REN Zhuoran*

 

Abstract: The enormous environmental damage caused by war makes it necessary for international law to balance the reality of military necessity with the need to ensure the survival of human beings and other life forms. International law provides a large number of norms for environmental protection in wartime, constituting a legal order including general and special norms of wartime law and wartime environmental protection obligations of international law in peacetime. It explicitly prohibits unreasonable environmental damage caused by military needs in wartime. Contrary to the cognition that there is no international norm to protect the environment in wartime, the key reason that causes the effect of environmental protection in wartime is not as good as expected lies in the different degrees of defects in the application of these complex norms. It is a more important and practical path choice to renew the general principles of wartime environmental protection, expand the scope of application of wartime laws and special environmental norms, strengthen the wartime application of international law in peacetime, and give full play to the maximum effectiveness of the existing normative system than to expect the new convention to accomplish the whole task at one stroke.

 

Keywords: wartime · environmental protection · international environmental law · war law 

 

Protecting human rights in wartime is always an important matter the law of war focuses on, that is, to reduce damage to people as much as possible by controlling the conduct of two warring parties. However, it should be noted that the consequences of war not only include local casualties at that time but also include wartime and postwar catastrophic impact on the ecological environment. For example, the chemical defoliant (Agent Orange) used in Vietnam by the United States during the Vietnam War caused severe damage to the ecological environment of local forests,¹ and the oil pipelines and oil wells destroyed by Iraq during the Gulf War severely polluted the sea and ocean.² The outbreak of the Russia-Ukraine conflict February 2022 has highlighted the importance of wartime environmental protection. The fighting has caused the power failure at a nuclear power station, forest fires around the nuclear power station, and exposure of the soil layers radiated by nuclear matter due to trenching, which may have had an unmeasurable impact on the local environment and human health. Because neither of the two hostile parties can stably control conflict areas, all the domestic environment protection laws of the two countries have temporarily lost their regulatory power over human activities in the areas. Under the circumstances, international law must play a regulatory role in the areas, limit the conduct of the two belligerents and protect the ecological environment of the conflict areas in wartime. Foreign scholars have conducted a lot of research on how to standardize international law on wartime environmental protection. However, domestic scholars have not paid sufficient attention to it. For that reason, this article will take the international law norms on wartime environmental protection as its research object, analyze the forms of international law norms, inspect the actual operation state of international law norms on wartime environmental protection, and analyze the underlying reasons for insufficient wartime environmental protection under international law and put forward an theoretical hypothesis about the international law norms on wartime environment protection based on this. 

 

 

At present, most countries regard environmental protection as an important component of human rights and have made it part of their domestic normative systems. By the end of 2010, 142 countries had directly or indirectly confirmed the right to the environment in their constitutions³ and some countries had specially defined and specified the right to environment in their civil laws and environmental laws. In wartime, however, the above-mentioned environment norms cannot function normally in areas where hostilities are taking place and the protection of the local environment should be specified in international law. The international law norms on wartime environmental protection consist of two constantly-extending parts, the most important part of which is the environmental norms of jus in bello, including general norms and special norms. In addition to this, peacetime international law norms can also apply to wartime environmental protection. 

 

 

Jus in bello, i.e., rules on the conduct of military operations, are the rules about what measures and methods should be used by parties engaged in conflicts. It refers to applicable legal norms after the outbreak of hostilities or an armed conflict.⁴ Military necessity, proportionality, and discrimination are three fundamental principles of modern jus in bello.⁵ These three principles are correlated and they are the criteria used to judge whether a military operation is legitimate: First, it should be judged whether military operations carried out by two warring parties are necessary for them to achieve their military targets. The military necessity principle requires that any sabotage action must be an action necessary to rapidly cause the enemy to surrender, the least resources should be used and the action should not be forbidden by law.⁶ Second, it should be judged whether two conflicting parties have proportionally, not overly, taken military actions. The proportionality principle emphasizes that loss of life and property should be proportional to the military targets to be achieved. If a war method is adopted and the harm civilians may or the damage to targets for civil use is greater than the specific direct military benefits due to the use of the method, the war method should be forbidden.⁷ Finally, whether the weapons used by two conflicting parties sufficiently discriminate legal targets from illegal targets should be judged. In most cases, some military superiority can be acquired and confirmed by destroying or seizing some targets. The discrimination principle requires that only these targets can be considered legal military targets.⁸

 

Environmental elements are not military targets at all in wartime. However, attacking a military target may also damage some environmental elements. For example, a forest is not a military target and it is protected by the military necessity principle. However, if there is a hostile firing point in a forest and the firing point stops some troops from moving forward, the firing point is a valid military target. According to the military necessity principle, troops can legally attack the firing point target. To what extent should the firing point be attacked? The extent should be limited by both the proportionality principle and the discrimination principle, that is, some force should be used to eliminate the hostile firing point, but not the whole forest. If there is a military target in a nuclear power station or near any other project or device with dangerous power, the power station, project, or device should be more strictly protected. If a military target is in or near a nuclear power station, or a project or device with dangerous power, “it is a frequent, important and direct support for the military operation and to attack the military target is the only way to terminate the support,”⁹ the special nuclear power station protection can be suspended. Before the environmental norms were specified in jus in bello, these limiting principles protected the environment in wartime. After the specific clauses on the special environmental norms of jus in bello took effect, these principles continued to play a supplementary role in environment protection. 

 

War always harms the environment. The international community did not establish an international law norm system on wartime environmental protection until the military decision of the United States directly related to the environment caused severe consequences such as the ecocide in Vietnam. “Environment” was written in an international convention on jus in bello for the first time. The First Additional Protocol to the Geneva Conventions (hereinafter referred to as Protocol I) in 1977 includes two clauses explicitly related to the environment, i.e., Paragraph 3 of Article 35 and Article 55. Paragraph 3 of Article 35 states: “It is forbidden to use any operation method or means that aims to or may cause widespread, long-term and severe damage to the natural environment.” It is a general limitation to operation methods and means. Once the extent of damage to the environment reaches the extent of “widespread, long-term and severe damage,” the military operation must be stopped and the requirement of the jus in bello principle for a balance specified in the general norms should no longer be considered. Article 55 has further specified the standards used to measure human impact on the environment, i.e., damage to the relevant environment should be a threat to “the people’s health or survival.”¹⁰ The two stipulations have respectively embodied different viewpoints of “utilitarianism” and “intrinsic value” for environmental protection¹¹ to emphasize environmental protection and human protection in wartime. 

 

The Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (hereinafter referred to as ENMOD) enforced in October 1978 prohibits environmental modification techniques from being used for hostile purposes and provides a kind of protection for the environment in wartime. The state parties to the convention have promised to never use the environmental modification techniques that lead to widespread, long-term or severe consequences as any means to destroy, damage or harm any other state parties to the convention.”¹² Although the words used in ENMOD and the Protocol I are similar, there is no substantial overlap: First, the purposes of the two are different. Protocol I regards “the environment as a victim” and prevents it from being damaged deliberately, accidentally, and occasionally while ENMOD prevents “the environment from being used as a weapon” and protects it against deliberate, accidental, and occasional damage. Second, the thresholds are different. The separated expression with the word “or” is adopted in the environmental damage standards while the superposed requirements with the word “and” are used in Protocol I. All adjectives defined in ENMOD by the Conference of the Committee on Disarmament (CDD) have been defined quite differently from the way they have been defined in Protocol I. For example, “widespread” defined in ENMOD refers to a geographical area of several hundred square meters and the “long term” refers to several months, at most one season, while the “long term” defined in Protocol I is generally considered to be more than ten years, etc.¹³ These differences have reflect the different purposes, nature, and application of the two treaties. These two treaties complement each other in many aspects by regulating different legal fields. 

 

To investigate the legal liabilities of the above-mentioned treaty violation entities, severe damage to the natural environment is regarded as an international crime in the Rome Statute of the International Criminal Court (hereinafter referred to as the Rome Statute) adopted in July 1988. Article 8(2)(b)(iv) of the Rome Statute states that “any intentional 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 non-human environment which would be excessive in relation to the concrete and direct overall military advantage anticipated” shall constitute a war crime. It should meet the following conditions: First, although the damage to the natural environment should be of “widespread, long-term and severe” superimposed effect, the three terms have not been specifically defined in the Rome Stature. Second, aggressive behavior should be intentional behavior in the knowledge that the behavior will lead to damage to the environment that has been prohibited. Finally, the damage to the environment exceeds the damage necessary to achieve the whole military target. This stipulation made a step toward defining the behavior of damaging the environment in wartime as a criminal offense and it made it possible to submit the person who had severely damaged the environment to the International Criminal Court (ICC). 

 

 

In addition to jus in bello, as many as 900 treaties provide some kinds of protection for the environment in peacetimes¹⁴ such as Paragraph 4 of Article 11 of the World Heritage Convention¹⁵ and Article 21 of the African Charter on Human and People’s Rights.¹⁶ The theoretical circle has discussed whether the peacetime international law norms, which are different from the general and special wartime norms with explicit stipulations on wartime environmental protection, are still applicable in wartime for a long time. 

 

According to the traditional theory, the outbreak of war automatically terminates peacetime treaties.¹⁷ This traditional view, however, has been gradually abandoned by international organizations. For example, the environmental disaster caused by the Gulf War (1991) caused the international community to call on the warring parties to fulfill the general peacetime international obligations to better protect the environment. As for the impact of war on treaties, the Vienna Convention on the Law of Treaties signed in 1969 does not state its standpoint explicitly.¹⁸ On the one hand, it emphasizes that the compulsory norms of general international law or international law norms are always effective.¹⁹ But on the other hand, it admits that each country has the right to terminate or stop implementing their treaties according to the force majeure clause or the principle of change of situation.²⁰ To deal with the problem, in 2011, the International Law Commission (ILC) formulated a set of Draft Articles on the Effects of Armed Conflicts on Treaties and stipulated that armed conflicts did not automatically terminate any pre-existing treaties between warring parties unless the treaties had explicitly stipulated their applicable legal force in armed conflicts.²¹ If a treaty does not explicitly state its continuous operation in its hostile operation period, whether the treaty is wholly or partly effective depends on the intentions of the contracting countries and the targets and purposes of the treaty. These two elements are not completely independent. If the contracting countries explicitly state that the treaty is applicable in the armed conflict period, it can be reasonably assumed that the targets and aims of the treaty are consistent with the situation of the armed conflict. If a treaty does not conform to the intentions of the contracting countries, the whole or part of the treaty shall continue to be applicable when the targets and aims of the treaty conform to some situation of the armed conflict.²² The International Court of Justice also adopted the principle of “opposing automatic treaty termination” in handling the accusation of the Republic of Congo against Uganda²³ and a nuclear weapon case.²⁴ In addition, Article 24 of the Rio Declaration²⁵ adopted in 1992 is often quoted as an authority requiring that various peacetime international rules should be followed in wartime.²⁶ Thus, international environmental law norms, and other branches of international law related to the environment such as international human rights law and the international laws regulating some weapons, have all been integrated into the composition of international law norms on wartime environment protection. 

 

 

Although international law norms on wartime environment protection have achieved great progress with the development of modern environmentalism since the 1960s, the international community and relevant countries facing tremendous damage to the local environment caused by war have done nothing or taken only some actions for wartime environment protection since the Vietnam War and the Gulf War.²⁷ The current military activities of Russia and Ukraine around Zaporizhzhia Nuclear Power Plant seem like the Sword of Damocles hanging over the people of Ukraine and the people of the countries around Ukraine. It can be known from the analysis of the composition of the above-mentioned norms that international law has provided sufficient norms for wartime environment protection and some scholars even think that “treaty congestion” has formed in international environmental law.²⁸ It can be found that numerous conventions and protocols have formed some frameworks and starting points for wartime environment protection, but they cannot be used to solve the current problems. To judge whether the international law norms on wartime environment protection have played their roles and explore how to make them play their roles is a pragmatic way to find the primary reason why little progress has been achieved in the actual wartime environment protection. 

 

 

The role of the general norms of jus in bello in environmental protection is mainly manifested in the above-mentioned three major principles. The three principles are the fundamental principles of international law that all warring parties must abide by. They have gradually become international customs in the trial process of various war behaviors of World War I, World War II, and the postwar period.²⁹ Therefore, they are very widely applicable and they are not limited to contracting countries of related treaties. These principles are used to protect civilians and property by maintaining a balance between military necessity and the necessity of ensuring the survival of human beings and other living forms and then indirectly protecting the environment.

 

The approval and application of the above-mentioned principles can be found in some precedents of the International Court of Justice. In nuclear weapon cases, the Advisory Opinions of the International Court of Justice on the Legitimacy of Nuclear Weapons points out: “When states consider what military operations are necessary and proportionate to achieve legitimate military targets, they must take environmental factors into account. The respect for the environment is one of the factors used to judge whether an operation conforms to both the military necessity principle and the proportionality principle.”³⁰ In another example,³¹ when the Commander of German troops Lothar Rendulic withdrew from the territory of Norway leading his troops, he adopted a scorched earth policy and ordered his soldiers to destroy all the shelters and all the means of livelihood because they were chased by Russian troops. Though his understanding proved to be wrong afterwards, he was absolved because he had reasons to believe that he did that out of military necessity. The court thought “We must judge according to what the accused considered at that time. …After we considered all the factors and possibilities, even the conclusion of the accused proved to be wrong, we cannot hold that his behavior was a crime.”³²

 

The former case has shown that environmental protection has been regarded as one of the criteria used to judge whether a military operation conforms to the principles of jus in bello and the latter case has shown the specific application of the above-mentioned principles from another angle, i.e., the application of these principles for environmental protection is limited. When some behavior is held to be legitimate, even if it has caused damage to the environment, it should not be held to be a crime. This has fully shown that the application of the above-mentioned three major principles is based on the judgment of whether wartime behavior is legitimate. Most wartime behaviors are trade-offs and balances of military commanders between ensuring military superiority and protection of civilians and the environment based on highly probabilistic judgments in the process of fierce battles. The judgments made in wartime can only be rough trade-offs between civilian and environmental protection and meeting military requirements based on some non-specific standards. The framework of international law has neither explicitly specified what elements the trade-offs should include and weight distribution among different elements nor offered sufficient specific precedent guidance.³³ It can be found that the general principles of jus in bello do not provide absolute protection for civilians. Besides, there are theoretical queries about the above-mentioned trade-offs, that is, environmental protection should be an absolute right instead of a right to make trade-offs between the requirements of warring parties. Some environmentalists worry that this kind of trade-off formula without sufficient universality and definitive property is a trade-off or competition.³⁴ In this kind of competition, a series of options that are difficult to measure, such as how to evaluate environmental costs, how to compare the environmental value with human life or other property, and whether the direct damage to the environment is greater than the possible future damage cost, how to make trade-offs between environmental value and military necessity value, and a comparison between environmental protection and achieving military targets, reducing casualties of troops to the maximum extent, etc., are placed on the two sides of a balance. Although some answers to these problems can be found in the special norms of jus in bello on environmental protection, the answers cannot be used to solve all the difficult problems. The ambiguity of the criteria has made the above-mentioned principles difficult to take effect although they have been widely accepted and have unquestioned applicability. 

 

 

The special environmental norms of jus in bello are the most explicit basis for wartime environmental protection. However, the special environmental norms are suspected of being a means of deterrence and of playing no role in environmental protection. A very typical illustration is their application in the Gulf War. The Gulf War was called “an ecological war.” The intentional attack of Iraq on the environment caused severe damage to the environment. In such circumstances, it was reasonable and necessary to require Iraq to be responsible for its behavior according to Protocol I and ENMOD. However, the resolution of the UN Security Council was not related to the problems in applying the above-mentioned treaty norms. As for the application of Protocol I, first, Iraq did not sign Protocol I; second, even if Iraq were a contracting party of the treaty, it was difficult to hold that Iraq had violated the treaty because oil leaks and fire did not meet the conditions for “widespread, long-term and severe damage” specified in Protocol I.³⁵ In addition, as for the application of ENMOD, Iraq had not approved ENMOD. Meanwhile, it could not be determined whether oil leaks and fire were caused by intentionally using environmental modification techniques to manipulate natural processes. Therefore, it was difficult to confirm that Iraq had violated relevant stipulations even if Iraq was limited by treaties.³⁶ It could be observed that the application of the special environmental norms of jus in bello was limited greatly. In summary, the main reasons that these norms could not play an ideal role can be viewed in the following several aspects: 

 

First, limitation of the scope of application. It is indisputable that these treaties have binding force on contracting countries. However, it is unclear whether these treaties are applicable when a contracting country attacks a non-contracting country. It is also unclear the situation that appears when a contracting country encourages or helps a non-contracting country to violate these treaties. In this aspect, the scope of application is related to the statements of treaties, that is, these treaties apply to contracting countries only. In another aspect, the scope of application is related to whether the above-mentioned treaties have become customary international law. Almost all countries are contracting countries of the Geneva Convention. Many countries such as Germany, Canada, and Russia have brought the content of the Geneva Convention into their military manuals and some countries such as the United Kingdom and Netherlands have explicitly prohibited damage to the environment and regard behavior that damages the environment as a crime. Viewed from this angle, Paragraph 3 of Article 35 and Article 55 of Protocol I have become customary international law, i.e., they have included international practice and opinion juris. When the International Court of Justice heard nuclear weapon cases, however, the United States, the United Kingdom, and others, explicitly opposed the customary law status of these treaties due to the restrictions of the above-mentioned clauses on nuclear weapons. The United States has ratified only one of the three treaties, i.e., DNMOD. It has not ratified either Protocol I or the Rome Statute. Although many countries have ratified or adopted Protocol I, they put have forward their opinions and their reservations, that is, they stated that these rules applied to conventional weapons, but not nuclear weapons. The conclusion that the International Committee of the Red Cross (ICRC) drew from its research on customary international humanitarian law is probably more practical, that is, Paragraph 3 of Article 35 and Article 55 of Protocol I have the effect of customary law on conventional weapons, but not nuclear weapons.³⁷ As for ENMOD, the situation is similar. Many countries have brought the rules into their military manuals and expressed their acceptance of the corresponding legal obligations. The countries include contracting countries such as Israel, the Republic of Korea, and New Zealand and non-contracting countries such as Indonesia. The UN General Assembly has also brought the rules of ENMOD into the Guidance on Environmental Protection in Armed Conflicts. Based on this, some hold the view that some clauses of ENMOD may have reached the status of customary international law.³⁸ However, the drafter of ENMOD thinks that ENMOD consists of constantly innovative rules, which limits the application of ENMOD to contracting countries. In addition, some scholars think that there are at least three kinds of damage not included in ENMOD: damage within the territories of non-contracting countries, damage within the territory of the country that carries out the behavior, and damage in international waters and other areas beyond the jurisdiction of all countries (unless some ship of a contracting country of ENMOD was impacted).³⁹ It can be seen therefore that it is hard to say that these special norms have acquired the status of customary international law although the international community has achieved a consensus on wartime environment protection. 

 

Second, the statement of the norms is both ambiguous and inconsistent. To be specific, the contents specified in the most important special environmental norms of the above-mentioned three treaties lack an international consensus. For example, although all three treaties — Protocol I, ENMOD, and the Rome Statute — have prohibited “widespread, long-term/enduring and severe” damage to the natural environment, they have not clearly defined these terms or explained these terms differently. Thus, it is difficult to coordinate their scopes of application. In addition, all three treaties have specified some environmental damage categories that are not legally prohibited, which has pre-implied that damage to some extent to the environment is acceptable and that it is impossible to fully supervise military activities in wartime. 

 

Finally, the enforcement measures exist in name only. The International Criminal Court established according to the Rome Statute is a major deterrence measure preventing environmental crimes. However, it does not do all the work it is supposed to do. The first reason is that the thresholds of the international law norms related to war crime are too high so they have not been accepted by all countries. There are not sufficiently specific criteria used to measure the military necessity principle and other principles. The second reason is that the International Criminal Court has jurisdiction over crimes of genocide, crimes against humanity, war crimes, and other crimes, and punishes the criminals. Compared with the crimes, wartime environment damage crimes belong to a smaller category and they are often neglected.⁴⁰ Meanwhile, judges of the International Criminal Court usually do not have expertise in the environmental law field. Therefore, it is difficult for them to make feasible rulings.⁴¹ The third reason is that the jurisdiction of the International Criminal Court is limited to only natural persons, it cannot take a country or army as a responsibility subject of environmental damage, its main punitive means are imprisonment and fines and they do not include any civil liability such as liability to facilitate recovery of the damaged environment.⁴²These factors have made the International Criminal Court exist in name to some extent and made it difficult for the court to effectively regulate and prevent the violating wartime environment protection norms. 

 

 

Although peacetime treaties and customs do not directly regulate the behavior of a country in armed conflicts, they help determine criminal liability specified in jus in bello and strengthen civil liability, they can provide additional legal mechanisms for responsible warring parties and they help restore or compensate for environmental damage caused by the illegal behaviors of a country.⁴³ When the general norms and special norms of jus in bello cannot be used to solve specific problems, the peacetime obligation can fill the blanks of the norms and play a key role. If it is determined that the peacetime obligation shall not automatically terminate in wartime, the concerns will focus on how the obligation is applied in wartime and the complex interaction of the obligation with other norms, especially the norms of jus in bello.⁴⁴

 

First, the specific application is ambiguous. Only some treaties have specified their application. Some treaties have specified that they may become ineffective in some special circumstances such as armed conflicts or the treaties may be applied flexibly when countries fulfill their substantial obligation. Other treaties have specified that their effects will remain the same or that environmental protection shall be strengthened during armed conflicts.⁴⁵ As for the former, it is stated in the Convention on Wetlands of International Importance Especially as Waterfowl Habitat that it may be considered under special circumstances to reduce some treaty obligation or use an alternative protection system. For example, it is stated in Paragraph 2 of Article 4 that “Where a Contracting Party in its urgent national interest, deletes or restricts the boundaries of a wetland included in the List, it should as far as possible compensate for any loss of wetland resources, and in particular it should create additional nature reserves for waterfowl and the protection, either in the same area or elsewhere, of an adequate portion of the original habitat.”⁴⁶ As for the latter, the typical treaty is the World Heritage Convention. It is stated in Paragraph 4 of Article 11 of the World Heritage Convention that when some world heritage encounters an outbreak or threat of some armed conflict, the world heritage should be added to the List of World Heritage in Danger to take some important action or give aid to protect the heritage. Besides, most peacetime international treaties have not specified their effects in wartime and how they apply depends on their intrinsic properties.⁴⁷ According to the current general practice, each related treaty should be separately analyzed, whether the purpose, goal, and nature of the treaty are compatible with the state of war should be judged and the judgment itself has some ambiguity and uncertainty. For example, if the nature of the treaty is to provide military aid and sell arms, obviously this treaty will be terminated or at least suspended during an armed conflict. However, not all treaties are so clear and indisputable, which causes a judgment process itself to possibly become a competition among national interests. 

 

Second, the joint application of norms is complex. Even if a treaty still applies and the effects of its relevant clauses do not decrease in a state of war, the environment norms must apply with other norms, especially the norms of jus in bello. The relation between the two should include at least two possibilities — conflict and collaboration.⁴⁸ When there is some conflict of norms, it is generally believed that the principle that the special law is superior to the common law should apply. Jus in bello is regarded as a dominating special law. Peacetime norms can be used to explain the purposes or deal with the field not covered by the former. This principle also applies to the collaboration of the norms. For example, in the case in which the Republic of Congo accused Uganda,⁴⁹ the International Court of Justice admitted simultaneous application of the clause about human rights of Article 21 of the African Charter on Human and People’s Rights and jus in bello. In the Nuclear Weapon Case⁵⁰ and the Israeli Separation Wall Case,⁵¹ the International Court of Justice thought that the application of jus in bello norms should be superior to the application of human rights norms though it did not eliminate the application of human rights norms. The problem is to what extent peacetime norms can be used to cover the fields in which nothing is specified in special law and whether the peacetime norms can be directly applied. For example, according to some environmental treaties, when an attack that may cause excessive collateral damage to civilians or their properties is launched,⁵² some official procedures such as evaluation of environmental impact should be carried out. However, it is difficult to carry out the procedures in a state of war. The complexity of the joint application of the norms has become a big barrier that hinders the actual application of the norms. 

 

To sum up, the true reason for insufficient wartime environment protection is not the lack of law, but the law’s failure to really and practically apply. International law norms related to wartime environment protection do not work well in the aspects of content statement, the scope of application, and enforcement measures. General norms of jus in bello, special norms of jus in bello, and the environmental protection obligation of peacetime international law in wartime are all unable or difficult to apply. This is the key reason that the international norms on protection of the environment in wartime fail to play a role in environmental protection. The ambiguity of the content statement and the weak enforcement measures make the implementation and application of the norms more difficult. 

 

 

The international community has different opinions about how to strengthen wartime protection of the environment. A representative one of the opinions is that a new convention — the fifth Geneva Convention on Environment Protection in Armed Conflicts — should be formulated.⁵³ This proposal has been established based on the judgment that the existing legal norms are not sufficient. Whether an international law norm can play a role, however, depends on international practice and each country’s practice. This task cannot be fulfilled depending on any single treaty. If the norm application problem cannot be fundamentally solved, a new convention will be still difficult to apply. In comparison, the environmental science research and critical assessment on war behavior and potential environmental consequences made by the Balkans Task Force established after the Kosovo War⁵⁴ and a series of researches that the International Law Committee conducted in 2013 focusing on the theme of “Environment Protection Related to Armed Conflicts” and attempting to illustrate wartime environment, military necessity and other concept connotations⁵⁵ can better provide the exact basis and reasonable ideas for solving some problems such as long-term effects of armed conflicts on the environment and ecological risks based on neutral and objective environmental sciences. To expand and improve the application of various kinds of numerous international law norms on that basis is a more profitable and more pragmatic practice for wartime environmental protection. 

 

 

Applying the general norms of jus in bello to protect the environment is restricted because the above-mentioned three major principles do not provide absolute protection for the environment, damage to the environment may be legitimate due to military necessity, and the judgment of whether damage to the environment is legitimate is highly uncertain. The significance of environmental protection for humanity has been becoming increasingly prominent in recent years. The idea of “No damage to environment or humanity relying on the environment shall be tolerated, no matter what purpose the damage is caused for”⁵⁶ has enjoyed popular support. The international community is more and more strongly requesting countries consider environmental factors when they want to start a war. Meanwhile, the rapid development of international environmental law and international humanitarian law has brought new rules. Thus, to absorb the development results that international law on environmental protection has achieved in recent years and update general legal principles on protection of the environment in wartime based on the traditional three major principles is feasible and practically necessary. 

 

First, the development of the principles for the protection of the environment on wartime is specified in international environmental law. In recent years, international environmental law has developed rapidly. One of the international environmental law principles is that no serious damage shall be caused to either the environment of any other countries or the environment of the areas outside of the scope of the country’s jurisdiction. Some norms such as notification and taking measures to prevent and reduce serious damage or the possibility of such damage have developed on this basis.⁵⁷ Based on the development of international environmental law, three newly-developed international law principles can be directly used to protect the environment in wartime. The principles are the general customary environmental protection obligation, prohibition of arbitrary or intentional damage to the environment without military necessity, and prohibition of excessive collateral damage to the environment.⁵⁸ The first principle is derived from the concern and intention repeatedly emphasized in general international law norms on environmental protection. The other two principles are derived from the traditional military necessity, proportionality, and discrimination principles. Although the three principles are derived from the widespread concern of the whole world for the environment and the development of international environmental law, they have been deeply integrated into the military principles of jus in bello and they can provide legal protection for the protection of the environment in wartime independent of treaties in written form. 

 

Second, updating the principles on environmental protection in wartime specified in international humanitarian law. Guided by the International Committee of the Red Cross, important research has been carried out and a definite conclusion was drawn from it. The conclusion was that at least three general principles of international humanitarian law can be used to protect the natural environment.⁵⁹ The first general principle is the general principle for applicable target protection, i.e., discriminating between military targets and non-military targets, military necessity, proportionality, etc. The second general principle is the prevention and risk prevention principle, that is, natural protection of the environment and preservation must be taken into account before any methods and means of war are adopted, and all feasible risk prevention measures must be taken in military operations to avoid and to the greatest extent reduce collateral damage to the environment. Even if the impact of some military operations on the environment lacks scientific certainty, no conflicting party is exempt from the liability for taking risk prevention measures. 

 

Third, the excessive damage prohibition principle, that is, the methods and means of war that intend or expect to cause widespread, long-term, and severe damage to the natural environment are prohibited, causing damage to the natural environment cannot be regarded as a weapon. Once damage to the environment reaches the above-mentioned standard, the military necessity or proportionality principle cannot be any justification.⁶⁰

 

The development of the above-mentioned principles is the extraction, purification, and upgrading of the norms of international law on protection of the environment in wartime. The role of the above-mentioned principles as general principles in wartime protection of the environment should be emphasized, then the application of the traditional principle of taking military necessity as the dominant principle for the protection of the environment in wartime should be gradually weakened, the negative effects possibly brought by the probabilistic judgment in interest competition should be reduced, and all countries should be urged to consider the impact on the environment, weigh alternative plans and better maintain a balance among competing interests, including that of the environment. 

 

 

To fully protect the environment in wartime and investigate the liability of relevant countries and individuals for damage to the environment, the application scope of the special environment norms of jus in bello as the most direct basis for wartime protection of the environment should be expanded, the statement of the norms should be made definite and clear and the deterrence of enforcement measures should be strengthened. 

 

First, the special environment norms should apply to all countries of the world, no matter whether they are contracting countries or non-contracting countries. The special environment norms of jus in bello should be regarded as a universal obligation that should apply to all countries, regardless of whether they have ratified or signed the agreement. For example, the viewpoint believing that the application of ENMOD should be limited to contracting countries to prevent non-contracting countries from benefiting from ENMOD without abiding by the rules of ENMOD and encourage countries to actively ratify the convention should be abandoned.⁶¹ In addition, the superposed requirements for damage to the environment specified in Protocol I can be changed into separate expressions with the word “or” to lower the threshold for environmental protection and further expand the application of ENMOD. Article 2 of ENMOD limits environmental modification techniques to intentional behavior and Article 3 of ENMOD excludes the environment modification techniques used for peace from the scope of application. Both of the articles have restricted the application of the convention. It should be stipulated that any behavior directly or indirectly causing damage to the environment shall be illegal no matter whether the behavior occurs during an armed conflict or in peacetime.

 

Second, the relevant norms must be specific so they are indisputably understood by the international community. As a whole, the meanings of the terms used in the existing special norms such as “widespread,” “long-term”/ “durable” and “severe” can be made clearer and unified by amending them or submitting new proposals to avoid contradictions and confusion among different treaties or customs. Meanwhile, occasional or indirect damage to the environment should also be brought into the scope of protection to comprehensively supervise military activities in wartime.⁶²

 

Third, the enforcement means should be increased and the compelling force should be strengthened. To ensure the successful application of special environment norms of jus in bello, the Rome Statute must be adjusted. The first measure is to supplement the rules of imposing sanctions on countries that do not follow the relevant provisions of the Rome Statute. For example, if a country refuses to extradite culprits to the International Criminal Court or it refuses to do other things that the court asks it to do, economic sanctions, trade restrictions, aid reduction, and other means can be used to urge the country to fully support the statute. The second measure is to increase the environmental damage categories specified in the Rome Statute and make the Rome Statute consistent with Protocol I and ENMOD. Compared with intentional damage to the environment in wartime, negligent behavior such as carelessness is the major category causing damage to the environment, and it should be included in the prosecution scope of the International Criminal Court according to the Rome Statute. The third measure is to add civil liability to the punitive means in addition to imprisonment and other punitive means, to help restore the damaged environment to its former state.⁶³

 

 

To remove ambiguity and reduce the complexity of the application of the peacetime international law in wartime, the uncertainty of the wartime application can be eliminated, the process of judging whether it applies can be simplified and interest competition and antagonism between countries can be weakened by determining the application method of the whole specific category. Meanwhile, with the constant rise of environmental protection in many fields of international law, the impact of the wartime environment protection obligation of peacetime international law on the norms of jus in bello gradually increases when the norms are made consistent with each other, and then the direct application possibility is increased. Facing numerous complicated rules of peacetime international law, at least three categories of norms are applicable, no matter whether there are any specific provisions on their wartime effects in the treaties. 

 

First, the application of international human rights law in wartime should be emphasized. The rules of international human rights law are still effective in wartime, especially the “unalienable” clauses of some treaties.⁶⁴ The right to the environment is always an important theme in international human rights law. Environmental protection is an indispensable precondition for enjoying human rights. Damage to the environment is not only both a real threat and a potential threat to human health but also infringes upon human values such as human culture and human aesthetics. Therefore, viewed from the angle of humanity itself, environmental protection is the protection of human rights. The Stockholm Declaration of 1972 emphasizes the synergistic effect of environment and human rights, and Principle 1 of the Stockholm Declarationstates: “Man has the fundamental right to freedom, equality and adequate conditions of life, in an environment of a quality that permits a life of dignity and well-being”⁶⁵. Concepts related to the right to the environment are also derived from the European Convention on Human Rights, the International Convention on Civil and Political Rights, the International Convention on Economic, Social and Cultural Rights, the American Convention on Human Rights, etc. in addition to Stockholm Declaration. For example, the European Convention on Human Rights determines the scope of environmental protection by taking the direct causal relation between damage to the environment and serious infringement of personal rights as the condition.⁶⁶ It has been stated in the Analytical Study on the Relationship between Human Rights and the Environment published in 2011 by the Office of the High Commissioner for Human Rights (OHCHR) that human rights as a means of environmental protection has instrumental value, the right subjects of human rights are widespread and can be very specific, these right subjects of human rights can lodge petitions to more judicial or quasi-judicial authorities besides international environmental law, human rights have a more powerful social and political appeal than a single environment consideration and therefore, human rights can facilitate the petitions.⁶⁷ It can be found that international human rights treaties including environmental protection clauses are still applicable in wartime, warring countries should not only respect human rights in the narrow sense but also respect environmental protection in the system in which human rights law is respected. 

 

Second, the wartime application of international environmental law should be determined. Although most international environmental treaties have not mentioned their effects in wartime, the viewpoint of believing that environmental norms are generally applicable in wartime is gaining more and more support from the international community. This proposition has been established based on the fact that the targets and purposes of some environmental treaties are not necessarily incompatible with armed conflicts. At least two categories of environmental treaties, i.e., treaties for the protection of the areas outside the scope of a country’s jurisdiction and treaties on public resources protection, are still effective in wartime.⁶⁸ The former includes environmental treaties formulated for the universal interests of the whole international community such as the United Nations Convention on the Law of the Sea⁶⁹ and the Antarctic Treaty⁷⁰. For example, it is stated in the preface of the Antarctic Treaty that “For the sake of the whole human interests, Antarctica shall be always used for peaceful purposes only. It shall never become a place or target of international disputes.” The latter includes the United Nations Framework Convention on Climate Change.⁷¹ The convention states that “global climate change and its adverse effects are an issue of human common concern.” What the convention protects is the environmental conditions necessary for human survival. The convention maintains the environmental balance for the sake of the interests of the whole international community while maintaining territorial integrity or other national interests is only its accessory function. Like treaties on human rights protection, the two categories of treaties are mostly multilateral treaties, their scopes or targets of jurisdiction do not directly affect the interests of one or more specific countries. However, they benefit the whole international community and they are the issues faced by all members of the international community. Therefore, international cooperation to achieve this common purpose should be the primary goal even in wartime. These treaties have binding force on warring countries in wartime. If some treaty violation behavior affects a country or a group of countries or the consequences caused by some obligation violation are borne by the whole international community, the affected countries may invoke relevant clauses and require that the behavior of the country that has violated one or more treaties should be restricted according to law.⁷² Practices of the international courts have also proved the possibility of invoking responsibility. For example, the International Tribunal for the Law of the Sea (ITLOS) has stated that contracting countries may claim compensation according to the universal obligation to protect the high seas and the environment of high seas and the International Seabed Authority (ISA) also has the right to claim for similar compensation “on behalf of humanity.”⁷³

 

Third, the wartime application of international law related to war should be strengthened. This category is different from jus in bello and they are international law norms related to war. They mainly include jus ad bellum and arms control laws. Because the contents of the treaties are mostly peacetime obligations, the treaties are grouped into the peacetime international law category to facilitate our discussion. Jus ad bellum has mainly specified the right of a state to war and its contents focus on whether war or an armed conflict should be launched or not.⁷⁴ Paragraph 4 of Article 2 of the Charter of the United Nations prohibits any act of aggression. This stipulation is considered an international mandatory law. Article 51 of the Charter of the United Nations states that a state should have the right to “self-defense.”⁷⁵ In addition to this, some international law norms such as the Convention on Peaceful Settlement of International Disputes and the General Treaty for Renunciation of War as an Instrument of National Policy include similar stipulations. Why such legal obligations are regarded as peacetime obligations is that they are related to the stipulations and restrictions on peacetime decisions of countries to resort to force. The international community always adheres to bullum justum in the war law field. It classifies wars into “just wars”, “unjust wars”, “legitimate wars” and “illegitimate wars”. It explicitly condemns and opposes unjust wars and illegitimate wars. Warring countries should be responsible for the consequences of the war they caused against jus ad bellum. The consequences include damage to the environment caused by war. This has been verified in practice.The United Nations Security Council Resolution 687 declared that it violated jus ad bellum that Iraq invaded and occupied Kuwait in 1991 and therefore, Iraq should be responsible for all the damage, including damage to the environment, caused by the war.⁷⁶ This practice has great deterrence. It has indicated the great potential of the peacetime obligation of international law in dealing with wartime damage to the environment. This practice can make up for some deficiency of jus in bello in environmental protection. Arms control law regulates some types of weapons (biological weapons, chemical weapons, and nuclear weapons), i.e., it regulates the production, storage, transport, use, and destruction of weapons regarding weapons as “pollutants,” to eliminate their impact on the environment.⁷⁷ Arms control law mainly includes the Biological and Toxin Weapons Convention, the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction and the Treaty on the Prohibition of Nuclear Weapons. These treaties are related to specific weapons and they include the whole life cycles of the weapons including the use of weapons. Therefore, they should not only include peacetime obligations such as the prohibition of the development, production, and stockpiling of bacteriological (biological) and toxin weapons⁷⁸ but also include wartime use of specific weapons. This comprehensive regulation mode should play a role in both peacetime and wartime. 

 

Improving the applicable rules of the above-mentioned international law norms on wartime environmental protection enables the existing international law system to give play to its maximum potential, regulate various wartime behavior that causes environmental damage and urges that corresponding responsibility be borne by relevant countries and persons. Full application of a definite and forward-looking international law norm system makes it possible to establish practical international and domestic mechanisms for the protection of the environment in wartime, including the establishment of an international committee for the protection of the environment in wartime, with investigative power, prosecution right, and effective law enforcement power, urging countries to revise their military manuals, integrate the manuals into their environment protection rules embodying the spirit of the above-mentioned treaties and change their attitudes and practices toward the environment in military operations, and prompting warring countries to adopt feasible prevention measures when they plan or launch military operations. Compared with formulating new international conventions, strengthening the application of the current norms is a more feasible approach to optimizing the international conventions. In the international law norm system on wartime environment protection consisting of the general norms and special norms of jus in bello and the wartime environment protection obligation of peacetime international law, the general norms and special norms of jus in bello are undoubtedly the major and most important environmental protection mode at the present stage. This is determined by the course of the gradual development history of the international law norms on wartime environment protection starting from scratch. To gradually increase the wartime application depth and extent of peacetime international law and even eliminate the difference between wartime and non-wartime environment protection of international law should be a higher pursuit and goal of international law on environment protection in the future. 

 

 

Environmental protection is one of the greatest challenges that human society faces and requirements for environmental protection should be taken into account when human activities, including war, are carried out. Therefore, a balance between the reality of military necessity and the survival necessity of humanity and other life forms must be achieved. The general norms and special norms of jus in bello have provided direct and indirect important legal protection for the environment in wartime. Meanwhile, the wartime application of peacetime international law has also provided an additional legal obligation for environmental protection. Generally speaking, an international law norm system with abundant connotations has been formed. However, because these norms are numerous and they belong to many different categories, the difficulty levels of their application are different, which has enabled warring countries to evade their wartime responsibilities for environmental protection. This situation is the key reason for the failure of wartime environmental protection. It is impossible to successfully fulfill wartime environmental protection tasks only by formulating a new wartime environmental protection convention, and the new convention may fail to improve the current situation and fall into a vortex too. 

 

By comparison, to update the general principles on wartime environment protection, improve the wartime special norms on environmental protection,emphasize the wartime application of peacetime international law and give full play to the maximum effects of the existing norm system based on the results achieved in the long-term development of international law norms on environmental protection is a more pragmatic and more effective approach to achieving wartime environment protection. 

 

(Translated by LIU Zhao)

 

* REN Zhuoran ( 任卓冉 ), Associate Professor of the School of Law, Jiangnan University.

 

1. M. N. Schmitt, “War and the Environment: Fault Lines in the Prescriptive Landscape,” in The Environmental Consequences of War: Legal, Economic and Scientific Perspectives (Cambridge: Cambridge University Press, 2000), 87-92.

 

2. William M. Arkin, “The Environmental Threat of Military Operations”, Protection of the Environment During Armed Conflict (Newport RI: Naval War College, 1996), 116.

 

3. Varun K. Aery, “The Human Right to Clean Air: A Case Study of the Inter-American System,” 6 Seattle Journal of Environmental Law 15 (2016): 18.

 

4. Shao Shaping, International Law (Beijing: China Renmin University Press, 2015), 448.

 

5. These three principles have been specified in multiple international treaties such as Paragraph G, Article 23, Hague Regulations, i.e., the Annex to the 1907 Hague Convention IV Respecting the Laws and Customs of War on Land. According to the paragraph, it is forbidden “to destroy or seize the enemy’s property unless the war urgently needs to destroy or seize the enemy’s property.” No more details will be given next.

 

6. Capt William A. Wilcox, “Environmental Protection in Combat,” 17 S. ILL. U. L. J 2 (1993): 302.

 

7. Stephanie N. Simonds, “Conventional Warfare and Environmental Protection: A Proposal for International Legal Reform,” 29 STAN. J. INTL L 1 (1992): 168.

 

8. Article 52 of the First Additional Protocol to the 4th Geneva Conventions.

 

9. Ibid., Paragraph 3 of Article 56. 

 

10. Peter J. Richards and Michael N. Schmitt, “Mars Meets Mother Nature * Protecting the Environment During Armed Conflict,” 28 Stetson L. Rev 4 (1999): 1061.

 

11. The doctrine of “utilitarianism” believes that environment provides living basis for all creatures and the precondition for environmental protection support is that the environment facilitates human development and provides the means for mankind so that mankind can achieve its purposes. The doctrine of “intrinsic value” believes that the environment itself has intrinsic value that exceeds its value for mankind. It emphasizes environmental benefit instead of human benefit in environmental protection. The contradiction and struggle between the two doctrines are frequently reflected in the formulation and implementation processes of the international law norms on environmental protection. See Merrit P. Drucker, “The Military Commander’s Responsibility for the Environment,” 11 Envtl. Ethics (1989): 136-140.

 

12. Paragraph 1 of Article 1 of the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD).

 

13. Y. Sandoz, C. Swinarsky and B. Zimmermann, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Convention of 12 August 1949, Leiden/Geneva: Martinus Nijhoff/International Committee of the Red Cross, 1987, ad Art. 35 (3): 1449-1459.

 

14. Laurent R. Hourcle, “Environmental Law of War,” 25 Vt L Rev 3 (2001): 674-675.

 

15. Convention Concerning the Protection of the World Cultural and Natural Heritage, 16 November 1972, 1037 UNTS 151 (WHC), Art. 11 (4).

 

16. African Charter on Human and Peoples’ Rights, 27 June 1981, 21ILM 58 (1982) (African Charter), Art. 21.

 

17. J. G. Castel, “Effect of War on Bilateral Treaties: Comparative Study,” Mich. L. Rev 51(1953): 567.

 

18. Article 73 of Vienna Convention on the Law of Treaties: “The provisions of the present Convention shall not prejudge any question that may arise in regard to a treaty from a succession of States or from the international responsibility of a State or from the outbreak of hostilities between States.”

 

19. Ibid., Articles 53 and 64. 

 

20. Ibid., Articles 61 and 62. 

 

21. ILC, Draft Articles on the Effects of Armed Conflict on Treaties, 9 December 2011, GA Res. 66/ 99, UN Doc. A/RES/66/99 (2011 ILC Draft Articles), Art. 3-4.

 

22. Ibid., Art. 6, Art. 7 and Art. 12.

 

23. International Court of Justice, Judgment: Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda) (2005): 216 and 219-220.

 

24. International Court of Justice, Advisory Opinion: Legality of the Threat or Use of Nuclear Weapons (July 8, 1996).

 

25. It is stipulated in Principle 24 of the Rio Declaration: “Warfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary.”

 

26. E. T. Jensen, “The International Law of Environmental Warfare: Active and Passive Damage During Armed Conflict, 38 Vand. J. Transnat’L L 1 (2005): 163.

 

27. Arie Afriansyah, “State Responsibility for Environmental Protection during International Armed Conflict,” 8 Indonesian I INTI L 3 (2011): 498-500.

 

28. Laurent R. Hourcle, “Environmental Law of War,” 675.

 

29. Sun Shimin, “On the Proportionality Principle for Environmental Protection Related to Armed Conflict,” South China Sea Law Journal 4 (2020): 106.

 

30. International Court of Justice, Advisory Opinion: Legality of the Threat or Use of Nuclear Weapons (July 8, 1996), 30.

 

31. Hostage Case (US v. List), 11 TWC 759 (1950).

 

32. G. D. Solis, The Law of Armed Conflict: International Humanitarian Law in War (Cambridge: Cambridge University Press, 2010), 289.

 

33. Adam Roberts, “Environmental Issues in International Armed Conflict: The Experience of the 1991 Gulf Wax,” in Protection of the Environment During Armed Conflict (Newport RI: Naval War College, 1996), 229.

 

34. Adam Roberts, “Environmental Issues in International Aimed Conflict: The Experience of the 1991 Gulf War,” Int’l L Stud. Ser. US Naval War Col 69 (1996): 236-237.

 

35. Luan Low and David Hodgkinson, “Compensation for Wartime Environmental Damage: Challenges to International Law After the Gulf War,” 35 VA. J. INT’L L 2 (1995): 427.

 

36. Ibid, 430-432.

 

37. Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law (Cam bridge: Cambridge University Press, 2005), 154.

 

38. Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge: Cambridge University Press, 2004), 181. Or Roman Reyhani, “Protection of the Environment during Aimed Conflict,” 14 Melpr 2 (2007): 326.

 

39. Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge: Cambridge University Press, 2004), 180.

 

40. Beth Fain, “The International Criminal Court: An Eminent Impact on a Hesitant United States,” 25 Tex. Tech L.Rev 1 (2004): 165.

 

41. Mark Kielsgard, “War on the International Criminal Court,” 8 N. Y. City L. Rev 1 (2005): 8-9.

 

42. Mark Drumbl, “Waging War Against the World: The Need to Move from Wax Crimes to Environmental Crimes,” 22 Fordham Int’l L. J 1 (1998): 149-150.

 

43. Walter G. Sharp Sr, “The Effective Deterrence of Environmental Damage during Armed Conflict: A Case Analysis of the Persian Gulf War,” 137 Mil. L. Rev 1 (1992): 28.

 

44. Pierre-Marie Dupuy and Jorge E. Viñuales, International Environment Law, translated by Hu Bin and Ma Liang (Beijing: China Social Sciences Press, 2021), 491-492.

 

45. Ibid., 494. 

 

46. Convention on Wetlands of International Importance especially as Waterfowl Habitat, 2 February 1971, 996 UNTS 245 (Ramsar Convention), Art. 4 (2).

 

47. Walter G. and Sharp Sr., “The Effective Deterrence of Environmental Damage during Aimed Conflict: A Case Analysis of the Persian Gulf War,” 137 Mil L Rev 1 (1992): 23.

 

48. Pierre-Marie Dupuy and Jorge E. Viñuales, International Environment Law, 496. 

 

49. International Court of Justice, Judgment: Armed Activities on the Territory of the Congo, 245.

 

50. International Court of Justice, Advisory Opinion: Legality of the Threat or Use of Nuclear Weapons (July 8, 1996), 25.

 

51. International Court of Justice, Advisory Opinion: Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (2004), 106.

 

52. For example, according to Paragraph 2 of Article 57 of the First Additional Protocol to Geneva Conventions, those who plan or decide upon an attack shall “take all feasible precautions in the choice of means and methods of attack,” “effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.”

 

53. For example, Greenpeace thought it was necessary to formulate the Fifth Geneva Convention at the round-table conference held in London on June 3, 1991. See “Greenpeace Wants to Outlaw Making War on Environment”, New York Times, March 11, 1991, A9.

 

54. Laurent R. Hourcle, “Environmental Law of War,” 670.

 

55. Marie G. Jacobsson, Preliminary Report on the Protection of the Environment in Relation to Armed Conflicts, Special Rapporteur, 30 May 2014, UN Doc. A/CN. 4/467 (“Preliminary Report-Jacobsson”).

 

56. Laurent R. Hourcle, “Environmental Law of War,” 675.

 

57. Bruce A. Harlow and Michael E. McGregor, “International Environmental Law Considerations during Military Operations other than War,” International Law Studies Series. US Naval War College 69 (1996): 315-317.

 

58. Erik Koppe, The Use of Nuclear Weapons and the Protection of the Environment during International Armed Conflict (Hart: Oxford University Press, 2008), 247 and 273.

 

59. J-M. Henckaerts. and L. Doswald-Beck, Customary International Humanitarian Law (Cambridge: Cambridge University Press, 2009), Rules 43, 44 and 45.

 

60. Ibid, 143, 147 and 151.

 

61. Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge: Cambridge University Press, 2009), 178.

 

62. Eric Jensen, “The International Law of Environmental Warfare: Active and Passive Damage During Armed Conflict,” 38 Vand. J. Transnat’L L 1 (2005): 182.

 

63. Mark Drumbl, “International Human Rights, International Humanitarian Law, and Environmental Securi ty: Can the International Criminal Court Bridge the Gaps?”, 6 Itsaj. Int’l & Comp. L 2 (2000): 332.

 

64. J Jeremy Marsh, “Rule 99 of the Customary International Humanitarian Law Study and the Relationships between the Law of Armed Conflict and International Human Rights Law,” Army Law 5 (2009): 18.

 

65. Declaration of the United Nations Conference on the Human Environment, Stockholm, 16 June 1972, UN Doc. A/CONF 48/14/Rev. 1, pp. 2ff (Stockholm Declaration).

 

66. Fadeyeva v. Russia, ECtHR Application No. 1411/03, Judgment (merits), 8 July 2008, 90.

 

67. the Office of the High Commissioner for Human Rights (OHCHR), Analytical Study on the Relationship between Human Rights and the Environment, 16 December 2011,UN Doc. A/HRC/19/34, 7-8.

 

68. Silja Voneky, “Analogy in International Law,” in Max Planck Encyclopedia of Public International Law, available at www. mpepiL com.

 

69. United Nations on the Law of the Sea (opened for signature 10 December 1982, entered into force 16 November 1994) [the 1982 UNCLOS].

 

70. The Antarctic Treaty (opened for signature 1 December 1959, entered into force on 23 June 1961) [the 1959 Antarctic Treaty].

 

71. United Nations Framework Convention on Climate Change (opened for signature 4 June 1992, entered into force on 21 March 1994) [the 1992 UNFCCC].

 

72. The 2001 ILC Draft Articles on Responsibility of States for Internationally Wrongful Acts and Commentaries. Report of the International Law Commission to the General Assembly on the work of its Fifty-third session A/56/10 (2001), art. 48 (1).

 

73. Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area (Advisory Opinion) (Case No. 17) [2011] ITLOS at [180].

 

74. Shao Shaping, International Law, 446.

 

75. YoramDinsteinWar, Aggression, and Self-Defense, 4th edition (Cambridge: Cambridge University Press, 2005), 99-100.

 

76. Luan Low and David Hodgkinson, “Compensation for Wartime Environmental Damage: Challenges to International Law after the Gulf War,” 35 Va. J. Int’l L 2 (1995): 456.

 

77. Pierre-Marie Dupuy and Jorge E. Vi?uales, International Environment Law, 481.

 

78. Fourth Review Conference, Geneva, 25 November-6 December 1996, Final Declaration, 3.