Armed conflicts pose not only a grave threat to human life and infrastructure but also to the natural environment. Environmental damage in times of war can be immediate and catastrophic or long-term and insidious, impacting ecosystems, biodiversity, and climate for decades. As environmental consciousness has grown globally, so has the recognition that International Humanitarian Law (IHL)—also known as the law of armed conflict—must play a role in mitigating such damage.
While IHL does not focus primarily on environmental protection, its provisions do indirectly and directly address the need to preserve the natural environment even amidst warfare.
This article explores the intersection between IHL and environmental protection, drawing from treaty provisions, customary international law, case law, and recent developments in international practice.
Understanding International Humanitarian Law
IHL governs the conduct of parties during armed conflict. Its two primary objectives are:
- To protect those who are not participating in hostilities.
- To restrict the means and methods of warfare.
IHL applies to both international and non-international armed conflicts and is derived from sources such as the Geneva Conventions of 1949, their Additional Protocols, customary international law, and judgments of international courts.
The Natural Environment as a Victim of War
Environmental destruction during conflict is not new. From the scorched earth policies of earlier centuries to the defoliation campaigns in Vietnam and the oil fires of the Gulf War, warfare has often left a trail of environmental devastation. The effects include:
- Destruction of forests, water sources, and biodiversity.
- Long-term contamination of soil and groundwater.
- Harm to civilian populations who depend on natural resources.
- Recognising these dangers, the international community has gradually moved to integrate environmental concerns into the framework of IHL.
Key Legal Instruments under IHL Addressing Environmental Protection
1. Article 35(3) and 55 of Additional Protocol I (1977) to the Geneva Conventions
Article 35(3) prohibits means or methods of warfare intended or expected to cause widespread, long-term and severe damage to the natural environment.
Article 55(1) mandates that care shall be taken during warfare to protect the natural environment against such damage and prohibits methods that could damage the environment and thereby prejudice the health or survival of the population.
These provisions are central in establishing environmental protection within IHL. However, their effectiveness has been critiqued due to the high threshold posed by the “widespread, long-term and severe” standard.
2. ENMOD Convention (1976) – Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques
- Prohibits the use of environmental modification techniques as weapons of war.
- Covers actions like triggering earthquakes, floods, or weather modification with hostile intent.
- The ENMOD Convention complements IHL by addressing the environment as a target itself, but is limited in scope and ratification.
3. Customary International Law
The ICRC’s 2005 Study on Customary IHL recognises that:
Rule 45: The natural environment must be respected and protected in warfare. Destruction not justified by military necessity and carried out wantonly is prohibited.
Rule 43 and Rule 44 emphasise precautionary measures and proportionality concerning environmental damage.
These rules highlight how customary law increasingly supports environmental protection during conflict, even beyond treaty obligations.
Military Necessity v. Environmental Protection
A significant challenge arises from the principle of military necessity, which allows certain actions essential to achieving legitimate military objectives. This principle may clash with environmental safeguards. Therefore, balancing environmental considerations against military advantage remains a critical tension in the application of IHL.
Proportionality and precaution serve as moderating principles:
- Proportionality prohibits attacks where the expected environmental damage is excessive concerning the anticipated military advantage.
- Precaution obligates parties to avoid or minimise incidental environmental damage during military operations.
UNCC Awards Compensation for Gulf War Environmental and Health Damage
In 2005, the United Nations Compensation Commission (UNCC) issued its final report awarding $252 million to several countries for environmental and public health damages caused by Iraq’s 1990–91 invasion of Kuwait. The awards covered destruction of natural resources, remediation costs, and health impacts such as post-traumatic stress and injuries from landmines.
The UNCC notably affirmed that “pure environmental damage”—even without direct commercial value—is compensable under international law. The Commission adopted novel valuation methods, including compensatory restoration projects and ecological service assessments, although many claims were dismissed due to insufficient evidence linking damage directly to Iraq’s conduct.
Prohibition of Environmentally Harmful Warfare Methods
Article 35(1) of Additional Protocol I to the Geneva Conventions limits parties’ freedom to choose methods of warfare, prohibiting weapons that cause excessive harm to civilians or the environment. Weapons like poisons, biological and chemical agents, landmines, incendiary devices, and cluster munitions are restricted or banned under IHL due to their destructive effects.
Rule 22 and the ENMOD Convention further ban the use of environmental modification techniques—such as herbicides—that cause widespread, long-lasting, or severe damage, as seen in Vietnam. Customary IHL and various multilateral environmental agreements (MEAs), including UNCLOS and OILPOL, reinforce environmental safeguards during armed conflict and establish state responsibility for violations.
State Responsibility to Respect IHL
Under Common Article 1 of the 1949 Geneva Conventions and Article 1(1) of Additional Protocol I, states are obligated to respect and ensure respect for IHL in all circumstances. While Additional Protocol II lacks an identical clause, this duty is understood to apply in non-international armed conflicts as well, through Common Article 3, which binds all parties to uphold humanitarian norms regardless of the conflict’s nature.
Recent Developments and Emerging Norms
1. International Law Commission (ILC) Draft Principles (2022)
The ILC has developed Draft Principles on the Protection of the Environment in Relation to Armed Conflicts (PERAC). These extend protection:
- Before conflict (e.g., due diligence and risk reduction).
- During conflict (e.g., respect for IHL, prohibition of pillage of natural resources).
- After conflict (e.g., post-conflict remedial measures, reparation and cooperation).
- These principles reflect a holistic approach to environmental protection across the conflict spectrum.
2. United Nations Environment Programme (UNEP)
UNEP has published several reports documenting the environmental impact of conflicts, particularly focusing on:
- Toxic remnants of war
- Conflict-related deforestation and land degradation
- Water infrastructure destruction
- UNEP’s work reinforces the necessity of post-conflict environmental assessments and recovery.
3. Principle of Intergenerational Equity
This emerging principle—recognizing the rights of future generations—has increasing relevance in discussions around environmental protection during warfare.
It finds moral and legal resonance in:
- The Stockholm Declaration (1972)
- The Rio Declaration on Environment and Development (1992)
Challenges in Implementation
Despite normative progress, enforcing environmental provisions of IHL remains fraught with challenges:
- Lack of Enforcement Mechanisms: Many IHL treaties do not provide direct punitive mechanisms for environmental violations.
- High Legal Thresholds: The “widespread, long-term and severe” damage standard in Protocol I sets a high bar for accountability.
- Ambiguity in Interpretation: Key terms like “military necessity” and “severe damage” remain open to subjective assessment.
- Limited Access to Redress: Affected communities and ecosystems often lack standing or the means to claim reparations.
Way Forward: Strengthening Environmental Safeguards
To enhance environmental protection during armed conflict, the following steps are recommended:
- Clarify legal standards in existing treaties to reduce ambiguity.
- Promote universal ratification of key instruments like the ENMOD Convention and Additional Protocol I.
- Incorporate environmental considerations into military manuals and rules of engagement.
- Establish international accountability mechanisms for environmental war crimes.
- Support post-conflict environmental recovery through international cooperation and funding.
- Empower regional organizations and civil society to monitor and report environmental damage during conflicts.
Conclusion
While war inevitably brings destruction, the natural environment must not become an unchecked casualty of conflict. International Humanitarian Law, through its treaties, principles, and evolving jurisprudence, provides a framework—albeit imperfect—for minimising environmental damage in wartime.
Incorporating stronger environmental safeguards into the fabric of armed conflict law is no longer just a humanitarian or ecological concern—it is a necessity for ensuring the sustainability of life, peace, and justice for future generations.
References
[1] Geneva Conventions and Additional Protocols (1977)
[2] ENMOD Convention, 1976
[3] ICRC Customary IHL Study, Rule 43–45
[4] Protection of the Environment under International Humanitarian Law Regime: Challenges and Way Forward, Available Here
[5] UN Commission Awards Compensation for Environmental and Public Health Damage from 1990-91 Gulf War, Available Here
