Large-Scale Combat Operations Symposium – Environmental Protection in the Context of LSCOs
Editor’s note: The following post highlights a subject addressed during an expert workshop that the Lieber Institute co-convened alongside Harvard Law School’s Program on International Law and Armed Conflict and the International Committee of the Red Cross, focusing on some of the legal issues arising in large-scale combat operations. For a general introduction to this symposium, see Winston Williams and Jennifer Maddocks’ introductory post.
The environment is often referred to as a silent victim of armed conflicts. One only needs to look at the environmental toll caused by the Russian invasion of Ukraine to understand how the environment is affected by armed conflict. During the first year of the armed conflict, 1.24 million hectares of nature reserve territory are said to have been affected by the hostilities. Already in the first days of the conflict, large smoke plumes composed of toxic gases and other harmful materials were seen to spread over civilian areas, endangering the health and livelihoods of local populations.
The armed conflict in Ukraine is amongst the first where the environmental toll of the conflict is closely monitored, with the aim of holding Russia responsible for the environmental destruction it has caused. This is, however, not to say that the environmental toll of past conflicts is unknown. For instance, the UN Compensation Commission established by the UN Security Council to process claims for losses and damage suffered by Iraq’s invasion and occupation of Kuwait in 1990 awarded approximately US $3 billion to Kuwait in compensation for environmental remediation and restoration. Due to Iraqi troops setting fire to over 700 oil wells, significant amounts of toxic metals and carcinogenic constituents were released into the atmosphere, having severe impacts on freshwater aquifers, the marine environment, desert ecosystems and human health. Likewise, the environmental and health effects of Agent Orange, a defoliant used in Vietnam during the 1960s by the U.S. military, are still felt today and may even pass on to future generations.
These examples are representative of the type of devastating harm that hostilities may cause to ecosystems and further demonstrate the interconnectedness between environmental and humanitarian concerns. Yet, they are by no means the only examples. According to a study analyzing the overlap between biodiversity hotspots and areas of violent conflict from 1950 to 2000, “[o]ver 90% of the major armed conflicts [in this period] occurred within countries containing biodiversity hotspots, and more than 80% took place directly within hotspot areas.”
It is therefore inevitable that the environment will suffer some consequences of armed conflict. At the same time, the idea that such harm should be minimized as far as possible, not in the least to protect civilian populations, has gained considerable traction in the international community. In December 2022, the UN General Assembly adopted a resolution welcoming the adoption by the International Law Commission (ILC) of 27 principles for the protection of the environment in relation to armed conflict and encouraging their widest possible dissemination. Likewise, the International Committee of the Red Cross (ICRC) recently revised its Guidelines on the Protection of the Natural Environment in Armed Conflict with the aim of facilitating the adoption of concrete measures to reduce the environmental impact of armed conflict. Both instruments provide an overview of existing international law and emerging best practices, in the form of recommendations. These rules and best practices take into consideration relevant obligations under international environmental and human rights law alongside the law of armed conflict (LOAC) as lex specialis.
This post examines the core structure and essential content of the international legal obligations outlined in these instruments in the context of large-scale combat operations (LSCOs). Such operations, by their very nature, have significant impacts on the environment. It is therefore even more relevant to explore how such impacts can be reduced. This post focuses on the planning and operational phases of military operations, while noting that parties to an armed conflict also have distinct obligations to address the environmental legacy of armed conflict.
The Planning Phase
Careful preparation – for instance by mapping ecologically sensitive areas or installations containing dangerous substances, such as nuclear power plants – is necessary to inform military commanders in the field taking decisions on targeting. Article 57(1) of Additional Protocol I to the Geneva Conventions is a key provision in that it prescribes States to take constant care to spare the civilian population, civilians and civilian objects. This duty of constant care or precautions in attack is also included in Rule 8 of the ICRC Guidelines and Principle 14 of the ILC Principles and is considered to reflect customary international law.
While this obligation applies during operations, requiring the commander to take all feasible measures, based on available intelligence, to avoid, or in any event, to minimize harm to civilians and civilian objects, it also has a bearing on the planning phase when it comes to the identification of environmentally significant areas. There is a wealth of publicly available information on areas that are under special protection regimes. For instance, lists of protected areas are administered by major environmental conventions such as the World Heritage Convention and the Ramsar Convention on Wetlands of International Importance. These lists do not only contain information on the location of the protected areas, but also set out the particularities of these areas and the reasons for their listing. This information is highly valuable for determining the ecological functions of specific sites. Likewise, the environmental network IUCN keeps track of the conservation status of ecosystems through its Red List of Ecosystems. This list provides important information on sites that are under threat, which may help military commanders to determine the extent of collateral damage to be expected when launching an attack in the vicinity of such sites. In addition to these publicly available lists, information can also be sought directly from the secretariats of multilateral environmental agreements, such as the Biodiversity Convention.
Those responsible for the planning of military operations can therefore easily obtain information on ecologically important and/or sensitive sites, which can be used to enable military commanders in the field to take informed targeting decisions. From this perspective, environmental agreements can play a key role in making the obligation to take constant care effective. Beyond this, there are further measures that States could consider taking to enhance environmental protection. Principle 4 of the ILC Principles, for instance, recommends States to “designate, by agreement or otherwise, areas of environmental importance as protected zones in the event of an armed conflict,” while Principle 18 (applicable during armed conflicts) determines that such zones are to be protected against any attack, except insofar these contain a military objective. Similar proposals can be found in Recommendation 17 of the ICRC Guidelines. To make these recommendations effective, States could consider opening a register of protected zones, administered by a neutral party such as the ICRC or IUCN. Such a register already exists for cultural property. States entering these zones would commit to refrain from using them for military purposes, with the zone losing its protected status if the respective State does not live up to this commitment.
The Operational Phase
During the operational phase, harm to the environment can be caused by multiple pathways, hostilities only being one of them. The ILC Principles and the ICRC Guidelines contain rules and recommendations relating to two other major pathways to environmental destruction during armed conflicts, namely illegal exploitation of natural resources and conflict-related human displacement. The first relates to the problem of conflict resources, i.e., natural resources that are exploited to finance an armed conflict, often with highly detrimental impacts on the environment. Both the ILC Principles and the ICRC Guidelines expressly confirm that the prohibition (and war crime) of pillage applies to such activities, as previously recognized by the International Court of Justice (ICJ) in the Armed Activities case. According to this rule, the exploitation of natural resources in enemy territory, such as oil, for instance to cover operational costs, is strictly prohibited under customary international law. Limited exceptions apply under the rules of usufruct in the law of occupation.
The second alternative pathway to environmental destruction relates to the unintended effects on the environment caused by large population streams. Human displacement has caused considerable damage to the environment through activities such as the felling of trees in nature reserves to make provisional housing and to provide firewood, resulting in soil erosion; through garbage and human waste polluting waterways; and through the poaching of endangered animals for food. Principle 8 of the ILC Principles formulates a recommendation for States, international organizations, and other relevant actors to take appropriate measures to prevent, mitigate and remediate harm to the environment in areas where persons displaced by armed conflict are located, or through which they transit.
In the operational phase, the principles of distinction, necessity, and proportionality guide decisions on targeting, while the principle of precautions in attack aims to ensure that the military commander takes all practical measures to obtain the information needed to verify compliance with the relevant principles. This post now considers the particularities regarding the application of the principles of distinction and proportionality to the environment.
Distinction
Both the ILC principles and the ICRC Guidelines recognize that the environment is prima facie a civilian object and therefore no part of it may be the subject of attack unless it has become a military objective. This categorization is, as Smith argues, “significant in terms of shaping perceptions, and it explicitly acknowledges that the targeting of environmental objects is a deliberate exception rather than a thoughtless consequence of military action during armed conflict.”
Through this categorization, a delicate balance is struck between preserving the ecological systems on which human life depends and the realities of the battlefield. However, the categorization of the environment as a civilian object also raises questions, given that the notion of civilian object is only negatively defined in LOAC as not being a military objective. The question can therefore be raised when parts of the environment cease to benefit from the protection afforded through their recognition as civilian objects. In other words, when do these parts make “an effective contribution to military action” and when does their “total or partial destruction” offer “a definite military advantage,” as defined by Article 52(2) of Additional Protocol I?
While these conditions are easily fulfilled in relation to parts of the environment that make a direct contribution to the fighting capabilities of an adversary, for instance when a forest is used as cover, we enter a grey area when it comes to parts of the environment that contribute to the conflict-sustaining capabilities of the adversary. Could military forces, for instance, attack a site where natural resources are mined, if the commander knows that these natural resources are used to finance the conflict? The ICRC takes the position under Rule 5 of its Guidelines that contributions to the conflict-sustaining capabilities of the adversary are “not sufficient to make the object fulfil the definition of a military objective.” However, there is significant State practice to the contrary. The aerial bombing by coalition forces of oil infrastructure under the control of ISIS in Syria provides a relevant example.
Proportionality
Even if parts of the environment are considered military objectives, parties to an armed conflict still must adhere to other rules of LOAC. First, Additional Protocol I sets a standard of widespread, long-term and severe damage as the upper limit of permissible environmental harm. Article 35(3) imposes limitations on the means and methods of warfare “which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.” Meanwhile Article 55(1) imposes a duty of care on the parties to an armed conflict to protect the environment against such damage.
The relevant provisions come with their own set of challenges, which are addressed in the commentary to Rule 1 of the ICRC Guidelines and to Principle 13 of the ILC Principles. Suffice it to note here that, from a systemic perspective, the significance of the provisions is that they provide that environmental harm reaching the cumulative threshold of widespread, long-term and severe is prohibited, even if the military advantage to be obtained would outweigh such harm.
Whether or not States have subscribed to Additional Protocol I, they will all need to adhere to the principle of proportionality. This principle is relevant for all decisions related to targeting, including to prevent collateral damage to the environment, such as caused by the targeting of nuclear power plants or industrial facilities. The application of this principle to environmental harm is, however, not straightforward. A first challenge concerns the valorization of environmental harm. Does one take into consideration reverberating effects on the environment, given that ecological processes are highly interdependent? And how to calculate environmental harm in the first place?
To give an example: destroying an old-grown forest has considerably more impact on the environment’s potential to provide ecosystem services compared to a young forest. Such factors must be taken into consideration in the proportionality assessment. However, the Certain Activities and Armed Activities proceedings before the ICJ on compensation and reparation respectively demonstrate the challenges involved in ascribing a precise value to the functions performed by ecosystems.
A second challenge concerns the state of the environment itself: to what extent should the calculation inherent in the proportionality assessment take into consideration existing environmental degradation? Two examples come to mind. First, due to climate change, several regions in the world are struck by drought. The pollution of a lake in such regions will have a huge impact on the livelihoods of the civilian population. A second example concerns the targeting of objects in space. Such objects play an increasingly important role in modern armed conflicts (e.g., providing intelligence to troops) and their destruction can therefore offer a definite military advantage to parties to an armed conflict. However, space is already congested and the creation of new space debris will only exacerbate the condition of the space environment. Arguably, the application of the proportionality principle is contextual by nature. The state of the environment should therefore be taken into consideration as part of the proportionality assessment and may impact on the choice of both targets and weapons.
Conclusion
This post discussed the core structure and essential content of the international legal obligations relating to the protection of the environment applicable to LSCOs, focusing on the rules that apply to the planning and operational phases. These rules are discussed against the background of our evolving knowledge of the effects of armed conflict on the environment.
Today, our understanding of ecological processes and their relevance for human beings is much more refined than it was when the relevant rules of LOAC were developed. Preventing damage to the environment therefore is not only relevant as an end in itself, but also for protecting the very systems on which human life depends. As the ICJ eloquently stated in the Nuclear Weapons Advisory Opinion: “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.”
In order to enhance protection of the environment during armed conflict, it is of the utmost importance to better integrate environmental considerations in military operations, for instance through dedicated training and by breaking down institutional silos. The military could benefit immensely from all the information and expertise that is available within multilateral environmental agreements and environmental organizations such as UNEP. This post should therefore be primarily read as an appeal to the military to make better use of these mechanisms in order to minimize the degree to which the environmental legacy of conflict prevents effective post-conflict reconstruction.
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Daniëlla Dam-de Jong is Professor at the Grotius Centre for International Legal Studies at Leiden University, holding the chair of International Sustainable Development Law.
Photo credit: Teteria Sonna via Wikimedia Commons
