AMW Manual » Rule 89

Rule 89

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

[Commentary]

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]

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.

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).

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.”

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.”