Environmental impact of armed conflicts
- Author(s):
- Parliamentary Assembly
- Origin
- Assembly
debate on 25 January 2023 (5th sitting) (see Doc. 15674, report of the Committee on Social Affairs, Health and
Sustainable Development, rapporteur: Mr John Howell). Text adopted by the Assembly on
25 January 2023 (5th sitting).See also Recommendation 2246 (2023).
1. Armed conflicts, wars and military
aggression destroy human lives and leave deep scars on human living space.
Environmental damage resulting from armed conflicts can be multifaceted,
severe, long-lasting and mostly irreversible. It not only harms
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
of 12 August 1949 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 during and after 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 International Committee
of the Red Cross Guidelines for Military Manuals and Instructions
on the Protection of the Environment in Times of Armed Conflict
(“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 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 to 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 the 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 Council of Europe Landscape
Convention (ETS No. 176). However, these conventions either do not
explicitly cover damage caused by an act of war or military hostilities
or they explicitly exclude it. The currently ongoing revision of
the Convention on the Protection of the Environment through Criminal
Law, which is also open to non-member States, offers the possibility
of establishing a new criminal offence of “ecocide” at Council of
Europe level. The Assembly also notes that Recommendation CM/Rec(2022)20
of the Committee of Ministers to member States 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 inter-related” and urges steps to recognise, at national level,
the right to a healthy environment 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. The Assembly reiterates its
call to the member States of the Council of Europe, contained in
Resolution 2398 (2021) “Addressing
issues of criminal and civil liability in the context of climate
change”, as regards the need to recognise “universal jurisdiction
for ecocide and the most serious environmental crimes” and to introduce
“the crime of ecocide into their 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 specifying what is meant by “widespread,
long-lasting, or severe effects”), comprehensive coverage of offences
relating to environmental damage and a sufficiently broad scope
of application. Moreover, a permanent international mechanism to
detect 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,
have a disproportionate environmental impact and render human life
in the affected area impossible.
10. Considering that the Council of Europe has served as a laboratory
for 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 drafting new legal
instruments to guide member States and other States 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 of 12 August 1949 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 detect 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;
10.1.6 supporting the establishment of standard methodologies
for the collection of evidence of environmental harm;
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 the 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 on the Protection of the Environment
through Criminal Law in order to ensure that the revised convention
also applies in the context of armed conflicts, war 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 Council of Europe 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 nature reserves) and areas that might need to
acquire a special protection status, in anticipation of any form
of armed conflict, and foreseeing the demilitarisation of such areas
in the case of an armed 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 an armed 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.
