260
dynamics, composition or structure of the Earth, including its biota, lithosphere,
hydrosphere and atmosphere, or of outer space”. Undoubtedly, not every modification techniques of the environment accounts for a prohibited conduct, but those
that are military and hostile in nature, whether for offensive or defensive purposes,
intentional and causing destruction, damage or injury to another State. The term
hostile implies the use of the environment as a weapon causing certain effects, in
primis environmental damages.
There is a list of prohibited activities at art. 2, such as “earthquakes, tsunami, an
upset in the ecological balance in the region, changes in weather patterns (clouds,
precipitation, cyclones of various types and tornadic storms), changes in climate
patterns, changes in ocean currents, changes in the state of the ozone layers,
changes in the state of ozonosphere”. The threshold for damages in the case of the
ENMOD Convention is narrower although it uses the same adjectives, “widespread”, “long-term” and “severe”. The big difference lies in the fact that while the
Additional Protocol I lists them cumulatively, the ENMOD lists them alternatively.
The other relevant difference is about the intentionality in the “expected” damage which is greater in the case of the Additional Protocol I, also comprising purely
unintentional and incidental damages (Dinstein 2001).
However, one of the important questions remains the threshold of the three elements, widespread, long-term and/or severe, in order to assess the violation of international law as the legal texts fail to define these terms.
To add to this complexity, what is unclear is that the term natural environment
does not have a commonly accepted definition. The definition of environment
reflects different approaches in doctrine. While some provide a narrow definition
that strictly refers to natural resources and in terms it covers ecosystems and biological diversity, others tend to lean towards a broader definition, which embraces
also aesthetic values, such as cultural heritage, landscape and environmental amenity. The ENMOD, without a notion of environment, gives only a list of prohibited
activities.
However, while the environment in general terms is considered a “civilian”
object as opposed to the military in nature, it is recognized that it should not be
subject to attacks, unless it is used as a military object by a party to the conflict.
Under this dual use and/or the fact that it is used to hide its military nature, it may
lose the protection offered under Law of Armed Conflict to civilian objects. In such
case the military necessity is the driving principle and no damage should be procured that does not provide a clear military advantage. If there is indeed an assessment of such nature, the proportionality principle is a requirement.
Despite of all the challenges arising out of this complex picture of international
law and its subsystems, balancing military operational requirements with environmental protection and security are not impossible tasks. It is normal practice to
include environmental protection in training to military forces. In many military
manuals environmental protection is covered. Moreover, in the planning process of
military operations the presence of subject matter experts, such as military engineers or environmental experts, are required. The development of national or multinational doctrines in environmental protection has been quite impressive in recent
G. Colao
dynamics, composition or structure of the Earth, including its biota, lithosphere,
hydrosphere and atmosphere, or of outer space”. Undoubtedly, not every modification techniques of the environment accounts for a prohibited conduct, but those
that are military and hostile in nature, whether for offensive or defensive purposes,
intentional and causing destruction, damage or injury to another State. The term
hostile implies the use of the environment as a weapon causing certain effects, in
primis environmental damages.
There is a list of prohibited activities at art. 2, such as “earthquakes, tsunami, an
upset in the ecological balance in the region, changes in weather patterns (clouds,
precipitation, cyclones of various types and tornadic storms), changes in climate
patterns, changes in ocean currents, changes in the state of the ozone layers,
changes in the state of ozonosphere”. The threshold for damages in the case of the
ENMOD Convention is narrower although it uses the same adjectives, “widespread”, “long-term” and “severe”. The big difference lies in the fact that while the
Additional Protocol I lists them cumulatively, the ENMOD lists them alternatively.
The other relevant difference is about the intentionality in the “expected” damage which is greater in the case of the Additional Protocol I, also comprising purely
unintentional and incidental damages (Dinstein 2001).
However, one of the important questions remains the threshold of the three elements, widespread, long-term and/or severe, in order to assess the violation of international law as the legal texts fail to define these terms.
To add to this complexity, what is unclear is that the term natural environment
does not have a commonly accepted definition. The definition of environment
reflects different approaches in doctrine. While some provide a narrow definition
that strictly refers to natural resources and in terms it covers ecosystems and biological diversity, others tend to lean towards a broader definition, which embraces
also aesthetic values, such as cultural heritage, landscape and environmental amenity. The ENMOD, without a notion of environment, gives only a list of prohibited
activities.
However, while the environment in general terms is considered a “civilian”
object as opposed to the military in nature, it is recognized that it should not be
subject to attacks, unless it is used as a military object by a party to the conflict.
Under this dual use and/or the fact that it is used to hide its military nature, it may
lose the protection offered under Law of Armed Conflict to civilian objects. In such
case the military necessity is the driving principle and no damage should be procured that does not provide a clear military advantage. If there is indeed an assessment of such nature, the proportionality principle is a requirement.
Despite of all the challenges arising out of this complex picture of international
law and its subsystems, balancing military operational requirements with environmental protection and security are not impossible tasks. It is normal practice to
include environmental protection in training to military forces. In many military
manuals environmental protection is covered. Moreover, in the planning process of
military operations the presence of subject matter experts, such as military engineers or environmental experts, are required. The development of national or multinational doctrines in environmental protection has been quite impressive in recent
G. Colao