Tirthdas, Samantha Ann Tanquintic

1 November 2015 | Professor Casis

SLR Draft 1

Green-keeping: International Environmental Law in the Context of Armed Conflict

I) INTRODUCTION. The protection of the environment has continued to gain acceptance as an

obligation of states within in their sovereign territories and that resulting from state actions.
However the extent of that obligation, how that obligation is performed, and how that
obligation is enforced by the international community is far from clear definition and
consensus. While it is clear that the costs of waging wars of armed conflict are high, the cost
of irreparable environmental harm is often overlooked. Consideration of the effects to the
environment in times of armed conflict is a fairly recent concern in the international
community with its roots emanating from the growing concern in the 1950s regarding the
long-term harmful consequences of testing and using nuclear weapons1 This paper shall focus
on an assessment of existing international environmental law pertaining to the environmental
cost of armed conflict with nuances towards international armed conflict. With growing
military arsenals and increasing destructive power of weapons and warfare, even to the extent
of manipulating the environment itself as a weapon, the destruction to the environment that
war leaves in its path has been escalating to levels of irreparable damage to the environment.
Thus the necessity for a regime in international law which not only recognizes the threat of
environmental destruction that armed conflict imposes, but more importantly enforces the

1 Kirchner p266

obligation of states to mitigate if not prevent the consequences of environmental harm during
times of armed conflict.
A) WHAT IS GREEN-KEEPING? Green-keeping is the environmental equivalent of
peacekeeping, it is used to describe the active or passive use of armed forces to protect
the environment from severe and widespread environmental harm during armed conflict2.
The concept of Green-keeping builds on the precautionary principle, wherein states are
supposed to devise measures by which the safety of the environment is assured when
state actions pose significant threats to the environment, without the necessity of
scientifically proven specific damage. The precautionary principle if clearly elucidated in
Principle 15 of the Rio Declaration on Environment and Development:
In order to protect the environment, the precautionary approach shall be widely
applied by States according to their capabilities. Where there are threats of serious
or irreversible damage, lack of full scientific certainty shall not be used as a
reason for postponing cost-effective measures to prevent environmental
degradation3.
This is precautionary principle is taken along with the principles of necessity and
proportionality which shall be expounded on in greater detail throughout this paper.

II) OBLIGATIONS OF STATES AND STATE RESPONSIBILITY. The fundamental basis of

state responsibility is clearly elucidated in the International Law Commission Draft Articles
on State Responsibility which establishes that a state commits an internationally wrongful act
2 Parsons; The Fight to Save the Planet: U.S. Armed Forces, "Greenkeeping," and Enforcement of the Law
Pertaining to Environmental Protection During Armed Conflict; p 73

3 Principle 15 Rio Declaration

when its conduct is attributable to the state and when that conduct constitutes a breach of an
international obligation of the state4. It is of primary importance to look at the establishment
of the severe damage to the environment as a breach of an international obligation.
There exists a general obligation of states to ensure that activities within their jurisdiction and
control, and respect the Environment of other states or of areas beyond national control this
was established by International Court of Justice in its Advisory Opinion on the Legality of
the Threat or Use of Nuclear Weapons, to wit:
"The Court does not consider that the treaties in question could have intended to
deprive a state of the exercise of its right of self-defence under international law
because of its obligations to protect the environment. Nonetheless, States must
take environmental considerations into account when assessing what is necessary
and proportional in the pursuit of legitimate military objectives. Respect for the
environment is one of the elements that go to assessing whether an action is in
conformity with the principle of necessity and proportionality."
Such general obligation extends to not just activities within their territories but rather
encompasses even actions taken in the environment of other states. Furthermore in the
International Law Commission Draft Articles on State Responsibility Article 19 (3) (d), the
International Law Commission recognized certain acts as international crimes, and included
among them is massive pollution:
"A serious breach of an international obligation of essential importance for the
safeguarding and preservation of the human environment, such as those
prohibiting massive pollution of the atmosphere or of the seas."5
The above-quoted provision does not discuss the environmental protection specifically within
the context of armed conflict, its significance is in identifying environmental pollution as an
4 ILC Draft Articles on State Responsibility
5 ILC Draft ASR

international crime. The International Law Commission did however subsequently define in
greater detail the obligation of environmental protection in the context of armed conflict in
Article 20 (g) of the 1996 Draft Code of Crimes Against the Peace and Security of Mankind
which states:
Any of the following war crimes constitutes a crime against the peace and
security of mankind when committed in a systematic manner or on a large scale...
(g) In the case of armed conflict, using methods or means of warfare not justified
by military necessity with the intent to cause widespread, long-term and severe
damage to the natural environment and thereby gravely prejudice the health or
survival of the population and such damage occurs.6
Further iterated in Article 8(2)(b)(iv) of the 1998 Rome Statute which states:
Other serious violations of the laws and customs applicable in international
armed conflict, within the established framework of international law, namely, any
of the following acts...
(iv) Intentionally launching an attack in the knowledge that such attack will cause
incidental loss of life or injury to civilians or damage to civilian objects or
widespread, long-term and severe damage to the natural environment which
would be clearly excessive in relation to the concrete and direct overall military
advantage anticipated;7
Under the said provision severe damage to the environment that exceeds military necessity is
a serious violation of international law, it is considered a war crime. This provision in the
Rome Statute is a noteworthy development in international law because prior to its enactment
international law had only prohibited acts of environmental destruction had direct harm to
humans, this provision prohibits military attacks that causes severe environmental damage

6 Article 20 (g) of the 1996 Draft Code of Crimes Against the Peace and Security of Mankind
7 Rome Statute Article 8 (2)(b)(iv)

excessive to military proportionality even if the damage was limited to the non-human
natural environment. Such obligation of environmental considerations during Armed Conflict
is further expanded in Articles 35 and 55 of the Protocol Additional to the Geneva
Conventions of 1949 and Relating to the Victims of International Armed Conflict (Protocol I)
wherein it relies on the cumulative conditions of widespread, long-term, and severe in lieu
of proportionality. As such, environmental damage that meets the threshold of widespread,
long-term, and severe is a breach of Protocol I irrespective of any other considerations of
military necessity and proportionality.
It is clear from the foregoing that there exists an obligation in international law for States not
to undertake military actions which will result in the severe, widespread, and long-term
damage to the environment and to take such obligation into account in their pursuit of
legitimate military objectives.
III) ENVIRONMENTAL IMPACT OF ARMED CONFLICT
A) DESTRUCTIVE CAPACITY OF MODERN WEAPONRY AND WARFARE ON THE
ENVIRONMENT.
The evolution of modern weaponry and warfare has amplified the cost of armed conflict
to both human life and the natural environment. And while some might argue that modern
weaponry has brought about technology that allows weapons to be more targetive, it is
clear that the weapons and methods employed have increased in overall destructive
capacity. Nuclear, Chemical, Biological, and Environmental Modification weapons
present a continuous threat to human life not only through deaths resulting directly from
it but from catastrophic or long-term damage to the environment that populations and
animal species depend on for survival. It is estimated that ten to thirty percent of the

environmental destruction of our planet and approximately two-thirds of

chlorofluorocarbon-113 can be attributed to military activity8.
(a) NUCLEAR WEAPONS. World War II brought about increased interest in the
weaponization of nuclear capabilities in an increasingly hostile global political
environment. The appointment of Adolf Hitler as the Chancellor of Germany in
January 1933 and his increasing interest in nuclear research led to the acceleration
of research efforts of the allied forces with the collaboration of Great Britain, the
United States, and Canada on the Manhattan Project in order to counter the threat
of a suspected Nazi German Atomic Bomb Project.
a. The Destructive Capacity of Modern Weaponry and Warfare on the Environment.
i. Military Training Areas and Disposal of Hazardous Waste
ii. Nuclear Weapons
1. The Manhattan Project and the Soviet Atomic Bomb Project
2. 1945 Atomic Bomb Attack on Japan
3. Cuban Missile Crisis
4. The Cold War
iii. Chemical Weapons
1. The First and Second World Wars
2. The Cold War
3. Iran-Iraq War
4. Aum Shinrikyu
iv. Biological Weapons
1. Before the 1900s
2. The First and Second World Wars
3. Post World War
v. Environmental Modification Weapons
1. Agent Orange
a. The Malayan Emergency: The Briggs Plan
b. The Vietnam War: Operation Ranch Hand
b. Environmental Damage following the War Path
i. Harm to Biodiversity and Destruction of Habitats
ii. Unexploded Ammunition and Abandoned Materials

8 Suzan D. Lanier-Graham, The Ecology of War: Environmental Impacts of Weaponry

and Warfare xxix (Walker & Company, 1993)

B) ENVIRO-HUMANITARIAN RULES. Enviro-Humanitarian Rules are international rules

pertaining to military activities that are a hybrid of both environmental and humanitarian
considerations. Enviro-Humanitarian Rules reinforce the paradigm of the Right to a Safe
Environment and a Healthy Ecology is a human right.
Unlike most humanitarian law rules which are usually applicable to both international
and internal armed conflicts, Enviro-Humanitarian Rules thus far apply only to
international armed conflict. Perhaps attributable to the reason that international
conventions relevenant to arms control and the disarmament of military forces are often
the main sources of Enviro-Humanitarian Rules, it is also derived from international
conventions that are directed to restrain military activities that may harm the environment
during international armed conflicts.
C) THE CUSTOMARY LAW OF WAR. In order to understand the environmental laws
applicable in the context of international armed conflict, we must first understand what
international armed conflict is and the principles of Military Necessity; Proportionality;
Discrimination; and Humanity which taken along with the precautionary principle shape
the environmental laws and rules which govern during times of international armed
conflict. The International Criminal Tribunal for the former Yugoslavia (ICTY) proposed
a general definition of international armed conflict. In the Tadic case, the Tribunal stated
that "an armed conflict exists whenever there is a resort to armed force between States"9.
(a) Military Necessity; Proportionality; Discrimination; and Humanity
(b) The Hague Regulations
ii) Military Doctrine in Environmental Protection During Armed Conflict
iii) The Principle of Intergenerational Equity
IV) Legal Regimes in the Environmental Law of Armed Conflict
A) International Environmental Hard Law Instruments & Treaty Law
i) 1959 Antarctic Treaty
ii) 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating,
Poisonous or other Gases, and of Bacteriological Methods of Warfare
9 Tadic case

iii) Convention on the Prohibition of Military or Any Other Hostile Use of Environmental
Modification Techniques (ENMOD) of 1986
iv) Additional Protocol I 1977 to the Geneva Convention
v) United Nations Convention on Certain Conventional Weapons
vi) Protocol III annexed to the Convention on Conventional Weapons
vii) United Nations Convention on the Law of the Sea
viii) Convention on the Prohibition of the Development, Production, Stockpiling and
Use of Chemical Weapons and on their Destruction
ix) Convention on the Prohibition of the Development, Production, Stockpiling, and Use
of Bacteriological and Toxin Weapons
x) Convention on the Prohibition of the Use, Stockpiling, Production, and Transfer of
Anti-Personnel Mines and on Their Destruction
xi) Geneva Protocol on Monitoring Compliance with Chemical and Germ Warfare
B) International Environmental Soft Law
i) Stockholm Declaration & Stockholm Conference Principle 21
ii) United Nations Declaration on Environment and Development
iii) Rio Declaration
iv) 1982 World Charter for Nature
v) General Principles of International Law Arising from the Dictates of Public
Conscience
(a) The Martens Clause
(b) The IUCN Amman Clause
C) Movements in Environmental Protection During Armed Conflict
i) 3rd Meeting of the Preparatory Committee in Geneva
ii) the Consultation on the Law Concerning the Protection of the Environment in Times
of Armed Conflict by the International Council of Environmental Law (ICEL)
iii) The United Nations Conference on the Environment and Development (UNCED)
iv) The Second Review Conference of the Parties to the ENMOD Convention
v) The Doha Conference on International Legal Issues arising under the United Nations
Decade of International Law
V) Conclusion
A) Approaches in Moving Forward in International Environmental Law of Armed Conflict
i) International Convention Approach
ii) Consolidation Approach
iii) Customary Law & Military Guidelines Approach
B) Use of Military Doctrine to forward International Environmental Law of Armed Conflict
in Conjunction with the Existing Legal Framework of International Environmental Law