Protection of the Environment in Situations of Occupation

Introduction

The impact of occupations, whether short-lived or lasting for decades, extends beyond social and political restrictions, causing devastating footprints on the Earth’s ecological well-being. Environmental concerns are increasingly understood as high-priority in all stages of the conflict cycle.¹ The same can be said for occupations, as evidenced by the high environmental costs of occupation:

“The environmental damage sustained as a result of Iraq’s invasion and occupation of Kuwait in 1990/91 was extraordinary in scale and the awarding of compensation for post-conflict environmental reparations is unprecedented.”²

While the effects of occupation on the environment are felt most acutely in the occupied territory, environmental damage from military mobilisation is a transboundary phenomenon which affects neighbouring countries through the diffusion of particulate matter through the air and pollution entering shared water bodies.³ Prolonged occupations, which may resemble peacetime where the occupant State takes measures to benefit the environment, still contribute to the degradation of the environment due to the presence of the occupying army and the military infrastructure supporting it.⁴

This article identifies the obligations relating to the protection of the environment which arise under international law in the context of occupations. It also assesses the suitability of these obligations and presents recommendations to strengthen provisions for protecting the environment and their implementation.

Legal Obligations to Protect the Environment During Situations of Occupation

The following sub-sections assess legal obligations to protect the environment in situations of occupation which stem from different areas of international law, including the law of occupation and international environmental law (IEL).

Law of Occupation Relating to Protection of the Environment

The law of occupation, contained in the Hague Regulations 1907, the Geneva Convention IV relating to Protection of Civilian Persons in Times of War, Additional Protocol I to the Geneva Conventions, and customary international law, provides indirect protection to the environment in situations of occupation.⁵

The Hague Regulations of 1907

The Hague Regulations concerning the Laws and Customs of War on Land, annexed to the Hague Convention (IV) 1907, provide indirect protection to the natural environment through establishing (1) property rights, (2) certain protected objects, and (3) the obligation of the occupying State to restore and maintain public order and safety in the occupied territory.⁶

Article 55 of the Hague Regulations 1907 establishes the “usufructuary rule”, setting out limitations to the occupying State’s use of public property (including the natural environment) in the occupied territory.⁷ It states:

“The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.”

As administrator and usufructuary, the occupying State has the right to administer, use and act as guardian of public property. Although Article 55 explicitly refers to public buildings, real estate, forests, and agricultural estates, this obligation to safeguard has been widely interpreted as covering all immovable public property not used for military purposes, including parks, farms and coal mines.⁸ Article 55 is also relevant to water resources, given that freshwater resources in rivers, lakes, wetlands and aquifers are classified as immovable property.⁹ Academic commentators suggest that the rules of usufruct prohibit “wasteful or negligent destruction of the capital value, whether by excessive cutting or mining or other abusive exploitation”,¹⁰ thereby protecting the natural environment from over-exploitation and pollution.

Article 23(g) of the Hague Regulations 1907 provides further protection to the environment by expressly forbidding the destruction or seizure of “the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war”.¹¹ This provision applies to property, whether the public or private, movable or immovable.¹² Article 47 of the Hague Regulations also stipulates that “[p]illage is formally forbidden”.¹³ Though pillaging is generally understood to refer to the appropriation of private property and artefacts,¹⁴ there is a growing body of case law on pillaging¹⁵ during occupations which specifically addresses natural resources and the environment including the U.S.A. v. von Weizsäcker et al. (Ministries case) which considered, among other issues, whether defendants could be convicted of war crimes and crimes against humanity for participating in the plunder, exploitation and spoilation of food and agricultural products, and coal and iron ore.¹⁶ More recently, in the Armed Activities on the Territory of the Congo case, the ICJ found that the Republic of Uganda violated its obligations as an occupying power in the Ituri district by failing “to prevent acts of looting, plundering and exploitation of Congolese natural resources”.¹⁷

Finally, the obligation to restore and maintain public order and civil life in the occupied territory may provide ancillary protection to the natural environment in times of occupation. Article 43 of the Hague Regulations 1907 stipulates that the occupant “shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.”¹⁸ This protection has been widely interpreted to include that the occupant ensures “that the occupied population can continue to live as normally as possible”, which has a clear nexus to the protection of the environment as a source of health, livelihood and wellbeing.¹⁹ The occupying State may be required to suppress acts of environmental damage and respect the laws and institutions of the occupied territory which provide protection for the environment.²⁰

The Hague Regulations are considered to reflect customary international law,²¹ and so the above requirements relating to the protection of the environment are binding on all States, regardless of whether they have ratified the Hague Convention (III) and its accompanying Regulations.

Geneva Convention IV 1949

Similar to the discussion above regarding the Hague Regulations, Part III, Section III on the status and treatment of protected persons in occupied territories of the Geneva Convention Relative to the Protection of Civilian Persons in Times of War 1949 (hereafter referred to as Geneva Convention IV) provides protection for the natural environment in times of occupation. As per Article 53, an occupying State is prohibited from destroying “real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or co-operative organizations… except where such destruction is rendered absolutely necessary by military operations.”²² Natural resources are commonly regarded as civilian property as they belong collectively to civilians who make use of and depend on them.²³ Destruction of the natural environment may, therefore, violate Article 53 of the Geneva Conventions (which have been universally ratified)²⁴ if it cannot be justified by military necessity.²⁵

Article 147 of Geneva Convention IV also classifies the “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” as a grave breach of the Geneva Convention.²⁶ Although Article 147 does not explicitly mention situations of occupation, Common Article 2 of the Geneva Conventions clarifies that all four Conventions shall apply in their entirety to cases of occupation.²⁷ Natural resources and the environment have been recognised as one of the subjects of Article 147.²⁸ As Iraqi forces retreated from Kuwait, they released large quantities of oil into the Persian Gulf and set fire to more than 600 oil wells releasing large volumes of smoke into the air.²⁹ Yoram Dinstein suggests that this despite the fact that oil wells may be regarded as a military object capable of being lawfully attacked, the wells set on fire by Iraq were located in occupied Kuwait suggesting that their destruction would not “offer a definite military advantage in the circumstances ruling at the time.”³⁰ He further clarifies that even if the oil wells constituted military objectives, the advantage of obscuring visibility with the creation of thick smoke would not satisfy the proportionality principle as the air pollution would cause excessive injury to civilians when compared to “the limited military advantage that could be anticipated.”³¹ Dinstein concludes that Iraq’s conduct violated several law of armed conflict (LOAC) norms, potentially constituting a grave breach of the Convention (Article 147) for extensive destruction of property.³²

Additional Protocol I to the Geneva Conventions 1977

Additional Protocol I to the 1949 Geneva Conventions complements the above-mentioned indirect protection for the environment by requiring that Parties to a conflict distinguish “between civilian objects and military objectives and […] direct their operations only against military objectives.”³³ Subsequent Articles clarify the protection of civilian objects. Article 54(2) prohibits the destruction of “objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party”.³⁴ This provision explicitly mentions those parts of the natural environment which are of importance to civilians’ livelihood and survival, including agricultural areas and drinking water. The 1987 Commentary to the Additional Protocol states that protected objects “should be interpreted in the widest sense, in order to cover the infinite variety of needs of populations in all geographic areas.”³⁵ This suggests that areas of the natural environment not explicitly mentioned in Article 54(2) but recognised as a means of survival for the civilian population may still be protected under Additional Protocol 1.

In comparison to the indirect protections discussed above, Article 55 of Additional Protocol I also provides direct protection to the natural environment against “widespread, long-term and severe damage.”³⁶ The Article prohibits 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.”³⁷ The terms “widespread, long-term and severe” are not defined in the Protocol or the associated commentaries creating uncertainty in their application.³⁸ Article 55, therefore, remains unhelpful in many cases as it establishes a significantly high cumulative standard for damage to the environment³⁹ which few situations of occupation are capable of satisfying. As per Article 1 of Additional Protocol I, the protocol applies to all situations referred to in Common Article 2 of the Geneva Conventions, including situations of occupation.⁴⁰ However, its implementation is limited to the States which are parties to the Protocol.

International Environmental Law

It has been argued that international environmental law continues to apply in times of armed conflict. This position is supported by the ICJ’s judgement in the Nuclear Weapons advisory opinion, which states that international law “indicates important environmental factors that are properly to be taken into account in the context of the implementation of the principles and rules of the law applicable in armed conflict.”⁴¹

Rio Declaration on Environment and Development 1992

The UN Conference on Environment and Development in Rio de Janeiro convened in 1992, shortly after the 1990-1991 Gulf War and provided useful context on the relationship between international environmental law and armed conflict. As a diplomatic conference declaration, the Rio Declaration is not in itself binding on States, however, at the time of adoption, its principles “were either understood to already reflect customary international law or expected to shape future normative expectations.”⁴²

Principle 2 of the Rio Declaration reiterates States’ “sovereign right to exploit their own resources pursuant to their own environmental and developmental policies,” and highlights their “responsibility to ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.”⁴³ Parsons suggests that when interpreted literally, this Principle “imposes responsibility for environmental damage during armed conflict even when such damage is justified under the law of armed conflict and humanitarian law.”⁴⁴

Looking more specifically at situations of occupation, Principle 23 stipulates that the “environment and natural resources of people under oppression, domination and occupation shall be protected.”⁴⁵ This widely reflects the law of occupation principles discussed above, suggesting a complementarity between international environmental law and the law of armed conflict. Principle 24 on the protection of the environment during armed conflict adds that States shall “respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary.”⁴⁶ There is contention over the exact interpretation of Principle 24 and whether it should be interpreted to suggest that IEL principles continue to apply during warfare or that States must adhere to the IEL principles, which specifically protect the environment during armed conflict (i.e. Article 55, Additional Protocol I).⁴⁷ Regardless, it may be concluded that international environmental law (customary and in treaties) continues to play a certain role in situations of armed conflict, including occupation.⁴⁸

Sustainable use of resources

The international environmental law of sustainable use of natural resources may also provide guidance for the interpretation of the Article 55 Hague Regulations usufruct principle. The concept of sustainable use of resources in IEL is part and parcel of the sustainable development paradigm, which has been incorporated into treaties, including the United Nations Framework Convention on Climate Change (UNFCCC), the United Nations Convention on Biological Diversity (CBD), and the United Nations Convention to Combat Desertification (UNCCD).

Marja Lehto suggests that Article 55 of the Hague Regulations can be read in light of the principle of sustainable development in IEL, given that the sustainable use of natural resources principle provides “the modern equivalent of usufruct.”⁴⁹ She elaborates that usufruct as a broad principle does not entail specific obligations for the occupying State, but it involves the exploitation of resources not to exceed what is necessary or usual.⁵⁰ Sustainable use of resources can similarly be described as “a prolongation of the concepts of resource protection, resource preservation and resource conservation, as well as those of wise use, rational use or optimum sustainable yield”,⁵¹ pointing to the complementarity of the two principles and supporting the incorporation of sustainable use of resources principle in the interpretation of Article 55.

Conclusion

Despite the existence of rules emanating from the law of occupation and international environmental law protecting the environment during situations of occupation, more work needs to be done to plug gaps in the implementation of these rules during occupation. Some scholars have suggested the creation of a new convention devoted exclusively to the protection of the natural environment during armed conflict as a means to plug gaps in the existing law.⁵² However, it seems unlikely that States would be eager to accept additional obligations in the field.⁵³ It is therefore important to direct attention to providing authoritative guidance on the thresholds of environmental damage in the existing direct and indirect protections provided to the natural environment.

It is also important to highlight guidelines and best practices outside of treaties and customary international law, which provide information on the protection of the natural environment in armed conflict. These include the ICRC Guidelines on the Protection of the Natural Environment in Armed Conflict, which aim to assist the training of armed forces on IHL obligations and recommendations to protect the environment. A better understanding of international law obligations for the protection of the environment during occupation can lead to better implementation of rules and can limit the impact of occupation on the natural environment.

Maha Husain

Maha is a Junior Research Associate at the Research Society of International Law, Pakistan. She has a keen interest in exploring all areas of public international law and their connection with the Global South.

Silent Victim of Occupation: Protection of the Environment in Situations of Occupation