Introduction
In addition to causing intense human suffering and destruction of infrastructures, armed conflicts may also lead to the degradation of the natural environment,Footnote 1 which has been characterized as the “silent victim” of such situations.Footnote 2 The adverse impact of armed conflicts on the environment became a serious concern with the Vietnam War. This conflict raised awareness due to the use of napalm and a herbicide known as Agent Orange, resulting in large-scale environmental damage.Footnote 3
Nowadays, the majority of armed conflicts are of a non-international nature.Footnote 4 Under international humanitarian law (IHL), non-international armed conflicts (NIACs) are defined as
protracted armed confrontations occurring between governmental armed forces and the forces of one or more armed groups, or between such groups, arising on the territory of a State [party to the Geneva Conventions]. The armed confrontation must reach a minimum level of intensity and the parties involved in the conflict must show a minimum of organization.Footnote 5
As belligerent parties to NIACs,Footnote 6 non-State armed groups (NSAGs) may contribute to the “degradation, or even destruction, of parts of the natural environment, including animals, vegetation, soil, water systems and entire ecosystems”.Footnote 7 In addition, serious humanitarian consequences can result from environmental damage, as it further increases the vulnerability of civilian populations already affected by NIACs.Footnote 8 It is therefore essential to engage NSAGs in order to protect the environment and the conflict-affected communities dependent upon it. To this end, this article starts by exploring, in turn, the actual practice and doctrine of NSAGs in relation to the natural environment.
Building on the perspective of NSAGs, the following sections discuss the legal and policy framework for engaging them on the protection of the natural environment. The legal framework consists of the applicable IHL rules protecting the natural environment. Under the law of international responsibility, an NSAG is responsible for violating these rules, although the consequences of such violations remain unclear.Footnote 9 At the least, an insurrectional movement that becomes the new government of a State is responsible for any violation of its international obligations attributed to it during the insurrection period.Footnote 10 The article then highlights that NSAGs are increasingly seen as having certain non-binding responsibilities in addition to their legal obligations. Considering the need for greater environmental protection, the article proposes that as matter of policy, NSAGs should incur environmental responsibilities under international human rights law (IHRL) and international environmental law (IEL) according to their level of territorial control. Finally, recommendations on how to promote this legal and policy framework with NSAGs are provided. A model unilateral declaration for the protection of the natural environment in armed conflict is suggested as a potential way forward.
The natural environment from the perspective of non-State armed groups
Shaping the problem: Practices of non-State armed groups that are harmful to the environment during non-international armed conflicts
During NIACs, NSAGs damage the environment in a number of ways. First, the exploitation of natural resources has recently “attracted heightened international attention mainly in its guise as a form of financing for [NSAGs]”.Footnote 11 The United Nations Environment Programme (UNEP) notes that “at least forty percent of all [NIACs] over the last sixty years have a link to natural resources”,Footnote 12 and specifies that
[s]ince 1990, at least eighteen civil wars have been fuelled by natural resources: diamonds, timber, oil, minerals and cocoa have been exploited in internal conflicts in countries such as the Democratic Republic of Congo, Côte d'Ivoire, Liberia, Sierra Leone, Angola, Somalia, Sudan, Indonesia and Cambodia.Footnote 13
Poaching and hunting may also constitute another source of financing for NSAGs. It has been reported that
a range of NSAGs, including the LRA [Lord's Resistance Army] and the Janjaweed, are significantly involved in elephant poaching in the Garamba National Park of north-eastern DRC [Democratic Republic of the Congo]. The evidence suggests that these groups are involved with the actual poaching of the animals, following which they trade the ivory for supplies and funds.Footnote 14
In addition, the LRA launched attacks inside the Garamba Park and killed park rangers.Footnote 15 These practices can result in the significant decline of wildlife populations. For example,
[d]uring the 15-year civil war in Mozambique, the Gorongosa National Park lost more than 90% of its animals. … The elephant population declined from 2,000 to 200, as elephants’ meat was used to feed soldiers and their ivory sold to finance the purchase of weapons, ammunition and supplies.Footnote 16
The conduct of hostilities can cause significant environmental damage, in particular when it takes place in urban areas.Footnote 17 The use of explosive weapons in urban areas is notably concerning for the environment, as it “creates vast quantities of debris and rubble, which can cause air and soil pollution”.Footnote 18 In 2019, Action on Armed Violence “recorded 44 different non-State actors using explosive weapons”.Footnote 19 The biggest non-State users of explosive weapons were the so-called Islamic State (IS), the Ukrainian separatists, the Taliban, the Houthi rebels and the Haftar forces.Footnote 20 The prevailing category of explosive weapons used by NSAGs were improvised explosive devices, a large proportion of which were deployed in urban areas.Footnote 21
The use of landmines by NSAGs is also well documented. Between 2003 and 2004, “it was found that 60 armed groups allegedly used landmines in 21 countries”.Footnote 22 In 2019, “Landmine Monitor identified new use of antipersonnel mines by NSAGs in Afghanistan, India, Myanmar, Nigeria, Pakistan, and Yemen”.Footnote 23 The use of landmines is concerning for the environment; indeed, they
have killed and maimed large numbers of specimens of wildlife and domestic species worldwide. Landmines set in motion a series of events leading to environmental degradation in the forms of soil degradation, deforestation, pollution of water resources with heavy metals and possibly altering entire species’ populations by degrading habitats and altering food chains.Footnote 24
Finally, certain tactics of warfare employed by NSAGs have caused varying degrees of environmental damage. The Revolutionary Armed Forces of Colombia have strapped bombs to donkeys or horses to conduct attacks.Footnote 25 Serious environmental consequences resulted from the scorched earth tactic employed by IS when it was forced to retreat as the Iraqi forces, supported by an international coalition, advanced.Footnote 26 In 2016, the group set ablaze nineteen oil wells near Mosul, creating vast toxic fumes which poisoned the surrounding environment and the local population.Footnote 27 Boko Haram uses Lake Chad's “wetlands for shelter to launch attacks”,Footnote 28 and
has resorted to using natural resources as a weapon and part of their strategy of violence. They have poisoned water sources such as wells and streams in areas where they were dislodged by state troops, making water use dangerous for both humans and livestock.Footnote 29
The doctrine of non-State armed groups: Guardians of the environment?
Doctrine refers to
all standard principles that guide the action of arms carriers at strategic, operational and tactical levels, independently of the forms these principles take. It therefore encompasses all directives, policies, procedures, codes of conduct, reference manuals and rules of engagement – or their equivalents – that serve to educate, train and guide arms carriers during their careers, giving them a common vocabulary and shaping the decision-making process, tactics and behaviour in operations.Footnote 30
The doctrine of NSAGs sheds light on their position regarding the environment. It allows us to understand the environmental rules that they have decided to adopt. Analyzing NSAG doctrine is also relevant for engaging these groups on the protection of the environment. When NSAGs share their doctrine externally, accountability for violations can be required. If the doctrine falls short of their environmental legal obligations, it still represents an entry point for engaging them on the adoption of standards consistent with applicable law.Footnote 31
The National Movement for the Liberation of Azawad (Mouvement National de Libération de l'Azawad, MNLA) has expressed a general commitment to observe IHL rules protecting the natural environment. The “Texte organique pour l'organisation et la règlementation des forces armées du MNLA” requires “regional commanders, including senior officers responsible for the supervision, training and operations of MNLA forces …[,] to ensure that IHL rules are respected during military operations, in particular in relation to ‘… the environment’”.Footnote 32
The doctrine of some NSAGs includes absolute prohibitions protecting the environment. The Rules for the Conduct of War of the Kurdistan Workers Party (Partiya Karkerên Kurdistanê, PKK) state that “[f]orests will not be burned or otherwise destroyed”Footnote 33 and that “[w]eapons that burn, such as napalm, lava, and phosphorous, or create destruction to humans, plants, animals and the ecological balance shall not be used”.Footnote 34 The Guidelines on the Code of War of the Chin National Front (CNF) hold that “[t]he use of weapons and technologies that can damage the environment for a very long period of time must be avoided”.Footnote 35 On the other hand, the National Liberation Army of Colombia adopted a qualified provision to refrain from damaging the environment; according to its Code of War, “acts of sabotage shall, as far as possible, avoid causing environmental damage”.Footnote 36
Some NSAGs have committed to protecting the environment with the aim of preserving it for future generations. The Ogaden National Liberation Front (ONLF) has affirmed that it “shall confront all initiatives, which negatively impact our environment as a matter of national duty to protect our environment for future generations”.Footnote 37 Other NSAGs have combined the protection of posterity with the preservation of wildlife. According to a resolution of the Sudan People's Liberation Movement/Army (SPLM/A), the group “shall do everything to … protect and develop [our wildlife resources] for us and for posterity”.Footnote 38 The decline of rhinos and other wildlife populations in the DRC prompted the commitment of the LRA to do “whatever possible to live in harmony with the animals, and to act as their curators, and do everything possible to see that they are not harmed for posterity”.Footnote 39 During peace talks with Uganda, the head of the LRA delegation said that “the statistics we were shown were devastating and shocked us”.Footnote 40 The LRA representative also signed a pact assuring rangers of the Garamba park that, “provided they properly identify themselves and not attack us, we undertake to fully cooperate with them”.Footnote 41 Despite its commitment to protecting endangered species and collaborating with park rangers, however, the LRA “continued to launch attacks inside the park and kill rangers, as well as poaching elephants to finance operations”.Footnote 42
The example of the LRA shows that there can be a gap between the doctrine of NSAGs and their actual practice. According to Bangerter, the effectiveness of codes of conduct – as a form of doctrine – depends on many factors, including the existence of complementary measures such as “dissemination, training and sanctions”.Footnote 43 Bangerter has highlighted three additional factors that need to be taken into consideration. First, “codes of conduct are aspirational”.Footnote 44 This means that they are “not a description of what is, but of what should be, what the group wants to be”.Footnote 45 The fact that environmental protection is part of an NSAG's doctrine may signify that the group's leadership recognizes it as a challenge in terms of members’ behaviour, rather than a reflection of the group's “ability to successfully prevent such acts from ever taking place”.Footnote 46 Second, individual fighters do not always follow group rules.Footnote 47 Third, an NSAG may “be blamed for acts committed by people whom it does not control”.Footnote 48 It is notably acknowledged that “the underlying evidence linking NSAGs to poaching is often more tentative than may be thought”,Footnote 49 and that in some contexts “[p]oachers do not belong to [NSAGs] but are rather related to criminal networks”.Footnote 50
In conclusion, failing to consider the role of NSAGs regarding environmental protection in NIACs would miss an important part of the equation. On the one hand, NSAGs are part of the problem, as they have proven to be perpetrators of environmental damage in many cases. On the other hand, a study of their doctrines reveals that at least some of them are not indifferent to the environment. However, the doctrines of NSAGs express different standards of environmental protection. It is thus important to identify the legal and policy framework for engaging them on this matter.
The legal framework: Environmental obligations under international humanitarian law
In 2020, the International Committee of the Red Cross (ICRC) released the updated Guidelines on the Protection of the Natural Environment in Armed Conflict (ICRC Guidelines).Footnote 51 The ICRC Guidelines set down a concise commentary of the IHL rules protecting the natural environment, “more than half” of which reflect obligations for NSAGs.Footnote 52 The purpose of this section is to identify these rules and discuss the main issues arising from their application by NSAGs, in light of these groups’ actual practice and doctrine.
NSAGs are bound by IHL,Footnote 53 no matter the content of their doctrine.Footnote 54 Under customary IHL, the natural environment is a civilian object to which the general rules on the conduct of hostilities apply.Footnote 55 Consequently, the principle of distinction prohibits the direct – or indiscriminate – targeting of the environment, unless and for such time as it meets all the constitutive elements of a military objective.Footnote 56 The absolute prohibition against burning forests enshrined in the PKK Rules for the Conduct of War thus goes beyond the law, as a part of a forest could be burned if it were to become a military objective under IHL.
Even when a legitimate objective is targeted, the principle of proportionality prohibits launching an attack “which may be expected to cause incidental damage to the environment which would be excessive in relation to the concrete and direct military advantage anticipated”.Footnote 57 The scope of incidental damage to be taken into account includes the indirect effects of the attack on the environment which are “reasonably foreseeable”.Footnote 58 For example, an NSAG planning an attack on a military base close to a river “should ask questions such as, is the river used as drinking water for nearby communities, is there sensitive fish habitat in the river, [and] what would the impact of harmful chemicals be on water quality over the longer term”.Footnote 59
The question that arises is how to assess whether an attack is excessive or not. It is acknowledged that “in order to satisfy the requirement of proportionality, attacks against military targets which are known or can reasonably be assumed to cause grave environmental harm may need to confer a very substantial military advantage in order to be considered legitimate”.Footnote 60 A straightforward example of a disproportionate attack would be the burning of “an entire forest to reach a single minor target”.Footnote 61 However, striking a balance between a military advantage and incidental environmental damage may be more difficult in less clear-cut scenarios, as “[t]here is no precise formula”Footnote 62 for such a calculation. Some consider that the proportionality assessment “inevitably involves subjective value judgments”.Footnote 63 Consequently, incidental damage to the environment is likely to carry more weight for NSAGs fighting “for the rights of national, ethnic or religious minorities, which often include an environment, natural resources or ‘homeland protection’ aspect”,Footnote 64 compared to those exclusively seeking to weaken their enemy's military force.
Pursuant to the principle of precautions, NSAGs must take “constant care” to spare the natural environment in the conduct of military operations, which includes troop movements and manoeuvres.Footnote 65 The principle of precautions in attack requires NSAGs to take “all feasible precautions … to avoid, and in any event to minimize”, incidental damage to the natural environment, notably through their choice of means and methods of warfare.Footnote 66 Before an attack, an NSAG must do everything feasible to ascertain that a part of the natural environment targeted qualifies as a military objective, and to assess whether an attack against another legitimate objective may be expected to cause excessive incidental damage to the natural environment.Footnote 67 During an attack, if the part of the natural environment directly targeted proves to be mistakenly regarded as a military objective, or the incidental damage to the environment is disproportionate, the NSAG “must do everything feasible to cancel or suspend the attack”.Footnote 68 An NSAG which has a part of the natural environment under its control must, as a defending party, “take all feasible precaution to protect [it] against the effects of attacks”.Footnote 69
Some NSAGs have reported that, based on their proportionality assessment, “a decision is made with regards to whether to proceed or not, and if so, to plan the attack in such a way as to minimize collateral damage to civilians and, in one case, to the environment”.Footnote 70 However, collecting information to ascertain the military nature of a targeted part of the environment, predicting the direct and reverberating consequences of an attack to the environment and ultimately minimizing such consequences may be practically challenging for NSAGs, in particular those with limited capabilities.Footnote 71 Legally speaking, every NSAG is bound by the principles of proportionality and precaution, which means that every NSAG has to make such an assessment when planning and conducting an attack. However, an NSAG's respect for these principles, or lack thereof, is conditioned by what the group can materially comply with in practice.Footnote 72 The “feasible” nature of precautions indicates that they may “vary depending on factors such as … the situation and capabilities of the parties to the conflict, the resources, methods and means available, and the type, likelihood and severity of the expected incidental civilian harm, including harm to the natural environment”.Footnote 73 What matters is whether the NSAG has exhausted all the available means when assessing environmental damage.Footnote 74
The means and methods of warfare that NSAGs may employ are not unrestricted. In terms of methods (i.e., tactics), for example, the starvation of the civilian population is prohibited.Footnote 75 A corollary to this rule is the prohibition against “attack[ing], destroy[ing], remov[ing] or render[ing] useless, for that purpose, objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works”.Footnote 76 The latter represent “natural elements that are or may be the product of human intervention”, which are by definition part of the natural environment.Footnote 77 The incidental effects of hostilities on the environment are also indirectly inhibited by the prohibition against attacking works or installations containing dangerous forces (such as dams and nuclear power stations) if such attacks “may cause the release of dangerous forces and consequent severe losses among the civilian population”.Footnote 78 Finally, attacks against the natural environment by way of reprisal are prohibited.Footnote 79
The regulation of means of warfare (i.e., weapons) also provides indirect protection to the environment, because of the inherent capacity of those means to cause extensive environmental damage. Accordingly, all NSAGs are prohibited from using weapons that are by nature indiscriminate,Footnote 80 as well as poisonous,Footnote 81 biologicalFootnote 82 or chemical weapons.Footnote 83 The use of herbicides,Footnote 84 landminesFootnote 85 and incendiary weaponsFootnote 86 is also restricted for all NSAGs. An NSAG engaged in a NIAC against a State party to the relevant weapon treaty may be bound by additional restrictions in the use of incendiary weaponsFootnote 87 and landmines,Footnote 88 and by positive obligations aiming to minimize the impact of explosive remnants of war.Footnote 89 IHL does not prohibit per se the use of explosive weapons. However, whether their deployment can comply with the general rules on the conduct of hostilities, particularly in populated areas, raises “serious questions”.Footnote 90 In the ICRC's view, “explosive weapons with a wide impact area should be avoided in densely populated areas”.Footnote 91
Rules on the treatment of persons not or no longer taking a direct part in hostilities may also provide indirect protection to the natural environment. Environmental damage amounting to violence to their lives and persons, as well as any form of ill-treatment, is absolutely prohibited.Footnote 92 Environmental damage which would de facto result in the displacement of the civilian population is also prohibited.Footnote 93
In addition to the prohibition against attacking objects indispensable to the survival of the civilian population and works and installations containing dangerous forces mentioned above, the respect of certain other specially protected objects represents indirect environmental obligations for NSAGs. Parts of the environment may qualify as cultural property benefiting from special protection.Footnote 94 The natural environment forming part of non-defended localities or demilitarized zones is also protected against attacks.Footnote 95
Environmental protection is also provided by rules governing enemy property. The destruction or seizure of property of an adversary, including parts of the natural environment such as natural resources, is prohibited, unless required by imperative military necessity.Footnote 96 The necessity must be of a military nature, which means that destruction or seizure must be necessary to achieve the only legitimate aim during an armed conflict – that is, “to weaken the military forces of the enemy”.Footnote 97 Other necessities based on “political, economic, diplomatic or personal considerations”Footnote 98 are excluded. Consequently, it would not be justified to destroy or seize any part of the natural environment in order to finance the armed conflict.Footnote 99 The destruction or seizure of a part of the natural environment qualifying as a military objective would a fortiori be lawful.Footnote 100 In addition, the rule applies to “operations not amounting to attacks”, such as during “military movements and manoeuvres”.Footnote 101 For example, imperative military necessity may authorize chopping down a section of trees, either to provide construction material for military barracksFootnote 102 or because the trees are preventing access to the only safe location in which to establish a military camp.Footnote 103
Contrary to the prohibition against destruction or seizure, the prohibition against pillageFootnote 104 requires appropriation “for private or personal use”.Footnote 105 The act of pillage covers the appropriation of parts of the natural environment constituting private or public property, including natural resources, without the consent of the owner, and in violation of IHL.Footnote 106 As the owner of natural resources will most often be the State, the State will never, by definition, commit pillage. It can thus be considered that the prohibition of pillage as applicable in NIACs is discriminatory against NSAGs.Footnote 107
If the latter two rules apply to the exploitation of natural resources, it is concerning from a humanitarian perspective that an NSAG would be prevented from exploiting natural resources for the benefit of the civilian population under its control because it would either violate the prohibition against destruction and seizure, or amount to pillage. One suggested solution is to apply a specific provision of the law of occupation by analogy.Footnote 108 According to Article 55 of the Hague Regulations, the Occupying Power is designated
as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.Footnote 109
The rules of usufruct “allow the occupying power to use and to own the fruits or proceeds of immovable public property but not to use the underlying capital, or substance, of such property”;Footnote 110 this permits “reasonable exploitation [of natural resources] if it takes place at the same rate as before the occupation began”.Footnote 111 Applying the rules of usufruct by analogy to NSAGs exercising territorial control has the advantage of providing “a legal basis for natural resource exploitation to [NSAGs] as de facto authorities without undermining the fabric of State sovereignty”.Footnote 112 This attractive solution comes up against the fact that in NIACs, “neither territory seized by insurgents nor that retained or regained by the incumbent Government can be tagged as subject to belligerent occupation”.Footnote 113
Other customary rules are only “arguably” applicable in NIACs, and it is therefore unclear whether they are binding on NSAGs. This includes the obligation of “due regard” for the natural environment in military operations,Footnote 114 the prohibition of “widespread, long-term and severe damage to the natural environment”,Footnote 115 and the prohibition of using the destruction of the natural environment as a weapon.Footnote 116 In light of the current trend towards greater environmental protection, even if these rules may not be part of customary IHL yet, they are likely to become so in the future.Footnote 117 It should be noted that the CNF Guidelines establish a lower threshold than the IHL prohibition against causing serious damage to the natural environment, as they only require “long-term” damage to the environment rather than the three cumulative elements of “widespread, long-term and severe” damage under IHL.
The rules with uncertain customary status in NIACs may be brought into force by means of ad hoc commitments, such as the conclusion of special agreements under Article 3 common to the four Geneva Conventions, or unilateral declarations including those provided under Article 96(3) of Additional Protocol I (AP I) in the case of national liberations wars as defined in Article 1(4) of AP I.Footnote 118 It is therefore encouraged that NSAGs bring into force additional rules protecting the environment through the conclusion of ad hoc commitments, either unilaterally or with other belligerent parties.Footnote 119 The ICRC and the International Law Commission (ILC) have notably recommended that such agreements designate “areas of major environmental importance” as demilitarized zones or non-defended localities.Footnote 120
The policy framework: Environmental responsibilities under international human rights law and international environmental law
Environmental responsibilities under international human rights law
While the continued applicability of IHRL in armed conflict is uncontroversial,Footnote 121 whether and to what extent it is binding on NSAGs as a matter of law remains unsettled.Footnote 122 In light of recent practice,Footnote 123 “it seems accepted that armed groups that exercise territorial control and fulfil government-like functions thereby incur responsibilities under [IHRL]”.Footnote 124 The purpose of this section is not to rehearse the practice and debate surrounding this issue, but rather to address the environmental responsibilities of NSAGs under IHRL as a matter of policy.
IHRL can contribute to the protection of the environment by covering areas not addressed by the IHL of NIACs, such as through the protection of minorities or the right to an effective remedy, as discussed below. When both IHL and IHRL apply simultaneously to a particular issue, the two bodies of law are “complementary” and “mutually reinforcing”.Footnote 125 For example, the right to health under IHRLFootnote 126 can complement the IHL obligations to protect and care for the wounded and sick,Footnote 127 as it “addresses medical needs which are independent from the armed conflict as such, and extends to healthy people as well as those who are already sick”.Footnote 128 This discussion is important not only for the protection of the environment as such, but also for the “60 to 80 million people [living] under the direct State-like governance of armed groups”,Footnote 129 who may suffer from environmental harm without benefiting from the protection of the territorial State.
Two approaches to environmental protection under IHRL can be discerned. The approach generally adopted by human rights bodies consists of identifying specific human rights within the IHRL framework that protect the environment, including civil and political rights such as the right to life, as well as economic, social and cultural rights, such as the rights to an adequate standard of living, of minority groups to enjoy their own culture and traditional practices, and to health, housing and family.Footnote 130 For instance, in its General Comment No. 36, the Human Rights Committee (HRC) reiterates the adverse impact of environmental degradation on the enjoyment of the right to life, and lists environmental measures that should be implemented to “respect and ensure” this right.Footnote 131 The jurisprudence of the HRC also indicates that States have the obligation to protect the rights to life and to privacy, family and home against environmental degradations committed by third actors which are reasonably foreseeable, and leaves open the possibility that environmental degradation may amount to torture or to cruel, inhuman or degrading treatment.Footnote 132
The second approach adopted by the United Nations (UN) Special Rapporteur on Human Rights and the Environment is to argue in favour of a broader right to a “safe, clean, healthy and sustainable environment”.Footnote 133 The related obligations are developed in the Framework Principles on Human Rights and the Environment.Footnote 134 The 16 principles are considered to represent “a reflection of actual or emerging [IHRL]”,Footnote 135 and refer to human rights obligations globally. For example, Principle 1 provides that “States should ensure a safe, clean, healthy and sustainable environment in order to respect, protect and fulfil human rights”.Footnote 136 This entails
refrain[ing] from violating human rights through causing or allowing environmental harm; protect[ing] against harmful environmental interference from other sources …[;] and tak[ing] effective steps to ensure the conservation and sustainable use of the ecosystems and biological diversity on which the full enjoyment of human rights depends.Footnote 137
The next step is to determine the scope of environmental responsibilities of NSAGs under IHRL. A pragmatic approach would not consider that all NSAGs should respect, protect and fulfil the entire scope of human rights. Rather, it is increasingly accepted that the scope should vary according to a “sliding scale”, based on an NSAG's territorial control and related capacity.Footnote 138 As a starting point for this assessment, a distinction can be made between the negative obligation to respect human rights and the positive obligations to protect and fulfil human rights.Footnote 139 On the one hand, the obligation to respect consists of refraining “from interfering with or curtailing the enjoyment of human rights”,Footnote 140 which requires a group only to exercise control over the conduct of its members.Footnote 141 On the other hand, the obligation to protect entails “protect[ing] individuals and groups against human rights abuses”Footnote 142 and the obligation to fulfil necessitates taking “positive action to facilitate the enjoyment of basic human rights”.Footnote 143 These positive obligations require “a far greater degree of control over the area in question”.Footnote 144
The distinction between positive and negative human rights obligations can be applied to two categories of NSAGs. The first category includes NSAGs acting as State-like entities, which means that they “exercise territorial control and fulfil government-like functions”.Footnote 145 The second category is residual and includes NSAGs that do not exercise territorial control, or those that exercise territorial control but only to a limited extent that does not allow them to fulfil government-like functions. While establishing intermediate categories is tempting from a theoretical point of view, it would be difficult to determine the scope of human rights responsibilities of NSAGs exercising varying degrees of territorial control.Footnote 146
The first category of NSAGs acting as State-like entities should have human rights responsibilities akin to the human rights obligations of the territorial State.Footnote 147 For example, they should take specific measures to protect the right to health of the persons living under their control, and particularly of vulnerable groups. This requires “taking into consideration the dangers and risks of environmental pollution” for children's health,Footnote 148 as well as protecting “[t]he vital medicinal plants, animals and minerals necessary to the full enjoyment of health of indigenous peoples”.Footnote 149 Pursuant to the general approach to environmental protection under IHRL, NSAGs acting as State-like entities should conduct a prior assessment of the environmental impact of their activities on the enjoyment of human rightsFootnote 150 and provide effective remedies for human rights violations resulting from environmental harm.Footnote 151
Reasoning by analogy to States’ obligations implies that the environmental responsibilities of such NSAGs deriving from economic, social and cultural rights should be subject to a progressive realization, taking into account the maximum of their available resources.Footnote 152 Likewise, NSAGs should be able to limit qualified civil and political rights provided that the limitation is justified. However, it is difficult to see how NSAGs could derogate from the provisions enshrined in human rights treaties and comply with the procedural obligation to notify the derogation,Footnote 153 as they cannot become parties to these instruments.
NSAGs that do not exercise territorial control, or that exercise territorial control but only to a limited extent that does not allow them to protect and fulfil human rights, should at least respect human rights. They should thus “refrain from violating human rights through causing or allowing environmental harm”.Footnote 154 Respecting the right to health notably requires that parties “refrain from unlawfully polluting air, water and soil, … [and] from using or testing nuclear, biological or chemical weapons if such testing results in the release of substances harmful to human health”.Footnote 155 As noted above, the right to health under IHRL complements the IHL rules applicable in NIACs by extending to persons who are not wounded or sick. It can also be argued that this specific obligation is complementary to the IHL prohibition against using such weapons during the conduct of hostilitiesFootnote 156 and the prohibition against violence to life and person of those not or no longer directly participating in hostilities.Footnote 157 The complementarity approach between IHL and IHRL improves the protection of the environment in NIACs.
Environmental responsibilities under international environmental law
In contrast to IHL and IHRL, IEL lays down obligations protecting the environment as such.Footnote 158 It is therefore important to raise the question of whether NSAGs should comply with this branch of law in order to enhance environmental protection in NIACs.
It is generally accepted that IEL, except for the treaties expressly providing otherwise, continues to apply in armed conflicts.Footnote 159 Whether it is binding upon NSAGs remains unexplored, however. Several arguments suggest that NSAGs could have IEL obligations. First, the World Charter for Nature, although not legally binding, holds: “States and, to the extent they are able, other public authorities, international organizations, individuals, groups and corporations shall: […] implement the applicable international legal provisions for the conservation of nature and the protection of the environment.”Footnote 160 Second, the legal theories explaining how IHL and IHRL bind NSAGs could be applied to IEL. Pursuant to the doctrine of legislative jurisdiction, an NSAG would be bound by the IEL obligations in force for the territorial State, because of the latter's “competence to legislate for all natural and legal persons under its jurisdiction”.Footnote 161 For NSAGs acting as State-like entities, the same IEL obligations could devolve with “the exercise of de facto governmental functions”.Footnote 162 Finally, NSAGs could be bound by customary IEL should they possess the required international legal personality.Footnote 163
This debate deserves a more detailed discussion than the length of this article allows. It is suggested that while NSAGs do not have obligations under IEL as a matter of law, the need to enhance environmental protection in NIACs means that NSAGs should have certain responsibilities under IEL as a matter of policy. This is not unrealistic, as some NSAGs have already included IEL principles in their doctrines. As mentioned above, the doctrines of the ONLF, the SPLM/A and the LRA provide for the protection of the environment with the aim of preserving it for future generations. This commitment relates to the IEL principle of intergenerational equity. According to this principle, “[the] present [generation] cannot leave the environment in a worse condition than it had for itself. [The principle] requires taking into consideration impacts of current activities on future generations … to avoid irreversible environmental damage.”Footnote 164
Similarly to what was submitted in the section on IHRL above, an approach based on negative and positive IEL obligations should apply to the two defined categories of NSAGs. This aligns with the IEL principle of common but differentiated responsibility, which establishes that although all States must participate in the protection of the environment, their obligations depend “on the level of their economic development, circumstances and capabilities”.Footnote 165
For the first category of NSAGs acting as State-like entities, the scope of their IEL responsibilities would be comparable to the IEL obligations of the territorial State. If the latter is party to the Convention Concerning the Protection of the World Cultural and Natural Heritage, the NSAG should “set up within its territories, where such services do not exist, one or more services for the protection, conservation and presentation of the cultural and natural heritage with an appropriate staff and possessing the means to discharge their functions”.Footnote 166 It could also comply with customary IEL rules, such as the principle of preventionFootnote 167 and the emerging precautionary principle.Footnote 168 The former requires the NSAG to exercise due diligence – that is, to adopt appropriate measures when implementing activities in its own territory to prevent significant environmental damage, particularly when such damage is of a transboundary nature.Footnote 169 This obligation can generally be fulfilled by conducting an environmental impact assessment,Footnote 170 a tool that is not unknown to NSAGs. In the Agreement Concerning National Reconciliation, Human Rights and the Environment, the CNF agreed that “environmental impacts assessments shall be conducted in regards to all development projects in Chin State. To facilitate such a process, it is agreed that an independent committee shall be formed made up of independent experts.”Footnote 171
The precautionary principle requires that “[w]here there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”.Footnote 172 The appropriate measures to take depend on the capabilities of their author.Footnote 173 For the second category of NSAGs, they should comply with the negative obligations under IEL. For example, an NSAG operating on the territory of a State party to the Convention on International Trade in Endangered Species of Wild Fauna and Flora should refrain from trading endangered species in violation thereof.Footnote 174 Pursuant to the “no harm” rule,Footnote 175 an NSAG exercising limited territorial control should not implement an activity that would cause environmental harm outside its territory, particularly if the environmental damage is caused to the territory of a non-belligerent State.Footnote 176
In addition to the model of environmental responsibilities suggested above, IEL rules could also inform the IHL obligations of NSAGs. The ILC Draft Principles on Protection of the Environment in Relation to Armed Conflicts interpret the obligations of an Occupying Power in light of the IEL framework.Footnote 177 This could be applied to the select issue of exploitation of natural resources by NSAGs based on the application of Article 55 of the Hague Regulations by analogy. Therefore, an NSAG would only be permitted to exploit natural resources “for the benefit of the population [under its control] and for other lawful purposes under [IHL] … in a way that ensures their sustainable use and minimizes environmental harm”.Footnote 178 In the Agreement Concerning National Reconciliation, Human Rights and the Environment, the CNF also agreed “that in extracting natural resources from above and underground within Chin State, the principles of Free Prior and Informed Consent shall be observed in accordance with the desire of the Chin people”.Footnote 179
In conclusion, all NSAGs have environmental obligations under IHL. As a matter of policy, NSAGs that do not exercise territorial control or exercise it only to a limited extent should comply with the negative obligations under IHRL and IEL, while NSAGs acting as State-like entities should additionally comply with the positive obligations provided under these bodies of law. The doctrine and practice of some NSAGs confirm that this model can be considered realistic.
Engaging non-State armed groups on the protection of the environment
Bangerter has held that “the mere existence of a body of law is not enough to ensure that it is applied; it would be naïve to hope that [NSAGs] could be won over by the mere existence of international law”.Footnote 180 In addition, the first section of this article highlighted the potential discrepancy between the doctrine and actual practice of NSAGs regarding environmental protection. Therefore, it is crucial to identify effective methods and actors of engagement to improve the compliance of NSAGs with the legal and policy framework detailed above.
Methods and actors of engagement to improve non-State armed groups’ compliance with the legal and policy framework protecting the natural environment
Certain methods for improving compliance with humanitarian norms by NSAGs have been recommended.Footnote 181 In terms of legal tools, the UN Secretary-General has affirmed that the
development of codes of conduct, unilateral declarations and special agreements, as envisaged under [IHL], through which groups expressly commit to comply with their obligations or undertake commitments that may go beyond what are required by the law, can play a key role and should be encouraged.Footnote 182
As they cannot become parties to IHL, IHRL or IEL treaties, NSAGs “may feel they lack ‘ownership’ over international norms”.Footnote 183 Compliance can be improved by enabling NSAGs to issue their own commitments to respect environmental norms, as this would “increase their sense of ownership over” the latter.Footnote 184 For instance, a unilateral declaration provides the opportunity for NSAGs to express a specific commitment to abide by environmental norms in the form of a public statement. Unilateral declarations do not require the consent of the adverse party to the conflict and are thus particularly valuable where a special agreement cannot be concluded.Footnote 185 This may offer a significant advantage in practice, because “States are often reluctant to enter into special agreements with [NSAGs], in order to avoid supporting the groups’ efforts to gain political legitimacy”.Footnote 186 The process of issuing a unilateral declaration may be initiated by the NSAG itself or may result from negotiations with humanitarian organizations or other relevant actors.Footnote 187
This article proposes a model unilateral declaration for the protection of the natural environment in armed conflict as a potential way forward. As noted by the UN Secretary-General, a unilateral declaration allows NSAGs to express a commitment that may go beyond their legal obligations. Based on the legal and policy framework discussed above, the model unilateral declaration suggested includes a preamble and ten key environmental norms, consisting of IHL obligations as well as responsibilities under IHRL and IEL providing protection to the environment.
As illustrated above, a commitment to respect environmental norms expressed by an NSAG is not in itself sufficient to guarantee compliance. Following its issuance, the model unilateral declaration should be implemented in the internal regulations of the NSAG, such as in a code of conduct.Footnote 188 This means that environmental norms contained in the declaration should be translated into a language that is understandable for the fighters and adapted to the characteristics of each NSAG on a case-by-case basis, such as whether the NSAG exercises territorial control or not.Footnote 189 In addition, the adoption of the model unilateral declaration – or other means of commitment providing protection to the environment – should be complemented by certain policy measures in order to be effective. First, ensuring that fighters know and understand the environmental norms included in the declaration requires that those norms be widely disseminated in their translated form. Second, the NSAG should provide training to its fighters in accordance with such norms. Third, breaches thereof should be addressed by a working system of disciplinary sanctions established by the NSAG.Footnote 190
Enhancing NSAGs’ compliance with environmental norms requires sustained engagement, in particular by humanitarian actors.Footnote 191 In order for actors engaging with NSAGs to resort to “strategic argumentation”,Footnote 192 it is vital to identify the reasons for NSAGs to comply with them or not. As the consequences of environmental harm may only appear in the long term, there is a potential discrepancy based on whether an NSAG reasons in short- or long-term outcomes,Footnote 193 or whether it focuses on “the conflict itself” rather than its “ultimate objective”.Footnote 194 Compliance by NSAGs claiming to fight on behalf of a community can be improved because it is only if the environment is safeguarded during the conflict that the community can envisage a sustainable future. For example, the SPLM/A claimed to fight “for a peaceful homeland”, which prompted its decision to ban anti-personnel landmines.Footnote 195 When necessary, additional sources of influence such as “local customs, beliefs and traditions” can also complement the message.Footnote 196 The overlap between Islamic law and IHL rules protecting the natural environment has notably been addressed by other authors.Footnote 197
Actors engaging with NSAGs on the protection of the environment could use the model unilateral declaration “to strengthen their dialogue with [NSAGs] through the negotiation process preceding such declarations”.Footnote 198 Sustained engagement should also continue after the unilateral declaration has been issued, in order to monitor whether the NSAG complies with its commitments and to discuss environmental protection more generally.Footnote 199
The ICRC has a longstanding practice of humanitarian engagement with NSAGs in order to ensure humanitarian assistance and protection for persons affected by NIACs.Footnote 200 The legal basis for this engagement derives from common Article 3, according to which the ICRC has a right to offer its services to parties to a NIAC. In contexts where protecting the environment is “a matter of humanitarian necessity”,Footnote 201 the ICRC could disseminate the ICRC Guidelines to promote the adoption of rules protecting the natural environment in the doctrines of NSAGs. As mentioned above, the ICRC also recommends that parties to the conflict should conclude special agreements establishing demilitarized zones in order to protect “areas of major environmental importance”.Footnote 202
The non-governmental organization Geneva Call engages NSAGs and aims to improve their compliance with humanitarian norms through the implementation of standardized unilateral declarations called Deeds of Commitment.Footnote 203 A new Deed of Commitment for the protection of the environment may represent a suitable avenue for securing greater compliance by NSAGs with the legal and policy framework identified. It would combine the advantages of issuing a unilateral declaration with the guarantee that Geneva Call will assist and monitor its implementation.
Model unilateral declaration for the protection of the natural environment in armed conflictFootnote 204
We acknowledge the danger for the environment inherent to situations of armed conflict;
We are concerned with the immediate and long-term impact that environmental damage has on the right of everyone to enjoy their fundamental human rights;
We recognize the importance of respecting and protecting the environment for present and future generations;
We affirm our determination to respect and protect the environment from the effects or dangers of military action;
We reaffirm our obligation to respect the rules on the conduct of hostilities as applicable to the environment;
We reject the notion that any cause, for whatever reason, may justify attacking the environment by way of reprisal as well as unlawful damage, pillaging or unnecessary destruction of the environment;
We recognize that this declaration is no substitute for existing legal rules, including Article 3 common to the Geneva Conventions, customary international humanitarian law and, where applicable, Additional Protocol II to the Geneva Conventions.
Taking due account of our legal obligations under international humanitarian law and our responsibilities under international human rights law and international environmental law to protect the environment,
We hereby commit ourselves to the following principles:
1. Respecting the natural environment as a civilian object unless and for such time as it meets all the constitutive elements of a military objective. This includes not launching indiscriminate attacks. It also includes not launching an attack against a military objective which may be expected to cause incidental damage to the natural environment which would be excessive in relation to the concrete and direct military advantage anticipated.
2. Not attacking works and installations containing dangerous forces, cultural objects and places of worship, objects indispensable to the survival of the civilian population, and non-defended localities or demilitarized zones.
3. Taking all feasible precautions to avoid, and in any event to minimize, incidental damage to the natural environment. This includes taking all feasible precautions in the absence of scientific certainty as to the effects on the environment of certain military operations.
4. Respecting the prohibition or restriction on the use of certain weapons inherently destructive of the natural environment, such as poisonous, biological, chemical or incendiary weapons, as well as herbicides and anti-personnel mines. Means or methods of warfare that are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment must not be used.
5. Giving due regard to the protection and preservation of the natural environment in the conduct of military operations.
6. Not pillaging parts of the natural environment, including natural resources, and not destroying or seizing parts of the natural environment unless required by imperative military necessity.
7. Endeavouring to conclude additional agreements providing further protection to the environment, in particular for areas of major environmental importance.
8. Further endeavouring, in areas where we exercise authority, to:
i) Refrain from exploiting natural resources unless on existing sites as required by imperative military necessity or for the benefit of the population under our control, and only in a sustainable manner.
ii) Respect and take all feasible measures to protect and fulfil the human rights of the population under our control, which require the enjoyment of a safe, clean, healthy and sustainable environment, such as the rights to life, to the highest attainable standard of physical and mental health, to an adequate standard of living, to adequate food, to safe drinking water and sanitation, to housing, to participation in cultural life and to development. Particular care shall be given to vulnerable groups among the population.
iii) Conduct an environmental impact assessment for proposed activities that are likely to have a significant adverse impact on the environment.
9. Undertaking dissemination, education and training measures within our ranks to implement effectively the environmental norms contained in this declaration. In case of breach, enforcing these norms through a system of disciplinary sanctions which respects the fundamental rights of each individual in accordance with internationally recognized standards.
10. Cooperating with impartial humanitarian and other relevant organizations towards environmental protection.
Conclusion
The protection of the environment within and outside armed conflict has become a major challenge as there can be no human sustainability absent a healthy environment. Since the awareness generated by the consequences of the Vietnam War, the nature of armed conflicts has evolved. Environmental protection during NIACs now requires further reflection. The purpose of this article was to examine this issue from the perspective of NSAGs as the main belligerent parties to such conflicts. Many IHL rules protecting the natural environment constitute legally binding obligations for NSAGs, but some of them should nevertheless be clarified, in particular the prohibitions against pillage and destruction or seizure of property in relation to NSAGs exploiting natural resources for the benefit of the population living under their control. In addition, the binding nature of IHRL and IEL on NSAGs is an unsettled legal issue. At the least, NSAGs should have environmental responsibilities under IHRL and IEL as a complement to IHL rules for better environmental protection. IHRL and IEL comprise negative and positive obligations which, as a matter of policy, could apply according to an NSAG's level of territorial control in order to guarantee a realistic model.
While a coherent legal and policy framework is needed, equally essential is an effective engagement process by humanitarian and other relevant actors. Indeed, some NSAGs may not be indifferent to environmental protection but may lack the capacity to implement environmental norms. As an entry point for engagement, the model unilateral declaration for the protection of the natural environment in armed conflict would be a convenient way forward to promote environmental protection with NSAGs.
