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human protection, must similarly be considered in environmental deliberations.
Therefore, it is quite obvious that in situations where the subsystems of international law seem to be overlapping, if not contradicting themselves, the environment
remain undoubtedly at risk of poor or irrelevant protection.
The other problematic aspect is that it is similarly rather obvious that Law of
Armed Conflict has been highly anthropocentric for a long time and that the environment has been recurrently regarded only as a civilian object, instrumental to
human life. The issue of wartime environmental damages and the criminalization of
serious violations has indeed introduced in many cases personal criminal liability
for military commanders. Nonetheless in the context of the Additional Protocol I
(1977) relating to the Protection of Victims of International Armed Conflicts, art. 35
(3) and art. 55(1) are the only provisions directly speaking of environmental damages. Art. 35 refers to the means and methods of warfare, prohibiting the use of
which may cause widespread, long-term, and severe damage to the natural environment. In this article it was the first time a direct protection of the natural environment per se, and not just under the general definition of civilian objects, was made.
It applies to intentional damages and collateral ones as well. On the other hands, art.
55 includes a prohibition of the use of methods or means of warfare which are
intended or may be expected to cause such damage to the natural environment and
thereby to prejudice the health or survival of the population. And in this case it does
only refer to environment as a civilian object.
In comparison the Rome Statute establishing the International Criminal Court
(ICC) on July 2002 envisions twenty-six violations where the Court has jurisdiction
in the event they are perpetrated in armed conflict. Not only they are considered
grave breaches of the law in respect to the limited framework set by the Additional
Protocol I, but the view of the doctrine is that by far this criminalization may contribute to a major shift in the compliance with the law applicable in war. However,
the evaluation of the environmental damages may be considered by far the most
difficult component to establish as it requires two distinct mental elements, the
intent to launch an attack and the actual knowledge of the consequences of “widespread, long-term and severe” damages to the environment in comparison with the
expression used in the Additional Protocol I “may be expected to cause”. The element of knowledge is linked to the cumulative consequences in order to establish
the violation, which is a quite tough threshold.
The document which clearly addresses environment is the Environmental
Modification Convention (ENMOD), formally the Convention on the Prohibition of
Military or Any Other Hostile Use of Environmental Modification Techniques,
approved by the General Assembly of the United Nations in its resolution 31/72 of
10 December 1976 in the same period of the 1977 Additional Protocols to the
Geneva Conventions. In application of paragraph 2 of the said resolution, the
Secretary General decided to open the Convention for signature and ratification by
States at Geneva, Switzerland. The Convention was signed by 48 states; as of
January 2018, the Convention has 78 state parties. Art.1 provides the scope, which
is the prohibition of environmental modification techniques for changing the environment through a deliberate manipulation of natural process, namely “the
Environmental Damages and Armed Conflict
human protection, must similarly be considered in environmental deliberations.
Therefore, it is quite obvious that in situations where the subsystems of international law seem to be overlapping, if not contradicting themselves, the environment
remain undoubtedly at risk of poor or irrelevant protection.
The other problematic aspect is that it is similarly rather obvious that Law of
Armed Conflict has been highly anthropocentric for a long time and that the environment has been recurrently regarded only as a civilian object, instrumental to
human life. The issue of wartime environmental damages and the criminalization of
serious violations has indeed introduced in many cases personal criminal liability
for military commanders. Nonetheless in the context of the Additional Protocol I
(1977) relating to the Protection of Victims of International Armed Conflicts, art. 35
(3) and art. 55(1) are the only provisions directly speaking of environmental damages. Art. 35 refers to the means and methods of warfare, prohibiting the use of
which may cause widespread, long-term, and severe damage to the natural environment. In this article it was the first time a direct protection of the natural environment per se, and not just under the general definition of civilian objects, was made.
It applies to intentional damages and collateral ones as well. On the other hands, art.
55 includes a prohibition of the use of methods or means of warfare which are
intended or may be expected to cause such damage to the natural environment and
thereby to prejudice the health or survival of the population. And in this case it does
only refer to environment as a civilian object.
In comparison the Rome Statute establishing the International Criminal Court
(ICC) on July 2002 envisions twenty-six violations where the Court has jurisdiction
in the event they are perpetrated in armed conflict. Not only they are considered
grave breaches of the law in respect to the limited framework set by the Additional
Protocol I, but the view of the doctrine is that by far this criminalization may contribute to a major shift in the compliance with the law applicable in war. However,
the evaluation of the environmental damages may be considered by far the most
difficult component to establish as it requires two distinct mental elements, the
intent to launch an attack and the actual knowledge of the consequences of “widespread, long-term and severe” damages to the environment in comparison with the
expression used in the Additional Protocol I “may be expected to cause”. The element of knowledge is linked to the cumulative consequences in order to establish
the violation, which is a quite tough threshold.
The document which clearly addresses environment is the Environmental
Modification Convention (ENMOD), formally the Convention on the Prohibition of
Military or Any Other Hostile Use of Environmental Modification Techniques,
approved by the General Assembly of the United Nations in its resolution 31/72 of
10 December 1976 in the same period of the 1977 Additional Protocols to the
Geneva Conventions. In application of paragraph 2 of the said resolution, the
Secretary General decided to open the Convention for signature and ratification by
States at Geneva, Switzerland. The Convention was signed by 48 states; as of
January 2018, the Convention has 78 state parties. Art.1 provides the scope, which
is the prohibition of environmental modification techniques for changing the environment through a deliberate manipulation of natural process, namely “the
Environmental Damages and Armed Conflict