •8e of lnteznctional Law, q December 994" UN Environment Assembly,
Res. a/i5, Protecdon of the environment in areas affected by armed conflict, z9 May zoi6; and Ult Envimninent Assembly,
lies. 3/i, Pollution mitlgatlon and control In areac affected by armed conflict or terrorism, 6 *••• zol2.
* IC}, Lrqolity o{ihe Threoi or Use ut i9uclenr Wtopons, Ad•ñmryOpinion, 8 Julyyisss, 33-
'* 3'Ite parallel appllCdtJdh Of J»tern•›t' nal envtroT I¥tentAl IaW Aad fHL Is dlxcU5s¥d ›O UC, yre//mffi xcpzlri by Stz‹ri¢i/ fidpp»rtr‹r•
Marie 0. /orobxson, paras 2-2, and with regard to st:• • ns of occupation, in ILC, Finl report by Sptcial itnpporieur Msjo £rbto.
It has •lne• tween addressed In the commentaries on the fLC's Draft Principles rim the Protectlon of the Environment In Relation
to mmcd conMca lioi9), pp. us- i96.
" This list is set out in UN General Assembly, Peport o/ ihe Sixry-Siird stssion o/ Six totemaiionat Law Commission, Annex E, pp.
36i- j6t. For further details and references to other multllateral environmental agreements ihat specifkally provide for
auspetislon, derogation or termination during armed conflict and to these that neither directly nor indirectly address their
application duñ ng armed conflict, see tlNEP, Prnteriinq the £nxironmenl duñ aq 4rmed ConJirr An foi•eato y and Annlyxfi
NJInfernarionol Lnw, pp. J—$o.
Note, however, thnt Article XIX(11 foresees the possibility of suspending the operation of the whole or any part of the
Conventioa In cast of war or nther hiisrilltlec
^ In particular, Article 6(3). Set also Article u($1 of the Convention, according to which the outbreak or threat of an aw
confgct allows a
Slate Party zo place a site on the "list of World Heritage in danger". Note a1so that in Joao, UNESCO and the UnJted
uadons Foundation launched a preject enUtled "Biol tversity Conservation io Regions of *- Conflict: Conserving
World Heritage Sites in tbe Democradc Republic of Congo", wfñrh uses the World Heritage Convention as aa instrument to
bnprove rhe consewadon of world ftezitage sttes in regions affected by armed conf5ct.
" However, note the exceptions In Article V.
" As amended by Protocol Relating tn the International Convendon for tbr Prevention of Pollution from Shlps (i9J8}. However,
ArlJcÎe 3Ï3) of zI¥e Convendon contcJns an excepdon s! =!!ar to •8•t in Article e36 of UNCLOS.
 • Convention for the Protection of the Marine Environment and the Coastal ttegion of the mediterranean
tBarcelona Convention) tt976J and Its Protocols •'
•
Convention on Long-Range Transboundary Air Pollution (is79T
•
United Nations Convention on the Law of the Sea (UNCLOS) (tg6a)°*
•
Convention for the Protection and Development of the Marine Environment of the Wider Caribbean
Region TCartagena Convention) {iq6j)°‘
• Convention on Wetlanris of International importance especially as Waterfowl Habitat tRamsar Convention I
I!9871"*
• Convention on the Law of the Non- Navigational Uses of International Watercourses (Watercourses
Conventionl ‹i997).°
• African Convention on the Conservation of Nature and Natural Resources T z0o3\"

32. In cases where treaties of international environmental law do not indicate whether they continue to operate In
situations of amied conflict, or whete treaty provisions addressing the issue are unclear, Article 7 •f the lLC's
Draft Articles indicates that the subject matter of treaties relating to the international protection of the environment
involves an implication that they continue to operate, tn whole or in part, during armed conflict.°

Thus, in light of the combined effect of Articles , a and y of the Draft Articles, rules of international treaty law
that protect the environment may continue to apply alongside IHL durlng tlmes of armed conflict.'" This
continued application is subvert to two exceptions. Tne fltst is when it is expressly stated thai a s ific nile, or
pan ot it, does not apply during armed conflict." The second is when, provided that It Is not expressly stated that
a rule docs apply during armed conflict, its application is incompatible wlth the characteristics of the armed
conflict*' or with an applicable rule of lHL, This potential incompatibility between a rule of international
environmental law and I HP must be considered on a rule-by - rule basis, but where a rule of International
environmental law is more protective of the natural environment than the parallel rule of lH L, this difference
should be interpreted as incompatibility only if there are clear reasons for doing so.

Separately, as far as rules of customary international environmental law are concerned, the appJ\cab\llty of any such
rules in the context of armed conflict will depend on whether there is "a general practice accepted as law"
{opinio jvris) in this regard.›’

"Thts Coavendoc wæ tnltfsüy adopted on t6 Februarr t976 ar+d ••••=8 on io )une t99ç. ArtJcïe 3(5) of tñe ••=•=8
Co»vvndon contains an excepdon simlîar to Lhat In Artk\e 736 al UNŒOS and Article 3(3) of MARPOL In addition, Article 7\3T
of the *rn!nn• Convention states that "(nlethlng tn this convention Grid Its Proto‹:ele shall prejudice the rlghts and
positions ef any State concerning the United Nations Gonvrntion on the knw of tftr Sea of 1982". It 1s worth rioting that tlH
Inlemarinnal
/vIarttIi ie Organization invoked tote ›s95 Barcelona Convencton «s a busts for providing csststznce to Lebanon after tote bombing
of the|iyeh facility, whtch •••› an oli spill Into the ñtedlterranean durIztg conflict In eoo6.
•• Howewr, see the partial exception for wanklps and other State-operated vessels end aircraft In Article a36 of the convention.
”Tile Convention does not mni«/n an escepdon such as that In Article j(s) of the i9q5 Barcelona Convendoa.
”Although the Convention Is silent on Its applkctlon in sltuatlozzs of armed conflict, Article ¥(5) states tkat a ContractJzsg Party
can delete or restrict the boundaries or ttin wrtlnrids It has already Included lrt Its list of wetlands of lntzmatloiul Importance
"because of!u ucg«nt naNonal *=••-*•". A s**»••*•n of urgent national Interest may Include s!tua^!^ •a of armed conñitL
” 1fs particular, Article 2q. TTie Convention entered Into force on t7 August 2ot4.
"A r«vS+d wrslon of cht origln4 ›sss Conwntloa was adopted en u july zooj ard enftred Into force on yj lujy 2oi6. Article
xV of ltte revised Convention directly addresses mtlitccy and hosLlie actlvtdes and establtchn specific obllgadons ix armed
conflicts reiterating the protection of the natural envlzonment. Furthermore, rhe exception for circumstances involving the
paramount intetest of the State lzt Article XVT of tote o¢!ginaJ t968 version was deleted fror¥t tfle e2cept!ons pfov!ded for In
Article XXV of the
2OO}verÑOn.
"fK, praft Articles on tke Effects of Aimed Comets on Wact«s ‹zott), ActJde t cod Mnes, wNch identify "rceatics w\adng to
the tntemaNonal pzatectlon of the environment" In an lndkctive kst of zzeaties the subject matter of whicft implies that tTtey

*° fi€t UN G¢D l'6l AS50rttbf$, Profr¢tion 0) The 4fit'JranrrWNt IN firttc£ 0/dW£d ¢¢in/Ïf¢fi Rcg0tï o/ ffie 5Y¢r8fd/}'-Grnerdf,
UF/ Doc. A/47/9z8, yt )uly t9qz. para. 11; UX General Assembiy, Pror¢cfion o/ rhr envfronmrnr In rfmn o/ ormrd conflict: epartof the
s'‹et4ry-Genera/, uN ooc. A/48/t6s, z9 juty i99j, pata. zt; aod lic,Prttimino ' reP»ri 6ySper/of zepponcvrMoricc.yato6s on,
para. ïo8. See, howewr, vrdted States, statemrnt before tfte si•t . Coznm!tter of tfsr vN cenrrat Assembly,7znd sesston, Agenda
ïtern 8a, I Nowmber :zoa7, aceordlng to which "the extent to which rules contalned in other bodies of law mJght apply duzlng
• '•• \ ceaAtrt must be toosldered on a case by case t••*I*".
"for alist of m›•!•*!•teral envtronmental agreerxents not appIIcab!e durlng armed conMct, see Henckaerts/Constantln,
"protecdon of the natural envltonment", p. 4a3.
" !LC, Draft Articles on the 8*f••*• of Armed ConAlcts on Tteatles (ze¥1), Article 6fh).
"Regardtng customary intematïonaÏ envlronmenzaï lcw, see caso Botlse er of., “International Law protatlng the envlronment
durlng armed ronAtcf: Gaps and oppottunltI•s", pp. S88-sss.

Z2
 GUIDELI btES ON ’PHE PROTECTION OF THE NATURAL ENVIRONMENT IN ARMED CONFLICT

Subject to the foregoing assessments regarding the continued application of international environmental law in
situations of armed conflict, where a rule of International environmental law and a rule of IHL are found to apply Tn
parallel, the Interaction between the two bodies of law remains In need of clarification and has been the subvert of
considerable study. * The ILC's Oraft Principles on the Protection of the Environment in Relation to Armed Conflicts
make an important contribution in this respect. What is clear, at minimum, is that the interaction between rwo rules
of international environmental law and IHL that apply in parallel is highly context specific.

y6. As a general rule, provisions of international environmental law applicable in peacetime continue to apply between
States party to an international armed conflict in their relations with third States not party to the armed conflict.*'
The obligations contained in the law of neutrality, such as respect for the inviolability of neutral territory, also
govern these relations between states party to an international armed conflict and third States. Ouring a non -
international armed conflict, in principle international environmental law continues to apply beMeen States, at
least In the case of conifers without the Involvement of third States.'• Whether a Siate party to rlther type of armed
conflict failing to futfit Its obligations under International environmental law in Its relationship with other
States can raise the existence of an armed conflict as a circumstance precluding Its responsibility for wrongfulnrss 1s
unsettled and w1l1 likely depend on case speclflcltles. *

1otecoational humao rlghts law

37. A number of international human rights treaties expressly articulate a human right to a certain standard of
environment. For example:

• 3’he International covenant on onomic, social and Cultural Hights (lCESCiH) il9tis) contains a rtghi of
”everyone to the enjoyment of the highest attainable standard or physical and mental health" through,
among other thlngs, the "improvement of all aspects of environmental and industrial hygiene” lArt. iz). •
• The African Charter on Human and Peoples' Rights (tqgt) provides for the right of all peoples to “a general
satisfactory environment favourable to their development" ‹Art. z\J.
• The Addltlonal Protocol to the American Convention on Fiuman Rights ‹Protocol of San Salvador) (is88› states
that “{e]veryone shall have the right to live in a healthy environment and to have access Lo basic public
services” (Art. 11).

° In addJLlon to the tLC's work on this issue, see MEP's commentary on the appltcabflJty of International envtzonmentaJ law
during armed conflict, including an ovecvtcw of •cho\srly literature on tht topic: \JNEP, r•trcii»y i/tt Env/ronmt«t during w«*•d
Con/)irt: An fnvenrozy and Analysis a/ lnrernorionol £ow, pp. g3-c7; and Bathe rf ol., "!ntemazional law protecting d+e environment
during armed confñct: Gaps and opportunldea", pp. 56q - Sq:z. Borh of rhece sources observe that intemadonal environmental
law \s arguably alco a form of ltx s/•t‹lotls.
^ See UN General Assembly, itepon o/ ihe Secretory-Grnerolon protection oJ ihe environment in times o/ormed ron/fin, 1992, para. n;
and UN General Assembly, eepori oJ the 5rrrciury-Gznrrnlon protctiion oJ rfiz rn«fronmeni In ilmm o/ srmed conflki, isq3, psrs. y.
hor cna td!ăonal discussion, see Bmhe ei ot., “international law pzotecting the envlronment durlng armed confltrt- Gcps and
opportunldes", p. 581; and UXEP, Prolerrfng afle £nvfronmcnt dizrinp Arfned Conflict: An învenrory ondAnolysis o/IntemorîonolLow,

" ILC, Drafi Articles on thr Effects of Armed Confllcts on TreaUes {2oti), Article i and comrrientary, p. i79: "The typical non-
International armed conflict should not, ln prlnctple, czlt Into 9uextion the treaty relations between 5tates”; and lbfd.,
Article 6{b) and commentary, p. i88: "The greater thr lnvoIveiii<‹it of thlrd States In a nen-lnterriaDorial armed conflict, the
greater the possibility thnt trestles wlll br affected, and vice-vrrsa." See also UN General Assembly, Bepori @ the Serretory-
Gt› ttdt «›t pro/tui«›I «/(ht rPvi 00ItIc0f In ill iz's a/d›«cd co»,f/fct, 1994, par4. 30.
”A situation of armed conftics coula arguably be raised as a circumstance precluding the responslbillty ofa State for an
Internationally wrongful act, for example ss a situation of done mojrure or neccislty; see ILC, Drsft Ankles on Responsibility
of States fer Internationally Wrongful Acts, adopte+I at its fifty-tfzJrd sessk*n, Book, Articles z3 and z5, reprinted in fLC,
Yearbook a/ the International £ow Commission aooi, Vol. IN, Part Two, UN, New York/Genevc, ¥o¢t7, pp. 76 and Bo. Purl:hermore,
uzsder
Ifia<Ie az of che 96s vltnna convenf\•m on the Lsw of neatks, "a fundamencal rh•ng• of ckcumstancts which has occurtc4
with regard to those exlsgng ct tke time of ttte conclusion of a treaty" could ake be raised as a ground for terminating or
wichdrawtng from tote treacy. However, the ICI has held that the protecdon of tke environment Is an essendaJ interest of all
5t¥tc6: IC}, CdJr ¢orIrrzrIfrI§ lfzc 6ogd/IIdIzo N4gyMdco\ Pz0ject fJ4Ungory V. 5f0t'rtkid), ft4dgT¥tent, 25 5epterftbet y997, r4. •j3. VIA
rnap llmlt the usc oI necessltp as a clrcumstance precludlng wrongfulriess, given that ftrdc1e z5(i} of thr ILC's zooi DraR Ardeles
on Responslh\l\ty of States lot internationally wrongful Actc provides:
Necessity may rx*t be invoked by a State as c ground for precludbsg tlae wrofsgfulness of an a¢t not ie conformity witk
azi lntemadonal obllgaclan of that State unless the act:
(a) Is tfte otsly w4y for the Sum to safeguard On •* n+!8t inten8t a ¥iList a gTave and lmmfnmt}terif; 4ztd
(b) does not serieusly impair an essential interest of the State or States towards which the obligation exists, or of the
International community as c whole.
•See also Art. I(I).On the imp0tt of envtronmelttal damagr re8ulttng from an armed conflict on fair m)oyment of thr rlght to
health, see e.g. UN Economic and So<lcl Council, Reporr on fAe situation a/ Aumon rigftfs in Ifuwoir under lroqJ ozcupotfon, prepared
by Mt. 'oher Xd!ln, Sp¥cfoJ Ropportcur o/ rfit Comm/uJon on Human Rfgftrs, In orrordonm wJtfi Commission tesoJtilion j99j/67,
Vol Oak. y/CI .4/iq92/z6, i6 January iq9z, para. zo8.
 GUIDELINES ON TH£ PROTECTION OF THE NATURAL ENVIRONMENT IN ARMED CONFLICT

• The Convention on the Rights of the Child 1989) provides that, for the full implementation of the right o1
the child to the en)oyment of the highest attainable stdndatd of health, states Parties must rake appropriate
measures “to combat disease and malnutrition", while “taking into consideration the dangers and risks of
environmental pollution" (Art. J(2){C)).
• The Convention concerning Indigenous and Tribal Peoples in Independent CauntrJes (1q89) requires States
Parties to adopt special measures “for safeguarding rhe ... environment of rhe peoples concerned” (Art 4(1)).
• The Protocol to the African Charter on Human and Peoples' Rights on the Rights of Wottten lii Africa iMaputo
Protocoll (2O 3) recognizes the right of women to live in a healthy and sustainable environment and requires
srates Parties ro take all approprlate measures to “ensure greater participation of women in the planning,
management and preservation of the environment and the sustainable use of natural resources at all levels"
(Art. i8(2)(a)).

38.

addressing the environment within the scope of human rights, including the right to life,"° the right to privacy and
family life,^' minority rights" and rights to food and water,•' in addition to the rlght to a healthy environment.^
The UN Human Rights Committee, lot example, has recognized that damage to the envirniuneni could engage
States' obligations to protect the right to life"* and the US Committee on Economic, Serial and Cultural Rights has
found that the right to water in me lCESCft enroils an obligation on States Parties to refrain from "unlawfully
diminishing or polluting watet, for example through ... use and testing of weapons".•°

39

'• See als• Arts 7 and zot31{bl of the Gonvendoti. The ILC has also recognized the Importance of the pretectloti
of the
environment of indigenous peoples: ILC, Draft Principles on the Protecñ on of thr Envimnment in itelation to Armed counters
•• See e.g. European Court of Human Rights, Oaeryifdir v. Turkey, Judgment. 38.NoVembtr 20o$. See also Inter-American
Commtsslrin on Human flights, Rrport on the xiluoiion @ humnn rights in Ecuador, D LJ/lLp6, Doc. io rev. i, z,t April 1997.
Chapter VIII: "The realization of 1e right to lJfe, and to physical security and integrity is nececsartly related to and in some
ways depeodeat upoa ooe's physical envttoaoteaL Accordizsgty, wbece eavirontaenta1rnnraminaLiott aod degradation pose a
¢SkteNt thfPat te ftUzttan life 6ttd fteBltfl, the foregoing rl hts are ifhpIlc4te&" See, fUrtft¥t, VFI HUMM Rights C0ItttYIJ!tee,
Mnerol rommenr No. 3d,Mirfe 6: righr ro li/e, UN Do¢. CCPR/C/GC/36, 3 5ePtezrtber 2O1g,para. 62:
Environmental degrxdacton, clJmatr chaoge and unsiarahtable developmeuf consrttute some of chc most pressing and
serious threats to the ability of present and future generations to en}oy the right to life ... Implementation of rhe
obltgadon to respect and ensure the right to Itfe, and la pardctdaz Me wltb dJgTdl:y, depends, ktter alla, on
measures taken by States parties to preserve the environment and protect it against harm, pollution and climate
clscnge ccused by publJc and private acrors.
"S9¥C.g. Etlropean CoUrt Of Hum4n R! tC. Idprt Osrra V. Sp0in, judgm\eht, 9 e Cmb€t tgq4.
^ See e.g. Inter-.American Commission on Human Rights, iteport on rite situation o/ tiumon riqfns ia Brozif, Our.L,fV/II.97.
Doc. aq rev.j, 2q Septenzbe£ 1Qgy, Chapter V3, Bul, inwhich rhe ComtaJadoit states:
The Yanomami people kave obtained MI recognition of their right to ownership of their land. their integrity cs a
peojge aad as fodlviduxls Is under constant attack by boLh kzvad1ng prospectors and the eavhonnseotaJ poltutJoo Lhey
weate. State protecdon against these constant pressures and invasions is iwegu!ar and feeble, so tkat they cre
constantly in danger and their environment is suffering constant deterioradon.
"ror 4 T«vtrW 0f the jUttSprUdence of Inte n•iInnAl tcihUnAlS ah4 hod\es, see D. Shettoft, "H'•m^n rtght¥ and rhe ettvl oftMettt:
Subsantive rights", izs CYL £itzmauztce. D.NL Ong and P. Merhouzis reds), Research Handbook on International Em'ironmenrol low,
Edward £lgat Publlshlng, Cheltenham, AO10, . Zs5- 883- also D. Shelton, Humor rfgfitx end the er@ronmenc Jurltpruderire o/
human riphfs bodies, Baclt$zound Paper I6o. z, {oint UNEP-OHCHR Expert Seminar on Human Itigftts and the Environment,
Mneva, f4- la eat+uaty aooa; aad Droegeylougas, "The protectJoa of rhe aatuzal environment In armed conAlct: ExtsJng rides
and need for further legai protection", p. $9.
See Inter-Amerlcan Court of Hnmnn nights, 'ffie Environment ‹ind Hlimon Iligltf3, AdVlsnry Opinion OC-23/+7 requested by the
RepUblto of COlotDbla, I$ fitoVett\bet 2Oy7, pdta $9; 4TId lttt4r-Arhe¢lratt CoUrt of HUM4n Rfgh€S, CoS¥ a/ lfic lndigrnoU3
Communities o/the 1boko Honfior (Our bond) Association v. Argentina, i\tecits, reparations and Costs, ludgasent. 6 February 2ozo,

^ See UN human Rights Committee, EHP v. Canada, Gouzmunicazion Mo. 6y/19so, Decision on Admissihifity, 27 October 19s:z,
UN Doc. CCPR/C/OP/1, 1985, pxra. 8. In tMs case, Canadian cltlaeos lodged a coozpia1at on the gzouod that the storage of
radioactive waste in their town threatened the right to life of present and future generations. The Committw declared the
complaint inartmisslhle for non-exha sttnn of aationaf cezoedles hut observed cbat “rbe pzeseot coaunuolcation za see seoous
Asues, with regard to the obligation of StateC pattirs to ptotect human life”.
’* UN Comzztittee on Economic, Social and Cultural Rights, General comment No. j5 (zoom}: the riyfir la water [oru. it and zz a/the
International Covenant on Economic, Social and CuJtural Rlghrs), UN Doc. E/C.w/look/u, zo januazy too3, para. 2
”H••=•=. Rights Councfi, Bes. 1g/to, Human zigh¢s and the ezsvironment, zz March 2ozz; Human RighLs Council, Rrport o/rfie
lndeprndzni Exprrt oa rhe issue oJhumon righ obli9niions refuting to the znjoymzni oJo mJe, denn, healthy rind xiuioinobfe environmzni,
GUIDELINES ON ’l'H£ PROTECTION OF THE NATUREL ENVIRONMENT IN ARMED CONFL1C7

and recommendations, and to this end in 2018 issued t6 Framework Principles on Human Rights and the
Environment, summarizing the main human rights obligations in this area and providing guidance on their practical
unplemeritation.••

These protections set out by international huriian rights law are relevant given that it is widely recognized that
human rights law provisions applicable in armed conflict complement the protection afforded by IHL.•• The
interplay between humanitarian and human rights law 1s such that in some cases both legal regimes will apply
simultaneously, with determinations on the exact nature of thrir rolatinjjship having to be made on a case-by-
case basis depending on the circumstances at hand.•• The interface of humanitarian and human rights law
remains a complex issue that will undoubtedly evolve and be clarified going forward. The ICRC does not purport to
describe or analyse possible interactions between every rule of lHL and human rights law. Generally, its
approach is to assess the relationship on a case- by -case basis. when both IHL and human rights law regulate a
particular issue, a comparison between their provisions may reveal certain differences. Where that happens, it is
necessary to determine whether the difference amounts to an actual conflict between the norms in question. If there
is no conflict, tire ICRC has elsewhere soughr to interpret the different norms with a view ro harmonization.•' Where
there is a real conflict between the respective norms, resori must be had to a principle of conflict resolution such
as let speciotis derc›por leqi 9enerali, by which a more specific legal norm ta1‹es precedence over a more general
one.

Law of the sea

These Guidelines address how IHL rules apply to the protection of the natural environment in situations of armed
cnnflirt. They do nut consider the internatiornl law of armed conflict applicable at sea or the law of the sea more
generally, which must be taken into account as appropriate. Indeed, the rules of IHL applicable in land warfare and

!•hn H. ftnoz, uN ooc. n/HRcyaa/43, n oecembrr run; H •m«= Rtgbts counal, Res. zs/zi, H:'-w rigbti and tb• envtrnnment,
28 MnrfR 20a; Human Rights €0uncil, ReS. 28/u, H•' •n rights and the environment, 26 Mnrch 2015; Humnn Rights Council,
Res. @f8, Human rigats and the envimiuiient, zj March zui6; Human Rlghts Council, Res. zo, Human rights and thu
environment, n Hatch unit; Ho••an ages cnumti, Res: 37f8, H• wian tlghts and the envlmnmtnt, zz Marcii via. othrr
special rapporteuzs kave adézessed icsues celated to tke environment and armed œnfÏJct. Regazding the impact of armed conaict
aa expœuze to mmm and daagerous products aad wastes, see e.g. Huœaa Rigbrs Council, Adverse e//ec/s o/life illicit movement ond
dumpiny o/toxic ond dangcrous produits ond avoues on zhe enjoyment o/ humon rfghcs: Rrport o/ rhe Special Aopporzeur, 0J‹ecfiukwu
lbe4nu, UN Doc. A/HRC/S/S, S jylay zoo7i Human Rights Cour+cii, heport of the Special Rapponaui on the implications/or human rights
a) rfie environmentally sound management and déposol o)hazardoos substances and tvastn, UN EN+r. A/HBC/33/M, a August ao16; alum
H» • ktghts C•ur+ed, Reporf a/ ffic Special Ropporfcur on file impJicgfions/orhuman rights a/the envfronmentoJfy soun/ management
and dispose/ a/hazardous suguonres and wosres, UN ooc. A/HSCf36/ , 20 }tI3v Rt7-
*‘ Huznaa Rigbts Council, Reporro/the Special Ropporteur on rhe issue a/human riyfzrs od!igorions zeIoring.la the enjoyment o/o so/e,
clean, fzeokhy dnd susto/noliJe envfronment, UN Doc. AYHRC/3y/sq, zg january zo18.
’° See e.g. IC}, Legality a/rñe Threor or Use a/Nuclear weapons, Advisory Opinion, 8 IuIy t996, pars z5; IC}, Mgaf Consequences a/the
6onunitzion o/o Roll inrhe Occupied Palestinian territory, Advisory Opñ1Jon, q ]uly foot para. 1o6; and JC}, Armed Artfviries on tke
Ti rriioy oJ the Cim9o IDrmorrai’u: ftrpublic oJ the Congo v. tf9nndo), Judgment, i9 December aoo5, para zi6.
* £or a fuller overvlew of the lCRC's approach to the relationshlp between IHL and International h'•mnn tjJ@ {gw, ser ICRC,
GommenRiry oa the Third Grnevn Convention: Convention (fly) relative to. the Treatment oJPrñ oneri o/four, ICitC, Genwa/Cambridge
Unlverslty Preas, Cambridge, aozn, paras 99-io5. Thu interplay between tHL and lnternatlnnal human rlghts law, and In
particular whether, arrd if so to what extent, internal' =•! h»-•n rights law remains relevant to military operations .ucied
in artned conflict, is a matter of controversy among States. For some recent statements in this regard, see France, Commeninirex
ft Gouvsmemenl)'ruatsix d pmpox du pinjet d'Observniion pdnJrolz n° 36 sur f'ariirle 6 du Porte inizmaiionnf rel‹itiJ siix droiis cfvili ei
politiques, cowernont ie dzoir ô to vic, zo17, paHs 3B-39t Gerzziaoy, Suômission/rom G¢rmony on rfic dra/r General Comment on
Amène a o/rfie InremoïionolCovenont on Cfiril ondPolizicol Rights - Rigfir ro 1i/e. zo17, parc :z3: Russian Federaüon, Preîiminary
romments on Œa/s GèntroJ Commons Ne 36 onArôcîe s fr?gfit zo IJ/e} o/ïfze 7ntemotionoï Covenanr on Civil and yo!iticoI Ri4ftzs, zo17,
pazu 3q; Swltzer!•=d, Commentaires dr lo Suisse, Projef d'observation péndrafe n”3e do Comird des droirs de l'homme sur f'ort. 6 du
Pacfe international relori/aux dîoirs civils et politiques (droir ü lo vie}, :zoa?, para. j3; £tnited Itîngdoin, Commente o/the Gbvemment
o//he Unired Xinpdom o/ Great 8rirain andNorthem ireland on Aaman Rights Commiuee Dro/s MneroJ Comment Ño. 36 on Article s
o/tht Internationa f Covefionf on Civilond Pofirirof Rigfirs, on ïAe riyfit to fi/e, 2oz7, paras u and 33i and tJn'^•a_ SCates, Oôsrrvoïions
o/rfie Llnired SDzfig5 0/America on the Îfumon Rights Commirtee'i Dro/z GenerolCommenr Ne 36 on d/ti¢Îc 6 - RighF No Life, 201},
pazas 16-20. In addltion, when addressing questions of interplay between IHL and International human rights law, general
differences between the rwo bodies of law must br home in ^!"8. These are notably the question whether and to what extent
international human rights law binds non-state armed groups; the extraterritorial applicability of iniematir›nal human rights
law; and the possibility nf deregadng from some human rlghts ohllgatinns In the event of an emergency. For a further dlxciuslon
of the applicability of human rights law to non-state armed groups, see ICRC, fnf¢motionol Nvmonitorion /xtw and rAe Challenges a/
Contcmpofozy Armed Conflicts: ificommiftiog to Plot ion in Armed Con/lict on rh 7orh Anniversary o/ rhe Mnevo Conventions, ICRC,
c«neva, ao s, pp sz- S4.
See ICRC, €ommcnrory on rfzr 7hird C¢ncvo Convention, to2o, pars top
GUIDELINES ON THE PROTECWIO I OF Ti-IE NATURAL ENVIRONMENT IN ARMED CONFLICT

those applicable in naval warfare are not always identical, and the Guidelines cannot always be applied automatically
to the conduct of naval operations.•'

considered useful to provide further clarlty on the Interpretation of the rules, and as lt was considered In the zssessmrnt of the
customary nature of rums that apply to all typrs of warfare: Hencknerts/Doswald-Best (eds), ICitf Study on Cvstomory
Initmatiortol Humanitarian Lux, Vol- I, introductto;a, p. xxgvL

z6
GUIDELINES ON THE PROTECT'îON UE THE NATURAL ENVIRONMENJ' 1N ARMED CONFLICT

PARTI: SPECIFIC PROTECTION OF THE NATURAL

ENVIRONMENT UNDER INTERNATIONAL
HUMANITARIAN LAW
Rule 1 - Due regard for the natural environment in military operations

Commentary
This rule has been established as a norm of customary international law applicable in international, and
arguably also In non- International, armed confllcts.•' The general obligation of due regard for the natural
environment reflects the international communlty's recognltion of the need to provide protection to the natural
envirönment as such.°* This rule is based on this general rerognition, as well as on prarttce regarding the protection
of the natural environment lu partlculat when employing methods and means of warfare In amied confllct,•’•

The value of this rule Is to affirm that anyone employing methods or means of warfare must consider the protection
and preservation uf the natural environment when doing so. Too frequently, the natural environment is a forgotten
victim in contemporary armed conflicts, and so while general, the rule's hortatory affirmation that the natural
environment continues to need protection and preservation during such times is an important starting point and a
necessary reminder to belttgerents.

In practical terms, this general standard of due regard is opetationaltzed in I HL most importantly in two
further obligations with which pattles to an armed conflict must also comply. Fitst, in the conduct of military
operations, "constant care" must be taken to spare the civilian population, clvlllans and civilian objects. This
Includes the

•' See ibid., Rule and commentary¡ p. t2: 1iitps://ih1- ditatines.icic.or ciiitoinziy. ilil/eiig/duci/vi ml rulvn and rekted

^ The extensive development of intematienat law In gard to protecang tke natural rnvtronment over the last few decades has
been motivated by a recognJcion of the role humanMnd kas plcyed in lbs dangerous degzcdatlon.’t'he IC) has held thct the
protection of the natural environment Is an *'essential interest" thac could justify a State's invocation pf tke d+x:urine of
"necessity" to renegr from othet Izstemcttonat obttgaaoru: lCj, Coo2fkovo-NogymorosProjocf fHunyoryv. slovakio), judgment, 85
September 1997, para. 53. See also ICI, Lrgoffly a/lhe Zhreot or Else a/ Nuclear \t/eapons, Advisory Opinion, 8 July 1996, parc. 29:
“The enlitence of the general obllgañon et stntes to msurr that actlvltles wlthln their Jurlcdlctlon and control respect thr
rnvtronmcnt of other States or of areas beyond national control is now part of The cotjxls of tnternadontt law relating to the
env4ronmena", UN General Assembly, Res. 37/y, World Charter for Nature, z6 October tq8z, Preamble: “Male can aher nature
and exhsuat natural resources by his action or its consequences and, therefore, must fu1ty recognize tote urgency of maintatnJng
thr stabbtty and quctlty af natttre 4nd of conseEvlng natulx! re¥ources."; and Uflf Generd Assembly, Arporf o/flue DCV Con/crcocr on
Environment and Oevefopmrnf fR/o dc Janeiro, 3- i4 /une igpz), Azznex I: Ro Deriaration on Environment and Development, UN Doc.
@CONF.i5i/z6 tYol. I), It August r9sa Pñ nctple z. Por expresilons of the lnternadonel community's concern spe ltttaliy
regarding the damage caused to the natural environment in armed cenfllct, ser In. s at
•'The o6llgadon of due regard In the context of the use of methods and means of warfare or, mnre 6roadly, In military
operations 1s reflected, for example, In Ooswald-Best ted.), Son ltemo 6Inn«nl on Inicrnoifonol M Applicable to Armed Con/lfrts or
No, p. is, para, J; African Cenvendon on the Censervatlon of Hature and Natural Resources t too 1, Art. XV; IUCN, Dtaft
tatematlona! Cownant on Gnvironment end Dewlopment (j995), Art. yz{t); Australla, f'hr Manual o/ Phr 1ow o/Armrd Con/lïn,
sea, para. S.So: Cô te d'Ivoire, oroli dr lo gvarn : Manuel d'inxtrurifon, Uvre III, Tome i, p. 35i ¡ Gteere, Statement b'efore the Slxth
Cemmlttee of lhe UN GeTtera? Asse0thlr. 78th session, Agonda item 79. 3i 0 teber 2O19; Nerherlaitds, fiVM¥iflfloiP QQTiO@T€EhÊ
Hondfeidinç, voos, pala. og6ç; Itepublk of Xorea, Oprrorionol £ow Atontiol, j996, p. tt6; United ktngdom, The Joinf Service Manual
o/the 1otv o/Armrd Con/irr, Aoo4, paras tz.z4, iy3o and tç.fo; Lfnlted States. Tht Commonder's Hondôoot on tfir Latv o/Noeof
O drotÍenJ, 2oo}, park. 8.8; )CRC Study on Cu9toma¢y £ntecnaüonaf Humartftartan Law, R¢/zorfon(lmPro¢tirr o/¢ofombi0. Ig98,
Chap. 4.4; lCft€ Study on Customary International Humanl¢artan Law, Reporr on rfir Prorr\re o/ rfm lsfomzc ftepuôlfc o/lron, t997.
Oizp. ¿.4: and UC Study on Customary lntemstlonal Humanltartnn kaw, Repori on the Prorifce oJ 8uwoii, i992, Chnp. .. See
¥lSo HPc9, M4Pvd/ On lfifcrr ation0/ taw'appli¢aeJe f¢i Air ould missile u/drf«re, RUle 89, p. zyO.
* See Rule 8 of ttie present GutdeBnes. 3'ke obltgatien of canstant care Is set out in Additional Protocol I, Art. 57{1), and In
Hemkaerts/0oswald- Beck (cdi), ICRC study on Cuiiomory tntematlonol Humanltnrfun trim. Vol. I. Rule 15 and commentary, pp. 5i
- 55: https://ili1 datahs cs.icrr.or glen iviiiary - init/,cnjJdo‹s/vi r u1... rulers. Rrgardlng tier constant tart obllgadon embodttd
In the prlnclple of precautlons, see J.F. Quéguiner, "Precautions under the law govemlng the conduct of hostilities",
fniernoiioool Review o/ lht Red Cross, Vol. 88, No. 8é4, December a0o6, pp. ?93-821. For c discussion of the diffewnces between
tI+e obligations of consc«nt care attd of 4ue regard, see f4ulmc, "3'aNng can to protect the environment against 4«mage: A
meanlngleu obbgation?", pp. 675-6pa Further, on the nodon of due regard, see D. Fleck, "Legal protection of tAe
envlronzoent:'I'he double challenge of aon-international azmed conflict and post-ronMct peaccbuJldlng", in C. Stahn, l. Iverson
and j.5. Eaeterday (eds),

27
 GUIDELI NES ON THE PROTECTION OF THE NATURAL ENVIRONMENT IN ARMED CONFLICT

natural environment, whlch 1s by defauti civilian in character.•i Second, all feasible precautions must be taken
to avøid, and in any event to minimize, incidental damage to the natural environment. In this respect, a lach of
scientific certainty as to the effects on rhe environment of certain military operations does not absolve a party
to the conflict ftom taking such precautions.•• These obligations require parties to conflict to ta r steps to avoid
or minimize environmental damage. For example, those participating in military operations must take into
account the possible negative implications for the natural environment arising from, among other things, the
weapons empIoyed•• and the type of target selected.'" They consequently musi consider the specificities of the
battlefield terrain in which they are operating. These obligations are therefore particularly lthough not
exclusively) relevant for military leaders responsible for operational planning.'°'

Beyond the operationallzation of the due ‹egard standard through other legal obligations that protect the natural
environment, those employing methods or means of warfare may choose to demonstrate due regard for the
protection and preservation of the natural environment by additional actions undertaken as a matter of pollcy rather
than law. such actions could Include, for example, lntrodurłng measures to reduce the carbon footprint of wattare.'"

This rule refers to both the protection and the preservation of the natural environment. Under IHL, obligations
or proieriion are obligations of conduct. They require parties to exercise due diligence in the prevention of
harm.°' In popular usage, "preservation" refers to the maintenance of something in Its original or existing
state.'• This notion of "preservation" is complementary to "protection", and there is no strong demarcation
between the two terms for the purpose of interpreting this rule. The maintenance of the natural environment In
Its existing state will necessarily Involve exercising due dtl:gence In preventing harm to tt, and consequently,
:n the tCRC's view, the nuance in meaning between "protection" and "preservation" dœs not change the
practical implications for parties to armed conflict in their interpretation of this obligation. The term
"preservation" is particularly common, however, In the context of the rfiarine environment.'•*

EnVirOnmrnfü Ï Pfofe¢fiozl ond ÎYrlnSlîipns /rom €'eß/Îi¢f ło 9edrr: CJOri/ying f#rMs, 6ŁîncfДÎrs, Ond Prdctircf, Q¥fotd UftłV0tS΢ÿ P¥e89,
Oxford, zo17, pp. 2oy-21t.
" ttegardlng the civlllnn character øf the natural environment, see paras i8—21 of the present Guidelines.
" row a further dt•cusełan, see para. ïzń of the present Guidelines.
•• Regazólng the prote<Lion afforded to the naturai envkonment by rules on specific weap<ins, see Rules 1$-2Ş of The present
Guidelines. Pot an example of the prohibition of rhe use of weapons damaging the natural envkonment, see Republt¢ of Xorea,

'°° Regarding tke protection Worded îo rhe aatura1 environment by the principles of óleLlzscdon, proportlonaJJty and precaulúons,
see RU\4s s-9 ‹sf ‹he p e8tnt G+tldcfihes. see 4lSo ł'ktherlMda, ff«m0niioft Oor/o9 rcchz: Hond\eidinfi, zßos, p0ta. 9465: “In
addition to the chosen method or means, thr typr of target attached can also lead to environmental chnnges. An attach on a
factory or la1›oratory vrhert chcmleal, biological or nmlezr products are developed or made may hnve major conse9uznces for the
natural mvironmenL"
"' See e.g. Australla, The Mantinl o/ the her oț Armed conpiri, 2oos, para. 5.5o, whlch states: “Those responsible for planning and
conducting iø£lltazy opecaLlona heve a dury to ensuze that the natural environment is protected." NATO doczzlne also provides a
number ef guldrlines for commanders regarding environmental censidrraö ens in NATO-led military wtivities, including that
commanders at all levels sh •!ú “consider envlmnmental Impacts In declslon mating”: LtATO, STANAG 7tți. Joint NATE Doctrine
/0r EnvironmrntolPrøłctîfon D0r4ng MA70- dMflfïoryArtfvitirs, AJ5PP-c, Edition e version î, MTo S*s••i••8*••rion Office, March
2o¥s, pp. 2-t-2-4 and g-1: https./ytisu.natu.iiït/i\su/zPublic/ap/ï'lt0MJ \JEPÏ'-€ ’ zL›ŁDB•.i•zu\'’i"/ 2uL.țxłf.
=• For example, in NATO rrù lîtazy operadons, an environmental protecdon officer is responsible for monitoJng and identJfy4ng
potential sources of undesirable air emissions, as well as propas!ng rnitżga¢ing measures fa reóuce them; see NATO,
STANAG 25sz, Mvironmentot îfiotemion Best Pracrîres and Sîondords/or Military Comps in NAZD Opzrolions, A{EPP-z, Edldon A
verS(Oti 2, Ï•fAȚCi s‹^ru/^r ll•*riert Offłte, No•eTttb«r Zo›8, p. G-›.
"' ä'Ïore generally on the obłigcôon to protem under 1HL, see tCÎtC, Commentary on fftr Fïnr Cenrvo Convrntï4n: Convention (îJ/or rńe
Af¥t£I/0Z4F/Ofl 0/ fhв Cœtd/non a/ flu I 'ounded and S'кk in Armed Forces in the Field, ICRC, Mneva/Cambridge University Pгess,
Cambndge, zot6, pp. ¢8¢-487. P«ras 36a-›$68 and In. 84. in the fi•!ú ef environmental taw, Hulme explains that ”the
netien of envtronmenM 'protection’ t•nfls to be an nmhrella nodon for the wide rangø of envtzonmenLaüy beneficial
obllgadons float staies must un4ettake": Hulme, ”3'aking ccie to prat+cf the mvlronntent «gclnst 4amage: A meanłngkss
oh)łgatlon?", p. eeo.
For c juxtaposition of the ootion of protecóon uoder environmental law and of the notion of protection of the natural
environment under IHL, see ibid., pp. ä8o-G8i.
“ E0ø døfÎnłt4Ots 0f "Дt¥set'Ve" ftł1 ГsteVeMoTl ¥Ud f¥L W¥it€ (ed8), Coficflr Ôt/Org CnțffJfi Dfrfionüry, 12Lh id., QXfoГd UtłÎV' tSÎłÿ
PresS, O¥foró, 2O1G, p- 1135.
•' Me e.g. UNCLOS (Jga2), Art. 1g2; Doswa1d- Beck (ed.), Søn Demo Afonuoł on international Law Applirobłr ro Armed Con/IJcfs or Sea,
p. î6, paras 34 and yş; and United Stctes, 7h¢ Commander's Handbook on łhc £ow a/ NovoÎ @crofiens, zO07. Para. 8.¢.
 GUIDELINES ON THE PROTECTION OF Ti-IE NATURAL ENVIRONMENT IN ARMEO CONFLICT

Rule 2 - Prohibition of widespread, long-term and severe damage

to the natural environment

Commentary
This rule has been established as a norm of customary international law applicable in international, and arguably
also in non-international, amied conflicts.'°° The wording of the present rule reflects the obligations embodied in
Articles bsl i) and SSlil or the i977 Additional Protocol 1.

4® It appears that the United Srates is a "persistent objector" to the customary rule,'" and France, the Unired Kingdom
and the United States are persistent objectors with regard ro the application of the customary rule to the use of
nuclear weapons.'°• It should be noted that there is a ct•ftain amount of practice conuary to this rule, and there
are diverging views on Its customary nature. Some view that, because of the objection of specially affected States, It
has not emerged as a rule of customary intemauonal law. in general and/or with regatd to the use of nuclear
weapons. ° In this respect, the ICRC Study on Customary International Humariitarian Law acltøowledges the role of
"States whose Interests are specially affected", noting that wh» is "specially affected” wi(l vaty according to
circumstances, and reflects the contribution of such States. ' Debates are ongoing regarding the notion of ”specially
affected" States.'•

•• See Henckaerts/Doswald-Beef tedsl, fCfiC Study oø C«wornøg tncernacional ttoro•nitariort how, ¥ok 1, fast sentence of Rule $5,
p. i5i: https://ihl -.databases.icic.oncustomarY.-ililJeng/docs/ii ml , rules1 and related practice.
It should also be neied that it has been reported that “Israel does not find the two provisions on the protection of the natural
environment {in Additional Prott<ol I) to be customary in character’*. 5chmitt/Merriam, "The tyranny of context: Israeli
iargeting practices In legal perspective”, p. 98. See alsø israel, statement before the Sixth Commítiee of the UN General
Assembly, 2oih session, Agenda Item 83, it November ini5. See, further, israel, ICC Drs{t Contl«sfonx on fdeniirzniion oJCuscomar'y
føtcrnoiføri«l 1-uø' - tirec1'x Commenti and Otoervoiien , 7oth union of the lntrmatlonat Law Commission, zoi8, noting that It “1s
difficult œ recognize tłte exact moment of czystallizatłon of a ruîe, because the process ef formation is not clearly defined and

*• See Heackaerts/Doswald-Tech (eds), ICRC studp oft CttsiomDiy IftfeM0fi0nA1 HHMOflifOfißn Low, Vol. I, commentary on Rule kS,
p. isi: tatps:/?ihl -daiaba i.ici‹.ordvosiomaw ihl/enyd ›/ii.am.. ruivc*.

^ See eg BeMnger/Haynes, "A US Govemaseot response to rhe lotematiooaî Coœœlrtee of Ake Red Cross Srudy ozs Customary
lnteriutional Humantiarlan kaw", pp. ¿55-Who, which voice, among other things:
țn additJon us maintaining that Articles 3S(3) ang 55 are not customary intrznational law wich regard co the use of
weapons generai4y, specictly effected States possessing nuclear weapon capabilities have asærted repeatedly tfiat these
articles do not apply to the use of nuclear weapons. For instance, certnin specially aííected States such as the United
States, the United Kingdom, $tussia, and France so argued in submissions to the International Court of Justke (‘ICJ').
See also Y. Dinsiein, “The ICRC Customary lnternadonat Humanitarian Law Study", Jsrrel Fenrbook on Hyman Itigiiu, VoL 36,
aoo6, pp. i—i5; K. Hulme, "Natural envlronment", in E. Włlmshiirsi and S. Breau tedsJ, mnptttivts on the iCAC Study on
Customnq 7nîcrnorfonoł Humdniiońan Lotv, Cambridge University Pżess, Cajzzbrldge, aooy, pp, z3z-z33; ang V. Dk+steÎh, Zhe
Conduct p/ Hosrifiries under ïhe txzu' a/ înłemolionef 4rmrd Con//irł, 3rd eó., Cambridge University Press, Gsmbridge, 2oîe, pp. 238-
2y9. For a response I:a the comment of the United States, see Ț.M. Heñckaerts, "Customary Fntemaóonal Humaniżazżan Mw: A
resj:arise to US Comments", International łtevieu'a/îhe Red Cross, Vol. 8q, No. 866, |une żOo7, pP. 0- B&. fiae aJao|.NL
Hencltaerts, “Thż 1CBC Ctistoæacy ïoteraaüonal Humao1tarłazt Law Study A cejoíoder to Pcofessar DîasteÏa", ïsraeI Yearbook
onHizmon Jtîghu, Vol. 37, zoo7, pp. z59 -z7o. For pcacdce suppordve of rhe customary natuce of ÜJs nde, see
Xenckaerts/Doswald-Beck {eds), ïCftC Srudy on Clutomory/ntcmofion0IHumoniłorfon how, Voț. ł, comroentazy on Rule 45, pp. 1st-
t53: in\ps-//iI›I -
datahasts.i‹re.‹›rș/.‹ u t+man'.- i\\Iltяg/d‹i‹ь!\!i_rul_tuI 48.
"' Henckaerts/Doswald-Beck {eds), fCRC Study on Customary tnternatlOffi0i HUMOflfF4ŃOfl Lola, VoJ. I, Introduction, pp. xtiv-six:
tulips.//ihl- üarcbcxas.icrr.urp/cuscumary.-dil/cnp/üocs/\'i cIia_.chapterîn . in, and iôid., commentary on Itule 4ş, pp. 1 4-
iss. I îcps:/Ii\+! üaŁabascx.icrc.orgYcustumary-ih1/•n /ć rs/.» ›ut ut•as.
"‘ la tbe Anal œoclusłons of its study on Üze łdenÜ8cadoa of customary îatematJonal law, tbe ILC does not œeoÜon Üze
notions of •spectaIly affected sratcs", gtven Æve¥gtng views, hut it is addressed la the comtaetttary on CoacJtlslon 8 (“Zhe
practice Faust be geoercl"), wizłCh no¢rs:
[ł]n assessing generality [of practiœ], an indispensable facter to be taken inæ ccœunt is the extent to wkich those
States that ace pazticulcrly involved in tke relevant activity or are most likely tø be concerned witÏt the alleged ruîe
{"specia1ły affected States") kave parocipated In tke practice. While izi many rases all or virtually all States will be
equally affected, It would clearly be impractical io deiermlne, for example, the existence and content of a nile of
cusiomaiy lnteoiational law relating tn navigation In inarldme zones without taklng trim ørcount the practice of
Relevant coastal Slaie£ and flag States, or ihe existence and conienl of a rule on foreign investment wtthofii eValHating
the practice of the capital-eapordng States as well as that of the States in whlch Investment 1s made. It should bt

29
 GUIDELINES ON THE PROTECTION OF THE NATURAL ENVIRONMENT IN ARMED CONFLICT

Although the three terms “widespread", "long -term" and “severe" are used In Additional Proterol 1, they are not
defined in the treaty, its commentaries or its negotiating history. However, there are a number of elements that can
generally serve to tnfotm the meaning of these terms.

5z. A fkst factor to consider 1s the historical backdrop of the environmental provtslons of Additional Protocol 1. As rhes«
were being negotiated, States had recently completed negotlatlons on the ENMOD Convention In is 76. Although
the ENMOD Convention used similar — but non-cumulative — terms {i.e. “widespread, long-lasting or severe"
(emphasis added)), the interpretations given to those ierms were only for the purposes of that treaty and
without prejudice to the Interpretations of the Same or similar tetms in othet International agreements '•°
Duting the negotiation of Additional Protocol I, It was also the understanding of a number of States that tlir
interpretation of the Protocol's terms was not the same as for that of the ENMOD Convention."' However, little
clarity was provided on how they differ, with delegations simply reiterating thai these terms have different scopes
and that the State‘s understanding was without prejudice to their position on the £NMOD Convention. This
situation, in which some states consider simllat terms to have dlffetent meanings in dlffetent treaties, can be
explained by the very different scopes and ob}ertlves of these instruments related to environmental protection."•
The ENMOD tionventlon prohlblts damage meeting the threshold if such damage results from the military or hostile
use of environmenrol mudi/icoiion techniques,** which require a deliberate manipulation of natural processes in the
territory of a State Parry.'" For its part, Additional Protocol 1 protects the natural environment against damage
caused by my method or menus o/ wor/Ore, lncludlng incidental harm, reaching the required threshold.'*'
Accordingly, the ENMoO Convention requires deliberate behaviour, whlle Additional Protocol I also prohibits
unintentional damage. A related but separate point is the cumulative nature of the prohibition contained in
Additional Protocol I as compared with the disjunctive threshold in the ENMOD Convention. The establishment of a
cumulative threshold in Additional Proterol 1, which is thus higher than the ENMOD Convention's disjunctive
threshold, may be explained by the fact that the Protocol prohibits damage resulting ftom any methods ot
means of warfare - whether deliberate ot unintentional - whlle the fiFiMOD Convention only prohibits
Intentional damage. This may also be explained by the fact that all widespread, long -term and severe damage to the
natural environrrient is prohibited regardless of considerations of military necessity or proportionality.

Beyond this acknowledgement that it cannot necessarily be concluded that the ENMOD Convention and Add\tiona|
Protocol I thresholds are fhe same, the official records of the 1974-is7† DlPlomatic Conference do not adopt a
position on the interpretation of the individual terms and how these differ from the ENMOD terms, with the
exception of the views of some States on the meaning of "long-term". Limited further guidance can be drawn from
the use of these terms in subsequent international agreements and other practice. Since the adoption of Additional
Protocol I, t}te “widespread, long-temi and severe” threshold has been included tn other totemarional agreements,
but those treaties and their negotlattog history do not reveal an official posiUon on the meaning of the terms,
except that they are based on Additional Rotoco\ I.'•• Notably, a commentary on the tg98 ICC Statute recommends
adopting an analogous interpretation of the EN/vtOD terms for the purposes of the Statute."• In most cases, the
Additional

The drafters of the t9t6 ENMoo cojwenuon adopted "undentandkigs", wtJch ue not part of fhe conventton huc are part of
the ne$otJatlng record and more u-ltt•t••'1.. fa UN General Assembly, fileport a/ rhc 6onferenre a) ldc £ommlltee en Oisormomenf, Vol. I,
General Assembly O//irio!Records: Thirfy-/irH session, Supplement No. z7 (A/31/2}), t976. P 9t.
"' See e.g. the statements and explanations of the votes ol Argentina, O//friol 9erords a/lhr DJplomotir Con/erenr¥ a/Gentvo o/ iqy§-
sn, Vet vl, CDDH/sR.3q, zs fray tsw, p. u3; zgypt, /6f4, p. n¢; taly, i6/d., cDDx/s8.4z, zj fray t97z, para. zi: I »xko, f6id.,
CDDH/S£Ly9, zs Mav i977, para. 4s” Penh, ftiid., pane. s3, and Venezuela, J0id., p. u8.
"' see aha M. sotke, "The protection of the envtronfnent in tlmea of crmed conflkt: Legal rules, uncertainty, defklencles and
possible developments", In TCgC, Afeeffng a/ Expens on fftc Promotion a/iht Environment In 7ime o/Armed Con}i/rt: 9eporr on rfse \
Vor£ a/tfzcMeefing, TCRc, Geneva, y992, Annex 3, p. 7; and T. Ccrson, "Advancing tf\c legat protection of tke envf¢oxmeot Ln
IcIaboIt to armed cordllct: Protocol !'s threshold of lmpermlsslhle envirozsmentcl damage and alternation", J\/ordi¢ journal
a/International Foul. Vol. 82, I'lo. 1, 2Oz3. p. 90.
•’ ror an explanation of the tenet “environm«ntat nt»diflcation feckniques", see the ¢omrnentaty on Rule 3.B of the pxesenc
Guide!kies.
"° See EN34OD Convention fl97e1. Arts I and
Sandoz/5wlnarskl/Zlmmrrmann {eds), Commzaiory on ifir ñ ddiñ onnl Protocols, pp. $p-di6, pzras y5o- i5z.
* set t.g. cv\v tisao), Preamble, and ICc siatoie times), Art. atzltbltivl. see also o. Trlmertr atid R Amtios tedsl, m son
Sfotu‹¢ o/ rfie fnfcrnorfondf Crfmind! Coun! A Commentary, 3rd ed., Hart, oxford, zot6., An B(e)(b)(lv), para. 2•j3. See also the
statement by Morocco durJng t1e CCW preparatory conference, LIN Do¢. A/CONF.qS/WG/L.}, September 1979:
[T|he tJtle of the Prepantory Conference does not adequately reflect the profound changes tkat had taken place in che
\au' reladng to amed conAtcts since the adopdon, in t977, by fh« Diplomats Conference on the Reaf5tmatJon an4
development on DHL applicable in Armed ^'^nn*•** of the first Additional Rotcxxtl to the t9 9 Mnevc €onwntlons.
Indeed, whlle the reference to the two tmdltlonal concepts of “unriecessnry suffering" — called “excessively
iclurtous" effects - and “\néIscrtmtnate" weapons u to he welcomed, t Is rrgrrftable chat no account k ›•¥•n of
ecolo$lcat ronsIderat!ons, whereas artirln 3•j and 'i5 of the first .^*rt***nna! Protocol ctta¢hed special !mportcnce to tile
protecdox of the envlronmezst.
"° Tttffterer/Ambos (eds), 7fte 9omt Sldtvrt a/tfte fntcrnotJonol Cr¡mij1ol Court: A Commentary, Art. 8(z)(h)(iv), paca. :zg3.
 GUIDELINES UN 'I'HE PROTE1'ION OF THE NATURAL ENVIRONMENT IN ARNIED CONFL1CT

Proterol 1 threshold Is restated in State documents, legislation and military manuals without further
explanation.''• However, a number of military manuals refer to only one or two of the three required
components and/or to the threshold In the dis¡unctive "or”l, that is, in a non-cumulative manner.'" One manual
provides that the prohibition of causing an unlawful level of environmental damage covers "damage to the
natural environment tthat J significantly exceeds normal combat damage”."'

S*. What is certain is that in assessing the degree to which damage is widespread, long-temi and severe, contemporary
(Le. current) knowledge about the effects of harm on the natural environment must be taken info account.' ' At
che time the Additional Protocols were be\ng negotiated, there were few well-known examples of severe damage
caused to the natural environment by armed conflict {apart from, mainly, t|te Vietnam War), as well as a limited
knowledge of the full extent of the harm caused by a parttcuTar use of a method or means of warfare. Since then,
particularly with the evolution of International environmental law, there has been a growing understanding and
recognition of the need to protect the natural environment and limit damage to it. There Is also increasing and
more sophisticated knowledge of and scientific data on the connectedness and interrelatlonsh1ps between the
different parts of che natural environment, as well as of the interdependent nature of environmental processes. For
instance, marshlands in southern Iraq were devastated as a result of drainage works and damming, which in turn led to
massive loss and environmental degradation, such as desertification and depletion of biodiversity, Including the
extinction of certain species.' There is also more knowledge of the effects of the harm caused, including
cumulative and indirect effects. When assessing whether damage meets the widespread, long -term and severe
threshold, cumulative effects are another factor to consider In addition to individual effects, for example, In
considering whether the all spills during the tggo —tqqJ cull War met the threshold, these separate events were
considered as a single operation.'›’•Finally, as climate risks and shocks Increase, the natural environment,
particularly where it Is already degraded, may become less capable of absorbing the effects of this damage.’!°

55. The above factors may lead to a finding that the previous use of a given method or means of warfare had
consequences not initially expected and that, were It used today, could meet the required threshold of harm.
Considering the difficulty of knowing in advance what the scope of effects of acts wiH be, there is a need tu limlf
environmental damage as far as possible.'›*to comply with this rule, those employing methods or means of warfare
must inform themselves of the potential detrimental effects of their planned actions and refrain from those
intended or expected to cause widespread, long-term and severe damage.”’ Beyond these general elements, the
followng specific elements should Inform a contemporary understanding of the "widespread, long-term and
severe" threshold.' •

' ° See Henckaerts/Daswald-Bech (eds), ICAC Srudy on Ctistomory Jnfernorionof Homonîrorian Low, Vot. II, Part I, prccttce related to
Rul« 46 (¢auslng Serious Damage to the Natural Environment), pp. 876- gol, parae L$$-28g: I\îtpa.J/il›l
dctJfias s.i< r .urg/‹’usîui›\‹ir\’ l1il/ nt;Y0u mvi._ruI . ru1 4’›.
"’See r.g. the militară manutts ef South Africa, Swiczertant and Ukratne alti tn i6id.. p. 88z, para. iat: t›ttr›:uit t -
datJbasv>.iert.ura uxtcî›\ary - ihl/cii/duvs/va, rul .cu!v1,. See alea Czech Repubîic, Fiefd Rrgulorions, 1gq7, Arbrle S7.
"' Germani, Low o/Armed Con/fcf - Manual, 2oI3, para. g35. See also Mrmany, Htimonltorfon 1ow în Armed Con/licfs -
Manual, iqqy, para. pot wÎtlclt prevtously summarized the terms " Idespread, long-term and a. "as "a major
Interference with humcn life or natural zesouzces whkh ¢onsiderahly exc«eds the battteflel4 damage te be regularÎy
expected ln a war".
'» Bothe, "3'h«protection of the envtronment In ^* •• of azmed conflict: Legal mles, uricertatnty, deflriencirs and poss4ble
developments", pp. 6-7; Droege/’£ougas, "The protecdon of the natural env4ronment ln arrned conflict: Fxistlng ru1es and need
for fufther legal protectÎon", p. 33.
"• vNEP, t/5EP tn trag. P«H-can/Ia Au mmm, C/ron-up and ftrro»trvrti«n, vNzP, NairoN, zoo7, pp. ty-is.
’°‘ Schmidt, "Green war", pp. 83-84. See also the discussion of factors to consider when •*••••lng whether
damage Is widespread, pcra. 57 and In. th7 of due present Gulde1kses.
"° Begcrding rhe bnk between armed confllm and its effects on envtronmentzl degradation, cs well as on kow conflkt lnflti•nms
v«Inrrabltlty to climate thange Impacts, see lcR¢, whr» rain T«ms t» gvsi: w.N. Adgcr et «l., "Human sec«hty", In c.B. 5IcId t dt.
(eds), €llmote Change You: Impacts, Adoploñon. and Vhlnrrottilfly.Part A: ¢ilobof and Sectoral Aspects. ConrriSufJon a/fVoA/ng Group If
fa rfte Ff/rh Assessment Iteport a/ ffic tnleigovarnmanlal 9anel on Climate Change, Cambridge University Press, Cambridge, toI4,
PP †?4 and 758
IcRC, Rotectl0n of the ‹'Liu/ oz» e I( in li‹tir a/#›z»r4 c0n///¢i, Report cUbTltltted co cite ¢arh se«4ton of the UN Grnersl Ascen'tbly,
reproduced in UN General Assembly, Repon a/the UNSerrefery”5enrraIon ffic prorecfJon o/The environment in times a/armed ron/tirt,
1993 para. 34-
"° 3'hts la in line with the obligation of due regard to the protecdon and preeervadon of the natural envtronmenL See, In
particular, Rukx t an4 8 of che present Guta•itnes. see atso f4enct‹aertc/Dosw«td-Beck (eds), fC2c Srvdy «n cvsfemaw/nrtm«f/»n«t
Humaniferian Low, Vol. I, ¢ommmtary on Rule z,S, p. J'i8: lits Ps.//iIJ1- J.1tabas«s.inc.orgJcustui\\try- ihlJcn ‹tucxJvi .ruI ru!cc3;
Bathe, “'Idle protection of tke environment in tJznes of armed con0ict: Legcl rules, uncertainty, deflctenries and possible
deveiopments", pp. ?-8; and Carson, "Advancing the lega! protecdon of the environment In relation to azmed conf\Jet:
Protocol I's thtesko|d of lmpemtg8ible ertvlzonmental demagr and altrrn«tiws", p. s6.
° AJtemotiw models of interpretatton of tide threshold hcve also been elaborated; see r.g. tke model put forward in Hulme, t¥or
tornSoWmnmcn#,pp.t9z-299

32
 GUIDELINES ON THE PROTEC'1’1ON OF THE NATURAL ENVIRONMENT 1 1 ARMED CONFLICT

Widesprend
ss. The rrovoux prtpornioires ot Additional Protocol I do not reveal a definition of "widespread” beyond an
understanding rhat the term contemplates the "scope or atea affected". ° tn comparison, the term "widespread” as
used In the ENMOD Convention is defined as “encompassing an area on the scale of several hundred squate
kilometres”.'*' Although the understanding was that the terms used in the Protocol wrre not to be interpreted in
the same way as the similar terms in the ENMOD Convention, the rrovouz préporaioires do not shed light on how
the interpretations differ{1ydelegates discussed a higher standard for the "long-term" requirement, but such a
discussion was not recorded for the “widespread” criterion. Some delegations referred to “the destruction of entire
regions”, citing examples of the damage caused in the Vietnam War to explain the rationale behind the
provisions to protect the
naiural environment.'*• For instance, reference was made to the use of 9o,ooo tons of defnllants and plant - killers
over an area of about 2.5 million hectares (z5,ooo sq km) in South Vietnam.'* This provides an example of the
magnitude of damage that formed the impetus for this prohibition and can thus inform the meaning of
“widespread".
s;.
The “area affected" should be understood ro be that where the damage to the environment is intended or may be
expected to occur. it Includes all damage that is reasonably foreseeable at the time of the use of the method or means
of warfare, based on information available from all sources.'•• This includes damage caused directly by the method
or means of warfare in thr very geographical area where they are used, such as in the above Vietnam War example.
The indirect effects (also sometimes referred to as “reverberating", “knock-on", “cascading" or "second, third or
higher- order” effects) on the natural environment are equally relevant, provided that they are intended or may be
expected. Such effects may be expected to spread or mareriallze beyond the geographical area where the metnod or
means of warfare has been employed, in which case the entire area expected to be affected is relevant tn assessing
whether the damage is "widespread”. For example, the damage caused duting thr 1990 - i99J Gulf War extended far
beyond the arras where the oil wrlls were actually burning, with significant emissions of sulfur dioxides, nitrous
oxide and carbon dioxide and the deposit of saot on more than half or Kuwait lrougtily 8,ooo sq kml; It has been
noted that the widespread (and severel tesr “would probably have been satisfied" if Additional Protocol I had
applied to that conflict.** Damage to numerous smaller areas may also cumulatlvely quaMy as “widespread”. *
This may be the case, for example, when the use of a methed or means of warfare results in the contamination of
underground water systems, which in turn contaminate natural springs in several different locations.

58. Moreover, contemporary knowledge of the effects of damage on the natural environment, including their
transregional nature, can inform further interpretations of the "widespread” tesi. For example, it is now known
that the extinction of a species living In a region — even under the 1NMOD “scale of several hundred square
kilometres” - can have significant repercussions on a particular ecosystem as well as on the population, with effects
beyond this area. indeed, whlle the area of the habiiai of the species affected by the harm caused by the use of
a method or means of warfare may be under the threshold of Additional Protocol 1, the extinction of a species
has global effects that go beyond that area."^ Although the rrovoux préporotoires of Additional Protocol 1 do not
provide

'•° 0 erm iterords oJ the Diplomntir ConJerrnceo'f in eraoJ i97$— i977. Vol. XV, CDOH/a1 they.I, para. 2y. For an analysis of thr
dtsriis<1nn In the irovnur prdporeioires on the rleflnidon of "widespread”, see Hulme, l¥nr Tom £nvironmeni, pP si-93-
•UNmnerMmumMy,Repwo{i [Werewto/A*rmmre$n0wnnamni,VoLîp9i
' fior a further di¥ctlsslon, see para. 52 and references In Ins tzz and zz3 of1e present Guidelines.
“’ See e.g. the statement of the Demorrctir Repuhlir of Viet-Nam, Mongolia, Uganda and the Union ef Soviet Socialist
Republics at We tq - lqyy Diplomatic Corderence: 0//irioI records a} the Diplomatic Con/erence of Ecnevo a/Jg7g-ig77, Vol. AIV,
CDDH,f1lI/S&a6, pp. 23+-¥37, z4o and 6. See also Hulroe, for Fom Environment, p. q2: "Bar example, In Sourh Vietnam
over flw million awes (approximately 2o,2oo cquare kms) werr sprayed with defellants.*
“O//irial heralds a/rfie Diplomarir Con/crrnrc o/Geneva 4/ igy4-zg77, Vol. XIV, CDDH/XI/SfLz6, p. zy7. See ctso Hulme, t¥'4r Torn
Mvfrortment, p. g2.
“' See ICTY, Cal// case, 3'rIa1ludgmeat, aoo3, para. g8, to pardcu1ar In. log. bits was also poktted out by a number of Srates; see
the d¥claraflons n+ads uport ra\Jftradon of ^JJ!^i=na1 Rotocof I by A)grrla, Austra1ta, Belgtum, Canada, Germany, Crance,
7relcnd, Italy, the Netherlands, New Zealand, Spain end the United Kingdom: I\ups://il›l
ilatal›aiesacrc.or@apt›lii/Hit/i1if.nsI/w'Trvativxbytiouiitrt.mp. For example, Australia declared that: “In relation to Articles Sr to
58 lncluslve It is the iindszsiandlng of Australia thai mllitury commanders and others responsible for plannlng, deciding upon,
er executing attacks, necessarily have to reath their decielons •e tlir basis of their element of the lnf•rmatl»n from all
sources, which is available to them at the relevant time."
'•• See e.g. Unlted Kingdom, The Joint Service Monuol o/ inc how o/Armed Con5iR, 2£Ki$, p. 26, pnrR 5.29.2, fn. !S3-
*' Hulme, Wor Terri frivironmeni, p. 93, refers to examples vrhere “the damage caused locally might apprai reladvely flailed In
st, hot when added iogethnr ttnse 'p•rkru' or bactn may camulntlvely odd op in ‹• i a tuge area” that might qualify as

”Bathe, “3'he protemion of the envirorunent ix times of armed conflict: Legal rules, uncertainty, deficiencies and possible
developments", p. 2.

33
 GUIDELINES OH 'THE PltOTECTION OF THE NATURAL ENVIRONME IT IH ARMED fiObiPUCT

further clarity, this may be what was meant by "scope” when Committee III of the i9yț- i92y Diplomatic Conference
referred to "the scope or area affected" as the element that the qualifier “widespread" was intended to express.°•

çg. Beyond this, the definition of “widespread" remains vague. For example, when considering the Additional Protocol
I threshold, the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of
Yugoslavia simply made reference ro the UNEP Balkan Task Force's conclusion that the confhct had not “caused an
environmental catastrophe affecting be ßnlknns region os ‹i wrote”, before noting that It lacked additional
corroborated sources regarding the extent of environmental contamination.:"

6o. Given this lark of clarity, UNEP has called for a clearer definition of ”widespread" to be developed to improve the
practical efíecõveness of this legal protection. ' It recommends that tin precedent set by the ENMOD Convention —
i.e. a scale of several hundred square kilometres — should serve as the minimum basis for the development of this
definition. it should be noted, however, that the practical use and application of the ENMOD provisions have so far
been limited.'*• Nonetheless, as the only existing legal definition of this term, using it as a starting point from which
to consider the type of damage that would be covered avpids the arbitrary attribution of a threshold that has never
been fixed. ' A rerent example suggests that in Additional Protocol I "widespread" “probably means several
hundred square kilometres, as it does in EFtMOD".'^ Taking into account the above factors, the meaning of the term
“widespread" should be understood as referring to damage extending to "several hundred square iolometres".

Long-term
61 Traditionally, in the context of Additional Protocol 1, “long-rerm" is understood to refer to decades, as compared
with the ENMOD standard of “long—lasting”, which is understood as "a period of months, or approximately a
season”.'*• According to the trovaux préporoioires of nddirinn•l Protocol 1, "long-term" refers to the ”time or
duration" of damage, and some representatives considered that this was to be measured in decades; some of
these referred to zo o 3o years “as being a minimum".'•°

6i Meanwhile, the Group “Biotope” noted that roe damage contemplated “will have an effect for a significant period
of time, perhaps for ten years or more” but thar "it is impossible to say with cerrainry what period of time might be
cnvered and for this reason, no time is specified".'•* Orte example nntes that Additional Protocol 1 "prohibits
ecological warfare", the efforts of which "could be felt for to years or more".'* Furthermore, while not sąeciliczlly
discussing Additional Protocol 1's threshold, the UN secretary-general‘s1972 report on napalm and other incendiary

"° O//îci4J gerords a/tńe Dipfo-ofir Cen/ezenrc a/Gcnwo a/ iqy4-ag77, Voî. XV, CDDH/zt5/Rw• ł, para. 27.
'• ICTT, final Itepori to the Prosemior by rite Committee £sioblished to Review rłie N4T0 ßomò ioq Campaign A9ainii the Fcderol Republic
o/Fugoilovin, paras 15-iş (emphasis added). For the view that the damage caused in this context was indeed widespread given
thu pollution of thu £fanube rłvet and t£rr atmosphere abovt Yugoalavia, see Hulme, for 7nrn Environment, p. i9p See also
Council of Surope, Parltamentary Asse ably, Environmental fmpocł a/ïhe war in 7ugasiovfa on soiifh-eosî -urope, Report of the
Committee on the Environment, Regional Planning aød Loral Authofi£ieS, Der. 8925, IO January 20£fl, pnras 6o-ä1; aød
Council of Europe, Parliamentary Assembly, Rec. y95, Environmental impact of thr war in Yugoslavia on Soutżi-East
Europe, lanuary

"' UMSP, Profccfng łfte Envfronmrnf during brnted CenȚłiœ An łnvenîozy and Analysis a/ înrernołionof Cow, p. 5z-
• ’ See Botłie/Partscîi/sold, New Rules/orYicłims of Armed ConȚÏirfs, commentary on Article 'iS of AddiŃonal Protocol I, p. y86,
which notes Łhat the use of environmental modification tecłuztques for hostile purposes dœs not play a major roÏe in aúlJœry
plann1ag. See a1so schautt, “Greea war", pp. By-8$. See a1so Dînsrein, The Conduct a/Hosïiîities under the £ow a//niemoIJona/
Armed ConȚizt, pp. t3ń-235; and C.ïL Payne, ”Rotecóoo of Üze cahzrat envlroruoent", in B. Saul and D. Ałtaode (eds), The Or/ord
Guide to fnrern4rionoI Hvmonir4rion Low, Oxførd University Press, Oa:ford, 2ozo, p. zz4.
•• For a similar line of argumentation, see Schmitt, “Green war”, pp. iy-lo8:
Sloce thete is ao lodlcadoo af wkat was meant by the terza "widespread" la tbe Protocol 1 óraftiag p¥o<ess, It makes
sense fa defer ro ks sole legal deBnlóon, that of ENMOD. Thougb EMMOD dermJtfons wete specîftcaîîy said aot to
biad other agreements, Üńs does not wgate the iogic of using them to raînłmixe ronfusioo if doing so makes sense
contextuaBy. Tbus, as the țUnited StatesJ Araty țoperationat law Handbook] does, the new æanuaJ should describe
the terœ as hoplytag daazage that eztenós to several huadzed ktloæetecs.
' Ualted States Army, Operoriondf Luw Handbook, iq97, pp. 5-iq. 3’bżs kas beeo reiterated żn r* e ment ••tîMnns of Lhe
Handbook, notably the lyth edition (201}), which notes that tke Handbook is not en off+cia4 repreæntaüon of US policy regarding
the binding application of various sources of Îas Pp. ii xnd 350. u«w ZeãIand, Manual ofAnned Forces 1ow- low a/inned Conflict,
VoL zo1?, p. 8 -45, provides a similar iodźcadve deAaïdon oż rhe t•rm ks rbe coarext of anarks on the nan rat e whozzmetst,
wkøo staÖag Ntat "lwjłaespread generally •=•••• encorapacslog an area on Qse •całe of søv«ml hunarea sęuare kuomeDes".
' ‘ UN General Assembly, Repon a/tftr Con/erenre a/rfie Commiffee on Disormomenr, Vol. I, p. q1.
•* O/Ji‹zi Arrords o/ißr Dipfomotir Conference aț Grneeao/ight —i9y, Vøl. XV, CDDH/2r5/Rev. I, pam. z2. In support of thu
view that “long-term" is measured in decades (in or 3o years}, see also Sando Swinarslii/Zlminermann (eds), Commentary
on She additional Proioroli, pp. y5 —yß, part y5z; and rhrrñ rt, •'Gteen war", p. try.
"' ßepon oJ the Chairmen @ the tîroup ‘ßioiope", u ßtarch i975, CODHflll/Gr/j5, pars ș› reprinted in H.S. Levie, Proiectiort
@Wor Victims: Protocol I re rłie iq¢p Grnevo Conventions, Vol. 3, para. ö . See also OJJiriul itetords o/ the Oipfomoiir Cò n/erenre
o/Geneva o/
*974 9y, Vol. XV, CDDH/* S - p >7-
•'• 8elgliim, Courx potir consellHrs en droli dcx tenons ormds: Lex lieiiret ßiens proidgds, 9, pp. j9-¿i-
 GUIDELINES ON THE PROTECTION OF THE NATURAL ENVIRONMENT IN ARMEO CONFLICT

weapons observed that the use of incendiary weapons on crops, forests and orher features of the rural
environment "may lead to irreversible ecological changes having grave long-term consequences"."• At the
opposite end of the spectrum, it is clear from the rrnvnux that short-term damage to the natural environment of
the find resulting from artillery bombardment was noi intended to be covered by this rule.'•° In this vein, the
Committee Esiablished to Revłew the NATO Bombing Campaign Against the Federal Republic of Yugoslavia held
that the notlon of long -term damage ”would need to be measured in yeon rather than months, and that as such,
ordinary battlefield damage of the kind caused to France in World War 1 would not be covered".'•' Although not
indicating a precise time scale, In reference to what was to become Article 5S(i) of Addltlonal Protocol I, the trovouz
prépororoires note that the damage intended to be covered is that which would be likely over a long temi to
prejudice the health or survival of the population, with temporary or short-term eIIetts not Intended to be
covered.'°'

63. Based on this, ”long-term" would cover damage somewhere beMeen the range of that not considered to be
shon term or temporary, such as artillery bombardment, and chat with impacts in che range of yea£s (possibly a
scale o/ 30 to 3• years). Ul£imate)y, however, no official position was adopted on the meaning of “long-term"
durtng rhe negotiation of Additional Protocol I, and beyond this, the definition remains vague.

If this nile is to provide protection in situations where the damage falls outside of the clearty accepted higher
limits of the temporal threshold, additional precision on the interpretation of “long-term” is needed. To this end,
UNEP recommends titar the precedent set by the EKMOD Convention, namely a period of months, or
approximately a season, should serve øs a starting point lot the development of a clearer definition of "long-
term”.'°' Although the understanding was that the ENMOD and Additional Protocol I terms did not have the
same meaning, this can be explained given the very different scopes and aims of these instruments. Indeed,
States negotiating the £NMOD Convention had hurricanes, tiü•l waves, earthquakes, rain and snow in mind, while
those negotiating the Additional Protocols were thinking of darriage resulting in the disruption of ecosystems.'°*
By definition, these types of harm do not necessarily have the same time scales. Given that the provisions of
Additional Protocol 1 aimed to cover damage or disruption to ecosystems on a large scale, tt is likely that the
threshold for damage of thls type would only be met when its effects are felt or may be expected to be felt over a
period of years and would have to be greater than only “a season”. This being said, despite the understanding oł
some delegates that the timeframe covered was one of a derade or more land 1s different to the ENMOD
standard), thete was no actual agreement by all delegates on what was required. As observed at the time the
Additional Protocols were being negotiated, it may be difficult to say with certainty what period of time may be
involved in a violation of this threshold. s

6ş. Damage not initially considered to fall under the “long-terrø" test could today be considered to satisfy it based on
contemporary knowledge, particularly of the cumulative and indirect {or reverberating) effects. In line with this,
a fartor to conslder In determining the kind of damage that is "long -term” could be the ability of certain
substances to persist in particular natural environments (including via bioaccumulation in organisms).'°° For
instance, it is now kriown that serious environmental contaminants arid hazardous substances can remain in the
natural environment for lengthy periods of time and cause - and conttnur to cause - harm to species, including
humans.

66. Thus, assessing the meaning of "long—term"should take into account the duration of the indirect (or foreseeable
reverberating) effects of the use of a given method or means of warfare lnot only its dlrnt effects), In the case
of Viet Nam, damage to human health is still present and may persist for generations to come.'•* Thus, the
“long- term" test, even assessed against a duration or io years, could be met. An understanding of tne damage
covered by "long-term" should be informed by touchstones such as these.

'•° UN General Asserztbly, Repon a/ rhr Secretary-General on nopoJm and ołArr Jnrendfory weapons and oil aspects of łńcir possible use,
UN Doc. A/8So3, g October a9Yâ, p. St, para. 18q,
'°° 0//lrfoł Recoils a/ fhc Oipfomorir Con/rfcncc o/ Crnno a/ ipJ'4” g7y, Vol. XV, CDDH/zł5/Rev. ł, parc. z7; Rrpon o/łńc Cńočwton a/
the Group "Biotopr", it Mnrch i97S, CDDH9II/GT/3S, para. S, reprinted In H.S. Levie, Protection oJfor Yiriimi: Protocol I to the i94g
cetW ve Conventions, VoŁ j, pars s¡ SdtidOySiVłDdfSkt/Zlmmefm8nft Ied8), CpinniepfAry on łhc Addlłlonoi Protofo6, pp 4iø -4u,
p^ ^- !kM-
^' ICTY, Fin‹il rpori to tße Proxerulor by the Committee Eiiabf ned to nevieu' tin N4To bombing Cnmpoign A9oirui tße Fedrrnl ßepubtir
o/Yii9oiłovio, para. th (emphasls added).
•• Oțficiot Rzcordi o/ the Diplomotir Conțertøct oJ Geneva o/ i9yş— iqy, Vol. XV, CDDH/z!5f i, paras 22 and 82. The irovottx
pr @irotoiru further i''di• i• that M tnrm "ł›ta1ih" was Inserted tit Pete s5 or Additnn•i Protocol i to driver actions that cnuld
be expected to cauæ severe effects that would have serious IseaItIs problems, surh cs congenital defects: iôid., para. 82.
"' UNEP, Protecting dtr Environment danną Armed Counter In Inventory and Arrows is o/Intemotionof law, p. Sa.
'°* Sandoz/SwiaarsÎd/Zimmermanri [eds), Commentary on rftr AddJrîon4ł Protocols, pp. job- \q, para. t ,Sk.
••• Oțficiot ßecordx o/ the Diplomotir Con/erenre o/Geneva o/ i9y$— i9y, Yol. XV, CODł-I/2l5fRev. I, pars. 29.
••• Thls Water is dlscussed in the context of thłs threshold In Hulmn, Wor Tom Environment, p. 95.
'•' Thls element 1s dlscussed In ibid., p. 95, and 8^*h• ei of„ "International law protecting the environment during armed conflict:

35
 GUtDEL INES ON THE PROTECTION OF THE NATURAL ENVIROMMENT l N ARMED CONFLICT

fievere
67 The travoux pr#pora‹oires of Additional Protocol I do not provide a definition of the term “severe" but do indicate
that It refers to the "severity or prejudicial effect of che damage to the civilian population". "' in comparison, the
term "severe" as used in the ENMOD Convention is defined as "Involving serious or significant disruption or harm
to human life, natural and economic resources or other assets".'•• Atthough the understanding during the
negotiation of Additional Protocol I was that the terms were not to be Interpreted In the same way as the terms
In ENMOD, the zrovaux préporatoires do not shed l1ght on how che Interpretation differs.' In add\cion, although a
higher standard was discussed for the “long-term" requirement, this does not appear to be the case for che
“severe" criterion."'

68. Ttte varlous proposals made durtng che negottation of Addlrlonal Protoro\ I provide some tnslght into States' views

and Development of International Humanitarian Law Applicable In Armed Conflicts, Initial proposals focused on
methods or means of warfare that "destroy the natural human environmental conditions“ or that “upset the balance
of the natural flying and environmental conditions" "" Similar proposals were trade during the is7‹-!977
Diplomatic Conference."' Ultimately, these proposals were not successful as there was recognition that
environmental change or disturbances of the ecosystem might also occur on a low scale not intended to be covered
by this ptohtbitton.'** Thus, proposals on damage disturbing the stability of the ecosystem were not Included In the
final treaty text as “an operative pan of the standard”, on the understanding that disturbance of ecological stablllty
alone would not be sufficient to meet the agreed threshold." Instead, agreement was reached on the standard of
causing “widespread, long-term, and severe damage to the natural environment".'" This discussion of disturbance
to ecological stability during their drafting nevertheless indicates that an alm of the provisions of Additional
Protocol I pertaining to the natural environment was to prevent damage of a nature to significantly disrupt an
ecosystem."' As explained In the commentary on Article 3S(3) of the Protocol, "ecological warfare", which "refers
to the serious disruption of the natural equilibrium permitting life and the development of man and all living
organisms", is the object of relevant provisions In Additional Protocol I (as compared with "geophysical war"
covered by the ENMOD Conventionl.'*’ At the opposite end of the spectrum, among the examples of damage that
might be considered to fall below the required threshold of “severity", the irovoux prépdrofoirei refet to the cutting
or destruction of trees and ciatering as a result of normal artillery flre, as well as the flattening of a "clump or trep5“
i3v It was also generally considered that “battlefield damage incidental to conventional warfare would not
normally be proscribed”, except if such damage fulfils the understanding of "sevete" (and of the other Additional
Protocol i threshold criteria}.'•

69 with reference to Article SS(i), the provision itself and the irav0ax pr/'p0ro/oires also indicate that a factor to
consider when assessing the severity of damage is prejudice caused to the health or survival of che population.›*›
The type of damage this tefers to is that which "wnuld be likely to prejudice, over a tong tetm, the continued
survival of the

“ Offi‹iat seco di of fir Dfplnrriflfif Com/crtfvc 0/ c•ne n «/ it74- igT2, Voi, xV, CDDH/zl5/R+V. f, pan. z†.
” uu Get yyal membly, 8cp ri o/ the Ceiilerri ‹e 0/ the Com mii ț•e Oo DixprmArrirnf, Vot. 1, p. 9 i.
'" vor a further dlscussion, see pu si md the refeieeces ln lui iti »n4 it3 »f the ptestnt Guldeltnei.
'” o|lid•I xcmrd e/dc oip/ompîir Con/erence o/ Grnevo o/ g74- is77, Ve). XV, CDDH/zs5/Rev. I, pari t7
"' set e.g. Wtten proposais ‹ it•mitied at the cnnference of Govemment £xpetis ori the maffiimattoo and Devrlopment of
Intematlonat f4umant^•*•= Law Applicable in Armed conAtcts. Second srcclen, y J¥Iay-y ]une t97z, Rrpon on the Work a/fftr Con|
areace VoL IL CE/C0IVt II/y2 arid Cg/COM III/C 68•69, ICRC, Genrva, July t97z, pp. 47 and 6y, respecdvety.
"' See e.g. D//kfol ftocotds a/If+e oipfomofJr Con/¢rrncc a/5rnevo a/ 1974- j977, VoL !lI, CDOH/!ll/¥38, p. t57, and CDDH/!ll/zzz,
p.›56.
"* t6id., voi. xv, cDDH/llt/zts, p. ss9.

"° f6id., Vol. XV, CDDH/GIS/Rev. I, psras . 2S-26. However, some States noted that they would law preferred a lower standard
tftat wo+ild provide greater protection to the natunl environment; see e.g. the statement of Hungary, i6id., Voi. V/, CDDH/SR.$2,
p. ABB. In the end, tke adoption of this formula ran be e¥plalned by a concern for cr<irdItsatlon with the parallel ENMOD process;
see Sandoz/SwlnarskJyZlutmecmann {eds), Commentary on else Addii/onof Prororois, p. 41y, para. z4 8.
'= See also e.g the abatements at the 1qT4-1q77 Diplomatic Conference of Hungary, 0//?riof eerords a/the DiplomorJr Con/erenre a/

°’ Sandes/SwInarsM/Zimmermans (eds), Cemmenfery on flue AddJfionof Proro¢oJs, p. TO, part I46z. See alco 1e pra¢tkc of some
**•*e• ^*••t In Hertckaerts/Daswald-Beck (eds), /CRC Study on Customary Jnfem4lionof HumonJt4rfon £ow, VoL !f, Part I, pra¢tke
related te Rule g5, pp. 876-9o3: h\tps.Pitt\I - JJLiLas«s.iri v.u\ Yr us fun\Jr y il Jlvitg/duvs/va, i u1 rules5, lrtcludkig Belgium,
Cours pouf rons¢if!ers en drofr des ron/fits ormfs: Fee If¥ux et 6Jens pro+fgés, Aooq; Germany, Low a/armed Con/lfcl - Manual, zo¥3,
referring to “ecologkal war(fare)"; Armenia, Penal Code, 2oo3; Belarus, ErJmino/ Code, 1q99; Busslan Federation, Criminal Code,
tq96; end Viet Nam, PrnolCode, tqgg.
’" See the statements of the United Kingdom, O@friol Rerords a/i/tr Diplomorlr Gon/trcnrt o)5enevao/ jg74 - jgyy, Vol. HIV,
CDDH/FIT/SR.3s, pada. 4S. and Vol, XV, CDDH/Ill/z?s. p. zss.
° f6id., VII. XV, CDDH/z15/Rev. I, pata. 27.
’" f6id., p8W 47 4hd 82

36