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Critical perspectives on environmental protection in non-international armed conflict: Developing the principles of distinction, proportionality and necessity

Published online by Cambridge University Press:  13 September 2019

Tara Smith
Tara Smith*
Affiliation:
Bangor University, LL572DG, Gwynedd, United Kingdom
*
Email: [email protected]
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Abstract

This article presents a timely and relevant critical examination of the customary international law principles of distinction and proportionality, and the doctrine of military necessity and the extent to which they can be better interpreted to protect the environment during the conduct of hostilities in non-international armed conflict. In so doing, this article contributes new perspectives to the ongoing debate on how environmental protection ought to be enhanced during non-international armed conflict. The article also suggests ways in which the International Law Commission (ILC) might approach the development of draft principles based on these customary principles as part of their current programme of work.

Keywords

customary international lawenvironmentInternational Law Commissionnon-international armed conflict
Type
ORIGINAL ARTICLE
Information
Leiden Journal of International Law , Volume 32 , Issue 4 , December 2019 , pp. 759 - 779
Copyright
© Foundation of the Leiden Journal of International Law 2019 

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References

1 See, for example, Mullins, C., ‘Conflict Victimisation and Post-Conflict Justice 1945–2008’, in Bassiouni, M. Cherif (ed.), The Pursuit of International Criminal Justice: A World Study on Conflicts, Victimization, and Post-Conflict Justice (2010), 67–107.Google Scholar See also the remarks of Mr. Park at the 3266th Meeting of the International Law Commission: International Law Commission, Provisional summary record of the 3266th Meeting, Sixty-seventh session (second part), A/CN.4/SR.3266, 20 May 2016, at 7, 10.

2 See the views of Mr. El-Murtadi at the 3269th Meeting of the International Law Commission: International Law Commission, Provisional summary record of the 3269th meeting, Sixty-seventh session (second part), A/CN.4/SR.3269, 22 September 2015, at 9.

3 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3, Arts. 35(3), 55(1). The thresholds of harm in these provisions have been heavily criticized.

4 It has been suggested that the provisions of Additional Protocol I related to environmental damage arguably apply as a matter of customary international law in non-international armed conflict. See the ICRC’s Customary Law Database, Rule 45, available at https:\\ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule45. However, analysis of the state practice and opinio juris presented as evidence demonstrates that there is no clear intention on the part of states to extend the applicability of these provisions beyond the conflicts to which Additional Protocol I applies. For example, when drafting the Statute of the International Criminal Court, states had the opportunity to reflect such emerging customary practice in new provisions relating to war crimes. However, they decided not to create a war crime in non-international armed conflict of causing widespread, long-term or severe environmental damage. They did, however, affirm the applicability of this provision during international armed conflict through Art. 8(2)(b)(iv) of the Statute.

5 United Nations Environment Programme, Protecting the Environment During Armed Conflict: An Inventory and Analysis of International Law (2009), 4. See also remarks made by the former UN Secretary General, Ban Ki-Moon, who previously requested that states ‘clarify and expand international law on environmental protection in times of war’. He further insisted that ‘[e]xisting legal instruments should be adapted to reflect the predominantly internal nature of today’s armed conflicts’. Message of the UN Secretary-General, Ban Ki-moon on the International Day for Preventing the Exploitation of the Environment in War and Armed Conflict, 6 November 2009, at 82, available at https:\\www.un.org/zh/events/environmentconflictday/pdfs/int_law.pdf.

6 Analysis of Arts. 35(5) and 55 of Additional Protocol I, supra note 3; Arts. 35(3) and 55 which prohibit parties to international armed conflicts from causing widespread, long-term and severe environmental damage, have dominated the scholarship to date. Since no provisions comparable to those in Additional Protocol I were included in Additional Protocol II – see S. Junod, ‘Additional Protocol II: Scope and History’, (1983–1984) 33 American University Law Review 29, 33–4 – no treaty-based laws of non-international armed conflict exist to directly prohibit environmental damage, and this may explain the analytical deficit. See also M. Bothe et al., ‘International Law Protecting the Environment During Armed Conflict: Gaps and Opportunities’, (2010) 92 International Review of the Red Cross 569, at 579 noting the deficiencies in IHL as it relates to environmental protection in non-international armed conflict despite these conflicts being the most prevalent classification amongst contemporary armed conflicts.

7 The Statute of the International Law Commission states in Art. 1(1) that it ‘shall have for its object the promotion of the progressive development of international law and its codification’. Progressive development is defined in Art. 15 of the Statute as ‘the preparation of draft conventions on subjects which have not yet been regulated by international law or in regard to which the law has not yet been sufficiently developed in the practice of States’. Moreover the aims of the ILC’s programme of work were described by the Special Rapporteur, in proposing the topic to the ILC, as amongst other things, to ‘Clarify the relation between existing treaty law and new legal developments (including legal reasoning); Suggest what needs to be done to achieve a uniform and coherent system (so as to prevent the risk of fragmentation); Envisage the formulation of applicable rules and formulate principles of general international law of relevance for the topic.’ Report of the International Law Commission, Sixty-third Session, A/66/10/Add.1 (2011), 358.

8 Koppe, E., ‘The Principle of Ambiguity and the Prohibition against Excessive Collateral Damage to the Environment during Armed Conflict’, (2013) 82 Nordic Journal of International Law 53, 64.CrossRefGoogle Scholar

9 Some members of the Commission, in discussions, appeared open to not only reflecting existing law in draft principles but also to proposing new Articles with a view to developing future law. See, for example, the views of Mr. Hmoud, International Law Commission, Provisional Summary Record of the 3268th Meeting, A/CN.4/SR.3268, 11 May 2016.

10 Indeed, some Commissioners have asserted the point of view that to fail to address applicable law in non-international armed conflicts would result in the ILC’s work having minimal effect. See, for example, the views of Mr. Hmoud during the 3268th Meeting of the International Law Commission, ibid., at 11.

11 See Droege, C. and Tougas, M., ‘The Protection of the Natural Environment in Armed Conflict – Existing Rules and Need for Further Legal Protection’, (2013) 82 Nordic Journal of International Law 21 CrossRefGoogle Scholar, discussing at 26 the position that protecting the environment as a civilian object would frustrate the provisions of Additional Protocol I. This argument is based on the premise that as the environment is specifically mentioned in Additional Protocol I, drafters clearly intended a different threshold of damage to apply to environmental objects regardless of their status as civilian or otherwise. However, no provisions equating to those in Additional Protocol I are found in Additional Protocol II and so, such an argument does not apply during non-international armed conflict. Koppe, supra note 8, makes a similar argument at 72–3 by suggesting that, as environmental provisions were enumerated in Additional Protocol I, customary law cannot be interpreted to change the threshold of harm, even if doing so could provide greater environmental protection. As there are no similar provisions in Additional Protocol II, even if one accepts these arguments, customary law can be interpreted without such restraints in non-international armed conflict to provide arguably greater environmental protection than the treaty-based provisions that apply during international armed conflict.

12 Of the small body of scholarship that has explored the issue of environmental protection during non-international armed conflict to date, international criminal law has been the dominant field of examination, though some consideration has been given to indirect protection through other treaty-based laws of non-international armed conflict. See Bruch, C. E., ‘All’s Not Fair in (Civil) War: Criminal Liability for Environmental Damage in Internal Armed Conflict’, (2000–2001) 25 Vermont Law Review 695; Lopez, A., ‘Criminal Liability for Environmental Damage Occurring in Times of Non-International Armed Conflict: Rights and Remedies’, (2006–2007) 18 Fordham Environmental Law Review 231; Schwabach, A., ‘Ecocide and Genocide in Iraq: International Law, the Marsh Arabs, and Environmental Damage in Non-International Conflicts’, (2004) 15 Colorado Journal of International Environmental Law and Policy 1; Meron, T., ‘Chapter XX – Comment: Protection of the Environment During Non-International Armed Conflicts’, in Grunawalt, R. J. et al. (eds.), Protection of the Environment During Armed Conflict and Other Military Operations (1996)Google Scholar. Throughout the scholarship, considerations of customary international law and its potential to indirectly protect the environment during armed conflict have largely taken place either in the explicit context of international armed conflict or without specifying the differences in the way customary international law applies to protect the environment as between international and non-international armed conflict. This article explores the nuances in protection that are particular to non-international armed conflict, with a view to encouraging the ILC, or any organization in the future attempting to enhance and develop the law on this matter, to more fully take into account the specificities of non-international armed conflict and the applicable law in those circumstances when formulating principles either based on the lex lata, or in developing lex ferenda.

13 Although there is considerable merit to arguments which vie for the development of new legal provisions in the laws of non-international armed conflict that specifically address environmental damage, without prejudice to those views this article takes the position that more purposeful interpretations of the customary international law principles of distinction, proportionality and military necessity could result in greater limits being placed on the degree of environmental harm that may be caused during the conduct of hostilities in these circumstances, without the need to overcome all diplomatic obstacles that may be foreseeable in the pursuit of amendments to treaties or the development of new treaties. See Richards, P. and Schmitt, M., ‘Mars Meets Mother Nature: Protecting the Environment During Armed Conflict’, (1999) 28 Stetson Law Review 1047 Google Scholar, 1091–2, where the authors discuss the hesitations of the international community to develop new treaties in relation to the protection of the environment in armed conflict. Recall the attempts to develop a fifth Geneva convention. On that basis, there is a compelling case to be made for deeper consideration to be given to the customary international law principles of distinction, proportionality and military necessity by the ILC when progressively developing consolidated principles to enhance the protection of the environment in non-international armed conflict under their present programme of work, and this article proceeds on that basis.

14 See proposals made by the Special Rapporteur in the ‘Second report on the protection of the environment in relation to armed conflicts’, A/CN.4/685, 28 May 2015; see also amended draft principles suggested by the Drafting Committee ‘Text of the draft introductory provisions and draft principles provisionally adopted so far by the Drafting Committee’, A/CN.4/L.870, 22 July 2015.

15 Something that has been noted by members of the Commission. See the views of Mr. Forteau during the 3265th Meeting of the International Law Commission. International Law Commission, Provisional Summary Record of the 3265th Meeting, A/CN.4/SR.3265, 7 August 2015, at 10. See also the views of Mr. Hassouna during the 3266th Meeting of the International Law Commission, supra note 1, at 5.

16 Some members of the Commission have called for more detailed analysis of the laws of armed conflict in the context of this work. See ‘Report of the International Law Commission, Sixty-seventh Session’, A/70/10 (2015), 107, para. 142. Recognizing the differences between these two classifications of conflict was important to some members of the Commission, and they have expressed a desire for such work to be carried out. See the aforementioned ‘Report of the International Law Commission’ at 109, para. 147. Indeed, exploring environmental protection in non-international armed conflict received broad support in discussions at the Commission: ‘International Law Commission, Third Report on the Protection of the Environment in Relation to Armed Conflicts’, Sixty-Eighth Session A/CN.4/700 (2016), 7, para. 25.

17 International Law Commission, First report on protection of the environment in relation to armed conflicts by Marja Lehto, Special Rapporteur, A/CN.4/720, 20 April 2018, at 66.Google Scholar

18 Verwey, W. de, ‘Protection of the Environment in Times of Armed Conflict: In Search of a New Legal Perspective’, (1995) 8 Leiden Journal of International Law 7, 22.CrossRefGoogle Scholar

19 See, for example, ICRC, ‘Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict’, (1996) 311 International Review of the Red Cross.Google Scholar

20 Bothe et al., supra note 6, at 573.

21 Regarding the progressive interpretation of existing rules that apply in non-international armed conflict see, for example, the views of Mr. Hmoud during the 3268th Meeting of the International Law Commission, supra note 9, at 11. See also the views of Mr. Vazquez-Bermudez during the 3269th Meeting of the International Law Commission, supra note 2, at 6.

22 Kleffner, J. K., ‘From “Belligerents” to “Fighters” and Civilians Directly Participating in Hostilities – On the Principle of Distinction in Non-International Armed Conflicts One Hundred Years After the Second Hague Peace Conference’, (2007) 54 Netherlands International Law Review 315, 318.CrossRefGoogle Scholar

23 United Nations Environment Programme, supra note 5, at 13.

24 Amongst others, Hulme, K., ‘Taking Care to Protect the Environment Against Damage: A Meaningless Obligation’, (2010) 92 International Review of the Red Cross 675 CrossRefGoogle Scholar. Hulme has asserted at 678 that ‘the recognition of the environment as a prima facie civilian object has done more to protect it than any environmentally specific rule of international humanitarian law’. See also Droege and Tougas, supra note 11, at 24 highlighting the interpretation of the environment as a civilian object, either explicitly or implicitly.

25 The ICRC observe that the definition of a military objective applies as a matter of custom in both international and non-international armed conflicts – ICRC, Customary IHL Database, Rule 8, available at https:\\ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule8.

26 Robertson, H. B. Jr., ‘The Principle of the Military Objective in the Law of Armed Conflict’, (1997) Journal of Legal Studies 35, 47.Google Scholar

27 See the Comments of Special Rapporteur summing up the debate during the 3269th Meeting of the International Law Commission, supra note 2, at 10.

28 International Law Commission, Second report on the protection of the environment in relation to armed conflicts, supra note 14.

29 However, the proposed draft principle was not adopted by the Drafting Committee of the International Law Commission. International Law Commission, Statement of the Chairman of the Drafting Committee, Mr. Mathias Forteau, 30 July 2015, available at https:\\legal.un.org/docs/?path%3d../ilc/documentation/english/statements/2015_dc_chairman_statement_peac.pdf&lang%3dEF. The phrase ‘civilian in nature’ was removed and the overall draft principle altered so that the environment would not be referred to as being civilian at all. See International Law Commission, Provision summary record of the 3281st meeting, A/CN.4/SR.3281, 29 February 2016, at 6, available at https:\\legal.un.org/docs/?path%3d../ilc/documentation/english/summary_records/a_cn4_sr3281.pdf&lang%3dEF.

30 Hulme, supra note 24, at 678; Hulme, K., ‘Natural Environment’, in Wilmshurst, E. and Breau, S. (eds.), Perspectives on the ICRC Study on Customary International Humanitarian Law (2007), 209; M. N. Schmitt et al., The Manual on the Law of Non-International Armed Conflict (2006), para. 4.2.4.1.Google Scholar

31 International Law Commission, Second Report on the Protection of the Environment in Relation to Armed Conflicts, supra note 14, at 49, para. 151.

32 Report of the International Law Commission, supra note 16, at 110, para. 154; Report of the International Law Commission on the Work of its Sixty-seventh Session, A/CN.4/689 (2015), 14 § 62. See also Droege and Tougas, supra note 11, at 25–6.

33 Droege and Tougas, supra note 11, at 26.

34 In other words, if all environmental objects are presumed to be civilian in the first instance, then that equates to the presumption that the environment as a whole is civilian in nature.

35 Droege and Tougas, supra note 11, at 27.

36 See ILC, Provisional summary record of the 3264th meeting, A/CN.4/SR.3264, 6 May 2016, at 9. See also ILC, supra note 1, at 9.

37 See ILC, Provisional summary record of the 3264th meeting, supra note 36, at 9.

38 ILC, ‘Text of the draft principles provisionally adopted in 2015 and technically revised and renumbered during the present session by the Drafting Committee’, A/CN.4/L.870/Rev.1, 26 July 2016, 2, Draft Principle 8(3).

39 See ILC, Provisional summary record of the 3264th Meeting, supra note 36, at 10.

40 Indeed, some members of the Commission ‘suggested that the principle [of distinction] be modified to reflect that no part of the environment be made the objective of an attack, unless and until it becomes a military objective’. ILC, Third Report on the Protection of the Environment in Relation to Armed Conflicts, supra note 16, at 8, para. 28. Clarification of the circumstances in which the environment becomes a civilian object has also been called for by Droege and Tougas, supra note 11.

41 ILC, Second Report on the Protection of the Environment in Relation to Armed Conflicts, supra note 14, at 49, para. 151. After recognizing that the laws of armed conflict suggest that civilian objects are things rather than abstract entities, they state that ‘It is possible to conclude that the natural environment is civilian in nature and therefore not in itself a military objective.’ Therefore, the Commission appears to conclude that the environment need not be broken down into its constituent elements to benefit from protection under this principle, but may be protected in its entirety as an integrated physical entity.

42 Hulme, supra note 24, at 678.

43 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609, Art. 14.

44 ILC, Text of the Draft Introductory Provisions and Draft Principles Provisionally Adopted So Far by the Drafting Committee, supra note 14, Draft Principle II-1(3).

45 The Commander’s Handbook on the Law of Naval Operations, Edition July 2007, section 8.2, available at https:\\www.jag.navy.mil/documents/NWP_1-14M_Commanders_Handbook.pdf.

46 Additional Protocol I, supra note 3, Art. 52, a rule which has become part of customary international law applicable in both international and non-international armed conflict. See also M. Bothe et al., New Rules for Victims of Armed Conflicts: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949 (1982), 324.

47 Additional Protocol I, supra note 3, Art. 52.

48 Ibid.

49 ICRC, Customary IHL Database, Rule 8, supra note 25.

50 Droege and Tougas, supra note 11, at 27–8.

51 Ibid at 29.

52 Ibid.

53 Ibid.

54 Bothe et al., supra note 6, at 576–7.

55 Robertson, supra note 26, at note 15.

56 UN Security Resolution 2121, S/Res/2121 (2013); UN Security Resolution 2127, S/Res/2127 (2013).

57 United Nations Environment Programme, supra note 5, at 13.

58 Swiney, G., ‘Saving Lives: The Principle of Distinction and the Realities of Modern War’, (2005) 39 International Lawyer 733 Google Scholar, 751. Swiney discussed the ICRC’s assertion that dual-use targets should be prima facie treated as civilian and as such, he argued that this would more than likely create incentives for belligerents to use human shields and deliberately mix military and civilian objects.

59 ICRC Customary IHL Database, Rule 97, available at https:\\ihl-databases.icrc.org/customary-ihl/eng/docs/v1_cha_chapter32_rule97.

60 Droege and Tougas, supra note 11, arguing at 28 that classifying the environmental area in which armed forces are located as a military objective would not accord with existing practice under international humanitarian law. Therefore, automatically classifying the environment as a military objective simply on the basis of location would apply the definition of military objectives too loosely. Examples cited include identifying cities in which armed forces are located as military objectives – the entire city would not be considered a military objective, only the very specific areas in which armed forces are location, and even at that, the classification as military objective would most likely apply through the use of the area, rather than the location.

61 Jong, W. De et al. (eds.), Extreme Conflict and Tropical Forests; see also Drumbl, M. A., ‘Waging War Against the World: The Need to Move from War Crimes to Environmental Crimes’, in Austin, J. E. and Bruch, C. E. (eds.), The Environmental Consequences of War: Legal, Economic, and Scientific Perspectives (2000), 631.Google Scholar

62 ILC, Text of the draft principles provisionally adopted in 2015 and technically revised and renumbered during the present session by the Drafting Committee, supra note 38, at 2, Draft Principle 8(3).

63 Kleffner, supra note 22, at 308.

64 Ibid., at 318.

65 Swiney, supra note 58, at 751.

66 ICRC Customary IHL Database, Rule 10, available at https:\\ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule10.

67 Ibid.

68 Indeed, including clarifications with draft principles has been suggested by members of the Commission. See the comments of Mr. Hmoud during the 3268th Meeting of the International Law Commission, supra note 9 at 13.

69 See Tarasofsky, R. G., ‘Protecting Specially Important Areas During International Armed Conflict: A Critique of the IUCN Draft Convention on the Prohibition of Hostile Military Activities in Protected Areas’, in Austin, J. E. and Bruch, C. E. (eds.), The Environmental Consequences of War: Legal, Economic, and Scientific Perspectives (2000), 568 Google Scholar. See also the recommendations made by Droege and Tougas, supra note 11, at 43 which have been drawn from propoals by the IUCN, UNEP and the ICRC and which support the establishment of special areas of environmental protection which cannot be damaged in any context during armed conflict. See also Bothe et al., supra note 6, at 577 arguing for the exclusion of military from sensitive environmental areas. Bothe et al. suggested that an international organization, such as the UN, should call upon parties to conclude legally binding agreement in this regard. It is submitted here in this article that perhaps the ILC could be that international body, given the focus of its work.

70 Richards and Schmitt, supra note 13, argue at 1081 that ‘subjectivity clouds determinations of what is protected, and what is not’.

71 Prosecutor v. Kupreškić et al., ICTY Judgement, Case No IT-95-16-T, 14 January 2000, International Criminal Tribunal for the former Yugoslavia, para. 524.

72 ICRC, Customary IHL Database, Rule 11, available at https:\\ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule11.

73 ILC, Second Report on the Protection of the Environment in Relation to Armed Conflicts, supra note 14, at 49, para. 151.

74 Hulme, supra note 30, at 211.

75 It is not a universally held point of view that the principle of proportionality applies in non-international armed conflict as a matter of custom. See Rogers, A. P. V., ‘The Principle of Proportionality’, in Hensel, H. M. (ed.), The Legitimate Use of Military Force: The Just War Tradition and the Customary Law of Armed Conflict (2008), 190 Google Scholar. However, there is a sufficient body of evidence to strongly support the conclusion that the principle of proportionality does apply in non-international armed conflict as a matter of custom. See ICRC, Customary IHL Database, Rule 14, available at https:\\ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule14; ICRC, Customary IHL Database, Practice Relating to Rule 14, available at https:\\ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule14.

76 ILC, Second Report on the Protection of the Environment in Relation to Armed Conflicts, supra note 14, at 52, Draft Principle 2: ‘During an armed conflict, fundamental principles and rules of international humanitarian law, including the principles of precautions in attack, distinction and proportionality and the rules on military necessity, shall be applied in a manner so as to enhance the strongest possible protection of the environment.’ See also Draft Principle 3: ‘Environmental considerations must be taken into account when assessing what is necessary and proportionate in the pursuit of lawful military objectives’, at 53.

77 A. Cassese, International Law (2005), 417. See also Lauterpacht as quoted in Rogers, supra note 75, at 198 – non-combatants ‘were not immune from collateral damage but a just balance had to be maintained between the military advantage and the injury to non-combatants’. See also Richards and Schmitt, supra note 13, at 1082.

78 International Court of Justice, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 ICJ Rep. 226, 8 July 1996, paras. 30, 33.

79 ICRC, Customary IHL Database, Rule 43(C), available at https:\\ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule43.

80 Desgagné, R., ‘The Prevention of Environmental Damage in Time of Armed Conflict: Proportionality and Precautionary Measures’, (2000) 3 Yearbook of International Humanitarian Law 109, 116.CrossRefGoogle Scholar

81 Report of the International Law Commission, supra note 16, at 104, Principle 2. Although there seems to be some disagreement within the Commission regarding this principle – some members regard the draft principle as too broad and ambitious, others view is as being too specific: Report of the International Law Commission on the Work of its Sixty-seventh Session, supra note 32, at 14, para. 63.

82 See Fleck, D., ‘The Protection of the Environment in Armed Conflict: Legal Obligations in the Absence of Specific Rules’, (2013) 82 Nordic Journal of International Law 7, 10.CrossRefGoogle Scholar

83 Indeed, some members of the Commission have indicated that it would be important for the Commission to elaborate on the way in which the principle of proportionality ought to be applied to the environment. See the views of Mr. Hmoud as expressed at the 3268th Meeting of the International Law Commission, supra note 9, at 13.

84 K. Hulme, War Torn Environment: Interpreting the Legal Threshold (2004), 126.

85 ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, 2000, available at https:\\www.icty.org/en/press/final-report-prosecutor-committee-established-review-nato-bombing-campaign-against-federal.

86 United Nations Environment Programme, supra note 5, at 13.

87 Military advantage essentially means that the act must have positive military utility or purpose. In terms of what counts as being concrete and direct military advantage, the ICRC Customary IHL Database provides useful explanations. The ICRC Customary Law Study helpfully highlights that ‘Upon ratification of Additional Protocol I, Australia and New Zealand stated that they interpreted the term “concrete and direct military advantage anticipated” as meaning that there is a bona fide expectation that the attack would make a relevant and proportional contribution to the objective of the military attack involved. According to the Commentary on the Additional Protocols, the expression “concrete and direct” military advantage was used in order to indicate that the advantage must be “substantial and relatively close, and that advantages which are hardly perceptible and those which would only appear in the long term should be disregarded”.’ ICRC, Customary IHL Database, Rule 14, supra note 75; In addition Bothe et al. observe that ‘The term military advantage involves a variety of considerations, including the security of the attacking force. Whether a definite military advantage would result from an attack must be judged in the context of the military advantage anticipated from the specific military operation of which the attack is a part considered as a whole, and not only from isolated or particular parts of that operation. It is not necessary that the contribution made by the object to the Party attacked be related to the advantage anticipated by the attacker from the destruction, capture or neutralization of the object.’ Bothe et al., supra note 46, at 324.

88 Hulme, supra note 84, at 126.

89 Desgagné, supra note 80, at 116.

90 Barnidge, R. P. Jr, ‘The Principle of Proportionality Under International Humanitarian Law and Operation Cast Lead’, in Banks, W. C. (ed.), New Battlefields/Old Laws (2011), 276.Google Scholar

91 Though it may be argued that contemporary assessments of the public conscience, as represented by the exponential growth in international environmental law, demonstrate a strong trend in favour of valuing environmental integrity quite highly. For early scholarly discussions on this point see Bothe, M., ‘The Protection of the Environment in Times of Armed Conflict: Legal Rules, Uncertainty, Deficiencies and Public Developments’, (1991) 34 German Yearbook of International Law 54 Google Scholar, at 56. See also Richards and Schmitt, supra note 13, at 1084–5 arguing that environmental damage barely registered as a point of conflict analysis in the 1950s, but that it is the focus of substantial consideration and analysis in the present day. This, to Richards and Schmitt, represents a clear evolution in the value attributed to the environment over time.

92 Schmitt, M. N., ‘The Principle of Discrimination in 21st Century Warfare’, (1999) 2 Yale Human Rights & Development Law Journal 143, 150–1.Google Scholar

93 Ibid.

94 Desgagné, supra note 80, at117.

95 They are described as heterogenous values by Richards and Schmitt, supra note 13, at 1082.

96 Ibid.

97 Droege and Tougas, supra note 11, at 30.

98 ILC, Preliminary Report on the Protection of the Environment in relation to Armed Conflicts, A/CN.4/674 (2014).

99 Richards and Schmitt, supra note 13, at 1086 argue that ‘the existence of differing valuation paradigms, whether temporally, culturally, or contextually determined’ directly ‘bear on the motivation for valuation’ and this will always result in different valuations being used in balancing collateral environmental damage against the value of the military objective being targeted. Such differences, which the authors consider, at 1088, to be endemic, will, they feel, always result in inconsistent, unpredictable, and unreliable proportionality calculations. For the reasons stated above, this author disagrees, and asserts that certain ground rules for the valuation of environmental civilian objects can be determined so that some common factors can be established to ensure that a more accurate balancing can occur, which better reflects contemporary environmental values. Emphasis in the past may have been on exclusively military objectives and advantages, but that emphasis is no longer reflective of contemporary standards of warfare and the ways in which the laws of armed conflict have been applied.

100 ICTY, supra note 85.

101 Ibid.

102 Schmitt, supra note 92, at 207. See also Richards and Schmitt, supra note 13, citing Gardam, supra note 166.

103 Droege and Tougas, supra note 11, at 79.

104 Bothe et al., supra note 6, argue at 578 that expert groups should be convened, potentially resulting in the adoption of resolutions by international organizations to clarifying the principle of proportionality and develop general rules by which environmental damage could be assessed.

105 United Nations Environment Programme, supra note 5, at 13.

106 It was first captured in written form during the American Civil War by Francis Lieber in Art. 14 of General Orders No. 100 in 1863, often referred to as the ‘Lieber Code’. The Lieber Code was essentially the first codification of the customary laws of armed conflict, and was distilled from general principles of human morality, reason, and empirical evidence in the form of practice or law. See Carnahan, B. M., ‘Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necessity’, (1998) 92 American Journal of International Law 213.CrossRefGoogle Scholar

107 Rogers, supra note 75, at 206.

108 McCoubrey, H., ‘The Nature of the Modern Doctrine of Military Necessity’, (1991) The Military Law and Law of War Review 217, 220.Google Scholar

109 See ILC, Provisional summary record of the 3264th meeting, supra note 36, at 1, 7, 14–15.

110 The requirement to adhere to military necessity is included in draft Principle 2, but there is no detail provided into the manner in which necessity protects the environment or permits damage to it. See ILC, Second Report on the Protection of the Environment in Relation to Armed Conflicts, supra note 14, at 52, para. 161.

111 Rogers, supra note 75, at 206.

112 O’ Brien, W. V., ‘The Meaning of “Military Necessity” in International Law’, (1957) 1 World Polity 109, 141.Google Scholar

113 Ibid., at 138–9. Though necessity will, indeed, frequently be immediate: McCoubrey, supra note 108, at 239.

114 McCoubrey, supra note 108, at 226.

115 Hulme, supra note 30, at 212–13.

116 Baker, B., ‘Legal Protections for the Environment in Times of Armed Conflict’, (1993) 33 Virginia Journal of International Law 351, 360 and at note 43 citing McCoubrey. See also Richards and Schmitt, supra note 13, at 1076.Google Scholar

117 Hulme, supra note 30, at 213.

118 ICRC, Customary Law Database, Practice Relating to Rule 43, available at https:\\ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule43.

119 Wilhelm List and Others (The Hostages Trial) (1949), Law Reports of Trials of War Criminals Selected and Prepared by the United Nations War Crimes Committee, Vol. VIII 34.

120 See Bill, B. J., ‘The Rendulic “Rule”: Military Necessity, Commander’s Knowledge, and Methods of Warfare’, (2009) 12 Yearbook of International Humanitarian Law 119.CrossRefGoogle Scholar

121 ICTY, supra note 85, para. 23.

122 Horton, S., ‘Kriegsraison or Military Necessity? The Bush Administration’s Wilhelmine Attitude Towards the Conduct of War’, (2006–2007) 30 Fordham International Law Journal 576, 580.Google Scholar

123 Downey, W. G. Jr., ‘The Law of War and Military Necessity’, (1953) 47 American Journal of International Law 251.CrossRefGoogle Scholar

124 Sandoz, Y. et al. (eds.), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (1987), 391.Google Scholar

125 Ibid.

126 Wilhelm List and Others (The Hostages Trial), supra note 119, at 66. Kriegsraison has now been fully ‘discredited’: See Sandoz et al., supra note 124, at 391. It has no place in the modern laws of armed conflict: O’ Brien, supra note 112, at 129

127 Wilhelm List and Others (The Hostages Trial), supra note 119, at 66.

128 Rogers, supra note 75, at 206.

129 Downey, supra note 123, at 251.

130 O’Brien, supra note 112, at 173–4.

131 Horton, supra note 122, at 580.

132 Baker, supra note 116, at 362–3.

133 Additional Protocol I, supra note 3, Art. 54(5). While the necessity may indeed continue to exist ‘over an extended period’ of time, once the period of military necessity is over, ‘compliance with legal provisions must be resumed’: McCoubrey, supra note 108, at 239.

134 Dam-de Jong, D., ‘International Law and Resource Plunder: The Protection of Natural Resources during Armed Conflict’, (2008) 19 Yearbook of International Environmental Law 27, 28.Google Scholar

135 See, for example, Additional Protocol II, supra note 43, Arts. 4(2)(g), 13, 14, 15, 16, 17.

136 See, for example, military manuals, legislation and statements of Australia, United Kingdom, United States of America, Nicaragua, Spain and Iran in the ICRC’s Customary Law Database, Practice Relating to Rule 43, supra note 118. Collectively this state practice is insufficient to support the conclusion that this interpretation of the application of military necessity to conduct that harms the environment in non-international armed conflict. Some authoritative statements representing the collective views of states, for example in UN General Assembly Resolution 47/37 of 25 November 1992, are used by the ICRC to support their conclusion that military necessity can justify the destruction of the environment in non-international armed conflict under customary international law. However, statements such as that contained in the UN General Assembly Resolution just cited, do not preclude an interpretation of the law as provided in this article, namely that military necessity cannot be used to justify a breach of the laws of armed conflict unless specifically provided for in the context of a particular treaty rule or customary law. For example, the preambular statement in the aforementioned UN General Assembly Resolution stresses that ‘destruction of the environment, not justified by military necessity and carried out wantonly, is clearly contrary to existing international law’. This statement is certainly legally accurate, as it is argued in this article that destruction of the environment in non-international armed conflict, both justified and not justified by military necessity, is a breach of the laws of armed conflict unless the environment that is targeted can be classified as a military objective and conforms to the principle of proportionality. The ICRC’s representation of state practice and opinio juris in Rule 43(B) of the Customary Law Study has been criticized by Hulme (supra note 30, at 212), as not accurately representing the law as it suggests that customary international law required ‘imperative’ military necessity, when such an assertion is not supported by the evidence. In all, Rule 43(B) as formulated seems to be quite problematic and may be in danger of misrepresenting the law to parties not inclined to follow up a reading of the rule with an examination of the practice. The ILC should not reflect the ICRC’s statement in any principles that are drafted. Rule 43(B) has also been criticized by Fleck, supra note 82, who has argued at 13 that it ‘is to be applied with caution. It should not be taken as justifying attacks against civilian objects as a matter of military necessity’.

137 ICRC, Customary IHL Database, Rule 43(B), supra note 79.

138 Ibid.

139 Sandoz et al., supra note 124, at 391. See also M. Greenspan, The Modern Law of Land Warfare (1959), 314 as cited in McCoubrey, supra note 108, at 221: ‘In fact the rules of war make allowance within their framework for military necessity, which cannot transcend the rules themselves … [M]ilitary necessity was … taken into account when the rules were framed, and the individual rules themselves indicate to what extent they may be modified under the stress of military necessity.’ The drafters of the laws of armed conflict have consciously connected military necessity exceptions to some rules and consciously omitted them as against others. O’ Brien, supra note 112, at 131 – ‘international lawyers could refute any claim of a general exception of military necessity by pointing out that legitimate exceptions of this kind had already been provided’. Indeed, the drafters of the San Remo Manual on Non-International Armed Conflict have concluded that ‘the extensive codification of the jus in bello, [means that] the principle of military necessity has little practical bearing on the conduct of hostilities except insofar as it is retained in treaty form in specific situations’. International Institute of Humanitarian Law, The Manual on the Law of Non-International Armed Conflict with Commntary, (2006), 10.

140 Hulme, supra note 84, at 131.