THE INTERNATIONAL LAW COMMISSION

23RD SESSION OF THE KENYA MODEL UNITED NATIONS

NATIONAL TRAINING DRAFT ARTICLE

WHETHER THE ENVIRONMENT IS ADEQUATELY PROTECTED IN THE FACE

OF ARMED CONFLICT

CUEA LANG’ATA CHAPTER COMMISSIONERS

 A. PREAMBULATORY CLAUSE
1. INTRODUCTION

In the tumultuous landscape of armed conflict, the haunting specter of destruction casts
its dark shadow over not only human lives but also the delicate fabric of the environment.
While war’s devastating impact on societies is widely acknowledged, the ecological toll
it exerts often remains shrouded in the periphery of our collective consciousness. As we
confront a world grappling with conflicts of varying intensity and scale, it becomes
increasingly imperative to assess whether our planet is adequately protected amidst the
chaos of warfare.

A war and an armed conflict are related terms. A war can be defined as a carefully
planned and prolonged armed conflict between two or more nations, governments, or
groups. It involves the use of deadly weapons and strategies to achieve specific political,
economic, or social objectives. Warfare can take place on land, at sea, in the air, or even
in space and it may involve regular military forces, irregular armed groups, or a
combination of both. Common reasons for war include territorial disputes, ideological
differences, ethnic or religious tensions, and economic rivalries. 1

War can have devastating consequences, leading to loss of life, physical and emotional
suffering, destruction of infrastructure and property, displacement of populations, and
disruption of social and economic institutions. In response to these challenges, the
international community has developed laws and conventions to govern and restrict the
conduct of warfare aiming to minimize its detrimental impact on both civilians and
soldiers.

2. ISSUES

1Joseph Frankel, War (Britannica, 05/01/2023) <https://www.britannica.com/topi/war> Accessed 27-

07-2023

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i. Whether in civil wars or local conflicts, current international laws actually safeguard
natural resources and the environment.

These are regulations aimed at safeguarding the natural environment, both directly and
indirectly in the face of armed conflicts. Direct protection involves rules that restrict
attacks on the natural environment due to its civilian nature. Indirect protection, on the
other hand, may involve limiting attacks on facilities or installations containing
dangerous forces and recognizing that harming such installations could have severe
consequences on the surrounding natural environment.2

The regulations encompass various protocols, including Additional Protocol 1 to the 1949
Geneva Convention. This protocol prohibits the use of warfare methods and means that
are intended to cause widespread, long-term, and severe damage to the natural
environment, affecting the health or survival of the population, and bars attacks on the
environment as a form of reprisals. 3

Additionally, Article 54(2)4 of Additional Protocol I indirectly protects the environment

by prohibiting attacks on objects vital to the civilian population’s survival, encompassing
those essential to their livelihood.

Furthermore, Additional Protocol II of the 1949 Geneva Conventions (1977), established

in 1977, specifically addresses protection measures during non-international armed
conflicts (NIAC).

In the law of war, three core principles- military necessity, proportionality and humanity-
are traditionally respected under customary international law. The humanity principle,
akin to the utilitarian viewpoint, prohibits inhumane or unnecessary means of warfare.

2ICRC, ‘Guidelines On The Protection Of The Natural Environment In Armed Conflict’, Rules and
Recommendations Relating To The Protection Of The Natural Environment Under International
Humanitarian Law, With Commentary
3 Article 35(3), Additional Protocol 1 to the 1949 Geneva Convention
4 Article 54(2), Additional Protocol 1 to the 1949 Geneva Convention

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However, historical examples, such as General Sherman’s destructive march during the
US Civil War, reveal that these principles did not fully prevent or limit widespread
human rights violations including acts with long-lasting impacts on the civilian
population and the environment.

In terms of the environment, violations of the humanity principle can manifest through
actions like poisoning water supplies or contaminating crops and livestock. The core
ideas behind this principle are that militants should avoid actions that target human
populations in an inhumane manner. 5

The proportionality rule prohibits the use of warfare methods that are likely to cause
civilian harm exceeding any tangible and direct military advantage. Within the
proportionality principle lays the concept of discrimination, which necessitates the use of
weapons and tactics that clearly differentiate between military and civilian targets.
International law strictly forbids indiscriminate attacks, but it does not encompass actions
causing unintended collateral damage to civilians or property. One challenge with this
principle is that it requires combatants to assess the value of life and property to
determine what is considered proportionate, which becomes problematic when these
values significantly differ among populations.

Persistent warfare and violence by nation-states and subnational groups have led to the
severe underdevelopment of entire countries, such as Iraq, Syria, Yemen, Afghanistan,
and others over the past decades. Countless individuals have been forcibly displaced
from their homes, infrastructure has been obliterated, and the quality of life and income
have drastically declined. Moreover, fertility rates and life expectancy have dropped,
infant mortality has surged, and even basic survival necessities, like access to safe water
and sanitation, have been severely disrupted. For instance, attacks on civilian water

5 Chemical Weapons Convention (CWC) 1993

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systems have caused a devastating cholera epidemic in Yemen, with over a million cases
reported and more than 2,000 fatalities.

Despite the existence of legal declarations and principles aimed at protecting civilians
and the environment during armed conflicts, the current state of international war laws
still falls short. Examples from history, such as the Somalia civil war in 1991 and the
destruction of Yemen's urban water system between 2016 and 2019, demonstrate how
armed conflicts continue to have catastrophic consequences on civilian populations and
their surroundings. Additionally, terrorist groups like ISIS have targeted crucial dams
along the Tigris and Euphrates rivers, weaponizing them to control water supply
downstream or flood areas for military purposes.

Case laws.

ICJ Decision on New Zealand v. France (1995) on nuclear testing.

In 1995, Australia and New Zealand requested examination by the ICJ of a situation
relating to the legality of nuclear testing by France in the Pacific Ocean. The Court issued
interim relief based on recognition of the plaintiffs’ right to environmental protection.

Trail Smelter Case (United States v. Canada). 6

The Trail Smelter arbitral panel held that Canada had a responsibility to prevent harmful
transboundary air emissions from the smelter, and was liable for the damages that such
emissions incurred. The decision was based on a fundamental responsibility to use one’s
territory so as not to cause harm to that of another. It must nowadays be considered as a
rule of customary international law.7

6Trail Smelter Case (United States v. Canada), 16 April 1938 and 11 March 1941, Reports of International
Arbitral Awards (R.I.A.A.), Vol. III, p. 1905
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Bothe.M., Bruch.C., Diamond.J. and Jensen.D. ,’International law protecting the environment during
armed conflict: gaps and opportunities’,Volume 92 Number 879 ,September 2010.

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ii. Whether current international laws adequately or sufficiently protect the
environment.

The presence of laws to protect the environment during armed conflicts is not disputed.
However, the question is whether these laws are adequate, meaning if they are good
enough to address the issue effectively. The threshold set to establish harm under
Additional Protocol I's Articles 35 and 55 is considered to be high, with the triple
cumulative criteria of "widespread, severe, and long-lasting" being practically
unattainable. The terms used are not well-aligned with the existing institutional
framework. Moreover, the environment and all its components are highly vulnerable
during armed conflicts, making it hazardous to rely on such a demanding threshold.
Immediate action and precautionary measures should be taken whenever an activity
poses any threat, no matter how minimal, to the flora and fauna.

Furthermore, the current international legal framework mainly focuses on external

conflicts, leaving internal conflicts with insufficient protection for the environment. The
ENMOD,8 for instance, prohibits the use of environmental modification techniques as
weapons, with a lower threshold of "widespread, long-lasting, or severe" damage.

Basic human norms like distinction, necessity, and proportionality might not be sufficient
to prevent environmental harm during armed conflicts. The lack of internationally
accepted standards for these concepts can lead to justifications for environmental damage
based on perceived military necessity.

8 Article 1, ENMOD, 1976

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Another challenge lies in the lack of strict enforcement methods to monitor legal
violations and address compensation for environmental harm, even though the laws are
in place. Investigative bodies for violations often require the consent of countries
involved, and monitoring of implementation is not systematic.

There are clear shortcomings in the existing body of international humanitarian law (IHL)
concerning the protection of the environment during armed conflicts. The lack of clarity
on what constitutes impermissible environmental damage and the absence of precedents
for environmental protection during conflicts contribute to these challenges.

3. CONCLUSION

This paper, therefore, argues that while there are existing laws in place to protect the
environment during armed conflicts, they have not been effective in providing sufficient
protection.

B. OPERATIVE CLAUSE
RECOMMENDATIONS

To ensure that the environment is adequately protected in the face of armed conflict, it is
our belief that the following recommendations would be beneficial to our goal;

Encourage the Geneva Convention to take proactive measures in defending vital

resources, ecosystems (including the climate), and critical civilian water and energy
infrastructure during armed conflicts. It is essential to revamp and strengthen
international law to provide more robust protection for these resources and the
environment as a whole.

Another effective step towards this goal would be to incorporate a set of guidelines,
similar to those proposed by the Geneva Water Hub of the University of Geneva, into the
Commission's new draft environmental principles adopted at the United Nations. These
guidelines should specifically focus on safeguarding water infrastructure during times of
conflict.

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Additionally, advocating for the full implementation of International Humanitarian
Law (IHL) is crucial in preserving the environment during armed conflicts. States that
are parties to relevant international agreements should ensure that their national laws
and customs align with the requirements of IHL, thereby promoting greater
accountability and adherence to environmental protection measures.

By taking these measures, we can work towards a stronger framework that effectively
safeguards resources, ecosystems, and civilian infrastructure, mitigating the devastating
impact of armed conflicts on the environment and contributing to the overall well-being
of affected populations.

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BIBLIOGRAPHY

1. Drumbl M. , Waging War Against the World: The

Need to Move From War Crimes to Environmental Crimes, 22 FORDHAM INT'L LJ.
122, 145 (1998).

2. Foreign Treaties and International Agreements;

{Multinational], 36 Stat. 2277, 2302 (Oct. 18, 1907).

3. HogueL.L Identifying Customary International

Law of War in Protocol I: A Proposed Restatement, 13 Loy. L.A. INT'L & COMPo LJ.
279, 297 (1990)

4. Huston M.D , Wartime Environmental Damages:

Financing the Clean-up, 23 U. PA. J. INT'L ECON. L. 899, 905-906 (2002)

5. Kielsgard M. , War on the International Criminal

Court, 8 N.Y. erN L. REV. 1,8-9 (2005)

6. Weinstein T.,Prosecuting Attacks that Destroy the

Environment: Environmental Crimes or Humanitarian Atrocities?, 17 CEO. INT'L L.
REv. 697, 707 (2005).

7. United Nations Conventions on the Prohibition of

Military or Any other use of environment Modification Techniques (ENMOD)[1976]

8. Chemical Weapons Convention (CWC) (1993)

9. Convention on Certain Conventional Weapons

(CCW) (1980).

10. Additional protocol I to the 1949 Geneva

Convention(1976).

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11. Additional protocol II to the 1949 Geneva
Convention (1977).

12. United Nations Environment

Programme,‘Protecting the Environment During Armed Conflict’ An Inventory and
Analysis of International Law,November 2009.

13. ICRC, ‘Guidelines On The Protection Of The

Natural Environment In Armed Conflict’, Rules And Recommendations Relating To
The Protection Of The Natural Environment Under International Humanitarian Law,
With Commentary.

CASE LAWS

1. Trail Smelter Case (United States v. Canada), 16 April 1938 and 11 March

1941,Reports of International Arbitral Awards (R.I.A.A.), Vol. III, p. 1905

2. New Zealand v. France (1995) on nuclear testing

ABBREVIATIONS

ILC - International Law Commission

ICJ - International Court of Justice

NIAC - Non- International Armed Conflict

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COMMISSIONERS.

1. COMMISSIONER MERCY MUGO

2. COMMISSIONER KIMIRI PAULINE

3. COMMISSIONER IVAN OPONDO

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