GUIDELINES ON THE PROTECTION OF THE NATUREL ENVIRON iEHT lN ARMED CONFLICT

population or would rlsk causing lt major health problems".'•' Mthough human Impact 1s the primary focus of
Article sS(i), this is not ro say thai environmental damage must have an effect on rhe human population In order to
qualify as sevete. Rather, It Indicates thai factors such as inducing muiagenic effects In animal species In a way
that could harm humans lif they were present in the environment), even unintrntionatly, can inform findings of
severity.'^' As the present rule reflects the relevant obligations embodied In Additional Protocol I, "severe" In the
context of Article Ss(i) ran be understood to refer primarily to damage prejudicing the health or survival of the
population, while Article bsl 3) can be understood to address ecological rathet than human concerns.'*

7û. In further clarifying the kind of damage that is "severe", increased knowledge of effects should be considered.
As a violation of this rule Inevitably presupposes that there can be lcriowledge or an inference that a certain
method or means of warfare will or probobly will cause this type of damage, there is a need to understand whlch
types or warfare will have such disastrous consequences.'•' Accordingly, In addition to those effects that will
result tn prohibited damage, parties must infomi themselves as far as possible of the pntenrinl effects of the use
of a certain method oc means of warfare on the natural environment when assessing the severity of damage,
Including the potential effects of remnants of war,'•° and refrain from actions that may be expected to cause
damage that is widespread, long trrm and severe.'•' This should include assessing the dtrect damage - either
immediate or that may take a long time to manifest itself — resulting from the use of a given method or means of
warfare. For Instance, environmental damage leading to teratogenic, mutagenic and carcinogenic effects, such as
those resulting from the defollants used In the Vietnam War, may also meet the test of severity and should be
considered when assessing potential effects.*• As such, the prohlbitlon of damage affecting the health or
survival of the population in the long term provided in Article 55(i) of Additional Protocol I “means [that}
persons, forests and plant cover, flora, fauna, air and water quality, eic. must be protecied against, for example,
genetic effects (congenital defects, deformities or degenetatlonl”.'•° In addition to direct damage, an
assessment should also consider the Indirect effects resulting from the use or a given method or means of
warfare. For example, the bumlng of the oil wells during the 1990 -1991 Gulf War, which had indirect effects
such as the huge emission of sulfur dioxides, nitrous oxide and carbon dioxide and the deposit of soot on more
than half of Kuwait, has been cited as probably having satisfied the severe tesi.'*°

Any assessment of the meaning of "severe" must also consider the lnterdependency of the nato ral environment, as
damage to one component lor "part") can have effects that extend to other components. In addition, “damage or
even alteration to any part of the ecosystem can havr severe repercussions for the civilian population”,'*' which also
evidences the interdependency or the natural environment and the health or survival of the population.'•' Further
to this, the usr of methods or means of warfare against certain parts of the natural environment, Including
endangered species or particularly delicate pt sensitive ecosystems, will llhety tesult in greater direct and
Indirect effects on the natural environment and the population than those that would result from the use of such
methods

Ibid. ses xtse the •tatcmrnts of thr Œtu•<raüc Repuhtk of vletn«tn and f4ongolîa, whîch tyler t• the "ma•• •xtcmunauon
of the civiiîan population" and the deatks of two to tkzee m•!*inn people as exemples of the type ef damage îvx< ed by the
proMbiklon: fôïd., Vol. ZIV, CDDH/III/SIL26, parcs0 -J3 and 2ÿ. See aiso the statement of rhe Union of Sovlet SocÎa1tst Republlc9.
i6fd., Vol. MV, CDDH,/fll/SR.a7, parc 6.
^’ XuÏftte, \Uer Ï'orn Ezzvlc0nlticnf, {zg. ÿ6 ü0d 98.
'•• The jqB7 ICRC commentary on Article 3ç of Addi*!•=•! Protocol t emphaslzes that the terms "widespmad", "long-terzn" and
"severe" s*•»!d be undersîœd in the content of the speclflc pro' iston ui1der consideratlon, and a<corÆngly "severe" for the
putposes of Article 35 can be understo<xI to adéresa ecologtcal rather than human concertée: Sandoe/Swînazskl/Zlmmermann
(eds), Commrnïo/y on tÎir Addïfionai Proforoîs. PP. 417-4t8. Paras ïg•yi-\ $6. for a furthrr discussion of Niese Æsparate focuses
of Ardc1es 35 and çç of Addldonaï Protocol 1, see pacas 73-7S of Che present Guldekzses.
'^' See Henckaerts/Öoswald-Bech (ede), ICRC Srudy on Customory fnïernoïlonol Humonitof/on Lan, Vol. I, conzntentary on Rule zîç.
p. t58: t\tt î›x://ilil Jatah,1s*›.i‹ri.urg/vusîuînag' - ihî/ciîA/Jucs/ 't. .rul.. î u\t'4’›,
"° Sandoz/Swinard¢i/Zimmermann (eds), Commentary on rfie Additional Protocols, pp. two-1it and 117-SIB, paras tg43 and \ $
$. See also Belgium, Coton pour conseiffrrs en drofr dos ron/fifs omds: Yes ffeux et 6iens pfordg¥s, zooq, pp. 38 -4o, s¢aclng that matertcl
rtmnants of war {intnes, boche traps, bombsJ can be lncludtd lu the type of damage cioaed to the notural envlroiunent that
would be prohibited if i‹ affects the h••!?h or surtrlxal of tke population in the long tern as "(dJispersed owr large areac,
these sd1I cause !=••••. among the cMJlan poputaNon ever yecr".
'°' See Henckaerts/Doswald-Beck {eds), ICRC Srudy on Cusromofy fnfernorionol HumonMorion 1aw, Vol. J, commentary on Rule $.
p. ¥$8: I›\tp»./Jilit Jctak/ts s.t‹rr.urg/r us\u\nar\' ih1/vHgYJu >/ 'I...rub iulvk”›; 4aâ Rulee I and 8 of thr present
Guidelines. "* The delegates referred te congenital defeats ae an example of serious kealth problems envisaged: O,f/iriof
Rrrords a/fhe Dtptomatt‹Con/erenrr a/Genrvo a/ igy{- zgyy, Vol. AV, CDDH/215/Rev. I, para. Bz. This factor Is also discussed
by Hulme In tfte context of the "sewre" criterion: Hulme, K'or 7oro Environment, pp. q6 and q8.
'•° Belgium, Cours pourronsriffcn rn droir dcs con/iits 4rmYs: Mrs fir«x rl 6frns pror¥gZs, 8Po9, pp. 38-
6P. '°° United I€ingdom, The Joinf Servirr Manual a/ rfie Low a/Armed Con/in, zoom, parc. 5.z9.8, In.
t53.
'°' Mais reflects d!?m'••I^n• in the Group "Blotope" at the 1g74-1qyy Zfiplomadc Conference, where it was proposed dzat
the prnhlblted act was the "dtsiurbance of the stabilité of the ecosyiiem": ïtepon o/ inc Chofrmoa o/ the Group "8Ioiope", ii
Match j975, CDDH/tîî/GT'/y'ï, part. !î, reprlnted in H.S. Lente, Prolccïion e/for Vicz/mx Protocol f lo ïfir ïp§9 Ganmo €onvendons,
Vol. 3,

'•• For example, the potenñal indirect effects of thr destruction of a forest can include the losa of forest wlldllfe and blodlvcrxltp,
soñ eruloa, flooding, poorer ali end water quality end ri1'nstr modlncaitoii: Hulme, t¥ r Turn za«ironme»t, p. m.
37
GUIDELINES ON THE PROTECT1Obl OP THE NATURAL ENVIRONMENT Hi ARMED CONFLICT

against other parts of the natural environment.'°i Thus, damage caused by thr use of a given method or means
of warfare against certain components could fulfil the “severity” threshold, while the use of the same against
other components would not.

Considering the above elements, the threshold of “severe” should be understood to cover the disruption or damage
to an ecosystem or harm to the health or survival of the population on a large scale, with normal damage caused by
troop movements and artillery fire in conventional warfare generally falling outside the scope of this prohibition.
Beyond this, the contours of the meaning of “severe", and the required scale of harm, remain vague and further
precision is necessary. As with the ierms "widespread" and “long-term", UNEP recommends that the precedent set
by the ENMOD Convention - i.e. “involving serious or significant disruption or hami to human life, natural
and economic resources or other assets" - should serve as the minimum basis for the development of a clearer
definition ot “severe”.'** As the meaning of “severe" in the context or Articles 3S(3) and s5(i) of Additional Protocol
1 is understood to cover damage prejudicing the health or survival of the popoatlon and ecological concerns,
effects involving serious or significant disruption or harm to human lifr or natural resources should be considered in
determining the type of damage that could be covered.'•• In addition, at least to the extent that effects on economic
or other assets also result in distupiion or damage to tlte ecosystem or harm to the health or survival of the
population, they should alsn be considered when assessing the meaning of "severe”.

Damage to the natural envimoment

As seen in the negotiating history of Additional Protocol 1, delegates debated whether damage to the natural
environment as such should be prohibited, or whether the prohibition should apply only to damage to the natural
environment in so far as it prejudices the health or survival of the population.'•° These discussions resulted in the
adoption of two distinct articles: Anicle psi 11, which mattes no connection between damage to the natural
environment and the health or survival of the population, and Article 55(I), which includes a reference to the health
or survival of the population. Indeed, tire rrovnuz prdpnrntoires indicate that, with a deliberately different emphasis
than that of Article 3$(3), the forus of Article US(i) at the time of drafting was to ensure the health or survival of the
population.'•' The irnvour observe that "the prohibition contained in that article was linhed to prejudice to the health
or survival of the population".'^ Meanwhile, Article 3s(it was seen as having a wider scope, protecting the
natural environment itself.'•• Notably, however, the mnvns also indicate that the firsr sentence of Article SS
establishes a general norm, which is then specified in the second sentence, and furthermore observe that “(cJam
must br tahen to protect the natural environment against the sort of harm specified even if the health or the survival
of the population is not prejudiced".' As the rrovnux go on to say, an example of this is environmental harm that
meets the required threshold of harm but is in an unpopulated area.'°

Regardless of the scope or the damage prohibited by Article 5 (1), the combined effect of Articles 3s13) and ssti)
or Additional Ptotecol I is thai they unequivocally prohibit the use of meiliods or means of warfare rhat are
intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment as
such. This is

'•• Other examples thnt may meet tire severity test are damage to “a particularly valuable. endangered or rare ecosystem" or
to an especially delicate et •!tive ecosystem, such as deserts and tht antarctic. carnage to "citee of special scientific
intrrest™, ”endangered species, or areas of natural heritage" could also result in a greater level of harm- Hulme, Wnr Torn
Environment,

"• UNEP, Protecting i8r Environment during ArmedCanflict: In trimnipry orrd Analysis o/ fnicrnviiortnl Low, p. 5z. See aiso Schmitt,
"Green war", p. iofi. noting that tire ERMOD understanding of “severe” is more comprehensive, as ir encompasses "health and
awal" but also su• 8• t• "property”, and that tbe extension of the CNiYlOD drfttiltlon to tnfetm the understanding of
"severe” in Additional Protocol I "is consistent with Protocol I protections generally, arid with the international law of armed
confllct mort broadly".
'• Fer Instance, Germany's i99a mtlltary manual refers to “a maJnr Interference with h• wtan}tfeor natural reseurces whith
conslderabiy exceeds the battlefield damage to b'r regularly expected ln a war": Humonitorion Lnw in Armed ConJiicts -
tnanol, iq9z, para. boy. Artordlng to lti aoi3 Law oJ Armed Con$iri — Consul, para. 35, the "prohlblUott of tnvlrorimental
warfare"
cunts ^ddfftflgfl to the natural environment (thnt) significantly exceeds normal comtint damage".
•• for more on thls, see the dlsnission of the anthropocentrlc and intrlnslc approaches to thu protection of the natural
environment In the Introduction, param i9—4i, as well as the dlecusxion of the meaning of "severe" for the purposes ef
Articles 35fI) and sSt+l, Para. 69 and fa 18d of the present Guidelines. See also Schmitt, “Green war", pp. 6—2 and 2o—2i.
•' Sandoz/Swinarskl ermann teds}, Commzntoiy on the Additional Proiorofs, pp. -y6, paras i 9-y5i. See also ibid.,
pp- k!7 -k!8. para. MS5-
’•° Report to the 3lzird Coauaittee on the Wozk of the Working Group, 3 Aprtl 1975, O@<iol Records a/rAe Diplomorfr Conference a)
Geneva aJ q15 -i q y, Vol. XV, CDDtl/llj/zy5, p. 36o.
' Ibid., P. 3S7; and SnndoJSwinarski/Zimmermann {e4s}, Commentary on ftse Addiiioeol Protocols, p. i S, pam. 9,
and p. yo, pam. y62. see also e.g. United Kingdom, The Joint Service Cancel o/the Law o/Armed £on5irt, coop, paix 5-29-i:
"Article 35 dealx with dlrect pretection of the envirfinment wheteae Artlctr 95 tends more towards protecting the
environment from the ! . ntal effects of
warfare, especially i/ it prejudices the health or survival of the civi1ian population" {emphasis added).
-°’° Repott zo rhe 'Ihhd Cozonz/ttce oa due \Xfork oi Nze Working Group, 3 Aprlj jg75. 0//irial Retards a/tfte £lJpfomosJc Con/erence a/
Geneva o|ight- lg77, Vol. XV, CDDH/l!t/275, p. 36a.
' lgid.
 Only two pages were converted.
Please Sign Up to convert the full document.

www.freepdfconvert.com/membership