Print
See related documents
A. Draft resolution
(open)
B. Draft recommendation
(open)
Report | Doc. 15674 | 05 January 2023
Environmental impact of armed conflicts
Committee on Social Affairs, Health and Sustainable Development
Summary
Armed conflicts, wars and military aggression destroy human lives and damage human living space. Environmental damages can be multifaceted, severe, long-lasting and mostly irreversible. They affect not only ecosystems but also human health beyond the conflict area and long after the conflict is over. The human rights to life and to a healthy environment are thus undermined.
The report notes that the existing international legal framework provides for a limited protection of the environment in times of armed conflict based on international humanitarian law instruments. It highlights the need to ensure co-application of human rights and humanitarian law during armed conflicts. It also advocates for the international recognition of the crime of ecocide and measures to outlaw the use of prohibited weapons which have disastrous impact on both the environment and humans.
The report recommends steps to consolidate a legal framework for the enhanced protection of the environment in armed conflicts at national, European and international levels, notably for monitoring infringements and addressing compensation claims. Moreover, State responsibility for extraterritorial environmental damage should be strengthened, and a new regional legal instrument or treaty under the Council of Europe’s auspices should be drafted.
A. Draft resolution 
(open)1. Armed conflicts, wars and military
aggression destroy human lives and leave deep scars on human living space.
Environmental damages resulting from armed conflicts can be multifaceted,
severe, long-lasting and mostly irreversible. They not only harm
natural habitats and ecosystems but can also affect human health
well beyond the conflict area and long after the conflict is over.
The human rights to life and to a healthy environment are thus undermined.
2. The existing international legal framework provides for direct
and indirect protection of the environment in times of armed conflict
to a certain extent, based on international humanitarian law instruments
such as the United Nations Convention on the Prohibition of Military
or Any Other Hostile Use of Environment Modification Techniques
(ENMOD convention), and the Additional Protocol to the Geneva Conventions
relating to the Protection of Victims of International Armed Conflicts
(Protocol I). In addition, international law doctrine came to accept
the interplay between international humanitarian law and international
human rights law in the 1996 advisory opinion of the International
Court of Justice on the “Legality of the Threat or Use of Nuclear
Weapons”. The Parliamentary Assembly notes that the co-application
of human rights and humanitarian law during times of armed conflict
has also been confirmed by the United Nations Human Rights Committee
(via general comments) and the European Court of Human Rights (via
case law).
3. The Assembly therefore considers that international human
rights and humanitarian law imposes substantive and procedural obligations
on States involved in armed conflicts. With the increased worldwide acceptance
that the right to a healthy environment constitutes a human right,
there are grounds to affirm that States may have extraterritorial
obligations arising in and from armed conflicts.
4. The Assembly recalls that the norms of customary international
law provide indirect protection of the environment during armed
conflicts. To this end, it welcomes the Red Cross Guidelines for
Military Manuals Instructions (“ICRC Guidelines”) as updated in
2020 which contribute, practically and effectively, to raising awareness
about the need for the protection of the natural environment against
the impact of armed conflicts. However, the environment is thus
protected only in an incidental manner, subordinated to wartime requirements,
and conditioned on humanitarian imperatives.
5. The Assembly commends the work of the International Law Commission
(ILC) of the United Nations on the draft principles on the protection
of the environment in relation to armed conflicts. It welcomes the endorsement
of these principles by the United Nations General Assembly on 7
December 2022 and encourages their widest possible dissemination
across all European States and their global partners.
6. The Assembly notes that the Council of Europe has developed
several legal instruments to protect the environment: the Convention
on Civil Liability for Damage resulting from Activities Dangerous
to the Environment (ETS No. 150), the Convention on the Protection
of Environment through Criminal Law (ETS No. 172), the Convention
on the Conservation of European Wildlife and Natural Habitats (ETS
No. 104, “Bern Convention”) and the Landscape Convention (ETS No.176).
However, these conventions either do not explicitly cover or explicitly
exclude damage caused by an act of war or military hostilities.
The currently ongoing revision of the criminal law convention (ETS
No. 172), which is also open to non-member States, offers the possibility
of establishing a new “ecocide” criminal offence at Council of Europe
level. The Assembly also notes that the Committee of Ministers Recommendation
CM/Rec(2022)20 on human rights and the protection of the environment,
adopted on 27 September 2022, mentions “the environmental harm stemming
from armed conflicts”, reaffirms that “all human rights are universal,
indivisible, interdependent and interrelated” and urges steps to
recognise the right to a healthy environment at the national level
as a human right.
7. Severe destruction or deterioration of nature that could be
qualified as ecocide may occur in times of peace or war. It is necessary
to codify this notion in both national legislation, as appropriate,
and international law. The Assembly therefore strongly supports
efforts to amend the Rome Statute of the International Criminal Court,
so as to add ecocide as a new crime. It reiterates its call, contained
in Resolution 2398 (2021) “Addressing
issues of criminal and civil liability in the context of climate
change”, as regards the need for “recognising universal jurisdiction
for ecocide and the most serious environmental crimes” and introducing
“the crime of ecocide into […] national criminal legislation”.
8. The Assembly deplores the fact that despite an impressive
international legal arsenal, important gaps subsist in protecting
the environment in the context of armed conflicts and their aftermath.
The existing legal instruments lack universality in terms of ratifications,
precision of terms used (such as for qualifying “widespread, long-lasting,
or severe effects”), a comprehensive coverage of offences and a
sufficiently broad scope of application. Moreover, a permanent international
mechanism to monitor legal infringements and address compensation
claims for environmental damage is also missing.
9. The Assembly urges Council of Europe member States to take
all necessary measures to outlaw and prosecute the use of prohibited
weapons in the course of armed conflicts that, among other ills,
bring disproportionate environmental impact and render human life
in the affected area impossible.
10. Considering that the Council of Europe has served as a laboratory
of new legal developments to defend the values of human rights and
the rule of law in Europe and beyond, the Assembly believes that
the Organisation should take the lead in elaborating new legal instruments
to guide member States and beyond in preventing massive environmental
damage and reducing the scale of such damage as far as possible
during armed conflicts and their aftermath. It should pave the way
towards the international recognition of the crime of ecocide. With
this in mind, and referring to the above considerations, the Assembly
calls on the member States of the Council of Europe, as well as
observer States and States whose parliament enjoys observer or partnership
for democracy status with the Assembly to:
10.1. build and consolidate a legal framework for the enhanced
protection of the environment in armed conflicts at national, European
and international levels by:
10.1.1. ratifying
the ENMOD convention and Protocol I to the Geneva Conventions relating
to the Protection of Victims of International Armed Conflicts, if
they have not yet done so;
10.1.2. taking steps to support the creation of a permanent international
mechanism to monitor legal infringements and address compensation
claims for environmental damage resulting from armed conflicts;
10.1.3. supporting practical implementation of the principles
on the protection of the environment in relation to armed conflicts
adopted by the United Nations General Assembly and promoting their
dissemination through relevant domestic institutions, diplomatic
channels and international stakeholders;
10.1.4. promoting a more coherent and comprehensive reading of
the existing legal rules for protecting the environment in armed
conflicts;
10.1.5. updating their legal arsenal to criminalise and effectively
prosecute ecocide and taking concrete steps to amend the Rome Statute
of the International Criminal Court in order to add ecocide as a
new crime;
10.2. close gaps between different fields of law and the reality
on the ground in order to adequately protect human living space,
the environment, and human rights to life and to a healthy environment
in the context of armed conflicts by:
10.2.1. strengthening State responsibility for environmental damage
extending beyond their territorial limits, based on extraterritorial
human rights obligations and the functional impact- model in situations
where the impact is direct and reasonably foreseeable;
10.2.2. considering the drafting of a new regional legal instrument
or treaty under the Council of Europe’s auspices, with a view to
clarifying and filling the gaps identified in the existing legal regime
(notably regarding the damage threshold, enforcement, liability,
and the due diligence principle);
10.2.3. conducting a study, under the auspices of the Council
of Europe, on the possible interplay between existing international
criminal law and environmental harm occurring during armed conflicts,
in particular as regards the possibility to invoke existing war
crimes;
10.2.4. actively participating in the revision process of the
Council of Europe’s convention No. 172 in order to ensure that the
revised convention would apply also in the context of armed conflicts,
wartime or occupation;
10.2.5. deploying sufficient means to ensure proper monitoring
and implementation of commitments under the Council of Europe treaties,
in particular the Bern Convention and the Landscape Convention;
10.2.6. ensuring that the relevant international legal framework
is interpreted in a more open-ended manner, so as to offer more
adequate protection of both the environment and human health;
10.2.7. mapping areas of particular environmental importance or
sensitivity, based on existing protected areas (such as world natural
heritage sites or natural reserves), in anticipation of any form
of armed conflict, and foreseeing the demilitarisation of such areas
in the case of a military conflict;
10.2.8. adapting national military manuals in the light of the
updated ICRC Guidelines, the United Nations principles on the protection
of the environment in relation to armed conflicts and the evolving
international legal framework;
10.2.9. considering establishing domestic and/or regional solutions
to provide relief to environmental refugees fleeing a military conflict,
given the international legal vacuum on this matter;
10.2.10. promoting knowledge of and compliance with international
legal standards protecting the environment among non-state actors
involved in armed conflicts.
B. Draft recommendation
(open)1. The Parliamentary Assembly
refers to its Resolution … (2023) “Environmental impact of armed
conflicts” and underscores the role of the Council of Europe as
a guardian of human rights and the rule of law in times of peace
and war. It deplores the devastating effects that armed conflicts
have on the environment as a source of living and insists on the
co-application of human rights and humanitarian law during times
of armed conflict, as confirmed by the United Nations Human Rights
Committee and the European Court of Human Rights.
2. The Assembly moreover underlines the indivisibility of human
rights and considers that, with the increased acceptance that the
right to a healthy environment constitutes a human right, the member
States of the Council of Europe should take ambitious measures to
improve the legal framework to adequately protect human living space,
the environment, and the human right to life and to a healthy environment
in the context of armed conflict.
3. The Assembly therefore recommends that the Committee of Ministers:
3.1. urge member States and observers
to ratify the United Nations Convention on the Prohibition of Military
or Any Other Hostile Use of Environment Modification Techniques
(ENMOD convention) and the Additional Protocol to the Geneva Conventions
relating to the Protection of Victims of International Armed Conflicts
(Protocol I), if they have not yet done so;
3.2. mandate a competent body to study the feasibility of drafting
a new regional legal instrument or treaty under the Council of Europe’s
auspices, with a view to identifying and filling the gaps identified
in the existing legal regime for the protection of the environment
and human rights to life and to a healthy environment in armed conflicts,
wartime or occupation (notably regarding the damage threshold, the characterisation
of intent, behaviours that must be sanctioned, entities that should
be held liable, enforcement, the scale of liability and proper interpretation
of the principles of proportionality, military necessity, and due
diligence);
3.3. mandate the governing body of the Convention on the Conservation
of European Wildlife and Natural Habitats (ETS No. 104, “Bern Convention”)
to elaborate recommendations regarding the protection of environmentally
sensitive areas during armed conflicts, to study the feasibility
of an additional Protocol to the Convention to this end, and to
consider creating a review mechanism to ensure that the recommendations
are implemented by States parties (notably, transposed into domestic
law, incorporated into military doctrine, and shared broadly with
a view to developing good practice);
3.4. ensure that the revised Council of Europe Convention on
the Protection of Environment through Criminal Law (ETS No. 172)
applies also in the context of armed conflicts, wartime or occupation,
and covers ecocide;
3.5. allocate sufficient means to ensure proper monitoring
and implementation of commitments under the Council of Europe treaties,
in particular the Bern Convention and the Landscape Convention (ETS No. 176);
3.6. promote and disseminate the United Nations principles
on the protection of the environment in relation to armed conflicts;
3.7. support the creation of a permanent international mechanism
to monitor legal infringements and address compensation claims for
environmental damage resulting from armed conflicts;
3.8. encourage the European Court of Human Rights to use the
functional impact-model with jurisdiction whenever the question
of the extraterritorial application of human rights arises in situations of
armed conflict or occupation;
3.9. encourage member States to map areas of particular environmental
importance or sensitivity in anticipation of any form of armed conflicts
and to foresee the demilitarisation of such areas, in case a military
conflict breaks out;
3.10. call on member States to update their legal arsenal to
criminalise and effectively prosecute ecocide, to establish domestic
and/or regional solutions to provide relief to environmental refugees fleeing
a military conflict, and to take concrete steps to propose amendment
of the Rome Statute of the International Criminal Court in order
to add ecocide as a new crime.
C. Explanatory memorandum by Mr John Howell, rapporteur
(open)1. Introduction
1. The impact on the environment
of armed conflict, war or military aggression can be multifaceted,
more or less severe, but mostly irreversible. Several armed conflicts
of the past can attest to that, including the Vietnam War, the Gulf
War, but also the wars in the former Yugoslavia and in the Caucasus,
or the military conflicts between Israel and Palestinian territories
and Russian Federation’s war of aggression against Ukraine, with
major environmental damages which can ultimately also affect human
health well beyond the conflict area and after the conflict is over.
During such conflicts, environmental protection is typically relegated to
the backstage (a “silent casualty”), as the focus of the fighting
parties in international law must be to protect the life and rights
of civilians caught in the crossfire. However, protecting civilians
actually also means protecting the environment in which they live
and on which they depend.
2. Environmental damage may occur mainly during an armed conflict,
but also before its outbreak, and once it is over: there are no “clean
wars”. It is necessary to consider these damages in terms of human responsibility
for the integrity of ecosystems, and as regards impact on human
health (right to a healthy environment). To address this concern,
the motion entitled “Impact of armed conflict on transboundary environmental
damage” (Doc. 15074) was referred to the Committee on Social Affairs, Health,
and Sustainable Development for report, and I was appointed rapporteur.
and once it is over: there are no “clean
wars”. It is necessary to consider these damages in terms of human responsibility
for the integrity of ecosystems, and as regards impact on human
health (right to a healthy environment). To address this concern,
the motion entitled “Impact of armed conflict on transboundary environmental
damage” (Doc. 15074) was referred to the Committee on Social Affairs, Health,
and Sustainable Development for report, and I was appointed rapporteur.3. This report examines the modalities of the existing international
legal framework with regard to environmental protection in times
of armed conflict, seeks to provide guidance to policy makers on
how it could be used more effectively, and aims to propose additional
measures for better protection as necessary (such as regarding compensation
for damages, rehabilitation of damaged natural habitats, the definition
of “ecocide”, etc.). The report considers a few pertinent examples
of environmental damage in the light of past and ongoing armed conflicts
on European territory. In this context, I should point out that
this report is not about the
political aspects of such conflicts: our focus is on the environment
and the related repercussions on public health. This last point
is worth emphasising again: it is not about the political aspects
of conflicts.
4. As rapporteur, I would like to thank most warmly the experts
who have contributed highly valuable elements to this report during
the committee hearing on 23 June 2022, notably Ms Marja Lehto, Member
of the UN International Law Commission and Special Rapporteur on
the Protection of the Environment in Relation to Armed Conflicts;
Ms Helen Obregón Gieseken, Legal Advisor of the International Committee
of the Red Cross (ICRC) and a co-author of its updated Guidelines
on the Protection of the Natural Environment in Armed Conflict;
and Ms Karen Hulme, Chair of the Specialist Group on Environmental
Security and Conflict Law of the International Union for Conservation
of Nature World Commission on Environmental Law, professor of law
at the University of Essex. I should also thank my colleagues who
not only spoke at the hearing but also provided me with detailed
information for the selected cases evoked in this report. Finally,
I would also like to thank the Parliament of Ukraine where the Committee
on Environmental Policy and Nature Management held a hearing on
“The impact of the hostilities on the environment in Ukraine and
its restoration” which I attended and spoke at online on 10 November
2022.
2. Legal framework: direct and indirect protection of the environment in times of armed conflicts
5. In the second half of the 20th century,
the international legal framework regarding the protection of the environment
gradually expanded. It contains certain provisions to protect the
environment either directly or indirectly during armed conflicts.
In times of war, international humanitarian law applies, including
the United Nations Convention on the Prohibition of Military or
Any Other Hostile Use of Environment Modification Techniques and
the Additional Protocol to the Geneva Conventions relating to the
Protection of Victims of International Armed Conflicts (Protocol
I). Several of these legal instruments appear to have attained customary
law status as recognised by the ICRC in its 2005 Customary International
Law Study. The soft law Rio Declaration on Environment and Development
of 1992 states that States should “respect international law providing
protection for the environment in times of armed conflict”.
6. International law doctrine came to accept the interplay between
international humanitarian law and international human rights law
in the 1996 advisory opinion of the International Court of Justice
on the “Legality of the Threat or Use of Nuclear Weapons”. This
has been followed up, most notably in the advisory opinion on the
“Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territories”. The co-application of human rights and
humanitarian law during times of armed conflict has also been confirmed
by the UN Human Rights Committee and
the European Court of Human Rights. International human
rights law thus imposes new substantive and procedural obligations
on States involved in armed conflicts. With the increased acceptance
that the right to a healthy environment constitutes a human right, States
may have extraterritorial human rights obligations arising from
such activities.
and
the European Court of Human Rights. International human
rights law thus imposes new substantive and procedural obligations
on States involved in armed conflicts. With the increased acceptance
that the right to a healthy environment constitutes a human right, States
may have extraterritorial human rights obligations arising from
such activities. 7. While these instruments provide both direct and indirect protection
of the environment in times of armed conflict, several other international
instruments also provide additional indirect protection. However, altogether the existing
international instruments seem to offer very limited protection
to prevent environmental damage in times of armed conflict. International
humanitarian law is above all anthropocentric, meaning to preserve
the environment in order to ensure humans’ interests. In the light
of recent political moves at the Assembly and the United Nations
levels to anchor the right to a healthy environment, this anthropocentric
approach could develop more into an “eco-centric” approach aiming
to intrinsically protect the environment.
However, altogether the existing
international instruments seem to offer very limited protection
to prevent environmental damage in times of armed conflict. International
humanitarian law is above all anthropocentric, meaning to preserve
the environment in order to ensure humans’ interests. In the light
of recent political moves at the Assembly and the United Nations
levels to anchor the right to a healthy environment, this anthropocentric
approach could develop more into an “eco-centric” approach aiming
to intrinsically protect the environment.8. As it were, between 1955 and 1975, the Vietnam War became
the stage of environmental destruction as the essential aim of the
military strategy. The United States performed experiments to alter
the weather in Indochina in order to bring down rain and create
mud and flooding in North Vietnam to limit enemy movements and cut
off supply lines. These events led to the adoption,
on 10 December 1976 and under the United Nations auspices, of a
new legal instrument to protect the environment in times of armed
conflict: the Convention on the Prohibition of Military or Any Other
Hostile Use of Environment Modification Techniques (also called Environmental
Modification Convention, ENMOD). This convention was the first instrument
of international humanitarian law to consider the environment directly.
It also remains the only legal instrument to prohibit the use of
the environment as a weapon of war: article 1 of the ENMOD prohibits
the “military or any other hostile use of environmental modification
techniques having widespread, long-lasting, or severe effects”.
These events led to the adoption,
on 10 December 1976 and under the United Nations auspices, of a
new legal instrument to protect the environment in times of armed
conflict: the Convention on the Prohibition of Military or Any Other
Hostile Use of Environment Modification Techniques (also called Environmental
Modification Convention, ENMOD). This convention was the first instrument
of international humanitarian law to consider the environment directly.
It also remains the only legal instrument to prohibit the use of
the environment as a weapon of war: article 1 of the ENMOD prohibits
the “military or any other hostile use of environmental modification
techniques having widespread, long-lasting, or severe effects”.9. In 1977, a year after the adoption of the ENMOD Convention,
the Additional Protocol (to the Geneva Conventions of 12 August
1949) relating to the Protection of Victims of International Armed
Conflicts (Protocol I) was adopted. This international treaty protects
the environment against the effects of armed conflicts through two
legal provisions: articles 55 and 35.3. Article 55 shows an essentially
anthropocentric approach: the obligation to protect the natural
environment is based on the need to protect the civilian population.
As article 55 states, “care shall be taken in warfare to protect
the natural environment against widespread, long-term, and severe
damage. This protection includes a prohibition of 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”. “Attacks against the
natural environment by way of reprisals are prohibited”. Moreover,
the Protocol also protects the natural environment as such: article 35.3
prohibits the use of “methods or means of warfare which are intended,
or may be expected, to cause widespread, long-term, and severe damage
to the natural environment”.
10. The Council of Europe has developed several relevant legal
instruments: the Convention on Civil Liability for Damage resulting
from Activities Dangerous to the Environment (ETS No. 150) and the
Convention on the Protection of Environment through Criminal Law
(ETS No. 172), as well as the Convention on the Conservation of
European Wildlife and Natural Habitats (ETS No. 104, “Bern Convention”)
and the Landscape Convention (ETS No.176). Convention
No. 150 aims to ensure adequate compensation for damage to the environment
and provides for means of prevention and reinstatement. Problems
of adequate compensation for emissions released in one country causing
damage in another country are also considered of an international nature.
That said, this convention does not cover damage that “was caused
by an act of war, hostilities, civil war, insurrection”. Convention No. 172 aims to deter
and prevent conduct that is most harmful to the environment at the
European level by using criminal law. It also seeks to harmonise
national legislation in this field, notably by obliging the contracting
States to introduce specific provisions into their criminal law
or to modify existing provisions in this field. Following the high-level
Conference on Environmental Protection and Human Rights (held on
27 February 2020 in Strasbourg), the criminal law convention is
being revised. Moreover,
we should note that the Committee of Ministers Recommendation CM/Rec(2022)20
on human rights and the protection of the environment, adopted on
27 September 2022, mentions “the environmental harm stemming from
armed conflicts”, reaffirms that “all human rights are universal,
indivisible, interdependent and interrelated” and urges steps to
recognise the right to a healthy environment at the national level
as a human right.
Convention
No. 150 aims to ensure adequate compensation for damage to the environment
and provides for means of prevention and reinstatement. Problems
of adequate compensation for emissions released in one country causing
damage in another country are also considered of an international nature.
That said, this convention does not cover damage that “was caused
by an act of war, hostilities, civil war, insurrection”. Convention No. 172 aims to deter
and prevent conduct that is most harmful to the environment at the
European level by using criminal law. It also seeks to harmonise
national legislation in this field, notably by obliging the contracting
States to introduce specific provisions into their criminal law
or to modify existing provisions in this field. Following the high-level
Conference on Environmental Protection and Human Rights (held on
27 February 2020 in Strasbourg), the criminal law convention is
being revised. Moreover,
we should note that the Committee of Ministers Recommendation CM/Rec(2022)20
on human rights and the protection of the environment, adopted on
27 September 2022, mentions “the environmental harm stemming from
armed conflicts”, reaffirms that “all human rights are universal,
indivisible, interdependent and interrelated” and urges steps to
recognise the right to a healthy environment at the national level
as a human right.11. Norms of customary international law provide indirect protection
of the environment during armed conflicts. These customary norms
are the principles of limitation, military necessity, proportionality, discrimination
(between civilian and military objectives), precautions, and prevention
of causing superfluous injury or unnecessary suffering. The ICRC
produced the Red Cross Guidelines for Military Manuals Instructions in
1994 and updated them in 2020. The goal was not a new codification,
but for the guidelines to serve as a reference tool for States and
to contribute, practically and effectively, to raising awareness
about the need for protection of the natural environment. These
guidelines are intended to be included in military manuals, instructions,
and regulations about the laws of war. They result from existing
legal international provisions, in particular humanitarian law,
and reflect the national practices on the protection of the environment
against the impact of armed conflicts. The updated guidelines recommend
specific steps the belligerent parties might adopt to limit the
environmental impact of the armed conflict.
The goal was not a new codification,
but for the guidelines to serve as a reference tool for States and
to contribute, practically and effectively, to raising awareness
about the need for protection of the natural environment. These
guidelines are intended to be included in military manuals, instructions,
and regulations about the laws of war. They result from existing
legal international provisions, in particular humanitarian law,
and reflect the national practices on the protection of the environment
against the impact of armed conflicts. The updated guidelines recommend
specific steps the belligerent parties might adopt to limit the
environmental impact of the armed conflict.12. In parallel to the ICRC’s work, in 2019 the International
Law Commission (ILC) of the United Nations put forward 28 draft
principles on the protection of the environment in relation to armed
conflicts as adopted in the first reading (“ILC draft principles”).
After revisions in the light of various comments, the final draft
principles (27 in total) were adopted on 27 May 2022 in the second
reading and will be submitted to the UN General Assembly together
with the ILC’s comments and recommendations. The ILC draft principles
seek to bridge the gap between the reality of current conflicts
and the narrow focus of the existing treaty rules. For this reason,
they include the pre- and post-conflict phases and touch upon international
human rights law and international environmental law. The UN General Assembly is expected
to attach the draft principles and comments to its own resolution
recommending them to the States, international organisations and
all the concerned entities and encouraging their widest possible
dissemination.
The UN General Assembly is expected
to attach the draft principles and comments to its own resolution
recommending them to the States, international organisations and
all the concerned entities and encouraging their widest possible
dissemination. 3. Limitations of the existing legal framework
13. As promising as they can be,
the existing legal instruments regarding direct protection of the environment
in times of armed conflict are facing multiple issues. Clearly,
the application scope of the existing legal instruments is limited.
The ENMOD Convention, for instance, presents a lack of universality.
Indeed, it only applies to and between State parties. To date, only
78 States have ratified the convention and 16 signed it but have
not ratified it. Many European countries have joined the convention,
but 11 countries have not. Moreover,
the convention only prohibits the use of environmental modification
techniques, but not, for instance, the research, the development,
or the preparation of such techniques. Furthermore, there are ambiguities regarding
the terms used: the interpretation of “environmental modification
techniques”, “having widespread, long-lasting, or severe effects”
and “the deliberate manipulation of natural processes” is unclear.
Moreover,
the convention only prohibits the use of environmental modification
techniques, but not, for instance, the research, the development,
or the preparation of such techniques. Furthermore, there are ambiguities regarding
the terms used: the interpretation of “environmental modification
techniques”, “having widespread, long-lasting, or severe effects”
and “the deliberate manipulation of natural processes” is unclear.14. Like the ENMOD Convention, Protocol I (to the Geneva Conventions
of 12 August 1949) only applies to international armed conflict,
and the Additional Protocol II relating to the Protection of Victims
of Non-International Armed Conflicts does not contain a provision
protecting the environment directly. Even though 174 States are
parties to Protocol I, certain States, involved in ongoing conflicts
causing harm to the environment are not part of it, including the
United States or Israel. Doubts also persist about the customary nature
of some provisions of this Protocol. The Protocol’s application
scope, furthermore, faces the issue of nuclear weapons: many countries,
including for example France and the United Kingdom, consider that
articles 35.3 and 55 only apply to conventional weaponry, thereby
excluding nuclear weapons. Moreover, the Protocol also states the
need for “widespread, long-term and severe damage to the natural
environment”: these cumulative criteria impose a high threshold
of environmental harm. Like the ENMOD Convention, the interpretation
of these notions is unclear, ambiguous, and comes with a high degree
of subjectivity.
15. Regarding the Council of Europe’s conventions Nos. 150 and
172, a lack of universality is to be noted too. The Convention on
civil liability has only been signed by nine Council of Europe member
States and has not been ratified by any
while the criminal law convention has been signed by fourteen member
States and ratified
by one (Estonia). Three ratifications being necessary, none of these
conventions have entered into force. The Assembly’s Resolution 2398 (2021) “Addressing
issues of criminal and civil liability in the context of climate
change” called for “reinforcing criminal liability for acts and
omissions that might […] cause […] severe environmental damage”
and asked member States to harmonise “laws on liability for environmental
damage, with special focus on the definition of environmental crimes
and sanctions related thereto”, to “revise or replace, as soon as
possible, Convention ETS No. 172 in order to have a legal instrument
better adapted to the current challenges”, to introduce “the crime
of ecocide into their national criminal legislation” and to “consider recognising
universal jurisdiction for ecocide and the most serious environmental
crimes, including in the 1998 Rome Statute of the International
Criminal Court”.
and has not been ratified by any
while the criminal law convention has been signed by fourteen member
States and ratified
by one (Estonia). Three ratifications being necessary, none of these
conventions have entered into force. The Assembly’s Resolution 2398 (2021) “Addressing
issues of criminal and civil liability in the context of climate
change” called for “reinforcing criminal liability for acts and
omissions that might […] cause […] severe environmental damage”
and asked member States to harmonise “laws on liability for environmental
damage, with special focus on the definition of environmental crimes
and sanctions related thereto”, to “revise or replace, as soon as
possible, Convention ETS No. 172 in order to have a legal instrument
better adapted to the current challenges”, to introduce “the crime
of ecocide into their national criminal legislation” and to “consider recognising
universal jurisdiction for ecocide and the most serious environmental
crimes, including in the 1998 Rome Statute of the International
Criminal Court”.16. Moreover, the resolution asked to “strengthen civil liability
for environmental damage by amending national civil law legislation,
if need be, […] by alleviating the burden of proof, notably by establishing
factual presumptions regarding causation, for persons requesting
compensation for damage, adding specific provisions on responsibility
for ecological harm, and/or by expanding the scope of strict liability
in relevant situations relating to environmental damage”. The Assembly’s
Recommendation 2213 (2021) urged the replacement of Convention No.
172 with a new legal instrument and called for revision or replacement
of Convention No. 150.
17. The majority of international legal provisions seeking to
protect the environment during armed conflict were designed for
international armed conflict; however, according to findings of
the 2005 ICRC customary law study, they can also apply to internal
conflict – the majority of armed conflicts nowadays. Yet, a permanent international
mechanism to monitor legal infringements and address compensation
claims for environmental damage is missing. The ICRC Guidelines
and the ILC draft principles aim to fill some of these gaps between existing
legal rules and reality, showing that there is potential for a more
coherent reading of the existing rules. Nevertheless, Ambassador
Marja Lehto, Special Rapporteur of the ILC for the environment and
armed conflicts, argues that there is still no coherent legal framework
for the protection of the environment in relation to armed conflicts.
18. The protection of the environment provided indirectly by international
customary law is limited. The environment is only protected in an
incidental manner, subordinated to wartime requirements, and conditioned on
humanitarian imperatives. For example, the principle of military
necessity forbids belligerents’ actions and harm to the environment,
if an attack does not involve any military advantage. While this
principle appears to be useful for the protection of the environment
in times of armed conflict, the principle of military necessity
can, a contrario, legitimise
environmental destructions required by the goals of the war and
justify many measures disastrous for the environment.
19. The same goes with the principle of proportionality: it can
be lawful to inflict collateral environmental damages when the military
advantage conferred by the attack is sufficiently important to justify
exposing the environment to an increased risk. The more important
the objective, the more environmental risk will be accepted: “in
applying this principle, it is necessary to assess the importance
of the target in relation to the incidental damage expected: if
the target is sufficiently important, a greater degree of risk to
the environment may be justified”. Moreover, these principles are not
easy to apply in practice. The necessity to hierarchise priorities
will lead to putting the environment at the bottom of the ladder
in times of war when confronted with other values. In any event,
the incidental protection of the environment is uncertain.
Moreover, these principles are not
easy to apply in practice. The necessity to hierarchise priorities
will lead to putting the environment at the bottom of the ladder
in times of war when confronted with other values. In any event,
the incidental protection of the environment is uncertain.4. Transboundary environmental damage
20. Transboundary damage is the
harm caused by activities carried out in places under the jurisdiction
or control of one State and arising in places under the jurisdiction
or control of another State or in places outside national jurisdiction.
Transboundary environmental damage mostly takes 3 forms: air pollution,
pollution of a transboundary watercourse (or land in case of territorial/border
changes between States), and transboundary shipment or dumping of
waste. In times of military conflict, the environment typically
suffers from damages to strategic infrastructure and related pollution
but also from “scorched earth techniques” which can include the deliberate
destruction of agricultural facilities (in particular water canals,
wells, and pumps), crops and forests.
21. According to the theory of limited territorial sovereignty,
States have responsibility for environmental damage extending beyond
their territorial limits. This international theory is an analogy
to the Roman law maxim sic utere tuo
ut alienum non laedas that means “use your property so
as not to injure that of another”. It was applied in the 1941 Trail
Smelter Arbitration. According to this decision, States must refrain
from causing ecological damages to other States (also in cases of
occupation) or places outside the jurisdiction
of any State. This principle (prevention of transboundary harm and
due diligence principle) is included in international conventions
and non-binding instruments and has a customary value. According
to the Corfu Channel Case (1947-1949), it is applicable in times
of armed conflict, as an obligation for belligerent States in their
relations with non-belligerent States.
or places outside the jurisdiction
of any State. This principle (prevention of transboundary harm and
due diligence principle) is included in international conventions
and non-binding instruments and has a customary value. According
to the Corfu Channel Case (1947-1949), it is applicable in times
of armed conflict, as an obligation for belligerent States in their
relations with non-belligerent States.22. Regarding the specific issue of situations of occupation,
the duty of diligence of the occupying State or power is backed
by a few international humanitarian law provisions. Most of those
provisions are contained in the Hague Regulation from 1907, the
fourth Geneva Convention (of 1949) and the first additional protocol
to the Geneva Conventions (of 1977). They have obtained customary
value and provide for an indirect protection through the protection
of both public and private property, and through
the obligations of the occupying power. The occupant has indeed
an obligation (“best-effort” obligation, not “result-oriented” obligation)
to protect the environment under both international law (duty of
diligence) and the domestic law of the occupied State.
and through
the obligations of the occupying power. The occupant has indeed
an obligation (“best-effort” obligation, not “result-oriented” obligation)
to protect the environment under both international law (duty of
diligence) and the domestic law of the occupied State. 23. Moreover, international humanitarian law rules on neutrality
apply in times of armed conflict and occupation whereby the territory
of neutral States is deemed inviolable and protected from collateral
damage. The
obligation to prevent transboundary harm is also linked to international
practice concerning compensation for damage. The UN Compensation
Commission, for instance, has systematically
applied environmental law principles in considering environmental
claims. Some multilateral environmental agreements provide for a conciliatory
approach to environmental protection during armed conflicts. We should note
further that due diligence obligations for States entail responsibility
for lack of vigilance regarding acts of non-state actors.
The
obligation to prevent transboundary harm is also linked to international
practice concerning compensation for damage. The UN Compensation
Commission, for instance, has systematically
applied environmental law principles in considering environmental
claims. Some multilateral environmental agreements provide for a conciliatory
approach to environmental protection during armed conflicts. We should note
further that due diligence obligations for States entail responsibility
for lack of vigilance regarding acts of non-state actors. 4.1. The Kosovo War
24. The Kosovo War on Yugoslavian territory (from
6 March 1998 to 10 June 1999) is one relevant example we can look
at for the purposes of this report. This military conflict opposed
the armed forces of the Federal Republic of Yugoslavia and the Kosovo
Liberation Army. During this war, the North Atlantic Treaty Organisation (NATO)
also conducted military operations against the Federal Republic
of Yugoslavia. Industrial sites and energy installations were damaged
by bombing or missile strikes. The destruction and fires at these
sites caused serious damage to the country’s natural environment.
The bombing affected ecosystems, surface water, groundwater, protected
areas, forests, landscapes, soils, and air in the Balkans that were
contaminated in an unprecedented manner. Over 100 toxic substances
were involved, including ordnance containing depleted uranium used
by NATO in several operations. There is a growing amount of evidence
that the dispersion of depleted uranium can be linked to the increased
incidence of aggressive cancers such as leukaemia among the local
population, military personnel, and peacekeepers.
There is a growing amount of evidence
that the dispersion of depleted uranium can be linked to the increased
incidence of aggressive cancers such as leukaemia among the local
population, military personnel, and peacekeepers. 25. The environmental impact of the Kosovo War was transboundary.
Contaminations were registered within former Yugoslavia (North Macedonia,
Serbia) but also in several other countries of southeast Europe, including
Albania, Bulgaria, Greece, Hungary, Romania, and Ukraine. The Danube
basin, transboundary waterways, and groundwater have all been affected.
Environmental impact also resulted from population displacement
and the refugees’ camps set up, mainly in Albania and North Macedonia.
26. In 2001, the Assembly adopted a report entitled “Environmental
impact of the war in Yugoslavia on south-east Europe”. The rapporteur Mr Serhiy Kurykin pointed
out that States involved in the operations “disregarded the international
legal rules” (Articles 55 and 56 of Protocol I (1977) to the Geneva
Conventions (1949) and Principle 24 of the Rio Declaration on Environment
and Development (1992)) “intended to limit environmental damage
in armed conflict”. In the Assembly’s view, the Kosovo War has revealed
“the inability of contemporary international law” to prevent or
lessen violations of fundamental human rights in any future conflict.
These rules should be “strengthened and enforced”. In its Recommendation
1495 (2001), the Assembly called for the drawing up of a new European
convention, “notably to ensure compliance with Articles 55 and 56
of Protocol I (1977) to the Geneva Conventions of 1949, on the prevention
of environmental damage as a result of military force or crisis-defusing
measures”.
The rapporteur Mr Serhiy Kurykin pointed
out that States involved in the operations “disregarded the international
legal rules” (Articles 55 and 56 of Protocol I (1977) to the Geneva
Conventions (1949) and Principle 24 of the Rio Declaration on Environment
and Development (1992)) “intended to limit environmental damage
in armed conflict”. In the Assembly’s view, the Kosovo War has revealed
“the inability of contemporary international law” to prevent or
lessen violations of fundamental human rights in any future conflict.
These rules should be “strengthened and enforced”. In its Recommendation
1495 (2001), the Assembly called for the drawing up of a new European
convention, “notably to ensure compliance with Articles 55 and 56
of Protocol I (1977) to the Geneva Conventions of 1949, on the prevention
of environmental damage as a result of military force or crisis-defusing
measures”.27. However, in the report on “Armed conflict and the environment”
of 2011, the rapporteur adopted a different
approach, arguing that it was “not necessary to draw up a new convention
concerned exclusively with protecting the environment in time of
war”. He proposed “to make proper use of existing treaties”, notably
by relaunching “the ENMOD Convention in order to restrict military
climate change programmes” and implementing the “Red Cross Guidelines
for Military Manuals and Instructions on the Protection of the Environment
in Times of Armed Conflict in national military training programmes”
(as stated in Resolution
1851 (2011)). At the same time, the Assembly recommended
to “support the drafting of a treaty to ban phosphorous weapons”.
the rapporteur adopted a different
approach, arguing that it was “not necessary to draw up a new convention
concerned exclusively with protecting the environment in time of
war”. He proposed “to make proper use of existing treaties”, notably
by relaunching “the ENMOD Convention in order to restrict military
climate change programmes” and implementing the “Red Cross Guidelines
for Military Manuals and Instructions on the Protection of the Environment
in Times of Armed Conflict in national military training programmes”
(as stated in Resolution
1851 (2011)). At the same time, the Assembly recommended
to “support the drafting of a treaty to ban phosphorous weapons”.4.2. Russian Federation’s war of aggression against Ukraine
28. Since February 2014, a protracted
armed conflict between the Russian Federation and Ukraine has been
going on with substantial environmental spill-overs. Following the
illegal annexation of the Crimean Peninsula at the north of the
Black Sea by the Russian Federation, Ukraine blocked the North Crimean
Canal that was ensuring 85% of the water supply in the Crimean Peninsula.
Since then, Crimea has suffered unprecedented water shortages. To
compensate for the loss of water from the canal, multiple wells
have been drilled in Crimea causing salinisation of groundwater
and soil, and the subsequent loss of agricultural crops. The exceptional
weather conditions in 2020 – with the lack of snow over the winter
and a spring without rain – exacerbated the situation.
29. Another consequence of the water shortage was the drying up
of an acid reservoir located near the “Crimean Titanium” plant,
a chemical producer of titanium dioxide. The drying up has led to the intense release
of sulphurous anhydride in the air. Sulphurous anhydride is a very
harmful air pollutant causing irritation and impairment of respiratory
organs. In contact with water, it becomes a sulfuric acid that contributes
to acid rain phenomena. This can lead to the acidification of surface
waters causing soil degradation and harmful effects on plants and
animals.
The drying up has led to the intense release
of sulphurous anhydride in the air. Sulphurous anhydride is a very
harmful air pollutant causing irritation and impairment of respiratory
organs. In contact with water, it becomes a sulfuric acid that contributes
to acid rain phenomena. This can lead to the acidification of surface
waters causing soil degradation and harmful effects on plants and
animals.30. While the environmental situation in Eastern Ukraine was already
precarious due to the operation of about 5 300 heavy industry enterprises
(including coke, ferrous metallurgy and chemical plants, mines,
oil refineries, power generation stations, etc.) in that area, the
military conflict has significantly worsened the pollution of air,
land, and water with toxic chemicals. Electricity breakdowns due
to military fighting caused frequent shutdowns of ventilation systems
and water pumps across industrial facilities and coalmines in the region,
leading to leaks of toxic substances and accidents. For instance,
a release and explosion of methane in the Zaysadko mine in Donetsk
during the shelling of the nearby airport (March 2015) killed 33
of the 200 miners then underground. Similarly, fire in the Avdiivskyi
plant in May 2015 as a result of shelling caused a massive leak
of coke gas containing benzol, toluene, naphthalene, hydrogen sulphide,
ammonium, and methane. Yet another aspect is the chemical pollution
of agricultural land and waterways with heavy metals and nitrates
from weapon explosions and spills of mine waters, fuels, and lubricants. The
Conflict and Environment Observatory recorded more than 500 accidents
and operational disruptions in Eastern Ukraine’s industrial sites
over the 2014-2017 period, while 60 out of 135 protected natural
sites have been damaged.
The
Conflict and Environment Observatory recorded more than 500 accidents
and operational disruptions in Eastern Ukraine’s industrial sites
over the 2014-2017 period, while 60 out of 135 protected natural
sites have been damaged. 31. The current escalation of hostilities by the Russian Federation
into all-out war has spread the damage to infrastructure and the
environment across many parts of Ukraine. We currently do not have
the full overview of the massive destruction that is still going
on. However, one immediate concern relates to the safety of Ukraine’s
nuclear power plants: the country’s 15 nuclear reactors (including
8 that are currently in operation) and the closed but not decommissioned
Chernobyl nuclear plant are at risk of accidental or intentional
damage from missile attacks or disruptions in the maintenance operations.
32. According to the International Atomic Energy Agency (IAEA),
several electricity supply cuts to the Chernobyl plant (including
the radioactive waste storage facilities) have been repaired after
the Russian armed forces took control of the site. The IAEA has
estimated that several out of the seven indispensable pillars for nuclear
safety “have been compromised or challenged” in Chernobyl during
the full scale war of aggression against Ukraine that began on 24
February” 2022. Moreover, the Zaporizhzhia nuclear power plant –
the biggest in Europe – has been controlled by Russian forces since
4 March; two of the four plant’s power lines and the administrative
buildings have been damaged by warfare.
33. The IAEA describes the current situation in Ukraine as unprecedented,
difficult and challenging, which “will become unsustainable” at
certain sites such as Zaporizhzhia. The latest IAEA mission to Zaporizhzhia sought
to evaluate damages at the power plant and the state of the security
systems in place as heavy fighting continued in the surrounding
area. It noted, on 5 September 2022, that “there have been numerous
shelling incidents at or near the [Zaporizhzhia nuclear power plant],
causing damage at the facility and raising widespread concern about
the risk of a severe nuclear accident potentially jeopardizing human
health and the environment”.
The latest IAEA mission to Zaporizhzhia sought
to evaluate damages at the power plant and the state of the security
systems in place as heavy fighting continued in the surrounding
area. It noted, on 5 September 2022, that “there have been numerous
shelling incidents at or near the [Zaporizhzhia nuclear power plant],
causing damage at the facility and raising widespread concern about
the risk of a severe nuclear accident potentially jeopardizing human
health and the environment”. 34. The Assembly’s Resolution
2463 (2022) “Further escalation in the Russian Federation's
aggression against Ukraine” has strongly condemned the “illegal
occupation and militarisation of the nuclear power plant in Zaporizhzhia”
and considered that “the leadership of the Russian Federation has
increased threats of nuclear warfare”. Those threats were deemed
to be “in breach of international law and incompatible with the responsibilities
of a nuclear power holding a permanent seat in the United Nations
Security Council”. In early October 2022, Russia announced the annexation
of the Zaporizhzhia nuclear plant in violation of international law.
35. In this context we should note that Article 56 of the Additional
Protocol to the Geneva Conventions of 12 August 1949, relating to
the Protection of Victims of International Armed Conflicts (Protocol
1), provides for specific reinforced protection for all “works and
installations containing dangerous forces”. This expressly includes
nuclear power stations and other installations located at or in
the vicinity of such stations which “shall not be made the object
of attack, even where these objects are military objectives, if
such attack may cause the release of dangerous forces and consequent
severe losses among the civilian population”. However, such special
protection for a nuclear power plant may cease “if it provides electric
power in regular, significant and direct support of military operations”
and if a military attack “is the only feasible way to terminate
such support”.
4.3. The issue of environmental refugees
36. As the motion for a resolution
at the origin of this report notes, “armed conflicts contribute
to the global climate change crisis” and “wars also cause significant
depletion of natural resources, which in turn leads to humanitarian
catastrophes and food crises”, significantly contributing “to the
rise of the number of refugees in the world”. This Assembly has
considered the issue of environmental refugees in the context of
climate change and urged better protection of victims of both natural
and man-made disasters. In a further step, the Assembly
adopted, in January 2022, a resolution and a recommendation on the
impact of climate change on children’s rights which recommends that
member States should collaborate towards establishing a legal status of
environmental refugees “at international and European levels and
adequately protect the victims of forced migration due to climate
change and environmental degradation, in particular children”. Such a legal status should also cover
environmental refugees fleeing a military conflict.
In a further step, the Assembly
adopted, in January 2022, a resolution and a recommendation on the
impact of climate change on children’s rights which recommends that
member States should collaborate towards establishing a legal status of
environmental refugees “at international and European levels and
adequately protect the victims of forced migration due to climate
change and environmental degradation, in particular children”. Such a legal status should also cover
environmental refugees fleeing a military conflict.5. Paving the way towards the recognition of ecocide at international level
37. As discussions in committee
have shown, there is growing interest and support to incorporate
the notion of ecocide into the international legal order. Indeed,
several States have already added this concept to their domestic
law, mostly in their national Criminal Code. Political
support towards the international establishment of ecocide in the
context of the Rome Statute of the ICC is also growing impressively,
be it through political declarations by Heads of States and national
Ministers or
through parliamentary initiatives. Regional implementation
of the concept of ecocide has also been announced by the Nordic
Council of Ministers in June 2022 and was called for by the European
Parliament in its Resolution 2021/2181(INI) of 17 February 2022
on human rights and democracy in the world and the European Union’s
policy on the matter. The latter “encourages the EU and its Member
States to promote the recognition of ecocide as an international
crime under the Rome Statute of the ICC”, asks the European Commission
to “study the relevance of ecocide to EU law and EU diplomacy” and
calls on the EU and its member States to “take bold initiatives
to fight the impunity of environmental crimes at a global level”.
Political
support towards the international establishment of ecocide in the
context of the Rome Statute of the ICC is also growing impressively,
be it through political declarations by Heads of States and national
Ministers or
through parliamentary initiatives. Regional implementation
of the concept of ecocide has also been announced by the Nordic
Council of Ministers in June 2022 and was called for by the European
Parliament in its Resolution 2021/2181(INI) of 17 February 2022
on human rights and democracy in the world and the European Union’s
policy on the matter. The latter “encourages the EU and its Member
States to promote the recognition of ecocide as an international
crime under the Rome Statute of the ICC”, asks the European Commission
to “study the relevance of ecocide to EU law and EU diplomacy” and
calls on the EU and its member States to “take bold initiatives
to fight the impunity of environmental crimes at a global level”.38. However, as national and regional understandings of ecocide
might differ, incorporating ecocide into the international legal
order implies the need to agree on the meaning of this notion. Although
to this day, there is no internationally established definition
of ecocide, some work on the subject has already been accomplished. This
notably includes the much-acclaimed proposal of a definition by
the international Independent Expert Panel for the Legal Definition
of Ecocide, commissioned by the Stop Ecocide Foundation. Some
common features can also be identified in all existing domestic
legal definitions of ecocide. Thus, we should note that the concept
of ecocide, in all adopted and proposed definitions, applies in
both peace time and war time. I find that it is highly pertinent
for the Council of Europe to refer to the first legal definition
of ecocide implemented in domestic law, namely Article 422 of the
Vietnamese Criminal Code. This definition inspired
most of the later national steps of incorporating ecocide into domestic
laws. Moreover, the description of the environment as a “source
of living” establishes a clear link with human rights.
Some
common features can also be identified in all existing domestic
legal definitions of ecocide. Thus, we should note that the concept
of ecocide, in all adopted and proposed definitions, applies in
both peace time and war time. I find that it is highly pertinent
for the Council of Europe to refer to the first legal definition
of ecocide implemented in domestic law, namely Article 422 of the
Vietnamese Criminal Code. This definition inspired
most of the later national steps of incorporating ecocide into domestic
laws. Moreover, the description of the environment as a “source
of living” establishes a clear link with human rights.39. This Assembly should therefore advocate for the concept of
ecocide to be implemented and made operational through the ongoing
revision processes of relevant legal instruments at European level,
including the EU Directive 2008/99/EC on the protection of the environment
through criminal law and the Council of Europe’s Convention
on the Protection of Environment through Criminal Law (ETS No. 172).
Member States of the Council of Europe should also support the effort
of recognition of ecocide as an international crime through the
amendment of the Rome Statute of the ICC. The momentum could be
increased by adding the concept into domestic law and practice.
For States having already established ecocide in domestic law, the focus
should be on making this crime “operational”, by providing means
to prosecute and making it a priority in the prosecuting guidelines,
especially in countries where the opportunity of prosecution exists.
and the Council of Europe’s Convention
on the Protection of Environment through Criminal Law (ETS No. 172).
Member States of the Council of Europe should also support the effort
of recognition of ecocide as an international crime through the
amendment of the Rome Statute of the ICC. The momentum could be
increased by adding the concept into domestic law and practice.
For States having already established ecocide in domestic law, the focus
should be on making this crime “operational”, by providing means
to prosecute and making it a priority in the prosecuting guidelines,
especially in countries where the opportunity of prosecution exists.6. Conclusions and recommendations
40. As we can see from the above,
the existing legal framework is patchy but expanding. The Council
of Europe could seize the momentum of enhanced political attention
to the vital link between human rights and the environment and revise,
update, or complete selected legal instruments so as to ensure a
more adequate protection of environment in the context of armed
conflicts. This committee (and subsequently the Assembly) should
advocate for the relevant international legal framework to be invoked
and interpreted in a more open-ended manner so as to offer more
comprehensive protection of both the environment and human health
in cases of armed conflicts. We should in particular offer strong
support for the ILC draft principles as adopted in 2022 and promote
their practical implementation through the member States of the
Council of Europe.
41. I believe that different legal instruments and mechanisms
could be better combined to overcome practical application problems.
Indeed, as Mr Antoine Bouvier, a jurist with the ICRC, pointed out,
“the existing law provides adequate protection as long as it is
correctly implemented and respected”, but States need to collectively
ensure “a better enforcement of existing international obligations”.
That said, there are some limitations inherent in the interplay
between fields of law. Conducting a study on the possible interplay
between existing international criminal law and environmental harm
occurring during armed conflicts would be of strong interest. The
possibility to invoke existing war crimes should be a major focus
of such a study. The Council of Europe could serve as a laboratory
of new legal developments and take the lead in this study while
involving other organisations (the ILC, the ICRC, the Conflict and
Environment Observatory, PAX, etc.) already working on similar
subjects.
etc.) already working on similar
subjects.42. Moreover, the Council of Europe should continue reflections
on the possibility of developing a new “ecocide” criminal offense
at international level. This could be discussed during the revision
procedure of the Council of Europe Convention on the Protection
of Environment through Criminal Law (ETS No. 172). When considering
this subject matter, special attention should be paid to the kind
of behaviours that must be sanctioned, the entities that should
be held liable, the damage threshold, the characterisation of intent
and the enforcement issues. The threshold of environmental damage
should in particular be defined precisely, using the latest work
and the ICRC’s updated Guidelines on the Protection of the Natural
Environment in Armed Conflict, as well as examples. This definition
effort would help lower the obstacle constituted by the interpretation
of threshold in practice (namely, what constitutes “significant
harm”, or “widespread, long-term, and severe damage”). The suppression
of this threshold instead of a clear (or clearer) definition could
also be an option to consider.
43. Regarding the issue of enforcement of the existing legal framework,
we should advocate for the development of review and monitoring
mechanisms based on the relevant provisions of the Rome Statute
(of the International Criminal Court) and international humanitarian
law.
44. The Council of Europe could also encourage the development
of new tools. The Bern Convention (ETS No. 104), for instance, could
serve as a forum to discuss new policies for a better protection
of wildlife and natural habitats in times of armed conflicts. The
mapping of areas of particular environmental importance or sensitivity,
based on existing protected areas (such as world heritage sites
or natural reserves), in anticipation of any form of armed conflicts
should be strongly recommended. In case a military conflict breaks
out, these areas should become demilitarized zones. The Standing
Committee governing the Bern Convention could publish recommendations
regarding the protection of environmentally sensitive areas during
armed conflicts, study the feasibility of an additional Protocol
to the Convention to this end, and also create a review mechanism to
ensure that the recommendations are implemented by States parties.
These recommendations should be further transposed into domestic
law, be incorporated into military doctrine, and be shared among
member States towards developing good practice. The Committee of
the Bern Convention could work together with the ICRC on this topic.
45. The drafting of a new regional legal instrument or treaty
could also be discussed under the Council of Europe’s auspices.
In that case, the proposal should clarify and fill the identified
gaps of the existing legal regime (namely, on damage threshold,
enforcement and liability, and the due diligence principle). Even
if such a proposal would only bind the States parties in the end,
it may contribute to reinforcing customary humanitarian law dealing
with environment protection and may inspire other forms of co-operation.
Moreover, the European Court of Human Rights should be encouraged
to use the functional impact-model with jurisdiction whenever the
question of the extraterritorial application of human rights arises
in situations of armed conflict or occupation. Under the functional
impact-model, jurisdiction would be invoked in situations where
the impact is direct and reasonably foreseeable. The purpose of
this effort would be to fill the legal vacuum leading to “legal blackholes”
and arbitrariness.
46. It is indeed of crucial importance to continue building on
good practices in order to establish or reinforce new customary
law principles. Therefore, member States of the Council of Europe,
as well as observer States and States whose parliament enjoys observer
or partner for democracy status, should ratify existing legal instruments,
including the ENMOD Convention, actively participate in the revision
process of the Council of Europe’s convention 172, and employ sufficient
means to ensure proper monitoring and implementation of commitments.
Moreover, it has been observed that, on the ground and when in doubt,
belligerents primarily refer to military manuals. Hence, member
States should adopt adequate operational documents and keep them
up to date with the international legal framework.
47. Finally, national authorities need to pay more attention to
loopholes identified in the existing legal framework when envisaging
upcoming work. Specific attention should be paid to the issue of
environmental refugees, the lack of a clear and well-developed international
framework regarding situations of occupation, as well as issues
of compliance with international humanitarian law in the context
of internal armed conflicts. Regarding the latter, it is of crucial
importance to engage with the key actors on the ground (ICRC, third
States acting as mediators, NGOs) in order to promote knowledge
of and compliance with international standards among non-state actors.
Working groups and coalitions could also be created on the specific
issue of awareness raising on the environmental impact of armed
conflicts regarding non-state belligerents and should bring together
all relevant international organisations, States, strategic NGOs
and civil society, the main actors on the ground and academic scholars.