This article aims to clarify the legal basis of the protection of the environment during armed conflict in general, and of the prohibition against excessive collateral damage to the environment in particular. It is submitted that the legal basis for the conventional and customary rules which protect the (intrinsic value of the) environment during armed conflict cannot be deduced from the four fundamental principles of the law of armed conflict: the principles of military necessity, distinction, proportionality and humanity. Rather, the specific obligations relating to environmental protection in times of armed conflict flow from the fundamental principle of ambituity. Similar to the principle of humanity, the principle of ambituity, which qualifies as a general principle of law in the sense of Article 38(1)(c) ICJ Statute, provides for an absolute limitation to the necessities of war. As such the principle of ambituity may be used to interpret existing conventional or customary rules of international law during armed conflict, to supplement, or under exceptional circumstances to modify or set aside these rules. With regard to the prohibition against excessive collateral damage to the environment during armed conflict, it is submitted that this prohibition flows from a customary rule which emerged in the 1990s, rather than from Articles 51 and 52 of Additional Protocol I, and which complements Articles 35 and 55 AP I (i.e. for States Parties to AP I). This article argues that any military action which causes collateral damage to the environment must first be assessed under this relatively new customary prohibition; and subsequently, if no breach can be established and if applicable, by reference to Articles 35(3) and 55 AP I. In order to enhance the scope of this prohibition and provide better protection for the environment against collateral damage it is suggested that further investigations should be conducted into the consequences of warfare on the environment.
Kolb and Hydesupra note 9 p. 43. Similarly M. Schmitt ‘Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance’ 50 Virginia Journal of International Law (2009–2010) p. 798; G. Schwarzenberger International Law; As Applied by International Courts and Tribunals; Volume II; The Law of Armed Conflict (Stevens & Sons London 1968) pp. 10–13.
Henckaerts and Doswald-Becksupra note 5 Rules 1–24 in particular Rule 1 and 14.
Koppesupra note 4 pp. 248–256. Similarly Rule 44 of the CIHL Study which provides in part: “Methods and means of warfare must be employed with due regard to the protection and preservation of the natural environment.”
Leviesupra note 2 pp. 130 272.
Leviesupra note 2 pp. 269 et seq.; Sandoz et al. supra note 17 para. 1449.
Heintschel von Heinegg Donnersupra note 65 p. 294; J.-M. Henckaerts ‘Towards Better Protection for the Environment in Armed Conflict: Recent Developments in International Humanitarian Law’ 9 Review of European Community and international environmental law (2000) p. 18; L. Lijnzaad and G. J. Tanja ‘Protection of the Environment in Times of Armed Conflict: The Iraq-Kuwait War’ 40 Netherlands International Law Review (1993) p. 184; M. Bothe ‘Protection of the Environment in Times of Armed Conflict’ in N. Al-Nauimi and R. Meese (eds.) International Legal Issues Arising Under the United Nations Decade of International Law; Proceedings of the Qatar International Law Conference ‘94 (Martinus Nijhoff Publishers The Hague 1995) p. 98.