Environmental protection in non-international armed conflicts: finding the way forward

Introduction

It is well-recognised that the environment is vulnerable in both international as well as non-international armed conflict (NIAC) under the current international law framework. The issue has gained prominence in the past three decades, leading the UN’s International Law Commission (ILC) to address the topic in its programme of work. To date, the debate has mainly focused on international armed conflicts (IACs), where the existing legal framework is more developed. Nevertheless, in the governmental discussions so far, the inclusion of NIACs in the ILC’s study has generally been positively received by states, with several expressing support. As the majority of the world’s armed conflicts are non-international in character, it is critical that they are addressed by the ILC’s study, and ahead of the ILC’s approach of the topic, this post explores two potential avenues for enhancing environmental protection in NIACs.¹

The current state of legal protection in non-international armed conflicts

In contrast to the international humanitarian law (IHL) treaties regulating IACs, which provides direct environmental protection in terms of Articles 35 and 55 of Additional Protocol I, none of the treaties regulating NIACs contain provisions providing direct environmental protection. However, Additional Protocol II (APII) to the Geneva Conventions does contain several provisions providing indirect protection to aspects of the environment. In a nutshell, under Article 13 and Article 17 of APII, the environment is immune from attack in areas where there are civilians, and attacks against the environment that would force civilians to flee their homes are prohibited. Similarly, under Article 14 of APII, areas which produce livestock or crops, or which contain water resources indispensable to the civilian population and whose destruction would result in the starvation of civilians if destroyed, also enjoy absolute protection. Indirect environmental protection can also be derived from Article 15 of APII that protect man-made objects such as dams, dykes and nuclear installations. Lastly, pillage is expressly prohibited under Article 4 of APII, which may play a role in curbing the exploitation of natural resources in NIACs.

Possible existing avenues for greater protection

The fact that there is no express rule prohibiting attacks against the natural environment in NIACs means that the natural environment is to a large extent left unprotected. Damage to the environment may in turn have catastrophic effects on the communities that depend on natural resources for survival. There are two potential ways in which environmental protection could be enhanced in NIACs: the first possible solution is to expand the application of international law rules regulating IACs to cover NIACs through customary international law; and the second is to turn to other branches of international law related to environmental protection, such as international human rights or environmental law.

Expanding the rules applicable in international armed conflicts to enhance environmental protection in non-international armed conflicts

While APII and Common Article 3 are the primary IHL rules regulating NIACs, the four Geneva Conventions and Additional Protocol I (API) provide for more comprehensive regulation of IACs.² However, the two additional protocols are closely related – many of the APII rules from which environmental protection can be derived or implied are similar to rules contained in API. It is therefore unsurprising that the IHL rules applicable in NIACs have developed by looking to the IHL applicable in IACs.³ Given this trend, turning to the rules applicable in IACs could be a way to enhance environmental protection in NIACs, especially as API contains explicit rules providing environmental protection.⁴

The rules regulating IACs can become applicable in NIACs through customary international law, which is listed as a source of international law under Article 38 of the Statute of the International Court of Justice. Customary international law develops from the general and consistent practice of states followed out of a sense of legal obligation, or opinio juris.⁵ The International Committee of the Red Cross (ICRC) study on customary IHL, attempts to identify which IHL rules may have attained customary status.

The ICRC study argues that many of the IHL rules applicable in IACs apply in NIACs as a matter of customary international law, including three rules relating to environmental protection. Rule 43 confirms that the general principles of IHL regarding the conduct of hostilities are applicable to the environment. This rule is not new, as the environment is considered a civilian object in armed conflicts, unless and for such time as that it becomes a military objective.⁶ The second rule, Rule 44, provides that due regard must be shown to the environment in military operations. The ICRC concedes that it is unclear whether this rule has truly attained customary status in NIACs, stating that this rule is only arguably applicable in NIACs. Furthermore, the motivation for the application of this rule in NIACs is weak, as it states that “it can be argued that the obligation to pay due regard to the environment also applies in NIACs if there are effects in another State”. This implies that in addition to the fact that the very existence of this rule is merely ‘arguable’, it only applies if transboundary harm is caused.⁷

The most significant customary rule asserted to apply in NIACs is Rule 45, which asserts that “the use of methods or means of warfare that are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment is prohibited” – a customary rule applicable in IACs, and arguably in NIACs as well. However, the level of environmental protection offered by this provision is limited. Firstly, the use of the cumulative word ‘and’ immediately indicates that it sets a high threshold for environmental damage.⁸ In addition, the words ‘widespread,’ ‘long-term’ and ‘severe’ are not defined clearly. The ENMOD Convention, which does not apply in NIACs, provides ‘understandings’ for how these terms should be understood. The understandings state that the term ‘widespread’ encompasses an area on the scale of several hundred square kilometres; while ‘long-term’ refers to a period of months; and ‘severe’ requires “serious or significant disruption or harm to human life, natural economic resources or other assets”. These understandings only serve to highlight that this provision tolerates a high level of environmental damage and thus does not provide adequate environmental protection.

While the ICRC study asserts that the IHL obligations applicable in NIACs are moving closer to the more stringent obligations for states taking part in IACs, it must be noted that this study is contentious.⁹ Furthermore, the customary rules related to environmental protection asserted by the ICRC to apply in NIACs are inadequate. First, the motivation for their applicability in such conflicts is relatively weak, as the ICRC itself concedes that the rules are only ‘arguably’ applicable in such conflicts. Second, Rule 45 tolerates a high level of environmental damage. Third, the ICRC asserts that due regard must be taken for the environment, but only in situations where transboundary harm is caused. It is thus clear that the usefulness of these provisions is limited.

The potential of other branches of international law to provide environmental protection in non-international armed conflict

A second method to enhance environmental protection in NIACs is to turn to other branches of international law that regulate environmental protection, such as international human rights law (IHRL) and international environmental law (IEL). Several IEL treaties, such as the World Heritage Convention, the Convention on Biological Diversity, the Convention on the International Trade in Endangered Species of Wild Fauna and Flora and the Ramsar Convention protect specific areas or species and have been recognised as having the potential to increase environmental protection in armed conflicts.¹⁰

While the link between IHL and IEL in the context of environmental protection in NIACs is clear, the link with (IHRL) may seem less distinct. However, there is increasing support for the classification of the protection of the environment as a human rights issue.¹¹ This is due to the close relationship between environmental issues and certain human rights, and also because IHRL enforcement mechanisms are already highly developed.¹² However, while the right to a healthy environment is included in the domestic law of many states, it is less concretised on the regional and international levels.

On the regional level, the Aarhus Convention, the African Charter on Human and Peoples’ Rights, the Additional Protocol to the American Convention on Human Rights and the Regional Agreement on Access to Information, Public Participation and Justice in Environmental Matters in Latin America and the Caribbean are the only binding regional instruments which explicitly guarantee environmental rights. While an explicit right to a clean environment is not included in any global human rights treaty,¹³ several human rights such as the rights to life, health, family life, self-determination, an adequate standard of living, property, and the protection of minorities, are closely related to environmental protection.¹⁴ There is also growing acceptance that IHRL treaties continue to apply in NIACs. It is therefore submitted that if the IHRL related to environmental protection is protected in NIAC, the environment will enjoy incidental protection. However, it is noted that the continued applicability of IHRL will predominantly alleviate human suffering in NIACS: the fact that IHRL does not provide direct environmental protection on the international level means that IHRL may not be able to sufficiently supplement environmental protection during NIACS.

While the applicability of IEL in NIACs has not been addressed to the same extent, there are indications pointing to its continued applicability. Article 3 of the Draft Articles on the Effects of Armed Conflict on Treaties takes as a starting point that the existence of an armed conflict does not ipso facto terminate or suspend treaty obligations, and treaties regulating the protection of the environment are amongst those listed that are suggested to continue to apply. In addition, experts have opined that the applicability of IEL treaties is generally not affected by a NIAC unless the treaty in question contains a provision expressing this.¹⁵

However, the growing acceptance of the application of environmental law treaties in armed conflict does not mean that the treaties will apply in the same way that they apply in peacetime, as imposing these duties would be unrealistic.¹⁶ When two bodies of law deal with the same issue, they could either converge and apply harmoniously, or one or more of their norms could conflict with one another. Essentially, the interests of the environment, and individuals who may be negatively influenced by harm to the environment, need to be balanced with the military interests of the state in question, which may gain an advantage by conducting attacks in or against areas that may be protected by specific IEL agreements.¹⁷

Nevertheless, IEL treaties are particularly suitable to be applied harmoniously with IHL because by nature, many environmental law treaty provisions are loosely formulated, so as to allow states discretion and flexibility as to how best to implement them.¹⁸ The broad nature of many IEL treaty provisions means that they are open to interpretation, allowing states to take into account the possible impact that an armed conflict may have on their ability to comply with their obligations and, as such, making conflicts with other treaties less likely.¹⁹

In light of the above, determining the co-applicability of IHL and IEL in NIACs needs to be done on a case-by-case basis, taking into account the practicalities of the armed conflict in question such as its location, duration and intensity, as well as the institutional capacity of the affected state.²⁰

Conclusion

This post has explored two potential avenues to enhance environmental protection in NIACs. The first proposed solution was to extend the rules applicable in IACs to apply in NIACs using customary international law. This solution was rejected in light of the fact that the relevant IHL rules applicable in IACs are weak, tolerating a high level of environmental harm. Therefore, even if it is accepted that these rules apply in NIACs as a matter of customary international law (which is in itself contentious), the environmental protection offered by them would still be inadequate.

The second proposed solution is to turn to other branches of international law, such as IHRL and IEL to enhance environmental protection in NIACs. Even though the continued application of IEL treaties in NIACs does not enjoy uniform acceptance by states, their flexible nature offers the potential to co-apply them with other branches of international law, and is therefore a particularly promising avenue to enhance environmental protection. Given that the protection of the environment and the protection of civilians are inextricably linked, enhancing environmental protection in armed conflict incidentally means that civilians will enjoy enhanced protection as well.

Indeed, the inclusion of the PERAC topic in the ILC’s programme of work was a positive indication that environmental awareness has begun to spill over into the realm of armed conflict on an international level. It is hoped that this increased awareness of environmental issues, combined with the emerging understanding that other branches of international law, such as IHRL and IEL continue to apply in NIACs, is a step towards ensuring that the environment is afforded adequate protection in NIACs in the future. Nevertheless, it remains to be seen how ILC Special Rapporteur Marja Lehto will approach the protection of the environment in NIACs in particular in her forthcoming report. Nor is it clear how states and the ICRC will respond to her approach.

It is submitted that a robust treatment of the NIAC aspect of the PERAC topic is vital given the sharp increase in the number of NIACs and non-state armed groups in recent decades. Therefore, from a practical perspective, the ILC’s ultimate treatment of the NIACs aspect of the PERAC topic, as well as states’ responses thereto, is important, and may well influence how the environment is protected ‘on the ground’ in NIACs in the future.

 

Jeanique Pretorius worked as legal assistant to Dr Marie Jacobsson, Special Rapporteur on the protection of the environment in relation to armed conflict, during the ILC’s sixty-eighth session in Geneva in 2016. Jeanique completed her LLD, entitled “The protection of the environment in non-international armed conflict under international treaty law” under the supervision of Professor Erika de Wet (University of Pretoria / University of Bonn) and Professor Jann Kleffner (Swedish Defence University) at the University of Pretoria in 2018. She is currently completing her articles of clerkship at Webber Wentzel, a law firm in Johannesburg, South Africa.