The ICJ Advisory Opinion on Climate Change and Cyber Operations – Part II: Jus in Bello

Part I of this two-post series analyzed how the International Court of Justice’s (ICJ) Climate Change advisory opinion might reshape State obligations in peacetime and the period leading up to conflict, particularly through an expanded due diligence framework that could be applied to cyber operations. The concerns do not stop at the threshold of armed conflict.

While the ICJ’s advisory opinion on climate change was issued in the context of the law during peace, some consideration of potential impacts on the jus in bello is warranted. The concerns of expanding legal obligations are perhaps even more striking in the area of armed conflict and the governing law of armed conflict (LOAC). Transportation of the Court’s stated standards into LOAC would significantly alter the conduct of military operations, as exemplified below.

The Environment as an Object

Some have argued that the natural environment is a separate object and deserves greater protection in armed conflict (see here and here). This argument continues to gather momentum, though opposed by many States, including the United States. The Department of Defense (DoD) Law of War Manual (LOWM) states, “The United States has not accepted these provisions [Articles 35(3) and 55 of Additional Protocol I (AP I)] and has repeatedly expressed the view that these provisions are “overly broad and ambiguous and ‘not a part of customary law.’” According to the Manual, articles 35(3) and 55 of AP I “fail to acknowledge that use of such weapons [which are intended or may be expected to cause such damage to the natural environment] is prohibited only if their use is clearly excessive in relation to the concrete and direct overall military advantage anticipated” (§ 6.10.3.1).

The tone and content of the ICJ advisory opinion will likely add support to the initiative for heightened protection of the environment during armed conflict. While nothing in the ICJ’s opinion points to armed conflict, there is also no reason why advocates of expansionist views would not borrow the opinion’s language and argue that these heightened protections should apply at all times.

The Court’s requirement that States “employ all means reasonably available to them, so as to prevent [harm] so far as possible” (para. 135) overlays fairly well with the “feasible” precautions of AP I Articles 57 and 58. However, the Court’s reasoning in paragraph 246 that, with respect to the Nationally Determined Contributions (NDCs) to the Climate Change framework, each “party has to do its utmost to ensure that the NDCs it puts forward represent its highest possible ambition in order to realize the objectives of the Agreement” leaves plenty of room for a similar argument with respect to States’ treaty obligations under LOAC. The argument might be that LOAC treaty obligations, and potentially the customary law obligations, are not unlike the Climate Change framework and that each State Party to the environmental obligations in those treaties is bound by the same legal obligations to do their “utmost” rather than what is “feasible.”

With respect to cyber operations, many such operations might have impacts on the environment: cutting power to military installations that may also impact civilian infrastructure controlling the environment; shutting down government and military systems that share information regarding environmental controls, such as garbage and sewage collection; and with the greater inclusion of cyber to facilitate AI targeting systems, the impact of targeting operations on the environment more generally. In each of these cases, a proportionality analysis would certainly need to be completed by the planners and commanders of such operations.  However, providing a “heightened protection” to the environment would change the current analysis significantly.

As emphasized previously, the ICJ was not making this argument with respect to LOAC, but it indicates a conceptualization of the environment that can quickly and easily be used by proponents to advocate for an enlarged standard in armed conflict.

Constant Care

One more potential impact of the Court’s advisory opinion on precautions in armed conflict might come through the Court’s claim of a “heightened degree of vigilance and prevention” with respect to climate change. The AP I, Article 57(1) obligation to take constant care in “the conduct of military operations” to spare the civilian population has already been argued by the International Committee of the Red Cross to apply to “any movements, manoeuvres and other activities whatsoever carried out by the armed forces with a view to combat” or “related to hostilities. The obligation of constant care is an obligation of conduct, to mitigate risk and prevent harm. It applies constantly in the planning or execution of any military operation.”

Advocates of increased environmental protection during armed conflict might argue under the Court’s reasoning that sparing the civilian population requires States to apply this heightened degree of vigilance and prevention in the planning and execution of any military operation with respect to the environment because of its impacts on civilians more generally.

Applying this to cyber operations would have similar effects as those discussed in part I of this post, but with an even broader application. As many current cyber operations don’t reach the level of an attack, they are currently governed by the constant care standard. Changing the substance of the constant care obligation would likely expand its current application.

Consultation and Notification During Armed Conflict

The current LOAC contains no requirement to conduct an environmental impact assessment (EIA), or anything similar, when military operations are expected to cause “significant” environmental harm. Nevertheless, the language of the advisory opinion in this area is quite broad, and though issued in response to peacetime concerns, the Court’s advocacy here could easily be stretched to include the significant harms that occur during armed conflict.

Such a requirement would dramatically affect the speed and secrecy of military operations, particularly when considering future cyber-enabled AI actions. As mentioned above, current targeting operations increasingly rely on cyber capabilities, which would all be captured by the onset of an EIA or other notification and consultation requirement.

Environmental Harm as a War Crime

Finally, as a result of the expansion of the protections of the environment during armed conflict as a matter of the jus in bello, the standard for committing a war crime resulting from impacts on the environment would almost certainly change. Currently, the Rome Statute that forms the International Criminal Court includes the following as a war crime in international armed conflict,

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 … (art. 8(2)(b)(iv)).

This standard currently reflects the treaty provisions in AP I, a treaty to which many of the leading military powers are not a party (see the U.S. view on these provisions mentioned here). Increasing the content of environmental protections to a “heightened” level, as discussed above, would likely result in a change in the content of what many would accept as a war crime.

Given the Court’s embrace of environmental protections as an erga omnes right only enhances the opportunities for States to adjudicate environmental war crimes. States already have universal jurisdiction with respect to grave breaches of the Geneva Conventions, so making the leap to practicing universal jurisdiction over newly enhanced environmental crimes might be an alluring argument. The Court specifically mentions this right with respect to the global commons, including the sea and space. Of course, space is one of the primary domains where cyber operations will play a role in armed conflict in the future.

Such a change would apply equally to cyber operations. As has been demonstrated above, the potential for significant environmental harm by cyber or cyber-enabled operations is increasing with the continuing development of technology, particularly AI capabilities. Creating space debris through cyber attacks on space objects would be one of the situations that might prompt the application of universal jurisdiction for a cyber war crime against the space environment.

Concluding Cautions in the Jus in Bello

As with the discussion concerning general international law and cyber operations, the Court makes no move to apply its reasoning and expanded environmental protections to the conduct of hostilities in armed conflict. This post is only meant to raise awareness of the advisory opinion and to set a watchful eye on attempts to alter current legal obligations through soft-law instruments. The Court provides plentiful language for advocates to apply greater protections to the environment, both by treating the environment as an object with heightened protections in its own right, and by fundamentally changing the application of the proportionality analysis during military operations (including the constant care standard). While States may at some point in the future decide to embrace increased environmental protections, this was not the ICJ’s current intent, and any attempt to use the advisory opinion in that way would be a significant expansion of the advisory opinion.

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Eric Talbot Jensen is a Professor of Law at Brigham Young University.

The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.

Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.

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