The 5th report from the ILC on the protection of the environment in relation to armed conflicts, and the second by Special Rapporteur Dr Marja Lehto deals with state and non-state responsibility for harm
The new areas addressed in the present report are among those identified by the Working Group for the topic in 2017 as being able to usefully complement the Commission’s work. Chapter II of the present report considers certain questions of the protection of the environment in non-international armed conflicts, with a focus on how the international rules and practices concerning natural resources may enhance the protection of the environment during and after such conflicts. It should be underlined here that the two questions considered in chapter II – illegal exploitation of natural resources and unintended environmental effects of human displacement – are not exclusive to non-international armed conflicts. Nor do they provide a basis for a comprehensive consideration of environmental issues relating to non-international conflicts. At the same time, they are representative of problems that have been prevalent in current non-international armed conflicts and have caused severe stress to the environment.
Chapters III and IV, in line with the priorities endorsed by the Commission and the Sixth Committee, deal with certain questions related to responsibility and liability. Chapter III discusses the responsibility and liability for environmental damage and depletion of natural resources in conflict caused by non-State actors. Such responsibility may be of a civil or a criminal nature. While in section A, dealing with non-State armed groups, the main focus is on individual criminal responsibility, section B, on multinational enterprises, as well as private military companies as a specific category of private companies present in conflict zones, looks at a number of accountability mechanisms, including civil liability suits.
Chapter IV addresses certain questions of State responsibility and liability. The general rules of State responsibility for wartime damage are discussed in section A, with a particular focus on challenges arising from the presence or involvement of multiple States and other actors in current conflicts. Section B addresses certain questions specific to the valuation and reparation of environmental damage, while section C adds a few examples related to remediation without the establishment of responsibility.
Chapter V is dedicated to the consolidation of the set of draft principles by gap-filling. The first of the three questions addressed in section A is the proposal made during the Commission’s seventieth session to include in the set of draft principles a principle modelled on the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques. The subject of section B is the Martens clause, which has been referred to several times in the context of the present topic. Finally, the different approaches to the definition of the environment are discussed in section C, and a proposal is made to harmonize the references to the environment in the draft principles.
