In this blog, consultant Jonathan Somer begins to explore the terra incognita of current efforts to strengthen legal protection for the environment in relation to armed conflicts – the role of non-state armed groups, their policies and doctrine and why they must be part of any solution – in spite of the objections of states.
Since 2012, the International Law Commission (ILC) has been collecting state practice in order to draft principles on the protection of the environment in relation to armed conflict. This is not surprising, as traditionally it is the practice of states that determines customary international law. Yet in contemporary armed conflict, the vast majority of warring parties are in fact non-state armed groups (NSAG)—also called armed non-state actors, and referring to insurgents, guerrillas, liberation movements, etc.
A recent Toxic Remnants of War Project publication has described the practice of NSAGs as the “elephant in the room” in legal debates on conflict and the environment. Therefore, in simply acknowledging the importance of NSAG environmental practice, the July 2015 report of the ILC’s Special Rapporteur Marie Jacobsson takes an important first step towards an ecological approach to the legal landscape.
However, due to “practical considerations”, and surely political ones as well, the ILC report does not go on to investigate such practice. The brass tacks reality is that the international community that comprises the ILC—in other words, the community of States—is still rooted in its Westphalian origins and not interested in admitting non-state actors to its country club, no matter how unconstructive such an insistence may be. In fact, during the ensuing ILC discussion, one delegation brazenly blew off the issue: “we have noticed that the report seems to not cover practice relating to non-state armed groups, nonetheless we are of the view that such a practice could have very limited value for this topic.” So while the ILC process has finally admitted that the elephant is in the room, it seems that no one is trying to figure out what it is doing there.
Fortunately, the tentacles of Westphalia do not yet reach into the blogosphere. So this post will take a step through the door pried open by the Special Rapporteur, that is, to begin looking at NSAG practice and to compare it with that of states (yes, it is clear that NSAGs don’t always ‘practice’ what they preach. Here we will give the same latitude to NSAGs as is afforded states—for the benefits of doing so, keep reading).
We know that international humanitarian law (IHL) provides only weak protection for the environment. Does NSAG practice concur, or does it point to a greater standard of environmental care in the waging of war? If NSAGs are willing to commit to higher levels of environmental protection, why aren’t states? What implications do differing NSAG approaches to the conduct of hostilities have on the protection of civilians and the protection of the environment?
Understanding NSAG practice is not only important for legal considerations, but it is also central to engaging these key stakeholders towards improved environmental protection in reality. As has often been said, NSAGs are not only part of the problem, but they may also be part of the solution. It is well documented that many NSAGs wreak havoc on the environment and don’t care about its protection. But they are not all ruthless pariahs. We ignore them at our own peril.
In terms of methodology, the analysis has been undertaken by searching the NSAG doctrine contained in the Their Words database established by Geneva Call, and “other practice” from the International Committee of the Red Cross (ICRC) database on customary IHL. It does not look at post-conflict agreements that address the environment, but rather is limited to rules regulating the conduct of warfare. Moreover, it primarily looks at rules that directly address the environment. The indirect effect of IHL rules on the environment have been well noted elsewhere and, while some examples will be given of such NSAG practice, a complete review would be beyond the scope of this post. For consistency, the methodology follows that of the ICRC in establishing practice by reference to the doctrine (policy, pronouncements, etc) of states, even though the pitfalls of doing so have been pointed out.
A bit of background on NSAGs, international law and protection of the environment
It is now widely recognised that NSAGs involved in armed violence of sufficient intensity and with sufficient organisational command and control are bound by IHL (also know as the law of armed conflict). This is an anomaly, as the general rule is that international law binds only states and international organisations. Common article 3 to the 1949 Geneva Conventions were the first international treaty provisions to create obligations on NSAGs – in fact any non-state actors—albeit applying only a fraction of IHL relating to humane treatment and care for sick and wounded. There was no mention of the environment, nor was there any direct environmental protection in the 1977 Additional Protocol II (APII), which specifically governs armed conflicts involving NSAGs, known as non-international armed conflict (NIAC).
APII does indirectly protect the environment, however, by protecting non-military objects, prohibiting destruction of objects indispensible to the survival of the civilian population (art. 14) and –if liable to cause severe losses among the civilian population—attacks against works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations. According to the ICRC, customary IHL in the 21st century has only marginally improved environmental protection in NIACs. While the Customary law study concludes that the general principles on the conduct of hostilities apply to the natural environment, its two specific rules on the natural environment (Rules 44 and 45) only ‘arguably’ apply in NIACs. Much of the debate in the current ILC process revolves around whether principles on the environment and armed conflict should be limited to conflicts involving states, or should expand to NIACs as well.
The question of whether NSAGs can contribute to the formation of customary IHL has attracted considerable attention. Some legal scholars argue it is already the case (e.g. Sassoli, p.18) while others say it is not, but it should be (e.g. Henkearts p.129). The Special Rapporteur points to recent work by the ILC to conclude that it does not—an unsurprising finding considering that “States jealously guard their lawmaking powers as a key attribute of statehood, making them generally resistant to the idea of sharing such powers with any nonstate actors.”
For our purposes, we can leave aside the above controversy and instead look at NSAG doctrine (see discussion on the term ‘doctrine’ in footnote 1 below) in order to learn how it compares with that of states, and in order to help improve their contribution to environmental protection in reality. Still, there are a number of practical problems in assessing NSAG doctrine. First, few NSAGs have well articulated policy positions. Second, it is often either not publicly available or otherwise difficult to track down, or is only available in sometimes obscure local languages. Third, it may be drafted primarily to appease international or domestic constituencies as part of propaganda efforts, and as such, may not be in line with actual practice.
On the final point, it should be noted again that this may equally be the case for states as well. Like states, many NSAGs do not put their money where their mouth is, and accordingly, doctrine should not be mistaken for actual practice, that said, doctrine remains relevant. When NSAGs make their beliefs and commitments known, they can be held accountable. When NSAGs disseminate their beliefs and commitments within their ranks and institutions, it can be followed and implemented. If doctrine is inadequate, it is a starting point to engage with them on adopting and implementing improved standards. And if the doctrine of ANSAs is consistently more (or less) protective than that of states, eyebrows and questions should be raised.
NSAG doctrine may be classified in three ways: agreements made with opposing forces (usually states), unilateral declarations or statements, and internal rules or regulations. A few general observations can be made. First, most NSAGs that have doctrine on IHL subject matter have not directly addressed environmental issues. Second, those that do so have higher standards of protection than the protection offered by IHL in some respects. Third, contrary to IHL, some NSAGs authorise attacks directed to stop enemy actions that degrade the environment. Finally it should be noted that just as with states, many rules on distinction between military and non-military targets have secondary protective effects.
i) Lack of NSAG doctrine on environmental issues
Many NSAGs have agreed to abide by the Geneva Conventions and/or IHL in general, so in this way IHL’s environmental provisions would be broadly considered as part of NSAG doctrine. Yet such broad pronouncements do not have much practical effect in the absence of further specific doctrine. Unlike standard-bearer principles of IHL such as distinction and humane treatment, environmental provisions usually are not directly enumerated. A non-scientific search of the Their Words database shows that, of approximately 200 NSAGs, only eight have doctrine that directly confronts environmental issues. Of these, only four (three of them still operational) have normative provisions on environmental protection.
None of the analysed bilateral or multilateral agreements between NSAGs, states and international organisations have specific environmental protection provisions. Islamic oriented NSAGs often refer to Islamic law sources as part of their military doctrine, and several point to the teaching of Abu Bakr al-Siddeeq: “do not cut down and burn date palms and do not cut trees that bear fruit and do not slaughter the sheep, cattle and poultry except for food.” Without being an expert in Islamic law, it seems that these prohibitions are directed towards ensuring availability of produce rather than environmental protection per se.
ii) Standards of NSAG environmental protection
IHL environmental provisions are notoriously under protective. They are either qualified, such as requiring only feasible precautions to avoid or minimise incidental environmental damage, or they are subject to very high and ill-defined thresholds, such as widespread, long-term, and severe damage to the environment. In many respects, NSAG standards are more protective. The fundamental principles of environmental law have been stated as intergenerational equity, precaution and the prevention of transboundary harm. Of these, only the first are contemplated in known NSAG doctrine.
Kurdistan Workers Party (PKK—active in Turkey, Iraq)
The most protective NSAG environmental provisions are that of the PKK. Its 2011 Rules for the Conduct of War (identical to its 2005 Code) contain two provisions:
- Forests will not be burned or otherwise destroyed
- Weapons that burn, such as napalm, lava, and phosphorous, or create destruction to humans, plants, animals and the ecological balance shall not be used
These provisions are absolute and are not subject to any threshold. However it is hard to imagine how to implement in practice a ban on all weapons that create destruction, and it is therefore likely that this provision is to be read with an implied notion of ‘undue’ or ‘excessive’.
Ejército de Liberación Nacional (ELN—active in Colombia)
The ELN 1995 Code of War contains the provision:
- Acts of sabotage shall, as far as possible, avoid causing environmental damage.
Notwithstanding the question of the legality of acts of sabotage, this is a qualified obligation similar to ‘feasible measures’ provisions that exist in IHL. There is no threshold as to when such acts would be prohibited outright.
Sudan People’s Liberation Movement (SPLM—inactive)
An SPLM/N 1991 resolution
- The SPLM/SPLA shall do everything to…protect and develop [our wildlife resources] for us and for posterity.
This provision seems to also imply a feasibility qualification. What is particularly interesting is the notion of protection for the sake of posterity, which considers intergenerational equity. The reference to ‘our’ could bring into question to what extent such protections extend to territory beyond the SPLM control.
Chin National Front (CNF—active with ceasefire in Burma/Myanmar)
The undated CNF Guidelines on the Code of War state:
- The use of weapons and technologies that can damage the environment for a very long period of time must be avoided.
While this provision only refers to one of the three cumulative threshold limits of IHL, it is likely inspired by the IHL rule.
Lord’s Resistance Army (LRA—active in several central African states)
The LRA made commitments related to the protection of endangered species, where they assured rangers in Garamba Park that LRA would “not attack them as long as they identified themselves and did not attack LRA forces”. This also involved a commitment 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.” This qualified commitment also makes reference to intergenerational equity. It is reported, however, that the LRA continued to launch attacks inside the park and kill rangers, as well as poaching elephants to finance operations.
iii) Justification for attacks
According to IHL, attacks may only be launched against combatants, other persons directly participating in hostilities, and objects that make an effective contribution to military action. Sabotage, threats, or violence to prevent environmental destruction is unlawful. Some NSAGs doctrine, however, implies that preventing environmental destruction is considered an additional legitimate ground for attack. Such an approach may result in greater environmental protection, but it represents a significant departure from the fundamental principles of IHL.
National Democratic Front of the Philippines (NDFP—active)
The NDFP has stated that “environmentally destructive operations of big business and multi-national corporations make them valid military targets of the New People’s Army in view of the recent spate of disasters”. This policy has been justified as a proactive form of “disaster prevention”.
Ogaden National Liberation Front (ONLF—active in Ethiopia)
“The ONLF affirms that we shall confront all initiatives, which negatively impact our environment as a matter of national duty to protect our environment for future generations.” In this case, the rationale is again based on environmental stewardship responsibilities.
The same SPLM resolution referred to above also states that the “SPLM/SPLA shall do everything to halt the destruction of our wildlife resources.”
Engagement of NSAGs on environmental issues
The organisation Geneva Call—for which I was legal advisor and programme coordinator from 2008-2013 and continue to consult—is exclusively devoted to engaging NSAGs towards ensuring their respect for humanitarian norms. It was once called the “UFO of the NGO world”, but the value of engaging NSAGs on IHL compliance has gained traction in recent years and is indeed entering the mainstream. The UN Secretary-General has emphasised the need for NSAG humanitarian engagement in his most recent reports (para 7) on the Protection of Civilians, and the ICRC considers strengthening its own capacity to engage NSAGs as a priority for ICRC’s 2015-2018 Institutional Strategy.
The overwhelming focus on NSAG humanitarian engagement is on thematic issues related to the protection of civilians, such as sexual violence, recruitment of children, humane treatment, distinction in targeting and the use of anti-personnel landmines. Only the latter two have any secondary impact on environmental protection. Considering the general approach to environment and armed conflict, it comes as no surprise that the issue is not prioritised in NSAG engagement. And when Geneva Call consulted NSAGs in 2014 towards which issues may be suitable for future engagement efforts, environmental protection did not make the list (p17) (surprisingly, cultural heritage did).
This does not mean that environmental protection is completely excluded from NSAG training programmes on humanitarian norms. In developing Geneva Call’s training module on IHL for NSAGs, we included a small component on the environment as part of a broader section on methods of warfare. We also added an ethical discussion question on whether IHL should protect only humans, or whether it should also protect the environment for its own sake. And we made sure to include a question on the environment as part of the “Fighter not Killer” smartphone training app for NSAGs. The ICRC also includes rules on the environment as part of its general IHL dissemination package, but as far as I’m aware, has not done any particular focus on environment protection for NSAGs.
In my experience of conducting IHL trainings for a wide range of NSAGs, the low standards of protection and ambiguity of environmental rules related to NIAC has been a cause of both exasperation and frustration. NSAG participants are generally surprised when they discover how little protection the environment is granted under IHL. This is always a dilemma as a trainer, since we don’t want to encourage the lowering of NSAG standards, but at the same time if we present the law how we’d like it to be rather than how it is, NSAGs won’t trust us. They are already sometimes sceptical of our intentions and they know how to use the Internet!
When it comes to reciprocity, my experience is that NSAGs do not necessarily premise their behaviour on the behaviour of the enemy, especially when they consider themselves to have a protective role over territory and persons. In fact they often portray a defeatist attitude towards their commitments, claiming that they respect the law even though they do not expect their enemy to do the same. For example, one NSAG has claimed that the enemy state has intentionally flooded valleys in order to deprive them of safe havens, but claims to nevertheless conduct its own operations with environmental sensitivity.
Ambiguity for military commanders—state or non-state—is a source of frustration. They want to know what they are allowed to do. Consider this question we drafted for the “Fighter not Killer” training application:
It is the end of a long dry summer. Zako [your subordinate] says “let’s burn the forest down. [The enemy soldiers holding out there] will either become charcoal or run right into our arms. We won’t do it when the kids are in [the adjacent] school so we know they wont be in the forest.” Can you attack the enemy by burning down the forest?
How would you answer? As an IHL specialist, I’m not sure how I would.
NSAGs are inconvenient stakeholders. Yet environmental protection in armed conflict cannot be achieved without their engagement. This post has made a modest preliminary effort to collect NSAG doctrine, and has found it to often be more protective of the environment than the lacklustre standards afforded by IHL. It also shows some consistency with the environmental law principle of intergenerational equity. However several NSAGs also use environmental protection as a justification for launching attacks. This points to the fact that environmental degradation is not just a result of armed conflict, but often one of its causes.
It is too early in the discussion to even identify the range of challenges, let alone look for solutions. Environmental law is terra incognita for lawyers, policy makers and engagement actors who grapple with the challenges of NSAG accountability. So far, such conversations have been restricted to IHL (where NSAGs clearly have direct obligations) and the margins of human rights law (where a debate on NSAG obligations currently rages). The weariness to expand the scope of obligations stems from the delicate balance between a rights-based beneficiary approach on the one hand, and empowering NSAGs that are intent on displacing the state on the other. Additional challenges would be encountered in considering NSAG reparations, and the fact that almost by definition NSAGs cease to exist post-conflict.
What may ultimately prove to be the most valuable contribution from environmental law—beyond its substance—is the inspiration of its flexible and inclusive mechanisms. Emphasis on public participation in environmental treaties such as the Aarhus Convention highlights the importance of stakeholder inclusiveness in achieving sustainable outcomes—an approach lacking in IHL mechanisms, as evidenced by the hypersensitivity of States towards NSAGs in the Red Cross movement/Swiss initiative to strengthen IHL.
As momentum builds towards processes aimed at legal or (more likely) policy solutions to better protect the environment from the affects of armed conflict, it is this participative orientation that can be leveraged towards making the case for NSAG inclusion. Involving these inconvenient stakeholders will help to create a sense of ownership, and we may just learn something by setting a place at the table for the elephant in the room.
Jonathan Somer is an armed conflict law and policy specialist with expertise on engaging non-state armed groups. He is the founder of Persona Grata Consulting (www.pgconsult.net).
 The common term “state practice” also comprises the notion of opinion juris, or in other words, pronouncements, policy, etc of states that indicate it considers its practice to arise from legal obligation. The legal notion of practice does not always match the actual practice of States.
 Statement of Poland, UNGA Sixth Committee debate on the Report of the ILC 67th Session, 10 November 2015.
 The ICRC makes note of NSAG practice in this section of its study, although it does not include such practice in its determination of international customary law. The analysis found only one such example from the SPLM/A (see https://www.icrc.org/customary-ihl/eng/docs/home).
 Anthea Roberts and Sandesh Sivakumaran, “Lawmaking by Nonstate Actors: Engaging Armed Groups in the Creation of International Humanitarian Law,” Yale Journal of International Law, 37:1, 2012.
 The answer we provided is “No. It is prohibited to use the natural environment as a weapon.” While this is a tenable position, particularly as the ICRC—quite dubiously—considers as a rule of customary law that the destruction of the natural environment may not be used as a weapon (Rule 45). I’m sure that many State forces would not concur.