Hans-Joachim Heintze

Armed conflicts are one of the most devastating experiences of mankind and affect almost every area of life. They have economic, political and cultural effects and also environmental impacts.29 Such conflicts have been and remain a source of risks and threats to the environment. The conflicts cause both direct and indirect environmental damage and establish dangers to the health of the population, livelihood and security. The conflicts take place in the environment and make it vulnerable to destruction caused by military means and used by armed forces. Environmental degradation takes place in three directions: the ruin of the territory from troop movements, the use of weapons and resources which leads to destruction and the contamination of water and soil as well as deforestation. These consequences of armed conflicts are often overlooked.30

The example of the armed conflict between Azerbaijan and the subsequently occupied Azerbaijani territories show the devasting effects of the war on the environment. The question therefore arises as to which legal provisions should be taken into account in armed conflicts.

International Humanitarian Law (IHL) is a legal body that applies after the outbreak of armed conflict. IHL was formerly known as “Law of War” and supersedes or supplements the rules of international law of peace. It does not comment on the background of an armed conflict, i.e. it does not differentiate between the role of the involved conflict parties. IHL is neutral and impartial and therefore it is irrelevant whether a party is an aggressor or a defender. This legal system recognizes the use of force within the framework of the IHL. It rules in accordance with the principle of military necessity, but also demands respect for the principle of humanity in all military actions. This includes that “the right of the Parties to the armed conflict to choose methods and means of warfare is not unlimited.”31IHL is used with the fighting and ends after a peace agreement. As long as there are occupied territories, IHL applies. Consequently, IHL standards apply to the territories of Azerbaijan occupied by Armenia. Both states are bound by international treaty law in the form of the Geneva Conventions of 1949 and customary international law. Armenia is also a State Party to Additional Protocol to the Geneva Conventions I (AP I).32 The application of the provisions of AP I for the environment is according to the International Committee of the Red Cross’s (ICRC) Customary Law Study not disputed.

Natural environment and IHL

Environmental problems und natural resources were the trigger for wars in the past. If scarcity prevails and access to resources is to be achieved, wars can occur. In the past, the decision to go to war was often a consequence of the need of resources or an expression of expansionary urge. Modern international law, however, bans the use of force in international relations and IHL prohibits any method or means of warfare which is intended or may be expected to cause serious damage to the natural environment. It is quite obvious that war can have severe and long-lasting negative consequences to the environment. This prohibition of the use of force is to be seen against the background of the health or survival of the inhabitants.

The Vietnam War in the early 1970s and the public health effects of the use of herbicides (particularly Agent Orange) determined the civil society and some governments addressing environmental protection generally and also during armed conflicts.

Thus, IHL recognizes the environment as a legal asset to be protected. AP I declares in Art. 55:

“Protection of the natural environment

1. Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.

2. Attacks against the natural environment by way of reprisals are prohibited”.

According to the wording, this article applies to the protection of the civil population. Art. 35 (3) has a broader approach:
“3. It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.”

In this context, it is also worth mentioning the Convention on the Prohibition of Military or Any Hostile Use of Environmental Modification Techniques of 10 December 1976 (ENMOD).33 This treaty and AP I provides for a wide ranging and comprehensive protection of the environment. However, the objective of these conventions is not only the protection of the natural environment as such against the use of weapons. The ICRC Commentary underlines that it not only protects the environment and “the population and the combatants of the countries at war against any of these effects”, but also “the natural environment itself, taking into account the inevitable overflow effect inherent in these incidents and the resulting ‘transnational’ aspect of this problem.”34

According to AP I, the parties to the conflict are obliged to protect the environment to avoid harmful effects on the physical and mental health of the inhabitants. However, there are unfortunately repeated breaches of this obligation. Even NATO troops, in 1999, caused immense damages to the environment in Former Yugoslavia, due to the bombing of oil refineries and industrial sites.35

Therefore, the Red Cross and Red Crescent Societies are involved in the international and national struggle to improve the protection of the environment. This struggle takes place not only in situations of armed conflicts but also after the end of the hostilities. Landmines and booby traps which are not exploded are examples of the threats to the environment and the inhabitants after the war is over. These devises as well as chemical components of weapons can have permanent harmful effects on humans, animals, vegetation, water, land and the ecosystem.

The Rio Declaration on Environment and Development of 199236 declared warfare as inherently destructive of sustainable development: “States shall therefore respect international law providing protection for the environment in times of armed conflict and co-operate in its further development, as necessary.” This document reflects that the environment gains importance globally.

The next step in the codification was the establishment of the International Criminal Court (ICC) by the Rome Statute of 1998.37 Art. 8 (2)(b)(iv) is related to AP I and considers some attacks a violation of the protection of the environment in armed conflicts as war crimes:

“Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.”

This ICC Statute holds individuals personally and criminal liable for committing such a crime. However, not all states are a party to AP I and to the ICC Statute. Therefore, it is important that the ICRC raised the question of environmental protection under customary humanitarian law and published a study in 2005 and declared a simplified version of the provisions of AP I and the ENMOD to constitute customary law.38 Rule 44 of that study states:

“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 minimise, 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.”

Vöneky/ Wolfrum underline that many authors39 are doubtful whether this assessment of the ICRC indeed is justified.40 The opinions of international bodies allow different conclusions: The Review of the NATO Bombing Campaign against Yugoslavia opined that Art. 55 AP I reflects customary law, but the International Court of Justice (ICJ) had some doubts.41

ILC ́s draft principles on armed conflicts and the environment

The International Law Commission (ILC) is a part time but permanent subsidiary organ of the UN General Assembly and plays an important role concerning the progressive development and codification of international law.42 According to Art. 13 (1)(a) of the UN Charter it is up to the General Assembly to initiate the improvement of the existing law. One of the gaps of international law are the rules on the protection of the environment in 

armed conflicts. Therefore, the topic was proposed by the UN Environment Programme and the idea was, according to recommendation 4.6., to examine the existing international law and to recommend how it can be clarified, codified and expanded.43 ILC decided in 2013 to include the topic “Protection of the Environment in Relation to Armed Conflicts” in its agenda. In 2019 the ILC adopted in the first reading 28 draft principles.44 Important is the formulation of the title because the words “in relation to” make it obvious that the topic “is not limited to the situation of the armed conflict but seeks to enhance the protection of the environment throughout the conflict cycle: before, during and after the armed conflict.”45 Particularly, the chosen temporal approach makes the draft articles of special interest for the conflict between Azerbaijan and Armenia. Post-conflict provisions are devoted to sharing of and granting access to environmental information (draft principle 24), post conflict environmental assessments and remedial measures (draft principle 25), relief and assistance (draft principle 26). Thus, the ILC deals with all issues that are relevant to wartime environmental damage. The draft principles on Corporate due diligence and Corporate liability underline that states should take legislative and other measures aimed to ensure “that corporations and business enterprises operation in areas of armed conflict or in post-conflict situations exercise due diligence with regard to the protection of the environment and human health.”46 Moreover, the principles ask the states also to ensure that corporations and enterprises can be held liable for damages caused by them. The draft principle is inspired by the judgment of the ICJ in the “Certain Activities (Costa Rica v. Nicaragua)” case, in which the ICJ found that “it is consistent with the principles of international law governing the consequences of internationally wrongful acts, including the principle of full reparation, to hold that compensation is due for damage caused to the environment, in and of itself ”.47

Part Four of the draft principles deals with situations of occupation and reflects the great variety of circumstances that may qualify as a situation of occupation. Occupations differ from armed conflicts in many respects. Most notably, occupations are typically not characterized by active hostilities. However, the authority over a certain territory is transferred from a territorial state, without its consent, to the Occupying Power. Occupation is regulated in Art. 42 of the Hague Regulations, which apply when the 

territory is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.48 The law of occupation is applicable to situations that fulfil the factual requirements of effective control of a foreign territory irrespective of whether the Occupying Power invokes the legal regime of occupation.

Authority in this context is a fact-based concept: occupation “does not transfer the sovereignty to the occupant, but simply the authority or power to exercise some of the rights of sovereignty”. Such authority underscores the obligation of the Occupying Power to take appropriate steps to prevent transboundary environmental harm. Negative obligations – mostly prohibitions – under the law of occupation apply immediately, whereas the implementation of positive obligations depends on “the level of control exerted, the constraints prevailing in the initial phases of the occupation, and the resources available to the foreign forces.”

Protracted occupations remain governed by the law of occupation,49 other bodies of law, such as human rights law and international environmental law, gain more importance as time goes by.50 Given the variety of different situations of occupation, the draft principles with a view to enhancing the protection of the environment in the event of an armed conflict, remain relevant whether or not an armed conflict takes place and whether or not it includes an occupation. The draft principles addressing post-armed conflict situations would primarily have relevance for situations of prolonged occupation. For each part, the draft principles may require some adjustment, hence the phrase mutatis mutandis.

On the basis of the above general considerations on the right of occupation, the ILC comes into principle 20 on the following general obligations of an Occupying Power:

1. An Occupying Power shall respect and protect the environment of the occup- ied territory in accordance with applicable international law and take environ- mental 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.

From these general findings the ILC derived in detail:

An Occupying Power is permitted to administer and use the natural resources in an occupied territory, however, there is an obligation of an Occupying Power with respect to the sustainable use of natural resources and to respect the various limitations set forth by the law of armed conflict and other international law to the exploitation of the wealth and natural resources of the occupied territory.

Art. 55 of the Hague Regulations considers the Occupying Power “only as admi- nistrator and usufructuary” of immovable public property in the occupied territory.

This description has traditionally been interpreted to forbid “wasteful or negligent destruction of the capital value, whether by excessive cutting or mining or other abusive exploitation”.

From the nature of the occupation as temporary administration of the territory prevents the Occupying Power from using the resources of the occupied country or territory for its own domestic purposes.

Any exploitation of property is permitted only to the extent required to cover the expenses of the occupation, and “these should not be greater than the economy of the country can reasonably be expected to bear”.

The Occupying Power’s administration and use of natural resources in the occupied territory may only be “for the benefit of the population of the occupied territory and for other lawful purposes under the law of armed conflict”.

Protection to the natural resources and certain other components of the environment of the occupied territory is contained in the provision, also the general prohibition of destruction or seizure of property, whether public or private, movable or immovable, in the occupied territory unless such destruction or seizure is rendered absolutely necessary by military operations (or, with respect to seizure of movable public property, is necessary for military operations).

The prohibition of pillage of natural resources is furthermore applicable in situations of occupation.

An “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” is also defined as a grave breach in article 147 of Geneva Convention IV and as a war crime of “pillage” in the Rome Statute of the ICC.

The principle of permanent sovereignty over natural resources also has a bearing on the interpretation of Art. 55 of the Hague Regulations: in no case may a people be deprived of its own means of subsistence.

The principle of self-determination may be invoked in relation to the exploitation of natural resources in territories under occupation, particularly in the case of territories that are not part of any established.
Each state has an obligation not to cause significant harm to the environment of other states or to areas beyond national jurisdiction; the ICJ referred to this principle in the case “Legality of the Threat or Use of Nuclear Weapons” and confirmed its customary nature, stating that the general obligation of states to ensure that activities within their jurisdiction and control respect the environment of other states and of areas beyond national control constitutes as “part of the corpus of international law relating to the environment”.51

IHL, environment and armed forces

In 1993 the ICRC published a recommendation to include an article in the military handbooks of the national armed forces which deals with the environment:

“Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause such damage and thereby prejudice the health or survival of the population.” 52

This proposal was supported by the UN General Assembly. Resolution 49/50 invited all states “to disseminate widely the revised guidelines for military manuals and instructions on the protection of environment in times of armed conflict [...] and [...] incorporating them into their military manuals [...]”53

The legal regulations do need interpretation. Environment is an essential element of human existence. According to the ICJ is the term “environment” not an abstraction but represents “the living space, the quality of life and very health of human beings, including generations unborn.”54 The term as such implies the earth, land, water and air as well as the living organisms that live in these spaces.

However, the wording of Art. 25 and 55 allows possible interpretations of the terms “widespread”, “long-term” and “severe damage”. Moreover, the State parties have not made any declarations on the definitions of these terms. The cumulative linkage of these terms is also unclear, so that it could be argued that environmental damage is only covered by the prohibition if it meets all three criteria. Some authors argue that the IHL standards suffer 

from drawbacks and support the UN Development Programme ́s (UNDP) approach. UNDP considers that IHL is not effective enough to tackle the problem.55 This assessment is a consequence of the lack of definitions of the above-mentioned terms which are vague and ambiguous.

Against this background some authors argue that this “unclear” threshold has fallen into desuetude.56 Bothe argues that the gap of the restrictive formulations of AP I presents also two opportunities because it allows on the one hand the application of the “due regard” principle and the prohibition of ‘wanton’ destruction of the environment.57 On the other hand, it allows to consider the environment being a civilian subject and to prevent the transformation of environmental elements into military objectives. This can be achieved by declaring non-defended localities and demilitarized zones according to Articles 59 and 60 of AP I. The UN Security Council could designate such status and oblige parties to conclude such agreements.58

The obligations of AP I are supplemented by ENMOD Convention. Art. 1 (1) of that convention prohibits artificial climatic changes during wartime, “as the US attempted during the Vietnam War.”59 The Convention prohibits

“the deliberate manipulation of natural processes in order to change ‘the dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space’, with the intention of damaging the armed forces of another State Party to the Convention, its civilian population, towns, industries, agriculture, transportation and communication networks, or its natural resources and wealth.”60

The Martens Clause may provide protection of the environment in armed conflicts “until a more complete code of laws of war is issued, in cases not included in the conventions of international humanitarian law, populations and belligerents remain under the protection and the rule of the principles of international law, as they result from the usages established between civilized nations, from the law of humanity, and dictates of the public conscience.”61

IHL applies to armed conflicts, especially after the outbreak of armed hostilities. But IHL has an effect before the hostilities because States are obliged to disseminate the 

knowledge of IHL already in peacetime. IHL applies also after the end of the war, for example if prisoners of war are still in the hands of the adverse party. The same is also true for situations of occupation (see above).

In the last years, environmental considerations are being taken into account in the context of the end of hostilities and peace processes. One can find measures to protect and restore the environment in transitional justice processes.62 The ILC argues that modern armed conflicts have a variety of outcomes that do not necessarily take the form of formal agreements. For example, at the end of an armed conflict, a ceasefire agreement, an armistice or a situation of de facto peace with no agreement could be reached. Environment matters in such processes because it suffered serious and severe damage which is immediately apparent and which may need to be addressed as a matter of urgency.

Comprehensive approach needed: the new humanitarian order

One of the sources of IHL is the principle of humanity. Therefore, the preamble of the Hague law states that “the people and the warriors shall remain under the protection of the rule of the principles of international law, as the result from the customs established among common peoples, from the laws of humanity and from the demands of the public conscience.” This demand of the Hague law led to a comprehensive codification of IHL, which is exemplified by the prohibition of particularly inhuman weapons and certain means of warfare.63 It is clear that not everything is allowed in armed conflicts because the principle of humanity sets barriers. These codifications of IHL have had a considerable impact on general international law precisely because of their commitment to the principle of humanity. This resulted in an interaction between the different branches of international law that Meron calls the “Humanization of Humanitarian Law.”64 He focusses on the relationship between human rights and IHL, sees the progress and warns: today the visibility and immensity of violation of IHL highlight issues of compliance that raise cynicism and doubt. In the long run, humanitarian norms must become a part of public consciousness everywhere.65 This cannot be achieved by law alone, but requires the support of other sciences in order to achieve a social consensus and a corresponding public opinion.

The UN General Assembly also follows this approach and agrees with the Resolution 63/147 of 27.01.2009 on a “new international humanitarian order” based on strict compliance with human rights law, refugee law and IHL. The resolution called on the UN Secretary General to report on the problems of the interrelationship between IHL and human rights law, access to people in need and humanitarian assistance. The report identifies the existing problems and particularly calls for a combination of human rights law and humanitarian activities of the World Organization.66 It is on this line that the UN ILC decided in 2007 to include the topic of “Protection of Persons in the Event of Disasters” in its agenda and concluded the first reading of the draft articles in 2014.67

The momentum that is interesting for this subject of inquiry is the fact that the ILC decided to apply the principle of humanity approach of IHL to access to victims applicable in armed conflicts to human-made or natural disasters attributable to the law of peace. This brings the international community closer to the call for a unified “new humanitarian order.” It is therefore necessary to look at examples of what has been achieved so far in invoking the principle of humanity in codification. Undoubtedly, one has to see the codification process of the protection of the environment in armed conflicts being part of the merger process of human rights law and IHL.

Against this background, occupation can not only be seen from the perspective of IHL and human rights law, but also from the perspective of the right to self-determination. This is also true for the issue of the protection of the environment. The duration of the occupation does affect the enjoyment of these rights and a protracted occupation is illegal per se, as it amounts to the de facto annexation.68 In its opinion on the legality of nuclear weapons, the ICJ also dealt with the destructive effects on the environment:

“The environment is under daily threat and [...] the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn.”69

Conclusion

The protection of the environment in armed conflicts makes it necessary from the legal viewpoint to apply IHL and human rights law in a complementary and not mutually exclusive way.70 This was endorsed in the judgements of the ICJ in the case of “Democratic Republic of Congo” v. Uganda”71 and in the “Application of the International Convention on the Elimination of all Forms of Racial Discrimination (Georgia v. Russian Federation)”.72The complementary application leads to the harmonization of the two legal bodies: “The best alternative for the implementation and enforcement of laws of war is to amalgamate them with human rights laws [...]”.73

This method should be also applied regarding the protection of the environment in the occupied areas of Azerbaijan. IHL and human rights law must be seen as a unity in the struggle for the environment and for human conditions. The advantage is that the approach of human rights law is broader and that there are different implementation mechanisms. This is a way to put legal pressure on the occupying power. The judgement of the European Court of Human Rights in the case of “Chiragov and Others v. Armenia” is an example of legal procedures which clarify the legal situation.

Hans-Joachim Heintze is Professor of International Law at the Ruhr-University Bochum. 

The original article was published on aircenter.az . 

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