Section M: Specific Protection of the Natural Environment

[Commentary]


  1. The two principal treaties relevant to this Section are (i) Art. 35 (3) of AP/I and Art. 55 of AP/I; and (ii) the ENMOD Convention.

  2. Art. 35 (3) of AP/I reads: “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.”

  3. Art. 55 of AP/I (“Protection of the natural environment”) reads: “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.”

  4. The ENMOD Convention prohibits the deliberate modification of the natural environment for hostile purposes. In short, it prohibits the use of the modified natural environment itself as a weapon (as opposed to damage to the environment, dealt with in AP/I). According to Art. I (1) of the ENMOD Convention, each Contracting Party “undertakes not to engage in military or any other hostile use of environmental modifica-tion techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party.”[495] The term “environmental modification technique” refers to any technique for changing ? through the deliberate manipulation of natural processes ? the dynamics, composition or structure of the Earth (Art. II of the ENMOD Convention).[496] Phenomena that could be caused by “environ-mental modification techniques” include earthquakes, tidal waves (tsunamis) or changes in weather pat-terns.[497] For example, the natural environment could be modified by dropping a powerful bomb into the cra-ter of a volcano or into fragile tectonic plates. The result could be the outbreak of the volcano or an earth-quake. A tsunami could be initiated by a powerful explosion below sea level.

  5. The Group of Experts was divided whether Art. 35 (3) of AP/I and Art. 55 of AP/I, as well as the EN-MOD Convention, are declaratory of customary international law. [498] The majority of the Group of Experts expressed doubts as to whether the treaty provisions on the protection of the natural environment have be-come part of customary international law.

  6. There is no general consensus as to the exact meaning and scope of the term “natural environment”. Some scholars prefer a comprehensive approach and tend to equate the natural environment with an “eco-system”. Accordingly, components of the natural environment, such as flora, fauna, the lithosphere or the atmosphere, would only be covered by the term if they interact in a way that they may be considered parts of an interdependent and mutually influencing system of diverse components of the natural environment. By contrast, other scholars are prepared to consider components of the natural environment to be protected by the law of international armed conflict, irrespective of their interdependence with other components. There are, however, common denominators between the two schools of thought. First, there is agreement that the term “natural environment” does not cover man-made components of the environment. Second, ac-cording to both positions, an ecosystem, like the Amazon River Basin, always qualifies as “natural environ-ment”.

  7. Art. 2 (4) of the 1980 Protocol III to the CCW [499] does not protect the “natural environment” as such. That provision merely provides that “it is prohibited to make forests or other kind of plant cover the object of at-tack by incendiary weapons”. In none of these instruments, the phrase “natural environment” is defined, nor is it explained in the travaux préparatoires.

  8. In view of the lack of a general consensus on the content and scope of the term “natural environment”, the Group of Experts felt unable to provide a definition without running the risk of going beyond its man-date of identifying existing international law.

  9. Wanton destruction of the natural environment is clearly prohibited (see Rule 88). What this means is that the natural environment is a civilian object unless and until portions of it constitute a military objective. Thus, if a forest comes under deliberate attack, this must be because, e.g., it conceals an armour division, and therefore qualifies as a military objective by use. If the same forest is deliberately attacked for no such rea-son, the attack will be categorized as directed against a civilian object, and hence prohibited as per Rule 11. Similarly, when a military objective is attacked, and expected collateral damage is assessed compared to the anticipated military advantage, the proportionality analysis also needs to take into account the expected col-lateral damage to the natural environment (see Rule 14).

  10. In planning, ordering and executing attacks, Belligerent Parties are under an obligation to take constant care for the natural environment as a civilian object (Rule 30). Especially, they must take all feasible precau-tions in accordance with Rules 31 – 35.

  11. For the meaning of “specific protection” see the Commentary in the chapeau of Section K.
  1. See Understanding regarding the terms widespread, long-lasting and severe in the Annex attached to the ENMOD Convention: “It is the understanding of the Committee that, for the purposes of this Convention, the terms ‘widespread’, ‘long-lasting’ and ‘severe’ shall be interpreted as follows: (a) ‘widespread’: encompassing an area on the scale of several hundred square kilometres; (b) long-lasting: lasting for a period of months, or approximately a season; (c) ‘severe’: involving serious or significant disruption or harm to human life, natural and economic resources or other assets. It is further understood that the interpretation set forth above is intended exclusively for this Convention and is not intended to prejudice the interpretation of the same or similar terms if used in connextion with any other interna-tional agreement.”

  2. Art. II of the ENMOD Convention: “As used in Art. I, ‘environmental modification techniques’ refers to any technique for changing − through the deliberate manipulation of natural processes − the dynamics, composition or structure of the Earth, including its biota, lithosphere, hydrosphere and atmosphere, or of outer space.”

  3. See illustrative list of examples in the Annex attached to the ENMOD Convention, containing the Under-standing pertaining to Art. II thereof: “earthquakes; tsunamis; an upset in the ecological balance of a region; changes in weather patterns (clouds, precipitation, cyclones of various types, and tornadic storms); changes in climate patterns; changes in ocean currents; changes in the state of the ozone layer; and changes in the state of the ionosphere.”
    This same list is also explicitly included in Para. 5.28.1. of the UK Manual.

  4. According to the ICRC Customary IHL Study, these provisions of AP I reflect customary international law (see Rule 45 of the ICRC Customary IHL Study, and the summary of state practice on page 151).

  5. Art. 2 (4) of the 1980 Protocol III to the CCW: “It is prohibited to make forests or other kinds of plant cover the object of attack by incendiary weapons except when such natural elements are used to cover, conceal or camouflage combatants or other military objectives, or are themselves military objectives.”

Rule 88

The destruction of the natural environment carried out wantonly is prohibited.

[Commentary]

  1. Despite the lack of a generally recognized definition of the term “natural environment”, there is evidence in State practice of the customary character of the prohibition laid down in this Rule. [500] Moreover, the prohibition of wanton destruction of enemy property has been affirmed by Art. 23 (g) of the 1907 Hague Regulations [501] and by Art. 147 of GC/IV. [502] See also Art. 8 (2) (a) (iv) of the Rome Statute of the ICC [503] for international armed conflicts and Art. 8 (2) (e) (xii) of the Rome Statute of the ICC [504] for non-international armed conflicts.

  2. “Wanton” means that the destruction is the consequence of a deliberate action taken maliciously. In other words, it is an action that cannot be justified by considerations of imperative military necessity. As an outstanding example, the destruction of an entire ecosystem, like the Amazon River Basin, the Baltic Sea, or the Black Forest, will constitute a violation of Rule 88.

  3. The prohibition of wanton attacks against the natural environment ought not to imply that other direct attacks against the natural environment (being a civilian object) are permissible, nor ought it to be inferred that attacks against military objectives expected to cause excessive collateral damage to the natural environ-ment, as compared to the anticipated military advantage, are acceptable. For international armed conflicts, see also Art. 8 (2) (b) (iv) of the Rome Statute of the ICC.[505]

  4. It is necessary to distinguish “wanton destruction” from a “scorched earth” strategy. Under AP/I, the latter is lawful only if carried out by a Belligerent Party in defence of its national territory against invasion, within territory under its own control, where required by imperative military necessity (see Art. 54 (5) of AP/I). [506]

  5. Rule 88 applies also in non-international armed conflict.

  1. Second sentence of Para. 44 of the SRM/ACS: “Damage to or destruction of the natural environment not justified by military necessity and carried out wantonly is prohibited.”

  2. Para. 8.4 of NWP: “Destruction of the natural environment not necessitated by mission accomplishment and carried out wantonly is prohibited.”
    Para. 12.26 of the UK Manual: “In the conduct of attacks against targets on land, the following rules are of importance: … (f) the natural environment is specially protected: see paragraph 5.29.”

  3. Art. 23 of 1907 Hague Regulations: “In addition to the prohibitions provided by special Conventions, it is especially forbidden … (g) To destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war.”

  4. Art. 147 of GC/IV includes into the list of grave breaches the “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”

  5. Art. 8 (2) (a) (iv) of the Rome Statute of the ICC: “Extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly.” Similarly, see Art. 8 (2) (b) (xiii).

  6. Art. 8 (2) (e) (xii) of the Rome Statute of the ICC: “Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict.”

  7. Art. 8 (2) (b) (iv) of the Rome Statute of the ICC, see fn. 84.

Categories: M: General Rule Tags:

Rule 89

When planning and conducting air or missile operations, due regard ought to be given to the natural environment.

[Commentary]

  1. The broad dimensions of the natural environment − as referred to in paragraph 6 of the chapeau to this Section − imply that almost any air or missile operation may have some adverse effects on it. Consequently, those who plan and conduct air or missile operations must keep that in mind during targeting analysis.[507] They must give the natural environment due regard and constant care (see paragraph 10 of the Commentary on the chapeau of this Section).[508]

  2. Rule 89 does not require a prior assessment of all possible environmental impacts of air and missile at-tacks. Those who plan an attack are obliged to take into account that information on the natural environment that is reasonably available to them at the relevant time of planning. In the present context, the pilot is not usually expected to make such decisions on his own.

  3. Some members of the Group of Experts were strongly of the opinion that the protection of the natural environment “must” be taken into account when planning and conducting air or missile attacks. In their view, expected collateral damage to the environment, if excessive, requires that any air or missile attack against lawful targets be aborted. The majority of the Group of Experts reached the conclusion that such a high bar is not mandated by customary international law and that the “due regard” criterion adequately re-flects the state of the law of international armed conflict today. Needless to say, the disagreement has far-reaching consequences as far as the use of nuclear weapons is concerned (see the Commentary on Rule 7).

  4. Rule 89 applies also in non-international armed conflict.

  1. This is confirmed by, inter alia, the following sentence in Para. 8.4 of NWP (“Environmental considerations”): “Therefore, a commander should consider the environmental damage that will result from an attack on a legitimate military objective as one of the factors during targeting analysis.”

  2. In that respect, see Rule 44 of the ICRC Customary IHL Study: “Methods and means of warfare must be employed with due regard to the protection and preservation of the natural environment.” In addition, Rule 44 equally asserts that “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.”

Categories: M: Specifics of Air or Missile Operations Tags: