Large-Scale Combat Operations Symposium – Protection of the Environment During an Occupation

by | May 12, 2023

Occupation Environment

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.


Since the illegal invasion of Ukraine by the Russian Federation, there has not only been significant loss of human life, but the war has also caused immense damage to the environment. As noted by Karen Hulme on this blog in April 2022, “a number of environmental concerns have already arisen from the first month of combat. The most terrifying of these is the ‘unprecedented danger’ from radioactive contamination” from the attacks surrounding the Zaporizhzhia Nuclear Power Plant.

In February 2023, upon the first anniversary of the Russian invasion, a group of nongovernmental organizations (NGOs) called a for a 10-step plan to address the environmental impacts of the war in Ukraine. Among the proposed ten steps, the NGOs called for the international community to demilitarize and remove forces from the Zaporizhzhia Nuclear Power Plant, which is currently under Russian occupation.

What is a State’s responsibility with respect to the environment during an occupation? This post will address some of the key issues such as: respecting and protecting the environment in occupied territory; environmental considerations in the administration of the territory; and respecting the law and institutions of occupied territory. In addition to addressing obligations under the Hague Regulations, the Geneva Conventions and the Additional Protocols, this post considers how these rules may be applied to the recently adopted Draft Principles on the Protection of the Environment in relation to Armed Conflicts (Draft Principles), which devotes Part IV to principles applicable in situations of occupation, as well as the 2020 International Committee of the Red Cross Guidelines on the Protection of the Natural Environment in Armed Conflict (ICRC Guidelines).

The preamble to the Draft Principles provides that States, international organizations, and other relevant actors are required to take measures to mitigate and remediate harm to the environment before, during, and after an armed conflict. Of course, this obligation falls primarily on States, particularly those States that are parties to an armed conflict.

Three Obligations of States in Occupied Territory 

According to the ICRC Guidelines, occupying powers are obliged to ensure that the natural environment of territory under their occupation is respected and protected against significant harm. Additionally, occupying powers must respect the laws of the occupied territory pertaining to the natural environment and may only introduce changes that fall within the parameters of legality under the law of armed conflict (LOAC).

Principle 19 of the Draft Principles outlines three obligations that occupying powers have with regard to the territory they occupy. First, an occupying power must “respect and protect the environment of the occupied territory in accordance with applicable international law and take environmental considerations into account in the administration of such territory.” Second, an occupying power must take certain measures to “prevent significant harm to the environment of the occupied territory, including harm that is likely to prejudice the health and well-being of protected persons of the occupied territory or otherwise violate their rights.” Third, an occupying power must “respect the law and institutions of the occupied territory concerning the protection of the environment and may only introduce changes within the limits provided by [LOAC].” This post considers each of these obligations in turn before addressing the impact of the Draft Principles.

Respect and Protect the Environment in the Administration of Occupied Territory

Rule 26 of the ICRC Guidelines indicates that States are obliged both to respect and ensure respect for LOAC, which includes the rules for protecting the natural environment. Although the rule does not expand upon what is meant by “respect” and “ensure respect,” the commentary provides further explanation. Like the meaning found in Common Article 1 to the Geneva Conventions, “respect” means that parties to the conflict must adhere to all pertinent rules of LOAC. The “ensure respect” language means that States should take appropriate measures to prevent LOAC violations from occurring.

The “ensure respect” prong comprises both negative and positive aspects. Accordingly, States may neither encourage nor aid in violations of LOAC by parties to a conflict, while States must take those actions reasonably in their power to prevent LOAC violations and bring them to an end.

Article 55 of the Hague Regulations outlines the rule respecting administration of territory for the occupying power. It provides: “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.” Usufruct dictates that occupying powers have the right to use all immovable public property that is not used for military purposes, but without destroying or wasting it. Naturally, this right extends to natural resources in the environment of the occupied territory. However, just as the occupying power may make use of these resources, it also has an obligation to protect them and may not exercise this right in a “wasteful or negligent way” and may not exploit these resources “beyond normal use.”

An occupying power may also only “dispose of the resources of the occupied territory to the extent necessary for the current administration of the territory and to meet the essential needs of the population.” The commentary to the ICRC Guidelines affirms the obligation and builds upon it, stating that, in international armed conflicts, an occupying power may lawfully use the resources of the occupied territory, but the use of these resources must be confined to the limits of the law of occupation, such as for the maintenance and needs of the occupying army.

Preventing Significant Harm and Prejudice to the Health or Well-Being of Protected Persons

Article 53 of the Fourth Geneva Convention provides that “[a]ny destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations.” Article 53 prohibits an occupying power from destroying property individually or collectively owned by inhabitants of the occupied territory absent absolute military necessity. The prohibition on pillage is especially important to consider in tandem with this obligation.

Rule 14 of the ICRC Guidelines prohibits pillage, including the prohibition of pillage of the natural environment. Because certain natural resources found within the natural environment can be deemed to be property, the prohibition of pillage applies to these resources. International (as well as domestic) courts have recognized actions, such as the extraction of oil stocks and the unlawful exploitation of natural resources such as gold and diamonds, as pillage prohibited under LOAC. Therefore, an occupying power is prohibited from looting, plundering, and exploiting the natural resources within the occupied territory.

The International Court of Justice (ICJ) highlighted the role of the rule against plunder of natural resources in the Armed Activities case. There, the Democratic Republic of the Congo (DRC) claimed that Ugandan troops “systematically looted and exploited the assets and natural resources of the Democratic Republic of the Congo.” More specifically, Ugandan forces took almost full control over the entire economic and commercial system in the occupied areas and hunted and plundered protected species. The DRC argued that Ugandan authorities did nothing to stop its forces from engaging in these activities.

The ICJ found that Ugandan forces were indeed involved in the looting, plundering, and exploiting the DRC’s natural resources and that military authorities did not take any measures to stop these illegal acts. More explicitly, the ICJ found that when members of the Ugandan forces were involved in looting, plundering, and exploiting natural resources in the territory of the DRC, they were violating LOAC, as the commission of such acts by a foreign army in the territory where it is present is prohibited. Additionally, the ICJ found that Uganda violated its duty of vigilance by not taking the necessary measures to ensure that its forces ceased the looting, plundering, and exploitation of the DRC’s natural resources.

When such violations occur, State responsibility follows. Article 3 of Hague Convention IV states: “[a] belligerent party which violates the provisions of the said Regulations shall, if the case demands, be liable to pay compensation.” Article 91 of Additional Protocol I states the same. Thus, it follows that a State that is a party to an international armed conflict or an occupying power will incur international responsibility for damage to the environment caused by acts of members of its armed forces if those acts breach any rule of LOAC. Although there have been cases where violating States have paid compensation to another, Sir Christopher Greenwood noted that “State responsibility has not proved a particularly effective means of enforcing the law of armed conflict.”

Respect for the Environmental Law and Institutions of Occupied Territory

With respect to the third obligation, according to Article 43 of the Hague Regulations, occupying powers must not only take measures to ensure public order and safety. They must also respect the laws in force in the occupied territory. As Ms. Marja Lehto, Special Rapporteur on the Protection of the Environment in Relation to Armed Conflict stated in her First Report, the general obligation that stems from this is to “ensure that the occupied population lives as normal a life as possible.” Article 64 of the Fourth Geneva Convention allows occupying powers to change local laws only when essential, such as to enable the occupying power to fulfill its obligations under the Convention, to maintain the orderly government of the territory, or to ensure the security of the occupying power’s forces or administration.

Because an occupying power must ensure the occupied population can live a normal life, it follows that the occupying power must also protect the natural environment given that environmental protection is a core function of modern States. Further, the requirement that an occupying power respects the laws and institutions of the occupied territory acts as a safeguard to the natural environment. Of course, the extent to which an occupying power protects the environment depends on how well the natural environment and natural resources are protected in the domestic legislation of the occupied territory. However, when protection of the natural environment is incorporated into the legislation of the occupied territory, there is no question that the occupying power must adhere to and respect the laws and institutions relating to those protections.

Impact of the Draft Principles

The adoption of the Draft Principles in 2022 was the culmination of a decade’s work. The unanswered question is how States will view these Draft Principles. In 2001, the UN General Assembly adopted the Draft Articles on State Responsibility. Over the past 20 years, the Draft Articles have established general rules related to the breach of international law and the consequences that flow from such a breach. The Draft Articles have been widely invoked by international courts and tribunals, and some believe that this broad acceptance has resulted in the Articles’ customary nature and universally binding force. Will these Draft Principles gain the same stature over the next 20 years?

Some States, including the United States, expressed concerns during the drafting process that the Draft Principles go beyond what is required by the law of occupation, yet they are framed as obligations rather than recommendations or as a progressive developments of the law. For example, Principle 19 mentions “international law.” The drafters included not only rules under LOAC, but also considered environmental laws to be applicable in occupation. This raises the issue of the role and effect of the lex specialis of LOAC in armed conflict. Accordingly, it is important that the Draft Principles can be implemented by States; they cannot be so onerous that responsible States that are compliant with LOAC are unable to act in accordance with the Draft Principles.

The author would like to thank Samih Eloubeidi at Emory University School of Law for his assistance in preparing this post.

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Michael W. Meier currently serves as the Special Assistant to the Army Judge Advocate General for Law of War Matters. As the senior civilian adviser, he advises on legal and policy issues involving the law of war, reviews proposed new weapons and weapons systems, serves as a member of the DoD Law of War Working Group, and provides assistance on detainee and Enemy Prisoner of War affairs.

 

Photo credit: Ministry of Defense of Ukraine

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