- Kartikey Baid and Dhruv Garcha
Armed conflicts, whether international or domestic, have had a wide-ranging human and environmental costs. The international community has recognized the impending threat of environmental destruction caused by the cannons of war in recent years and have devised legal literature and guidelines to, if not stop, then at least mitigate the damage caused. However, the existing framework rarely satisfies the need of the hour and have more often than not proved to be hollow with no effective direction or implementation. To understand the lacunae in the present regime, it is imperative to understand the context that it is set in and the principles it intends to inculcate.
Erga Omnes Principles
Principle of Proportionality
From the Christian Just War Theory of St. Augustine to Chanakya’s much celebrated treatise Arthashastra, the principle of proportionality finds its existence in almost all medieval and ancient jurisprudential schools across civilizations.[1]
It is a fundamental law of war that prohibits any military action that could cause disproportionate damage relative to the military objective sought to be achieved.[2] It is an ancient concept that has been recognized and codified in various conventions and treaties such as the Geneva Convention as a jus cogens norm.[3] The principle also prohibits military actions that would affect non-combatants or objects, and any incidental or consequential damage caused to the environment due to military action is illegal.[4] The International Court of Justice has recognized it as one of the quintessential doctrines of the law of war, which states must adhere to under all circumstances.[5] States are responsible for devising guidelines to ensure compliance with the principle.
Principle of Distinction
The principle of distinction is a fundamental tenet of international humanitarian law, requiring that armed forces distinguish between military and civilian objects before conducting any military action and only target military objects.[6] The prohibition on attacks against civilians is enshrined in various international treaties and conventions such as the Amended Protocols and the Ottowa Convention.[7] As per the Statute of the International Criminal Court, the same constitutes a war crime in international armed conflicts,[8] while the International Court of Justice has held that the principle of distinction is one of the “cardinal principles” of international humanitarian law and one of the “intransgressible principles of international customary law”.[9]
When it comes to the environment, it is generally considered a civilian object and hence, shall not be the object of any destructive or damaging military activity.[10] However, the exception for military use of the environment blurs the application of the principle of distinction.[11]
Principle of Necessity
The principle of necessity grants states a positive right to violate their international legal obligations in exceptional circumstances where an illegal act is the only way to protect their “essential interests from grave and imminent harm”.[12]
This principle can only be used in unforeseen situations where the state could not have prepared itself to deal with the threat without violating international law.[13]
However, a state cannot invoke the defence of necessity if it has contributed to the development of the situation.[14] In other words, a state shall come with clean hands in order to invoke the principle of necessity. The principle is often used in conjunction with force majeure to justify damage caused by armed forces.[15] Therefore, the benchmark for such an absolute defence must be set extremely high to prevent misuse of the same.
The Present Legal Regime under International Law
The first concentrated effort to build a legal regime for protection of environment during armed conflict was The International Committee of Red Cross' Guidelines on protection of the environment in armed conflict, which provide general principles and codify jus cogens norms to protect the environment during armed conflict.[16]
The International Law Commission's Draft Articles on Responsibility of States for Internationally Wrongful Acts recognize state accountability for undue environmental damage caused by states in pursuance of their military objectives.[17] The International Court of Justice's Advisory Opinion on 'Legality of threat or use of nuclear weapons' recognizes the need to strengthen the jus cogens norms and unequivocally states the illegality of military action leading to environmental and civilian destruction.[18] The Tribunal for Law of the Seas recognizes the erga omnes and sine qua non responsibility of states and non-state actors in the high seas towards the environment, particularly the ecology of oceans.[19] The ICJ's decision in the Costa Rica v. Nicaragua case recognizes the need for a sufficient causal nexus between the illegal act and the loss experienced to qualify for compensation for cross-border environmental harm.[20]
Lastly, Principle 24 of the Rio Declaration states that states must uphold environmental protection regulations established by international law during times of armed conflict.[21] This was one of the first explicit recognition of the environmental damage caused due to armed conflict.
Domestic conflicts and application of International Law
Domestic armed conflicts and civil wars are not typically subject to international law, posing two main problems. Firstly, international law only applies to states, leaving unorganised armed groups outside its purview.[22] Secondly, it is difficult to apply the law to parties that do not recognise it in the first place, such as rebel groups. Further, since such wars threaten the very existence of the state, the defence of necessity can easily be invoked by states to avoid obligations under international law. As a result, the question of whether existing laws apply over parties that are not subject to the international legal system still remains. Therefore. protecting the environment during armed conflicts remains challenging, as the source of the problem is not addressed by the existing legal regime.
Lacunae in the present legal system
There are many lacunae in the present legal system that prevents the issue of environmental damage during armed conflict from being tackled effectively.
Absence of a binding umbrella law
The biggest chink in the legal armor for protection of environment during armed conflict under international law is the lack of any specific convention, treaty or any other statutory authority to give an actual legal effect to safeguards for such protection.[23]
There exists a strong precedence and tradition of conventions being used as a primary tool to address a particular area under international law. From the universal law of war under the Geneva Conventions and its additional protocols to more commercial issues such as protection of Intellectual Property Rights under WIPO and TRIPS agreements, the international community has proved that if it is provided the ample will to bring about a change, it is competent to bring about laws to effectuate such change. Unfortunately, the will to bring change appears to be absent when it comes to protection of environment during armed conflicts.
If one were to refer to the Austinian notion of law, the present regime not only lacks the sanctions, it lacks the command itself.[24] In absence of any sort of binding law, the current regime lacks essentially anything of substance that ensures appropriate conduct by states and other armed forces. It is safe to say that the system in its current state is not a law, but a guiding sermon at best. ICRC and ILC have done some commendable work in formulating principles and recognising the important constituents in the problem of environmental damage during armed conflicts. However, rather unfortunately, the international community has nevertheless failed to appreciate the seriousness of the situation. In a time when environmental protections should be the biggest concern of the collective human race, one major actor in degradation of environment i.e., armed conflict is being ignored by states. It is recognised that this is a problem which has more to do with politics than legality and hence, is unable to be solved by any legal action for legal action itself flows from political determination to take such actions.
Unrealistic reliance on state action
None with prudence can argue contrary to the notion that state action is of paramount importance under international law and hence it logically follows that a certain degree of state autonomy is afforded to states under law.[25] However, this is not to say that states shall be left unchecked and then all hope for change shall lie on the possibility of states taking positive action.
Under the present regime, states are advised and expected to formulate their own guidelines and procedures for implementation of jus cogens principles of proportionality, necessity and distinction. This is problematic as giving states such expansive discretionary powers make its misuse and misappropriation inevitable. As is the case with a plethora of legal problems ranging from protection of biodiversity to regulation of civil aviation, international law should at least provide a basic structure under the bounds of which states may formulate their own procedures and guidelines of operation.
Lack of Enforcement Mechanisms
Even setting aside the unfortunate fact that there is no treaty or convention regulating state action, there is an even more prominent absence of any enforcement mechanism in the event of breach of obligations.[26]
Apart from rare judicial pronouncements from the ICJ and certain tribunals, there is no sanction enforcing system to mandate the due adherence to law. Even these judgments do not address the specific issue of protection of environment during armed conflict for the most part. The establishment of the UNEP Balkans Task Force was one positive outcome of the Kosovo war. The Task Force had initiated an authoritative investigation into the environmental implications of war, but nothing useful has come of it as of now.[27] Military restraint is largely theoretical rather than actual, and the threat of penalty for environmental damage does not weigh strongly on the minds of military commanders. There is an absence of any substantial repercussions owing to the lack of an effective implementation mechanism.[28]
For this, expanding the mandate of UNSC under Chapter 7 of UN Charter is of paramount importance. More about which has been discussed in the later sections of the paper.
Non-Applicability in domestic conflicts
As is the case with a good part of international humanitarian law, whatever minimal laws that exist for the protection of the environment during armed conflicts is only applicable during international armed conflicts.[29] In the present world, where the majority of armed conflicts are domestic in nature, such exclusion leads the purpose of such legislation being defeated as it does not a touch a major source of the problem.[30]
Endnotes:
[1] Paul, T.V., et al. Proportionality and Force in International Law, 100 Am. J. Int'l L. 107 (2006); Sihag BS, “An Introduction to Kautilya and His Arthashastra” (2009) 25 Humanomics.
[2] International Committee of the Red Cross, Customary International Humanitarian Law (Jean-Marie Henckaerts & Louise Doswald-Beck eds., 2005)
[3] International Committee of the Red Cross, Guidelines on the Protection of the Natural Environment in Armed Conflict (2019), available at https://www.icrc.org/en/publication/4382-guidelines-protection-natural-environment-armed-conflict.
[4] Supra note 3.
[5] International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996
[6] International Committee of the Red Cross, Customary International Humanitarian Law (Jean-Marie Henckaerts & Louise Doswald-Beck eds., 2005)
[7] Michael N. Schmitt, The Principle of Distinction and Weapon Systems on the Contemporary Battlefield, 7 Conn. J. Int'l L. 46 (2008).
[8] Rome Statute of the International Criminal Court, opened for signature July 17, 1998, 2187 U.N.T.S. 90 (entered into force July 1, 2002).
[9] International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996.
[10] “Customary IHL - Rule 1. The Principle of Distinction between Civilians and Combatants” (Customary IHL -
Rule 1. The Principle of Distinction between Civilians and Combatants) <https://ihl-databases.icrc.org/customaryihl/eng/docs/v1_rul_rule1#:~:text=international%20armed%20conflicts-
,Rule%201.,not%20be%20directed%20against%20civilians.> accessed October 3, 2022
[11] Id.
[12] “Military Necessity | How Does Law Protect in War? - Online Casebook” (Military necessity | How does law
protect in war? - Online casebook) <https://casebook.icrc.org/glossary/military-necessity> accessed October 3,
2022.
[13] “Doctors without Borders | The Practical Guide to Humanitarian Law” (Doctors without borders | The Practical Guide to Humanitarian Law) <https://guide-humanitarian-law.org/content/article/3/military-necessity/> accessed October 3, 2022.
[14] “Military Necessity | How Does Law Protect in War? - Online Casebook” (Military necessity | How does law
protect in war? - Online casebook) <https://casebook.icrc.org/glossary/military-necessity> accessed October 3,
2022
[15] “Basic Principles of IHL - Diakonia International Humanitarian Law Centre” (Diakonia International
Humanitarian Law Centre) <https://www.diakonia.se/ihl/resources/international-humanitarian-law/basicprinciples-ihl/> accessed October 3, 2022
[16] The International Committee of Red Cross’ Guidelines on protection of the environment in armed conflict.
[17] International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts, November 2001, Supplement No. 10 (A/56/10), chp.IV.E.
[18] The ICJ’s Advisory Opinion on ‘Legality of threat or use of nuclear weapons’
[19] INTERNATIONAL TRIBUNAL FOR THE LAW OF THE SEA, 'Responsibilities And Obligations Of States Sponsoring Persons And Entities With Respect To Activities In The Area (REQUEST FOR ADVISORY OPINION SUBMITTED TO THE SEABED DISPUTES CHAMBER)' (2011).
[20] Costa Rica v. Nicaragua.
[21] Principle 24 of the Rio Declaration
[22] Sassòli M and Olson LM, “International Humanitarian Law—1949 Geneva Conventions—International Criminal Law—Conflict in Bosnia and Herzegovina—Distinction between International and Non-international Armed Conflicts—Concept of Protected Persons—Participation in International Crimes—Crimes against Humanity—Motives—Discriminatory Intent” (2000) 94 American Journal of International Law, 571.
[23] Tarasofsky RG, “Legal Protection of the Environment during International Armed Conflict” (1993) 24 Netherlands Yearbook of International Law 17
[24] Id.
[25] Sigh AP, “PROTECTION OF ENVIRONMENT DURING ARMED CONFLICT: IS A NEW FRAME OF LAWS NECESSARY?” (Journal of the Indian Law Institute)
[26] Khan K, “Environmental Protection During Armed Conflict” [2019] SSRN Electronic Journal
[27] Sigh AP, “PROTECTION OF ENVIRONMENT DURING ARMED CONFLICT: IS A NEW FRAME OF LAWS NECESSARY?” (Journal of the Indian Law Institute)
[28] Sigh AP, “PROTECTION OF ENVIRONMENT DURING ARMED CONFLICT: IS A NEW FRAME OF LAWS NECESSARY?” (Journal of the Indian Law Institute)
[29] McCoubrey H, “THE PROTECTION OF CREED AND OPINION IN THE LAWS OF ARMED CONFLICT” (2000) 5 Journal of Conflict and Security Law 135
[30] Sigh AP, “PROTECTION OF ENVIRONMENT DURING ARMED CONFLICT: IS A NEW FRAME OF LAWS NECESSARY?” (Journal of the Indian Law Institute)
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