Rule 44. Methods and means of warfare must be employed with due regard to the protection and preservation of the natural environment. In the conduct of military operations, all feasible precautions must be taken to avoid, and in any event to minimize, incidental damage to the environment. Lack of scientific certainty as to the effects on the environment of certain military operations does not absolve a party to the conflict from taking such precautions.
State practice establishes this rule as a norm of customary international law applicable in international, and arguably also in non-international, armed conflicts.
State practice shows that the protection to be accorded to the environment during armed conflicts stems not only from the application to the environment of the rules protecting civilian objects, but also from a recognition of the need to provide particular protection to the environment as such. The extensive development of international law to protect the environment over the last few decades has been motivated by a recognition of the dangerous degradation of the natural environment caused by mankind. This development has been such that a State’s interest in the protection of its natural environment has now been recognized by the International Court of Justice in the Gabcíkovo-Nagymaros Project case as an “essential interest” that could justify that State invoking the doctrine of “necessity” to renege from other international obligations.[1]
The importance of the natural environment as such was taken into account by the UN Security Council in a resolution adopted in 1991, in which it affirmed Iraq’s responsibility under international law for environmental damage and depletion of natural resources as a result of its unlawful invasion and occupation of Kuwait.[2] Profound concern at the deterioration of the environment during that war was also expressed by the UN General Assembly in resolutions adopted in 1991 and 1992.[3] As a result of this concern, the UN General Assembly declared “6 November each year as the International Day for Preventing the Exploitation of the Environment in War and Armed Conflict”.[4] Concern has also been expressed about the damage to the environment of both Yugoslavia and neighbouring countries by NATO’s bombing campaign against Yugoslavia during the Kosovo crisis.[5]
The need to protect the environment during armed conflict is set forth in several international instruments.[6] The general need to protect the environment during armed conflict is also articulated in some military manuals, official statements and reported practice.[7] It is further reflected in condemnations of behaviour in armed conflict that caused severe damage to the environment.[8] In their submissions to the International Court of Justice in the Nuclear Weapons case and Nuclear Weapons (WHO) case, many States emphasized that international law recognizes the importance of the protection of the environment during armed conflict, and they did not limit themselves to the requirements of treaties specifically applicable to armed conflict.[9] There is also evidence that environmental concerns affected military planning during the Gulf War, as the Coalition reportedly desisted from certain attacks out of environmental concerns.[10]
Furthermore, in the Nuclear Weapons case in 1996, the International Court of Justice found that States’ obligation to ensure that activities within their jurisdiction and control respect the environment of other States or areas beyond national control was part of customary international law.[11]
It can be argued that the obligation to pay due regard to the environment also applies in non-international armed conflicts if there are effects in another State. This argument is based on the recognition by the International Court of Justice that safeguarding a State’s ecological balance was an “essential interest”[12] and its finding that States’ obligation to ensure that activities within their jurisdiction and control respect the environment of other States or areas beyond national control were part of customary international law.[13]
Furthermore, there are indications that this customary rule may also apply to parties’ behaviour within the State where the armed conflict is taking place. Some support for drafting a treaty rule for this purpose existed during the negotiation of Additional Protocol II.[14] It was not adopted then, but the general acceptance of the applicability of international humanitarian law to non-international armed conflicts has considerably strengthened since 1977. In addition, many environmental law treaties apply to a State’s behaviour within its own territory (see infra). There is also a certain amount of State practice indicating the obligation to protect the environment that applies also to non-international armed conflicts, including military manuals, official statements and the many submissions by States to the International Court of Justice in the Nuclear Weapons case to the effect that the environment must be protected for the benefit of all.[15]
Practice indicates that the obligation to take all feasible precautions to avoid, and in any event to minimize, incidental damage to civilian objects (see Rule 15) equally applies to damage to the natural environment. This is set forth in the Guidelines on the Protection of the Environment in Times of Armed Conflict.[16] The principle that precautions must be taken to avoid or minimize damage to the environment is also supported by military manuals and official statements.[17]
In 1995, the 26th International Conference of the Red Cross and Red Crescent called on parties to the conflict to “take all feasible precautions to avoid, in their military operations, all acts liable to destroy or damage water sources”.[18]
There is practice to the effect that lack of scientific certainty as to the effects on the environment of certain military operations does not absolve parties to a conflict from taking proper precautionary measures to prevent undue damage. As the potential effect on the environment will need to be assessed during the planning of an attack, the fact that there is bound to be some uncertainty as to its full impact on the environment means that the “precautionary principle” is of particular relevance to such an attack. The precautionary principle in environmental law has been gaining increasing recognition.[19] There is, furthermore, practice to the effect that this environmental law principle applies in armed conflict. In its advisory opinion in the Nuclear Weapons case, the International Court of Justice stated that the basic principles it recognized in the Nuclear Tests case (Request for an Examination of the Situation) of 1995 would also apply to the actual use of nuclear weapons in armed conflict.[20] This would include, inter alia, the precautionary principle which was central to the arguments in the latter case.[21] The ICRC, in its report submitted in 1993 to the UN General Assembly on the protection of the environment in time of armed conflict, referred to the precautionary principle as “an emerging, but generally recognized principle of international law [whose object it is] to anticipate and prevent damage to the environment and to ensure that, where there are threats of serious or irreversible damage, lack of scientific certainty shall not be used as a reason to postpone any measures to prevent such damage”.[22] This assertion was not contested by any State.
There appears to be insufficient uniformity of opinion on whether environmental law treaties continue to be applicable during armed conflict when no reference is made to this in the treaty concerned. The Guidelines on the Protection of the Environment in Times of Armed Conflict states that international environmental law “may continue to be applicable in times of armed conflict to the extent that they are not inconsistent with the applicable law of armed conflict”.[23]
In its advisory opinion in the Nuclear Weapons case, the International Court of Justice did not address this issue directly, but stated that environmental law “indicates important factors that are properly to be taken into account in the context of the implementation of the principles and rules of the law applicable in armed conflict”.[24] The few States that analysed the issue in their submissions to the Court in this case had different views.[25]
[1] ICJ, Gabčíkovo-Nagymaros Project case, Judgment (cited in Vol. II, Ch. 14, § 121).
[2] UN Security Council, Res. 687 (ibid., § 111).
[3] UN General Assembly, Res. 46/216 (adopted by 135 votes in favour, none against and one abstention) (ibid., § 112) and Res. 47/151 (adopted by 159 votes in favour, none against and two abstentions) (ibid., § 112).
[4] UN General Assembly, Res. 56/4 (ibid., § 115).
[5] See, e.g., Council of Europe, Parliamentary Assembly, Committee on the Environment, Regional Planning and Local Authorities, Report on the Environmental Impact of the War in Yugoslavia on South-East Europe (ibid., § 117).
[6] See, e.g., World Charter for Nature, Principle 5 (ibid., § 73) and Principle 20 (ibid., § 74); Rio Declaration, Principle 24 (ibid., § 76); Guidelines on the Protection of the Environment in Times of Armed Conflict, § 11 (ibid., § 77); San Remo Manual, §§ 35 and 44 (ibid., § 78).
[7] See, e.g., the military manuals of Australia (ibid., § 79), Republic of Korea (ibid., § 80) and United States (ibid., § 81), the statement of Yemen (ibid., § 109) and the reported practice of Lebanon (ibid., § 96).
[8] See, e.g., the statements of China (ibid., § 84), Colombia (ibid., § 85), Germany (ibid., § 91), Islamic Republic of Iran (ibid., § 93), Netherlands (ibid., § 99) and United Kingdom (ibid., § 105).
[9] See the oral pleadings of or the written statements submitted to the ICJ in the Nuclear Weapons case by Egypt (ibid., § 88), Islamic Republic of Iran (ibid., § 93), Malaysia (ibid., § 97), Qatar (ibid., § 102) and Solomon Islands (ibid., § 103) and the written statements submitted in the Nuclear Weapons (WHO) case by Costa Rica (ibid., § 87), Mexico (ibid., § 98) and Sri Lanka (ibid., § 104).
[10] A. P. V. Rogers, Law on the Battlefield (ibid., § 68).
[11] ICJ, Nuclear Weapons case, Advisory Opinion (ibid., § 120); see also the Convention on Biodiversity, Principle 3 (ibid., § 71); Stockholm Declaration on the Human Environment, Principle 21 (ibid., § 72); Rio Declaration, Principle 2 (ibid., § 75); the statement of the Islamic Republic of Iran (ibid., § 92); American Law Institute, Restatement of the Foreign Relations Law of the United States (ibid., § 123).
[12] ICJ, Gabčíkovo-Nagymaros Project case, Judgment (ibid., § 121).
[13] ICJ, Nuclear Weapons case, Advisory Opinion (ibid., § 120); see also the Convention on Biodiversity, Principle 3 (ibid., § 71); Stockholm Declaration on the Human Environment, Principle 21 (ibid., § 72); Rio Declaration, Principle 2 (ibid., § 75); the statement of the Islamic Republic of Iran (ibid., § 92); American Law Institute, Restatement of the Foreign Relations Law of the United States (ibid., § 123).
[14] See State practice in the context of the negotiations at the Diplomatic Conference leading to the adoption of the Additional Protocols (ibid., § 150).
[15] See, e.g., the military manuals of Italy (ibid., § 10) and Republic of Korea (ibid., § 80); the statements of Argentina (ibid., § 29) and Colombia (ibid., § 85); the oral pleadings of and the written statements submitted to the ICJ in the Nuclear Weapons case by Egypt (ibid., § 88), Islamic Republic of Iran (ibid., § 93), Malaysia (ibid., § 97), Qatar (ibid., § 102) and Solomon Islands (ibid., § 103) and the written statements submitted in the Nuclear Weapons (WHO) case by Costa Rica (ibid., § 87), Mexico (ibid., § 98), Rwanda (ibid., § 253), Sri Lanka (ibid., § 104) and Ukraine (ibid., § 261).
[16] Guidelines on the Protection of the Environment in Times of Armed Conflict, § 4 (ibid., § 5); see also World Charter for Nature, Principle 20 (ibid., § 74).
[17] See, e.g., United States, Naval Handbook (ibid., § 11); the statements of Argentina (ibid., § 29) and Canada (ibid., §§ 36 and 38); see also Report of an expert meeting on the protection of the environment in time of armed conflict (ibid., § 60).
[18] 26th International Conference of the Red Cross and Red Crescent, Res. II (adopted by consensus) (ibid., § 138).
[19] See, e.g., Convention on Biodiversity, preamble (ibid., § 126); Rio Declaration, Principle 15 (ibid., § 127); the statements of France (ibid., § 131) and New Zealand (ibid., § 132); UN Economic Commission for Europe, Bergen ECE Ministerial Declaration on Sustainable Development, Article 7 (ibid., § 133).
[20] ICJ, Nuclear Weapons case, Advisory Opinion, 8 July 1996, § 32.
[21] ICJ, Nuclear Tests case (Request for an Examination of the Situation), Order (cited in Vol. II, Ch. 14, § 139). New Zealand argued that the precautionary principle was a binding rule (ibid., § 132). Although France stated that it was uncertain whether the precautionary principle had become a binding rule of international law, it nevertheless stated that it did in practice carry out precautions that were in keeping with its obligations under international environmental law (ibid., § 131). The ICJ concluded that both France and New Zealand had, in their submissions, reaffirmed their commitment to respect their obligations to respect and protect the natural environment (ibid., § 139).
[22] ICRC, Report on the protection of the environment in time of armed conflict (ibid., § 143).
[23] Guidelines on the Protection of the Environment in Times of Armed Conflict, § 5 (ibid., § 77).
[24] ICJ, Nuclear Weapons case, Advisory Opinion (ibid., § 62).
[25] See the oral pleadings of or the written statements submitted to the ICJ in the Nuclear Weapons case by France (ibid., § 89), Solomon Islands (ibid., § 103), United Kingdom (ibid., § 107) and United States (ibid., § 108).