Protection of the natural environment in armed conflict

Definition

Protection of the natural environment in armed conflict

The natural environment is protected during armed conflict under IHL by both specific and general rules. To begin with, specific IHL rules provide that it is prohibited to use methods or means of warfare which are intended or may be expected to cause widespread, long-term, and severe damage to the natural environment. It is worth noting that the customary nature of this rule has been contested, as well as its application to both international and non-international armed conflicts. Moreover, it is prohibited to use the destruction of the natural environment as a weapon of warfare. Further, due regard must be given to the protection and preservation of the natural environment in warfare. In addition, under the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD), the military or any other hostile use of environmental modification techniques having widespread, long-lasting, or severe effects as the means of destruction, damage or injury to any other State Party is prohibited. The three criteria of “widespread, long-lasting or severe” under this Convention are alternative rather than cumulative and their threshold has been interpreted to be rather lower than the one established in Additional Protocol I. It is worth noting that contemporary knowledge of the effects of harming the natural environment must be considered to address the degree of damage. Moreover, the natural environment is protected under the general principles of IHL governing civilian objects, unless parts of it become a military objective. Therefore, all the principles governing the conduct of hostilities, such as distinction, proportionality, and precautions fully apply to the natural environment. The protection of the natural environment under IHL also applies to cyber operations and their effects. Publicly available national positions that address this issue include: (2019), and (2021).

National positions

France (2019)

"In order to ensure application of the rules governing the conduct of hostilities (distinction, proportionality and precaution, prohibition of superfluous injury and unnecessary suffering), a specific digital targeting process is used for cyberoperations, under the responsibility of the commander-in-chief of the armed forces, with the input, inter alia, of operational staff and specialist operational legal advisers. It cannot be ruled out that a serious breach of these principles arising from a cyberoperation could constitute a war crime within the meaning of the Rome Statute.

The principle of distinction

Under the principle of distinction, the parties to an armed conflict must at all times distinguish between the civilian population and combatants, and between civilian objects and military objectives. In this regard, cyber-attacks carried out in an armed conflict situation which are not directed against a specific military objective or whose effects cannot be contained are prohibited. If there is doubt as to whether an individual is a combatant, he or she must be considered a civilian61. Likewise, an object normally used for civilian purposes is presumed not to be used to make an effective contribution to military action. On this point France does not follow the Tallinn Manual, which considers that if there is doubt over the use of a civilian object for military purposes, a determination as to such use should be made only following a careful assessment.

From this standpoint and under the authority of the commander-in-chief of the armed forces, offensive cyber warfare operations are planned and coordinated taking all measures possible in practice to ensure that the targeted objectives are not civilians or civilian objects. Commanders are thus careful to gather the necessary intelligence to identify the objective and choose the most suitable means in order to apply the principle of distinction. Even if cyber weapons can have immediate effects, their integration into the operational manoeuvre is based on often long and specific planning designed to gather the information necessary to identify the nature of the targeted system (such as a map of the enemy network) in order to ensure compliance with IHL. A cyberoperation will be cancelled if the target under consideration proves not to be a military objective.

The distinction between military objectives and civilian objects.

In cyberspace, ICT equipment or systems and the data, processes or flows which constitute a service may be a military objective if (i) they contribute to military action by their nature (armed forces computer workstations, military command, localisation or surveillance networks, etc.), their location (places from which the cyber-attacks are carried out), their purpose (foreseeable use of ICT networks for military purposes) or their use (use of part of the network for military purposes), and (ii) their total or partial destruction, capture or neutralisation confers a definite military advantage. Under these circumstances, a propaganda centre may be a lawful military objective and the target of a cyberattack if it disseminates instructions linked to the conduct of hostilities.

Conversely, all objects which are not military objectives are deemed to be civilian objects. An attack carried out in cyberspace may not be directed against ICT systems used by schools, medical institutions or any other exclusively civilian service, or against systems whose destruction would only entail tangible effects on civilian objects, unless those objects are used for military purposes. Given the current state of digital dependence, content data (such as civilian, bank or medical data, etc.) are protected under the principle of distinction.

Cyberoperations must also take into account the special protection of certain objects, such as medical units, cultural property, the natural environment, objects indispensable to the survival of the civilian population and installations that contain dangerous forces. This protection extends to ICT equipment and services and to the data needed to operate them, such as medical data linked to the operation of a hospital.

ICT infrastructure or a system used for both civilian and military purposes may, after detailed analysis on a case-by-case basis, be deemed a military objective. They may be targeted provided that the principles of proportionality and precaution are respected. Given the hyperconnectivity of systems, commanders exercise vigilance over the action as a whole in order to avoid effects on civilians and civilian objects, or at least keep them to a minimum, in compliance with the principles of precaution and proportionality."

Switzerland (2021)

"IHL prohibits or restricts means (weapons) and methods of warfare through general principles – regulating conduct or prohibiting certain effects – and specific rules addressing particular means and methods of warfare. As regards weapons, IHL distinguishes between the legality of a particular type of weapon (weapons law) and the legality of how it is used (law of targeting). The inherent characteristics of certain weapon categories entail that their use – in some or all circumstances – is unlawful per se. The admissibility of all other weapons depends on whether their use is in conformity with IHL.

This is also applicable to cyberspace. In fact, developing or using new means and methods of warfare must be in compliance with existing international law, particularly IHL. This is true even if a weapon is not covered by a specific norm and the treaty provisions governing the conduct of hostilities do not explicitly refer to new technologies. The customary rules of IHL apply equally to all means and methods of warfare, including in cyberspace. Indeed, it is a long standing principle that the right of parties to an armed conflict to choose methods or means of warfare is not unlimited."

"Legality of a particular type of weapon

IHL stipulates that any means or method of warfare possessing one or more of the following characteristics is inherently unlawful if:

(1) it is of a nature to cause superfluous injury or unnecessary suffering;

(2) it is indiscriminate by nature, because it cannot be directed against a specific military objective or its effects cannot be limited as required by IHL;

(3) it is intended, or may be expected, to cause widespread, long-term or severe damage to the natural environment; or

(4) it is specifically prohibited by treaty or customary international law. This is applicable to cyberspace and, therefore, to cyber means and methods of warfare."

"With regard to the lawful use of cyber means and methods of warfare, the rules and principles governing the conduct of hostilities must be respected. Belligerents must in particular comply with the principles of distinction, proportionality and precaution by:

(1) distinguishing between military objectives on the one hand, and civilians or civilian objects on the other hand and, in case of doubt, presume civilian status;

(2) evaluating whether the incidental harm expected to be inflicted on the civilian population or civilian objects would be excessive in relation to the concrete and direct military advantage anticipated from that particular attack;;

(3) taking all feasible precautions to spare civilians and civilian objects.

This is also applicable in cyberspace, when using cyber means and methods of warfare. [...] In practice, a responsible actor should generally be able to assess the potential impact of their actions and any resulting damage. As this estimation depends, amongst other things, largely on the information available at the time when decisions about an operation are taken, the obligation to take all precautionary measures practically possible to spare civilians and civilian objects plays a particularly important role in the use of cyber means and methods of warfare."

Appendixes

See also

• International armed conflict
• International humanitarian law (jus in bello)
• Scenario 29: Cyber operations against water and water infrastructure