Environment and Armed Conflict

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1 Environment and Armed Conflict Dr. Irini Papanicolopulu Senior Researcher, University of Milano-Bicocca Lecturer in International Law, University of Glasgow IASD, Roma 28 April 2014

2 Deforestation (Vietnam, ) Burning of oil wells in Kuwait (1991) Bombing of Pancevo industrial complex and of a petroleum refinery in Novi Sad (1999): 80,000 tons of crude oil released in the environment Bombing of El Jyieh power plant (2006): 12,000-15,000 tons of fuel released into the Mediterranean Sea

3 Environmental Degradation Incidental consequence Deliberate acts

4 Consequences Degradation/destruction may concern all aspects of the natural environment: Animals Vegetation Soil Water systems Ecosystems

5 ICJ 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.

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7 Applicable Law Environmental Law Laws of War/International Humanitarian Law

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9 Issues Conservation of common property resources Avoidance of transboundary harm Species protection Habitats protection Pollution prevention Ecosystem preservation (holistic approach)

10 1 st period Up to 1972: piecemeal and reactive responses 1946 International Convention for the Regulation of Whaling 1954 International Convention for the Prevention of Pollution of Sea by Oil

11 2 nd period : Blooming of regional and global treaty-making 1971 Ramsar Convention on Wetlands 1972 London Dumping Convention 1973 Convention on International Trade in Endangered Species (CITES) 1976 Barcelona Convention for the Protection of the Mediterranean Sea 1979 Bonn Convention on the Conservation of Migratory Species

12 3 rd period From 1992: Holistic approach to environmental protection 1992 Rio Declaration 1992 Framework Convention on Climate Change 1992 Convention on the Conservation of Biological Diversity

13 Conferences 1972:UN Conference on Human Environment Emphasis on environment Stockholm declaration (Principle 1) ( documentid=97&articleid=1503) 1992: Rio Conference on Environment and Development Sustainable development Rio Declaration (Principle 3) ( documentid=78&articleid=1163) 2012: UN Conference on Sustainable Development Green economy The future we want (UNGA Res. 66/288) ( /66/288&Lang=E)

14 Duty to protect the environment Principle 1 Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being, and he bears a solemn responsibility to protect and improve the environment for present and future generations. Stockholm Declaration (1972), Principle 1

15 Intergenerational responsibility The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate. Stockholm Declaration (1972), Principle 2

16 Prohibition of Transboundary Pollution No State has the right to use or permit the use of its territory in such a manner as to cause injury by fumes in or to the territory of another or the properties or persons therein, when the case is of serious consequence and the injury is established by clear and convincing evidence. Trial Smelter Arbitration (1941)

17 Precautionary Approach In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation. Rio Declaration (1992), Principle 15

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19 1972 Stockholm Declaration Principle 26 Man and his environment must be spared the effects of nuclear weapons and all other means of mass destruction. States must strive to reach prompt agreement, in the relevant international organs, on the elimination and complete destruction of such weapons.

20 1982 World Charter of Nature 5. Nature shall be secured against degradation caused by warfare or other hostile activities.

21 1992 Rio Declaration Principle 24 Warfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary.

22 1992 GA Resolution stressing that destruction of the environment not justified by military necessity and carried out wantonly, is clearly contrary to existing international law.

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24 Hague Convention IV Article 55 The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.

25 ENMOD Convention of 10 December 1976 on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques in force since 1978 Parties: 76 (including Italy)

26 ENMOD Prohibits military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as a means of destruction, damage or injury to any other State Party

27 ENMOD 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. E.g. 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

28 ENMOD Widespread=environmental damage encompasses several hundred square kilometres Long-lasting=environmental damage lasts over a period of months (approximately a season) Severe=environmental damage involves serious or significant disruption or harm to human life, natural and economic resources or other assets

29 Additional Protocol I Art 35. Basic rules 1. In any armed conflict, the right of the Parties to the conflict to choose methods or means of warfare is not unlimited. 2. It is prohibited to employ weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering. 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.

30 Additional Protocol I Art 36. New weapons In the study, development, acquisition or adoption of a new weapon, means or method of warfare, a High Contracting Party is under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by this Protocol or by any other rule of international law applicable to the High Contracting Party.

31 Additional Protocol I 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.

32 San Remo Manual Methods and means of warfare should be employed with due regard for the natural environment taking into account the relevant rules of international law. Damage to or destruction of the natural environment not justified by military necessity and carried out wantonly is prohibited.

33 ICJ States must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives. Respect for the environment is one of the elements that go to assessing whether an action is in conformity with the principles of necessity and proportionality.

34 Protection of Neutral States Obligations concerning the protection of the environment that are binding on States not party to an armed conflict (e.g. neighbouring States) and that relate to areas beyond the limits of national jurisdiction (e.g. the high seas) are not affected by the existence of the armed conflict to the extent that those obligations are not inconsistent with the applicable law of armed conflict ICRC Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict

35 ICC Statute Art. 8(2)(b)(iv) War crimes include intentionally launching an attack in the knowledge that such attack will cause 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

36 Applicable principles Distinction: environment can be attacked only when it is a military objective Natural environment is never intrinsically a military objective, can become so only by location/use

37 Applicable principles Necessity: destruction of the environment is prohibited, unless required by imperative military necessity Proportionality: protection from collateral damage Also foreseeable reverberating effects on civilian population Issues under the precautionary principle (IEL)

38 Applicable principles Precaution (IHL) seek information about quantity, toxicity, possibility of avoiding leaks, etc if attacking a target that may contain toxic substances; gather the necessary information about the environmental conditions surrounding specific military operations, for instance the proximity of rivers, underground aquifers, sensitive natural habitats, vulnerable species; choose attack to targets that will cause the least danger to the natural environment assess the environmental impact of the weaponry to be used in the context of the particular natural environment change the timing of the attack if of use give warnings before the attack, if time permits, to allow for measures to safeguard the natural environment

39 Compensation UNCC environmental claims against Iraq included: - Monitoring and assessment (M&A) - Primary restoration of damage - Interim losses, residual damage, compensatory restoration

40 Legal Framework Norms obliging States to protect the environment Norms prohibiting certain war techniques Norms prohibiting attacks against the environment Norms prohibiting certain weapons Norms requiring testing/precaution Norms criminalising violation of the above

41 Conclusions Need to take into account environmental considerations Increasing knowledge of the environment and of the long-term consequences of activities causes a shift in the balancing of military advantage against harm to the environment Relevance of precautionary measures