CEOBS and Al Haq: Strengthening the International Law Commission’s draft principles on environmental protection in situations of occupation

Introduction

Our organisations welcome the efforts of the Commission and its Special Rapporteur to address environmental protection in situations of occupation as part of its ongoing study into the Protection of the environment in relation to armed conflicts (PERAC).¹ The PERAC study should be viewed in the context of the growing international interest in the environmental impact of armed conflicts, and its consequences for communities, ecosystems and for sustainable development.²

Just as States and international organisations are updating their policy and practice to better integrate environmental considerations, so the currently inadequate and outdated legal framework must also be updated to better reflect the nature of contemporary armed conflicts, the requirements of human rights and environmental norms, as well as our increased understanding of the direct and derived consequences of warfare and insecurity on the environment. In this regard, we urge all States to support an outcome to the ILC’s PERAC study that leads to the progressive development of the legal framework.

This briefing seeks to identify areas where the Commission’s revised draft principles on occupation could be further strengthened, or where further clarification of terms is required in the commentaries. As it is imperative that the draft principles fully reflect the experiences of those living under occupation, and the environmental conduct of occupying powers, our suggestions are informed by the monitoring work that we undertake. The following themes are issues that we believe that States should address in their statements during the Sixth Committee debate on the work of the ILC.

Principles applicable in situations of occupation

Draft principle 19 – General obligations of an Occupying Power

1. An Occupying Power shall respect and protect the environment of the occupied territory in accordance with applicable international law and take environmental considerations into account in the administration of such territory.
2. An Occupying Power shall take appropriate measures to prevent significant harm to the environment of the occupied territory that is likely to prejudice the health and well-being of the population of the occupied territory.
3. An Occupying Power shall respect the law and institutions of the occupied territory concerning the protection of the environment and may only introduce changes within the limits provided by the law of armed conflict.

Draft principle 20
Sustainable use of natural resources

To the extent that an Occupying Power is permitted to administer and use the natural resources in an occupied territory, for the benefit of the population of the occupied territory and for other lawful purposes under the law of armed conflict, it shall do so in a way that ensures their sustainable use and minimizes environmental harm.

Draft principle 21
Due diligence

An Occupying Power shall exercise due diligence to ensure that activities in the occupied territory do not cause significant harm to the environment of areas beyond the occupied territory.

1. Comments on the draft principles on occupation

1.1 Draft Principle 19: Sovereign rights over maritime areas

It is important for the commentaries to establish whether the jurisdiction of the occupying power, includes: “…adjacent maritime areas over which the territorial State is entitled to exercise sovereign rights”. In this regard, the commentaries should clarify what is meant by “entitled to exercise sovereign rights”, and whether this includes cases where the occupied State has the potential to conclude future agreements for exclusive economic zone delimitation.

These situations may occur in cases of prolonged occupation, where neighbouring States are unwilling to conclude an agreement for the delimitation of the exclusive economic zone with the occupied State during belligerent occupation, or where the belligerent occupant is the neighbouring State. It is evident in many contemporary occupations that the belligerent occupant also establishes control over the sea, including the exclusive economic zone. The belligerent occupant may or may not establish a naval presence on the sea. But in many cases will conclude agreements with third States or other parties for the use of the adjacent maritime areas of the occupied territory, often to exploit natural resources offshore, or to lay pipelines.

For example, in 2006 the EU and Morocco concluded a “Fisheries Agreement”, whereby Morocco granted lucrative fishing licenses to EU Member States to fish off the coast of both Morocco and occupied Western Sahara. In 2018, the European Court of Justice held that the “Fisheries Agreement” did not include the waters adjacent to the territory of Western Sahara.³ In 2014, Turkey submitted a note verbale to the UN Secretary General, establishing the points of delimitation of the continental shelf between Turkey and the unrecognised Turkish Republic of Northern Cyprus.⁴ The attempted delimitation of the sea off occupied Northern Cyprus conferred a disproportionately large maritime area to Turkey, the occupying power. Meanwhile, in 2005, Israel and Egypt concluded a Memorandum of Understanding for the laying of the El Arish gas import pipeline in the occupied Palestinian territory (OPT), some 13nm off the Gaza (and along the entire 40km Palestinian) coast, to pipe gas from Egypt to Israel, an area that falls outside environmental regulation under local Palestinian law.⁵

1.2 Draft principle 19: Definition of environmental considerations

It is important for the commentaries to clarify that where “environmental considerations” are taken into account in the administration of occupied territories, this is done solely for the benefit of the protected population, and the natural environment.

Our research has found that some occupiers manipulate environmental considerations as a tactic to unlawfully and permanently appropriate private and public immovable property in occupied territory. In the OPT, Israel has designated Wadi Al-Qilt and Ein Fashkha in the northern Jordan Valley and Dead Sea areas as nature reserves,⁶ thereby making it impossible for the local Palestinian population to obtain building permits. Israeli law on national parks prohibits any “…building activity or any other activity that could in the opinion of the Authority hinder the designation of the area as a national park or as a nature reserve…other than with the approval of the Authority.”⁷ Critically, the nature reserves are strategically designated besides or close to settlements, to provide for future settlement expansion,⁸ while dispossessing the protected Palestinian population of their land and leading to forcible transfer.

1.3 Draft principle 20: Defining the sustainable use of resources

Many natural resources such as mineral and quarried resources are finite and non-renewable or, as is the case of agricultural land, water or timber, may become so without effective management. The commentaries should clarify the definition of “sustainable use” to restrict the opening of new mines or the excessive depletion of operational mines, and to restrict resource exploitation without transparent, scientifically-based environmental impact assessments and management plans that minimise environmental harm.

DP20 is framed more permissively than Article 55 of the Hague Regulations, where the occupying power “…shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile state, and situated in the occupied country”, whereupon it “…must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.”

While there has been some evolution in the interpretation of usufruct to include all mineral and quarried resources, the understanding now that such resources are finite and non-renewable, further confines the use by the belligerent occupant of the resources of the occupied territory. Usufructs in civil law jurisdictions had historically permitted the usufructuary to profit from the fruits of the usufruct.⁹ However, clear limits have evolved in the context of the usufruct of immoveable property (such as lighthouses) during belligerent occupation, where revenues from the immoveable property “…must be devoted solely to the needs of that territory itself”.¹⁰

Excessive usufructs may amount to the war crime of pillage,¹¹ and it would be useful if the final set of draft principles would examine this issue of liability, and in particular that of both State and non-State actors who through their acts or omissions pursue unsustainable practices or cause environmental harm. This should include consideration of corporate complicity and due diligence in relation to environmental destruction, and could be informed by the United Nations Guiding Principles on Business and Human Rights and related instruments.¹²

1.4 Draft principle 20: Public participation in determining the benefits from resource management

We welcome the principle that natural resources should be sustainably managed “for the benefit of the occupied population”. However it is vital that the commentaries clarify that the occupied population must play a meaningful role in decision-making over the use of their natural resources.

This principle was not specifically written into Article 55 of the Hague Regulations, which protects the assets of the occupied State for the returning sovereign. But although the occupier does have an obligation under Article 43 to administer territory “in the interests of the occupied population”, there is evidence that this principle has been abused.

For example, since 1967, Israel has granted licenses to commercial Israeli quarries to open and exploit a number of new sites across the occupied West Bank. In Yesh Din v. The Commander of the IDF Forces in the West Bank, the Israeli High Court of Justice found that ceasing quarrying activities in the West Bank would inter alia damage the Palestinian population and economy.¹³ It should be noted that the West Bank’s quarries are being exhausted at a rate of 7.2 million tons a year, amounting to a serious and permanent loss to the State of Palestine. But it was argued that the closure of the quarries might impact the livelihoods of some 200 Palestinian quarry workers.

Securing effective public participation in decision-making over the sustainable use of natural resources would ensure that the draft principle is aligned with Principle 10 of the Rio Declaration, which affirmed inter alia that environmental issues are best handled with the participation of all concerned citizens, at the relevant level.¹⁴

1.5 Draft principles 19 and 20: Aligning terminology on the protected population with the Fourth Geneva Convention

The term “population of the occupied territory” in draft principles 19.2 and 20 should be changed to the “protected population” in order to align it with the Fourth Geneva Convention, and address the risk that the protections afforded under the Convention for the protected occupied population be applied equally to settler populations.

There have been cases where occupiers have distorted the protections afforded under the Fourth Geneva Convention for the protected occupied population to apply equally to settler populations. These settlers are unlawfully transferred into the occupied territory for the purpose of colonisation, and then considered as part of the population of the occupied territory.¹⁵ Under the Convention, the protected population is defined as persons who “…at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals” (emphasis added).¹⁶

1.6 Draft principle 21: Due diligence to address transboundary harm from occupier to occupied

DP21, or its commentary, should also address the need for occupiers to exercise due diligence in the prevention of acts on their own territory that may cause environmental harm to an occupied territory, where it is adjacent to their territory.

It is commonplace that the environmental consequences of decisions over the management of natural resources, or the regulation of hazardous industries, may be felt over a wide geographical area. In many situations of occupation, the territory of the occupying power is adjacent to the occupied territory. Therefore domestic decisions taken by the occupying power can have implications for environmental protection in the occupied territory, and this should be reflected in the principles.

Examples of such cases include the inequitable use of shared water resources between Israel and the OPT, where pollution and over abstraction in Israeli areas impacts Palestinian access to water,¹⁷ or Israel’s granting of licenses to companies to frack in areas on the Israeli side of the Green Line, which had “…the potential to cause extreme environmental damage”.¹⁸ Similarly, occupying powers may actively locate harmful industries close to marine or terrestrial occupied areas after they are rejected due to domestic environmental regulations or public opposition. For example, in 2010, the Israeli Ministerial Committee on Interior Affairs approved the construction of a hazardous gas storage facility beyond Israel’s territorial waters, and in the contiguous zone, in close proximity to the Gaza Strip.¹⁹

1.7 Relationship to the work of the International Criminal Court

In 2016, the Office of the Prosecutor of the International Criminal Court (ICC) published a policy paper on case selection and prioritisation. In it, the prosecutor outlined that: “…the Office will give particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.” ²⁰ In 1.3 above, we noted that excessive usufructs may constitute the war crime of pillage. While this clearly relates to the scope of the ICC’s paper, other Rome Statue crimes relevant to environmental protection in situations of occupation also fall within its ambit. We would therefore encourage the commentaries to make reference to the ICC’s emerging policy.

2. Comments on the relationship of earlier draft principles to situations of occupation

We welcome the Special Rapporteur’s decision to review the applicability of the draft principles contained in the Commission’s third report (A/CN.4/700) to situations of occupation, further detail on which are available in the accompanying commentaries published in A/73/10. Our observations on the applicability of the principles to situations of occupation can be found below.

2.1 Draft principle 6: Protection of the environment of indigenous peoples

Notably, DP6 on the Protection of the environment of indigenous peoples does not include an adequate definition of who is considered “indigenous” during a belligerent occupation. The commentaries indicate that DP6 is not formulated as a legal obligation but could be “relevant to the occupying Power as part of its efforts, pursuant to article 43 of The Hague Regulations”.²¹ However it is not clear what extra protections this affords, and why it is necessary to depart from the very carefully selected wording of “protected persons” in the Fourth Geneva Convention. The latter, applies to persons who, “at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals”.²² Therefore consideration of “indigenous peoples” runs the risk of being used by the courts of the belligerent occupation to deny “protected persons” their rights under Article 43.

2.2 Draft principle 15: Post-armed conflict environmental assessments and remedial measures

Encouraging post-conflict environmental assessments and remedial measures is as vital for situations of occupation as it is for armed conflicts, particularly where occupations may see recurring periods of armed violence that cause or exacerbate environmental harm. In the context of Gaza, efforts to encourage the UN Environment Programme to conduct a survey into the environmental consequences of Operation Protective Edge through a resolution at the second UN Environment Assembly were blocked by Israel and other States in 2016. Attempts to mediate an agreement with Israel over access for an assessment began shortly after the Assembly but are currently being hampered by the Israeli government.²³ In light of earlier warnings over the environmental viability of the Gaza Strip, it is critical that cooperation between the parties be encouraged.²⁴

2.3 Draft principle 16: Remnants of war

Toxic and hazardous remnants of war may be present in occupied areas both as a result of the conflict leading to the occupation, and as a legacy from earlier conflicts. While State parties may be under a range of obligations to clear mines, cluster munitions and explosive remnants of war through being party to the relevant disarmament instruments, no obligations currently exist to minimise the health and environmental risks from the toxic remnants of war. Nevertheless, there are numerous examples of where affected States have sought, and received, assistance in addressing conflict pollution. Similarly, occupying powers have on occasion recognised a moral obligation to deal with depleted uranium munitions, although they have been reluctant to publicise clearance policies or outcomes.²⁵

One barrier constraining the effective management of hazardous war remnants during situations of occupation can be the authorisations provided by the occupying power to mine action entities. For example, in the West Bank, Israel has refused authorisation for the Palestinian Mine Action Centre to conduct mine clearance operations.²⁶ The Centre is mandated by the West Bank authorities to coordinate all aspects of mine action in the West Bank. In this respect, a principle encouraging cooperation between relevant parties would be welcome.

2.4 Draft principle 17: Remnants of war at sea

DP17 outlines that States and relevant international organisations should cooperate to ensure that remnants of war at sea do not constitute a danger to the environment. A relevant example of cooperation to mitigate the environmental risks from wrecks was seen in Iraq in 2003/4. After concerns were raised over the environmental hazards posed by wrecks off the Iraqi port of Um Qasr, the UN Development Programme cooperated with the International Atomic Energy Agency and two French water pollution agencies on a survey of the wrecks. The project was funded by the UK and French governments and “…inspected 40 wrecks, identified 12 more by sonar, and collected 198 sediment samples for analysis.”²⁷ It was believed that 260 sunken ships were present in the area. The report found that: “Virtually all of these vessels are slowly leaking substances that are damaging to marine life and people alike. Even if the vessel was not carrying a hazardous cargo, the engine room will typically contain substances such as fuel oil, lubricating oil, battery acid, hydraulic fluid, and asbestos.”²⁸ In addition to technical survey work, the UN Development Programme was also involved in salvage operations and in drawing up contingency plans for oil spills.²⁹

While clearly relevant to situations of occupation, it may be useful for the commentaries to provide some clarity over whether the belligerent occupant is obliged to search for, remove or address remnants of war at sea that are a danger to the environment or human health, during the belligerent occupation, or at the end of the belligerent occupation, given that many occupations are prolonged in nature, spanning decades.

2.5 Draft principle 18: Sharing and granting access to information

Thought should be given to the temporal application of this principle. While it is imperative that data on environmental threats be shared following an armed conflict, it can also be important for it to be shared during ongoing hostilities. The occupation and conflict in eastern Ukraine’s Donbas region is a case in point. The area has a long history of heavy industry, is home to numerous hazardous facilities, and the need for all parties to the conflict to collect and share information has been highlighted by international organisations including the OSCE.³⁰

In addition to helping to reduce the risks of an environmental emergency, the sharing of environmental data can also be used as a confidence building measure. The recent case of an industrial accident near Armyansk in Russian-occupied Crimea,³¹ and with it the risk of transboundary harm, also highlighted the importance of information sharing to mitigate immediate risks, and not just to assist with remedial measures.

3. Themes for inclusion in the ILC’s fifth and final report

Finally, we welcome the themes selected by the Commission for its final PERAC report in 2019: the protection of the environment in non-international armed conflicts, and certain questions related to responsibility and liability for environmental harm.

However, we would encourage the Commission to expand the latter’s focus on responsibility and liability for harm to include an examination of rights-based obligations for assistance to the victims of environmental harm caused by armed conflicts. These could include, inter alia, the obligations on affected States to support individuals and communities through environmental assessments and monitoring, health and livelihood assistance and by ensuring effective participation in environmental decision-making.³² It should also include the roles and responsibilities of conflict parties, the wider international community and international organisations in supporting affected States to fulfil their duty as rights bearers.

Victim assistance principles have a strong normative basis in human rights instruments,³³ in disarmament law,³⁴ and in environmental law.³⁵ However, as processes around liability and responsibility for wartime environmental damage have predominantly focused on financial compensation and technical assistance, the normative framework for assisting the victims of environmental harm warrants further examination by the Special Rapporteur.