By Professor Karen Hulme (School of Law, University of Essex) and Elizabeth B. Hessami (Johns Hopkins University)

Nature and conservation are inevitably harmed during armed conflict. The laws of armed conflict do provide some measure of legal protection for nature, but these rules are limited and vague. The recent adoption by the International Law Commission (a legal body within the United Nations) of a set of Draft Principles for environmental protection in relation to armed conflict is to be lauded. This post will briefly examine some of the main additions to the law in this area.

Armed conflict pollutes and destroys the environment, often leaving a permanent scar on the landscape and biodiversity of affected states. The Russian conflict in Ukraine, for example, demonstrates the devastation caused to fauna and flora when states engage in warfare on a massive scale in areas rich in biodiversity. It also witnessed a horrifying few weeks as the world saw what happens when warfare takes place in a nuclear-powered state. Thus, from the destruction of targets in forests or protected areas, to collateral harm caused by oil spills in the marine or desert environment, toxic chemical pollution from abandoned munitions, destruction of agricultural lands, and destruction of wildlife – armed conflict inflicts a multitude of harms on the natural world.

The WCEL Specialist Group on Peace, Security and Conflict has, therefore, been following closely the work of the International Law Commission (ILC) on its programme of work on the Protection of the Environment in relation to Armed Conflict. In May 2022 the ILC adopted the final version of its recommended 27 Draft Principles, sending them to the General Assembly for final consideration before adoption. Many of the Draft Principles are already rooted in international law, while some provide best practice guidance.

The culmination of over ten years work, there is no doubt that the Draft Principles represent a significant moment in the advancement of legal protection of the wartime environment. Before the creation of the Draft Principles, the current ILC Special Rapporteur, Ambassador Marja Lehto, opined that there was no “coherent legal framework for the protection of the environment in relation to armed conflict”. The approval of the ILC mandate by states, therefore, reflected an acceptance that the law in this area was inadequate, ill-defined and outdated. Certainly, there are limited treaty rules protecting the war-torn environment, particularly in civil wars – the most prevalent type of conflict. Thus, the Draft Principles draw together an extensive body of rules covering both international armed conflicts as well as civil wars (non-international armed conflicts) and are addressed to a wide range of non-state actors.

Two key dimensions of the ILC’s analysis warrant fanfare. Innovative was the decision to take a holistic approach, ensuring analysis of the legal protections afforded not just during conflict, but prior to the outbreak of conflict and post-conflict. Methodologically unique, this temporal approach allowed for the second innovative approach, namely a focus beyond the laws of armed conflict. Any area of law today is a complex web of interactions between hitherto distinct areas of law. Throwing off the shackles of a pure laws of armed conflict analysis, the ILC undertook a comprehensive analysis of the issues, drawing from areas such as environmental law, human rights law, arms control and business and human rights obligations. Having said that, it is still less than clear how these other legal regimes apply during the combat phase of conflict.

The Draft Principles are, thus, a blend of treaty law, including the laws of armed conflict, and novel guidance or best practice (known as ‘progressive development’) – which states and other actors are encouraged to follow. For example, Draft Principle 16 reiterates the clearly established treaty rule that pillage of natural resources is prohibited (effectively theft during conflict), and Draft Principle 14 the equally clear application of the foundational laws of armed conflict to the environment, such as the principles of distinction, proportionality and precautions. Novel rules are included on cooperation for post-conflict environmental assessments and remedial measures (DP 24) for example. A key one of which is the obligation for removal of toxic or other hazardous remnants of war (DP 26).

The novel structure has certainly helped the Special Rapporteurs to approach the issues from new angles, highlighting novel issues for consideration. One example being the post-conflict part, which analysed obligations of environmental remediation, liability and cooperation – issues which are generally omitted from legal instruments and are proving rather elusive in the current Russia-Ukraine conflict.

The recent humanitarian crisis created by the Russian invasion of Ukraine, when added to the plethora of other events causing people to flee their homes and lands, such as climate-related events, has pushed the number of IDP’s and Refugees above an estimated 100 million people globally according to UNHCR. Thus, displaced people must be considered during armed conflict, as must the environment that they are inhabiting. Environmental protection of lands housing displaced persons is, therefore, a welcome addition to the Draft Principles, particularly in a world where displacement is increasing at a dramatic pace. Draft Principle 8 on Human Displacement takes a novel look at the issue, recommending that states not only ‘protect the environment where they are located’, but also provide ‘relief and assistance for such persons and local communities’. Importantly, environmental protection also extends to areas of transit.

Draft Principles 10 and 11 on Corporate Due Diligence and Corporate Liability respectively require that states ensure business enterprises ‘exercise due diligence and protect the environment and human health’ in conflict-affected areas. These two provisions are an important addition to the field to deter corporate actors from preying on local populations and natural resources during such turbulent times, and preventing conflict financing through the exploitation and trade in such commodities.

Implementation of the Draft Principles will be the final step with states expected to implement them through domestic law and military manuals. They present a concise statement of law in one document, undoubtedly expanding the law on certain issues. Thus, the Draft Principles will undoubtedly serve as a point of dialogue for states to further the discussion of how to protect the environment during the conflict cycle.

Fernando Bordin wrote “Codification conventions and draft articles completed by the International Law Commission are often – and increasingly – invoked by courts, tribunals, governments and international organizations as ‘reflections of customary international law’.”

The Draft Principles, therefore, represent, an important opportunity to make a tangible, meaningful difference in the lives and environment of people caught in the crosshairs of conflict.

This article was first published on the website of the International Union for Conservation of Nature (IUCN) and is reproduced on the ELR Blog with permission and thanks. You can read the original piece here.

More about the authors:

Professor Karen Hulme, School of Law, University of Essex, UK, specializes in the legal protection of the environment during armed conflict. She has published on environmental human rights, environmental security, post-conflict obligations, the legality of specific weapons, as well as climate change, biodiversity/nature protection, oceans and protected areas. Karen is Chair of the IUCN WCEL Specialist Group on Environmental Security and Conflict Law.

Elizabeth B. Hessami, J.D., LL.M. (Environmental Law), is a licensed attorney and Faculty Lecturer of International Environmental Policy and Environmental and Natural Resources Security for Johns Hopkins University. She has also served as a Visiting Attorney for the Environmental Law Institute (remote) for several years.