Protection of the Environment in Armed Conflicts

The Protection of the Environment in armed conflicts (PERAC)

Index

Introduction

Paragraph 1- The International Law Commission (ILC) and the International Committee of the Red Cross (ICRC)

1. Brief description of ILC
2. Brief description of ICRC
3. References to the ILC Draft principles and ICRC Guidelines about PERAC

Paragraph 2- Analysis and comparison between the ILC Draft principles and ICRC Guidelines

1. The structure of the two documents
2. The definition of environment
3. The lack of distinction between international armed conflict (IAC) and non-international armed conflict (NIAC)
4. The non-state actors
5. The normative value of the two documents

Paragraph 3- Examples of military manuals and national practices

1. The Manual of the Law of Armed Conflict of Australia (2006)
2. Law of Armed Conflict-Manual of Germany (2013)
3. The Operational Law Handbook of United States Army (2015)

Conclusion

Bibliography

Sitography

Relevant documents

UN Documents

Introduction

In this report, environmental protection is analyzed, focusing on the phase in which the conflict is ongoing. In particular, the International Law Commission and the International Committee of the Red Cross are considered as well as their work on the subject. The two have respectively drawn up draft principles and guidelines for improving environmental protection in armed conflicts. Finally, examples of military manuals which have been supplemented with environmental protection standards are taken into consideration.

Paragraph 1- The International Law Commission (ILC) and the International Committee of Red Cross (ICRC)

1. Brief description of ILC

The International Law Commission was established by UN General Assembly Resolution 174 of 21 November 19471 and is a permanent subsidiary organ of United Nations. According to article 1 of its Statute, ILC’s object is the promotion of the progressive development of international law and its codification.2 Furthermore the Commission shall concern itself primarily with public international law, but is not precluded from entering the field of private international law.3 It is composed of 34 international law experts.4 When the ILC considers that the codification of a particular topic is necessary and desirable, it shall submit its recommendations to the UN General Assembly5 and once a topic is selected it is appointed a Special Rapporteur. With respect to the identified topic, the Special Rapporteur must examine state doctrine and practice, understand whether there is agreement or disagreement in doctrine, and assess the adequacy of existing state practice. Afterwards he/she will proceed with the presentation of a preliminary report and an appropriate work plan. The report must be presented to the Commission plenary assembly and, at the end of the discussion, the Special Rapporteur identifies points of agreement and disagreement on the various proposals. Although his/her comments are not binding, the members of the ILC, and in particular the Drafting Committee, give considerable weight to the proposals of the Special Rapporteur.6 Once the debate in the plenary assembly on the reports presented by the Special Rapporteur is over, the proposals that have obtained sufficient consensus are submitted to the Drafting Committee for review. Conversely, proposals that have not achieved sufficient consensus are reviewed and refined by a working group, specially appointed by the plenary assembly. The conclusions of the working group are then presented to the assembly and can be sent to the Drafting Committee with the relevant modifications. Based on the report of the Drafting Committee, draft articles, principles or resolutions are further debated before being presented to the plenary assembly of the ILC. Finally, a complete set of draft articles or principles, along with commentaries, is provisionally adopted on first reading by the assembly. A second reading is then held for final adoption, and since 1959 the International Law Commission has allowed a one-year interval between the completion of the first reading and the beginning of the second. During that time, states have the opportunity to study the work and submit comments.7 The ILC then submits its work to the UN General Assembly and may recommend the form in which its work can be adopted.8 Thus, it may recommend that the General Assembly convene a conference for the purpose of a multilateral convention, or it may recommend that no action be taken, that a resolution will be adopted, or that the final result will simply be noted.

2. Brief description of ICRC

The International Committee of the Red Cross (ICRC) is an impartial, neutral and independent organization whose exclusively humanitarian mission is to protect the lives and dignity of victims of war and other situations of violence and to provide them with assistance. Moreover, ICRC endeavours to prevent suffering by promoting and strengthening humanitarian law and universal humanitarian principles. It was established in Geneva in 1863 in response to a proposal made by a Swiss citizen of Geneva, Henry Dunant. In 1859, Dunant happened to witness the aftermath of the Battle of Solferino in Northern Italy, one of the bloodiest battles of the 19th century. Dunant was deeply shocked by the absence of any organized medical care for the wounded and dying soldiers and he proposed the creation of an organization to address this shortcoming. Afterwards was established the International Committee for Relief to the Wounded, composed of Geneva citizens and later re-named the International Committee of the Red Cross.9 Normally, the application of international humanitarian law by the belligerents should take place with the help of the Protecting Powers, i.e. the neutral states specifically designated by the parties to the conflict. However, practice shows that this mechanism rarely works and often, in the absence of the designation of a Protecting Power, the function of control on the application of humanitarian law is entrusted to the International Committee of the Red Cross.10 Furthermore the ICRC works to ensure that parties to an armed conflict respect their commitments under international humanitarian law, in particular with regard to prisoners of war, civilians in detention, inhabitants of occupied territories, displaced persons, and the civilian population in general. For the ICRC to be able to perform this task, its delegates must be permitted by the parties to the conflict to visit all places where prisoners are held. In this way they can verify their health conditions and the respect of humanitarian obligations by the belligerents. The ICRC also plays a privileged role in the search for missing persons and in reuniting families separated as a consequence of the hostilities. It is one of the important tasks of its delegates in the field to do everything necessary to re-establish family links and favours direct contact between detainees and their families. The Central Tracing Agency, a unit at ICRC’s headquarters, organizes this activity and centralizes the information. Moreover, in territories where armed conflicts take place, the civilian population should be assisted by the belligerent parties. Nevertheless, if these parties are unable to provide assistance, the ICRC can intervene, distributing water, food and medical care. In this regard, the ICRC coordinates its activities and cooperates actively with relevant international organizations, particularly the United Nations Office for the Coordination of Humanitarian Affairs (OCHA) and the European Commission’s Humanitarian Aid and Civil Protection department. Having said that, the main task of the International Committee of the Red Cross is to ensure respect for humanitarian law during armed conflicts. To this end, it is required to intervene if it becomes aware of serious violations of humanitarian law. In particular, it must take all necessary measures to put an end to ongoing violations and restore the belligerents' respect for humanitarian norms. ICRC delegates seek to have a direct and confidential dialogue with the authorities of the parties to the conflict, and the various governments appreciate the fact that the meetings are distinguished by their confidentiality. However, if the measures taken in confidence do not lead to a halt in the violations, the ICRC may voice its concerns to the international community and this act is known as "humanitarian mobilization". In conclusion, the ICRC has now lost its monopoly position in the humanitarian sector, but its protection and assistance activities are considered an essential contribution to the protection of human dignity during conflicts.11

3. References to the ILC Draft principles and ICRC Guidelines about PERAC

Both ILC and ICRC addressed the protection of environment in armed conflict (PERAC). Starting with the ILC, in 2013 it decided to include the topic “PERAC” in its programme of work and appointed Marie Jacobsson as Special Rapporteur, a task then performed by Marja Lehto since 2017. Between 2014 and 2019 the Special Rapporteurs submitted five reports about PERAC that were analyzed by ILC and States provided comments in the Sixth UNGA Committee. In 2019 the ILC adopted on first reading a set of draft principles on PERAC and transmitted them to governments and international organizations for comments, with the request that these be submitted by 1 December 2020, in view of their final adoption (probably in 2022).12 Currently, the deadline to submit comments has been extended until 30 June 2021. Moving to the ICRC, in 1994 it drew up the Guidelines for Military Manuals and Instructions about PERAC upon request of the UN General Assembly.13 The latter was concerned that the norms of international law prohibiting the destruction of the natural environment were not sufficiently disseminated and enforced.14 Despite this, the various environmental damages caused during recent wars led the ICRC to draft the Guidelines on the Protection of the Natural Environment in Armed Conflict in 2020. These are an updated version of those drafted in 1994 and reflect current developments in international law. Having said that, the 2020 Guidelines are a tool to facilitate the implementation of concrete measures, such as military manuals and national policies, to improve environmental protection in both international and non-international armed conflicts.15

Paragraph 2- Analysis and comparison between the ILC Draft principles and ICRC Guidelines

1. The structure of the two documents

ILC Draft principles and ICRC Guidelines have different structures that reflect different approaches. Starting from ILC work, it follows the specific approach that protection is to be “in relation to” armed conflict, and not just “in” armed conflict. Indeed, the two Special Rapporteurs were able to cover all three phases of armed conflict (before, during and after) without clear-cut boundaries between the various phases.16 For this reason, the ILC divided the draft principles about PERAC in five sections. First part, entitled “Introduction” contains draft principles on the scope and purpose of the draft principles. Part Two concerns guidance on the protection of the environment before the outbreak of an armed conflict but also contains draft principles of a more general nature that are of relevance for more than one temporal phase. Part Three pertains to the protection of the environment during armed conflict while Part Four concerns the protection of the environment in situations of occupation. Finally, Part Five contains draft principles relative to the protection of the environment after an armed conflict.17 It was considered that addressing the topic from a temporal perspective rather than from the perspective of various areas of international law, such as international environmental law, the law of armed conflict and international human rights law, would make the topic more manageable and easier to delineate.18 The temporal approach adopted by the ILC was discussed at the Sixth UNGA Committee and while many States supported it, others expressed their doubts.19 Finally, it is noteworthy that draft principles about PERAC in situation of occupation are in a different section which deviates respect to the temporal approach. The reason stems from the fact that situations of occupation may be sometimes similar to active hostilities and other times to post-conflict situations. Anyway, the draft principles commentary specifies that principles of the other sections apply mutatis mutandis also to situations of occupation.20 Moving to the ICRC work, the Guidelines have a different structure and were divided into four parts. The first part deals with the specific protection of the natural environment under IHL, the second part with the general protection of the natural environment under IHL, the third part with the protection of the natural environment under specific weapons standards and the fourth part with the respect, implementation and dissemination of humanitarian law standards for the protection of the environment. Furthermore, the four parts are divided in sections containing rules. Unlike the 1994 Guidelines, the 2020 version has not only rules, but also commentaries, examples and recommendations. In this respect, commentaries on individual rules offer important added value, as they explain concepts, clarify historical contexts, indicate whether a rule is generally accepted or not, and possibly provide further interpretations. An example is the humanitarian law rule prohibiting widespread, long-term and severe damage to the natural environment. While this rule is mentioned without explanation or interpretation in the 1994 Guidelines,21 those of 2020 provide a very careful description of how this provision should be interpreted.22 In addition, alongside the theoretical explanation of the rules, the updated 2020 version includes practical examples that facilitate the reader's understanding and enable the application of the provision by belligerents during wars. For instance, the ICRC has listed a number of cases in which the natural environment may be considered a military objective23 and specified that the burning of an entire forest for the purpose of destroying a small enemy camp could be considered disproportionate to the resulting environmental damage.24 Finally the recommendations are useful for the implementation of individual rules and should be respected by the armed forces of the various countries. For instance, it is suggested that the rules of humanitarian law protecting the environment be disseminated and integrated into the doctrine, education, training and disciplinary systems of the armed forces.25

2. Definition of environment

The prevailing practice of international environmental law instruments seems to refrain from defining the concept of “environment”. Indeed, reference is usually made to the environment in general terms or in a context limited to a particular instrument. Thus, the term "environment" has no generally accepted meaning in international law and its definitions often vary in both scope and content. It is also an elusive concept as it changes and adapts to new discoveries concerning its elements and their mutual relations. This means that the concept of "environment" cannot remain static in time, but is bound to evolve as a result of new human knowledge and environmental development.26 Taking into account the ILC Draft principles and the ICRC 2020 Guidelines, it is possible to note a considerable difference about the definition of the environment. Starting with ILC work, the Special Rapporteur M. Lehto, working on PERAC, took into account a definition of environment presented by a UN Environment Expert Group which defined it as “abiotic and biotic components, including air, water, soil, flora, fauna and the ecosystem formed by their interaction”.27 However, ILC still did not adopt a specific definition of environment for the Draft Principles about PERAC and did not decide if use the term “environment” or “natural environment”. The difference between the two terms is that “natural environment” does not cover protection of the human environment, which includes artificial objects, for instance cultural heritage.28 The concept of the “environment” is broader and encompasses both the features and the products of the natural world and those of human civilization,29 so it is linked to cultural aspects of environmental protection. Currently, the draft principles that apply during armed conflict draw on the text of Additional Protocol I (AP I), which use the term “natural environment”, while those that apply before and after conflict use the term “environment”. ILC will solve the terminology issue in the second reading (2021) and it is hoped that will include a definition of environment in the final text and will opt for the broader concept of “environment”, ensuring a wider protection. Moreover, already in her second report, Special Rapporteur M. Jacobsson had recognized the civil character of the environment and this is reflected in the draft principle 1 that was initially proposed.30 Moving to the 2020 Guidelines, ICRC decided to use the term “natural environment” and has devoted a paragraph to its definition in the preliminary considerations. In this paragraph it is made clear that, in the context of the Guidelines, the natural environment is to be understood as the natural world together with the system of inextricable relationships that exist between living beings and their inanimate environment in the broadest sense possible.31 In conclusion, like the ILC, ICRC also recognized the civil character of the environment.32

3. Lack of distinction between international (IAC) and non-international (NIAC) armed conflict

Another issue that deserves to be addressed is the distinction between IAC and NIAC in the ILC and ICRC works. An important character of ILC Draft principles about PERAC is the lack of a general distinction between IAC and NIAC. It is remarkable that this approach is part of a current trend merging legal regimes pertaining to armed conflicts. The most notable development was the amendment made to the Conventional Weapons Convention (1980) to ensure that the Convention would also be applicable in situations of non-international armed conflict.33 However, this lack of distinction raises concerns about the status of the draft principles that will be included in the final text, given that the law of NIAC is under-developed in comparison to the law of IAC.34 Indeed most legal instruments relating to the law of war concern international armed conflicts and only a few treaties also address the issue of non-international armed conflicts. Unsurprisingly, some States were skeptical about the inclusion of NIAC within the scope of the topic under consideration, but a significant number of States favored dealing with both types of armed conflict.35 The ILC’s approach is that whenever it is imperative to draw such a distinction, it does so in the commentaries of the draft principles. An example is the commentary to draft principle 16 on the prohibition of reprisals.36 Moreover the same approach had been adopted by the ILC for the draft articles on the effects of armed conflict on treaties (2011) and by the ICRC in its Study on Customary International Humanitarian Law (2005).37 Anyway ILC’s objects are the progressive development of international law and its codification,38 therefore its position on the absence of distinction between the two types of conflict is appropriate.39 Moving to 2020 ICRC Guidelines, they also do not make a general distinction between IAC and NIAC. Like the ILC, ICRC also made just specific differentiations within the commentaries of the individual rules. The choice made by both represents an important innovation in the field of the law of war, as the law applicable to non-international armed conflicts is particularly underdeveloped compared to the law applicable in international armed conflicts. Consequently, non-international armed conflicts, which in recent decades have been particularly more frequent than others, could have their rules supplemented by the application of those applicable to international conflicts. In this regard, related to PERAC, the ICRC encourages the belligerent parties to apply humanitarian law relating to IAC to NIAC as well.40

4. The non-state actors

An issue closely linked to the lack of distinction between the two types of conflict is that of non-state actors. The role of non-state actors was addressed by ILC and, in particular, by M. Lehto in her second report about PERAC.41 The Special Rapporteur emphasized that the idea of them being able to incur international obligations via IHL and IHRL is largely accepted, even if a solution is still qualified in statu nascendi.42 Nevertheless, ILC addressed this issue in the commentaries to draft principles focusing on corporations and indigenous peoples. Several States have welcomed the inclusion of non-State actors in the Draft Principles,43 but many appear concerned about the absence of a clear framework on the responsibility of non-state armed groups for environmental damage. It seems appropriate for the ILC to further address this topic, perhaps by adopting a new set of draft principles that deals exclusively with the role and responsibility of non-state actors in this area.44 Moving to the ICRC work, it should be noted that the 1994 and 2020 Guidelines differ in terms of who they are addressed to. While the older version exclusively targets states, the updated version takes into account that non-international armed conflicts are particularly more prevalent than international ones in recent decades. For this reason, the 2020 Guidelines are addressed to states, armed non-state actors and also to those actors who can influence the behavior of the parties to a conflict. Consequently, the 2020 Guidelines have a broader scope than the 1994 Guidelines, as they apply to both international and non-international armed conflicts, making references to both conventional and customary international law.45

5. The normative value of the two documents

As regards the normative value of the ILC Draft principles and the ICRC Guidelines, it must be said that both are two generally non-binding instruments. However, it is appropriate to make a specification regarding the Draft principles about PERAC adopted on first reading in 2019. Indeed, they have different normative values because some represent binding rules while others are just recommendations.46 The purpose of the study is to codify and further develop customary international law and the choice to adopt principles is consistent with this approach. Draft principles offer more flexibility than draft articles when it comes to the further development of international law and ILC would have adopted the latter if it wanted to draft a new treaty. Moreover, the normative value of the Draft principles is clear from the wording of the provisions: it is used “shall” for the obligations and “should” for recommendations. Having said that, many States highlighted that the draft principles carry different values. Specifically, Brazil, Russia and UK underlined that most of the PERAC draft principles represent non-binding guidelines and the USA called on the ILC to provide more clarity.47 With regard to the ICRC work, the 2020 Guidelines are also a generally non-binding instrument. They reflect developments in international law and represent a tool to facilitate the adoption of concrete measures to improve the protection of the natural environment in armed conflicts.48 Finally the ICRC's aim is for the different states to incorporate the various guidelines into their military manuals, with the intention of making them known to their armed forces and avoiding damage to environmental elements.49

Paragraph 3- Examples of military manuals and national practices

In this section, some military manuals that have adopted the ICRC guidelines and examples of some state practices for environmental protection in armed conflicts are analyzed.

1. The Manual of the Law of Armed Conflict of Australia (2006)

The Manual of the Law of Armed Conflict of Australia (2006) has a section on objects for which special protection is provided, which contains paragraph 5.50 entitled "Environment". In that paragraph, it is possible to identify provisions concerning the environment which are traceable to various rules of the ICRC Guidelines. Firstly, the Manual states that those responsible for the planning and conduct of military operations have a duty to ensure that the natural environment is protected50 and a relevant example in this respect is that, in practice, they take into account the characteristics of the battlefield on which they operate.51 Furthermore the Martens Clause, which is also present in Rule 16 of the ICRC Guidelines,52 is reiterated in this Manual.53 Moreover paragraph 5.50 lists some specific rules provided for the protection of the environment. The first is that the destruction of the natural environment, not justified by military necessity, may be punished as a violation of international law,54 and very similar wording is contained in Rule 13 of the 2020 Guidelines.55 Secondly, there is a prohibition on the use of means or methods of warfare that cause widespread, long-term and severe damage to the environment or are expected to cause such damage or harm to the health or survival of the population.56 This wording is very similar to Rule 2 of the 2020 Guidelines, which has the same threshold for environmental damage.57 Another specific provision in the same paragraph states that attacks with incendiary weapons on areas covered by vegetation are prohibited unless the natural elements are used to conceal combatants or military objectives or are themselves military objectives.58 In addition, the Australian Armed Forces are required, for example, to avoid the use of air guns against civilians, individual citizens or civilian objects, as well as if a military target is located in close proximity to civilians.59 In this regard, a similarity can be noted with Rule 23, which sets the same limit for the use of incendiary weapons against states parties to Protocol III to the Convention on Certain Conventional Weapons (1980).60 Furthermore the Australian Military Manual states the prohibition of use of environmental modification techniques,61 which is present in the Guidelines in Rule 3 and refers only to states parties to the ENMOD Convention (1976),62 as well as the prohibition of reprisals against the natural environment,63 provided for in Rule 4.64 Finally, paragraph 5.50 of the Manual states that, in the event of violations of the regulations provided for the protection of the environment, commanders are obliged to stop such violations, to take measures to prevent new ones and to report them to higher authorities, so that appropriate measures may be taken.65 In this regard, reference may be made to Rule 28, which deals with the prosecution of war crimes relating to the natural environment and also addresses the responsibility of commanders.66

2. Law of Armed Conflict-Manual of Germany (2013)

Another military manual that should be considered in relation to environmental protection in armed conflicts is the German one. Its chapter 4 is dedicated to the means and methods of warfare and, in its first paragraph, states that it is forbidden to use means or methods of warfare which cause, or are likely to cause, widespread, long-term and serious damage to the natural environment.67 In this regard, reference can be made to Rule 2 of the ICRC Guidelines, which provides for the same absolute limit of environmental damage.68 In addition, the German military manual states that installations containing dangerous forces, such as dams, dykes or nuclear power plants, may not become the object of an attack, even though they are military targets, if the attack could result in the release of such dangerous forces and the consequent heavy losses among the civilian population.69 Here it is worth recalling Rule 11 of the 2020 Guidelines, which lays down prohibitions on installations containing dangerous forces.70 Moreover, within the chapter on the means and methods of warfare, the German military manual includes a section entitled “Protection of the Environment”. In addition to stating that the means and methods of warfare must be used with due consideration for environmental aspects, this section affirms the precautionary principle, the principle of military necessity and the prohibition of reprisals against the natural environment.71 Once again, reference can be made to the ICRC Guidelines, in particular Rules 8, 13 and 4.72 With regard to the precautionary principle, an example concerning its application by the Armed Forces is the duty to verify that a target is indeed military, even when it is part of the natural environment. For instance, when troops attack an area covered by foliage, they have to be sure that the opposing soldiers are in that area.73 In conclusion, the German military manual defines environmental warfare as that in which means or methods of warfare are used to cause widespread long-term and serious damage to the environment, and distinguishes the latter from environmental modification techniques, which are prohibited by the ENMOD Convention (1976).74 In this regard, Rule 3 of the ICRC Guidelines reiterates the obligation in the ENMOD Convention not to use environmental modification techniques against other states parties to the treaty.75

3. The Operational Law Handbook of United States Army (2015)

A military manual worth considering is the US one, chapter 19 of which is entitled 'Environmental law in operations'. In this chapter, there is a section on the application of traditional law of war in which several international law treaties are listed with the corresponding US positions. For instance, it is stated that, as a general rule the US respects the restrictions of the Chemical Weapons Convention (1993) regarding the use of herbicides and chemical agents against combatants. However, they reserve the right to use herbicides for domestic use and for vegetation control in and around the perimeter of their installations.76 Moreover, the ICRC's study of customary international humanitarian law confirms that the practice of states is consistent with the applicability of the ban on chemical weapons to both international and non-international conflicts. Currently, there is no official practice to the contrary, and there have been numerous statements by various countries that chemical weapons should not be used on any occasion and should be destroyed.77 In this regard, reference can be made to Rule 21 of the ICRC Guidelines, which prohibits the use of chemical weapons and refers in the commentary to the 1993 Convention for the definition of chemical weapons. Furthermore Rule 22, which prohibits the use of herbicides as a method of warfare, can also be invoked.78 Moreover Article 35 of the Additional Protocol I and the absolute limit on environmental damage there in is mentioned in the US military manual. The US has not ratified Additional Protocol I and is therefore not bound by its provisions. Due to the absence of such ratification, it has stated that it does not accept the absolute limit of environmental damage provided for in the Protocol, but prefers the traditional assessment based on the principle of proportionality.79 Thus, when carrying out an attack, they have to balance the military necessity against the expected damage and avoid the attack if it is disproportionate, but they are not required to respect the maximum threshold of environmental damage contained in both Additional Protocol I and the 2020 Guidelines. In this regard, in response to an ICRC Memorandum regarding the applicability of IHL in the Persian Gulf region in 1991, the US stated that its practice does not include methods of warfare that would result in widespread, long-term and severe damage to the environment.80 Chapter 19 of the US military manual also contains references to other articles of Additional Protocol I, such as Article 54, which prohibits the destruction of objects essential to the survival of the population, Article 55, which prohibits reprisals against the environment, and Article 56, which prohibits attacks against installations containing dangerous forces.81 The same prohibitions are laid out in the 2020 Guidelines in Rules 10, 4, and 11 respectively.82 In this regard, the United States opposes the absolute prohibitions in the articles of Additional Protocol I, but recognizes that many of its allies are parties to the treaty. For this reason, it is committed to taking humanitarian and environmental issues into account in armed conflicts.83 Finally, the military manual in question also contains a reference to the Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954), which has been ratified by the United States.84 Here, reference can be made to Rule 12 of the Guidelines, which lays down prohibitions in relation to cultural property.85

Conclusion

After analyzing the ILC Draft principles and ICRC Guidelines, it is appropriate to state that both documents are very relevant tools for improving environmental protection in armed conflicts. In particular, the issue concerning the lack of distinction between international and non-international armed conflicts could represent a breakthrough in international law, considering the underdevelopment of the law concerning non-international conflicts. Moreover, the issue of non-state armed actors is also of considerable importance in the same field. It is worth noting that the topic of PERAC has attracted the interest of several countries in recent years. For this reason, it is not surprising that many states have expressed their appreciation for the work of the ILC. These include: Austria , Colombia , Cuba , Egypt , El Salvador , Germany , Greece , Honduras , Italy , Indonesia , Japan , Lebanon , Malaysia , Micronesia , Nordic countries , Poland , Portugal , Republic of Korea , Romania , Singapore , Slovenia , Thailand , Ukraine and Vietnam. In addition, some states, including Slovenia and Cyprus, have also been particularly appreciative of ICRC's work on the 2020 Guidelines.86 In conclusion, the hope is that the draft principles will be approved at second reading while maintaining the absence of a general distinction between the two types of conflicts and that the wider term 'environment' will be preferred to 'natural environment', thus ensuring wider protection. On the other hand, with regard to the ICRC work, the hope is that the military manuals of the various countries will decide to integrate them with the rules drafted in 2020. 

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Relevant documents

Advisory Committee of Public International Law, Advisory Report on the ILC’s Draft Principles on Protection of the Environment in Relation to ArmedConflicts n. 36, 2020, file:///C:/Users/Casa/Downloads/Protection_of_the_Environment_in_Relation_to_Armed_Conflicts_CAVV-Advisory-report-36_202007%20(22).pdf

Australia, The Manual of the Law of Armed Conflict, 2006

China’s Regulation of the Chinese People’s Liberation Army on the Protection of the Environment, 2004

Cina, Regulations of the Chinese People’s Liberation Army on Environmental Impact Assessment, 2006

Conflict and Environment Observatory, Briefing paper: Strengthening the International LawCommission’s newly adopted draft principles on the protection of the environment in relation to armed conflicts, 2019, https://ceobs.org/briefing-paper-strengthening-the-international-law-commissions-newly-adopted-draft-principles-on-the-protection-of-the-environment-in-relation-to-armed-conflicts/#2

Conflict and Environment Observatory, Report: 2019’s UN General Assembly debate on the protection of the environment in relation to armed conflicts, 2019, https://ceobs.org/report-2019s-un-general-assembly-debate-on-the-protection-of-the-environment-in-relation-to-armed-conflicts/

Germany, Law of Armed Conflict – Manual, 2013

HPCR, Manual on International Law Applicable to Air and Missile Warfare, 2009

International Criminal Tribunal for the Former Yugoslavia (ICTY), Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia, 2000

ICRC, Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict, 1994, https://www.icrc.org/en/doc/resources/documents/article/other/57jn38.htm

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, 2020, https://www.icrc.org/en/document/guidelines-protection-natural-environment-armed-conflict-rules-and-recommendations-relating

ICRC, Strengthening legal protection for victims of armed conflicts, 2011, 31 IC/11/5.1.1, https://www.icrc.org/en/doc/assets/files/red-cross-crescent-movement/31st-international-conference/31-int-conference-strengthening-legal-protection-11-5-1-1-en.pdf

ICRC, Study on Customary International Humanitarian Law, Commentary of Rule 44, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule44

ICRC, Study on Customary International Humanitarian Law, Commentary of Rule 45, https://ihldatabases.icrc.org/customary-ihl/eng/docs/v1_rul_rule45

ICRC, Study on Customary International Humanitarian Law, Commentary of Rule 53, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule53

ICRC, Study on Customary International Humanitarian Law, Commentary of Rule 54, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule54

ICRC, Study on Customary International Humanitarian Law, Commentary of Rule 74, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule74

ICRC, Study on Customary International Humanitarian Law, Practice Relating to Rule 84, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule84

Iraq, Law No. 10 of the Iraqi Higher Criminal Court, 2005

United Kingdom, The Joint Service Manual of the Law of Armed Conflict, 2004

United States Army, Operational Law Handbook, 2015

United States, The Commander’s Handbook on the Law of Naval Operations, 2007

WHO, Health Aspects of the Use of Chemical and Biological Weapons, 1970

UN Documents

Statute of the International Law Commission, UN Doc. A / RES / 174

Jacobsson, Preliminary report on the protection of the environment in relation to armed conflicts, 2014, UN Doc. A/CN.4/674

Jacobsson, Second report on the protection of the environment in relation to armed conflicts, 2015, UN Doc. A/CN.4/685

Jacobsson, Third report on the protection of the environment in relation to armed conflicts, 2016, UN Doc. A/CN.4/700

Lehto, First Report on Protection of the Environment in Relation to armed conflicts, 2018, UN Doc. A/CN.4/720

Lehto, Second report on protection of the environment in relation to armed conflicts, 2019, UN Doc. A/CN.4/728 

ILC, Draft Principles on the Protection of the Environment in Relation to Armed Conflicts, 2019, Un Doc. A/74/10

UN, Report of the Secretary-General on Chemical and Bacteriological (Biological) Weapons and the Effects of their Possible Use, 1969

UNGA, Report of the Secretary-General on napalm and other incendiary weapons and all aspects of their possible use, 1972

UNGA, Resolution 47/37, Protection of the environment in times of armed conflict, 1992

UNGA, Resolution on the United Nations Decade of International Law, 1994, UN Doc. A/49/323

UNGA, Resolution 61/194, 2006, UN Doc. A/RES/61/194

UNGA, Resolution 62/188, 2007, UN Doc. A/RES/62/188

UNEP, From Conflict to Peacebuilding. The Role of Natural Resources and the Environment, 2009, https://postconflict.unep.ch/publications/pcdmb_policy_01.pdf

UNEP, Protecting the Environment During Armed Conflict, An Inventory and Analysis of International Law, 2009, https://postconflict.unep.ch/publications/int_law.pdf

1UNGA, Resolution 174(II) of 21 November 1947, UN Doc. A/RES/174(II).

2Paragraph 1, article 1, Statute of the International Law Commission, UN Doc. A/RES/174(II).

3Paragraph 2, article 1, Statute of the International Law Commission, UN Doc. A/RES/174(II).

4Sreenivasa Rao, International Law Commission, in Max Planck Encyclopedias of International Law, 2017, para. A-3.

5Paragraph 2, article 18, Statute of the International Law Commission, UN Doc. A/RES/174(II).

6Sreenivasa Rao, International, cit., para. C-2.

7Sreenivasa Rao, International, cit., para. C-1.

8Article 23, Statute of the International Law Commission, UN Doc. A/RES/174(II).

9Gasser, International Committee of the Red Cross (ICRC), in Max Planck Encyclopedias of International Law, 2016, paras. A-B.

10Ronzitti, Diritto Internazionale, Giappichelli (ed.), 2019, p. 510.

11Gasser, International Committee of the Red Cross (ICRC), in Max Planck Encyclopedias of International Law, 2016, paras. D-H.

12ILC, Draft Principles on the Protection of the Environment in Relation to Armed Conflicts (2019), Un Doc. A/74/10, pp. 209-210.

13ICRC, Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict, 1994, https://www.icrc.org/en/doc/resources/documents/article/other/57jn38.htm.

14 UNGA, Resolution on the United Nations Decade of International Law, 1994, UN Doc. A/49/323, p. 49-53.

15 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, 2020, pp. 4-5, https://www.icrc.org/en/document/guidelines-protection-natural-environment-armed-conflict-rules-and-recommendations-relating.

16Hulme, The ILC’s Work Stream on Protection of the Environment in Relation to Armed Conflict, in Questions of International Law, 2016, para. 3, http://www.qil-qdi.org/ilcs-work-stream-protection-environment-relation-armed-conflict/.

17ILC, Draft, cit., p. 215.

18 ILC, Draft, cit., p. 216.

19Pantazopoulos, Protection of the environment during armed conflicts: An appraisal of the ILC’s work, in Questions of International Law, 2016, para. 2.1, http://www.qil-qdi.org/protection-environment-armed-conflicts-appraisal-ilcs-work/.

20 ILC, Draft, cit., p. 268.

21ICRC, Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict, 1994, Rule 11.

222020 ICRC Guidelines, cit., p. 29-39.

232020 ICRC Guidelines, cit., para. 101.

242020 ICRC Guidelines, cit., para. 122.

252020 ICRC Guidelines, cit., para. 14.

26Lehto, Second report on protection of the environment in relation to armed conflicts, 2019, UN Doc. A/CN.4/728, p. 84.

27A. Timoshenko (ed.), “Conclusions by the Working Group of Experts on liability and compensation for environmental damage arising from military activities”, in Timoshenko (ed.), Liability and Compensation for Environmental Damage: Compilation of Documents (UNEP, 1998), para. 31.

28Advisory Committee of Public International Law, Advisory Report on the ILC’s Draft Principles on Protection of the Environment in Relation to Armed Conflicts n. 36, 2020, p. 16, file:///C:/Users/Casa/Downloads/Protection_of_the_Environment_in_Relation_to_Armed_Conflicts_CAVV-Advisory-report-36_202007%20(25).pdf.

29Lehto, Second report on protection of the environment in relation to armed conflicts, 2019, UN Doc. A/CN.4/728, p. 86.

30Jacobsson, Second report on the protection of the environment in relation to armed conflicts, 2015, UN Doc. A/CN.4/685, p. 49; Draft principle 1: “The natural environment is civilian in nature and may not be the object of an attack, unless and until portions of it become a military objective. It shall be respected and protected, consistent with applicable international law and, in particular, international humanitarian law.”

312020 ICRC Guidelines, cit., para. 16.

322020 ICRC Guidelines, cit., pp. 15-16.

33Jacobsson, Second report on the protection of the environment in relation to armed conflicts, 2015, UN Doc. A/CN.4/685, pp. 36-37.

34Pantazopoulos, Protection, cit., para. 2.2.

35Pantazopoulos, Protection, cit., para. 2.2.

36 ILC, Draft, cit., p. 259.

37Advisory Committee of Public International Law, Advisory, cit., p. 15.

38Paragraph 1, article 1, Statute of the International Law Commission, UN Doc. A/RES/174(II).

39Conflict and Environment Observatory, Report: 2019’s UN General Assembly debate on the protection of the environment in relation to armed conflicts, 2019, para. 2.3, https://ceobs.org/report-2019s-un-general-assembly-debate-on-the-protection-of-the-environment-in-relation-to-armed-conflicts/.

402020 ICRC Guidelines, cit., para. 306.

41 Lehto, Second report on protection of the environment in relation to armed conflicts, 2019, UN Doc. A/CN.4/728, pp. 23-32.

42Jakjimovska and Amani, Protecting the Environment in Non-International Armed Conflicts: Are We There Yet?, in EJIL-Talk!, 2019, https://www.ejiltalk.org/protecting-the-environment-in-non-international-armed-conflicts-are-we-there-yet/.

43Sjöstedt and Dienelt, Enhancing the Protection of the Environment in Relation to Armed Conflicts – the Draft

Principles of the International Law Commission and Beyond, in Goettingen Journal of International Law, 2020, pp. 17-18, https://www.gojil.eu/issues/101/101_article_sjoestedt_dienelt.pdf.

44Conflict and Environment Observatory, Report, cit., para. 7.

452020 ICRC Guidelines, cit., para. 11.

46ILC, Draft, cit., p. 215.

47Conflict and Environment Observatory, Report, cit., para. 2.4.

482020 ICRC Guidelines, cit., p. 4.

492020 ICRC Guidelines, cit., p. 12.

50Australia, The Manual of the Law of Armed Conflict, 2006, para. 5.50.

512020 ICRC Guidelines, cit., para. 44.

522020 ICRC Guidelines, cit., p. 79.

53Australia, The Manual of the Law of Armed Conflict, 2006, para. 5.50.

54Australia, The Manual of the Law of Armed Conflict, 2006, para. 5.50.

55 2020 ICRC Guidelines, cit., p. 72.

56 Australia, The Manual of the Law of Armed Conflict, 2006, para. 5.50.

57 2020 ICRC Guidelines, cit., p. 29.

58 Australia, The Manual of the Law of Armed Conflict, 2006, para. 5.50.

59 ICRC, Study on Customary International Humanitarian Law, Practice Relating to Rule 84, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule84.

60 2020 ICRC Guidelines, cit., p. 94.

61 Australia, The Manual of the Law of Armed Conflict, 2006, para. 5.50.

62 2020 ICRC Guidelines, cit., p. 40.

63 Australia, The Manual of the Law of Armed Conflict, 2006, para. 5.50.

64 2020 ICRC Guidelines, cit., p. 44.

65 Australia, The Manual of the Law of Armed Conflict, 2006, para. 5.50.

66 2020 ICRC Guidelines, cit., p. 109.

67Germany, Law of Armed Conflict – Manual, 2013, para. 401.

68 2020 ICRC Guidelines, cit., p. 29.

69 Germany, Law of Armed Conflict – Manual, 2013, para. 428.

70 2020 ICRC Guidelines, cit., p. 66.

71 Germany, Law of Armed Conflict – Manual, 2013, para. 434.

72 2020 ICRC Guidelines, cit., pp. 56, 72 e 44.

73 2020 ICRC Guidelines, cit., para. 132.

74 Germany, Law of Armed Conflict – Manual, 2013, paras. 435-436.

75 2020 ICRC Guidelines, cit., p. 40.

76 United States Army, Operational Law Handbook, 2015, p. 332.

77 ICRC, Study on Customary International Humanitarian Law, Commentary of Rule 74, https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul_rule74.

78 2020 ICRC Guidelines, cit., pp. 89-91.

79 United States Army, Operational Law Handbook, 2015, p. 333.

80 ICRC, Study on Customary International Humanitarian Law, Commentary of Rule 45, https://ihldatabases.icrc.org/customary-ihl/eng/docs/v1_rul_rule45.

81 United States Army, Operational Law Handbook, 2015, p. 334.

82 2020 ICRC Guidelines, cit., p. 63, p. 44, p. 66.

83 United States Army, Operational Law Handbook, 2015, p. 334.

84United States Army, Operational Law Handbook, 2015, p. 334.

85 2020 ICRC Guidelines, cit., p. 69.

86 Conflict and Environment Observatory, Report, cit., para. 2.