PROTECTING THE ENVIRONMENT DURING ARMED CONFLICT: GAPS IN INTERNATIONAL LAWS

INTRODUCTION

Environment has been recognized as a civilian object of a state. during a conflict between two states it is established in the international arena that the incidental loss injury, harm and loss shouldn’t be inflicted on the civilians and the civilian object.

 If done it constitutes a War Crime under article 8(2)(b)(iv) that says- “Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.”

 But the question arises that if the civilian objects and civilian are caused harm the conflicting country takes the stand of the harm was a collateral damage and was proportionate to military objective then the question arises what could be a reasonable military object and how much degree of damage can be considered collateral.

The value of the direct and indirect environmental safeguards provided by IHL during armed conflict is debatable. The elements of IHL that do specifically address environmental protection during armed conflict are few and insufficient.

First, the 1949 Geneva Conventions’ Additional Protocol I establish a very stringent and ambiguous standard for what constitutes “widespread, long-term, and severe” environmental harm. Second, environmental components are not adequately protected from injury during armed conflict by the principles of IHL on the protection of civilian objects. Third, it is challenging to quantify the amount of environmental devastation that qualifies as “collateral damage.”

MILITARY OBJECTIVE

International humanitarian law (IHL) defines military objectives as things that contribute significantly to military action due to their nature, location, purpose, or use, and whose complete or partial destruction, capture, or neutralization would give a clear military advantage. The 1977 Additional Protocol I to the four Geneva Conventions has this term.

A crucial component of the IHL is concept of distinction, which shields civilians and civilian property from assault during hostilities, is the characterization of a military purpose. In fact, this concept stipulates that the attack may not be directed at civilian targets and must be restricted to solely military objectives.

Parties to a conflict should presume that an object utilized for civilian purposes, such as a house or other habitation, a place of worship, or a school, is not being used for military purposes when in dispute (API, art. 52(3)). For an attack to be deemed legal, it must be demonstrated that the target was, in fact, being used for military objectives at the time of the attack, that destroying it gave the military a clear advantage, and that any potential harm to civilians would still be proportionate to the military advantage the attack produced.

Number of precautions to be taken by commander during the conflict these precautions include prohibiting the excess use of force and doing “everything feasible to ensure that the objectives to be attacked are neither civilian and civilian object”

The Defence’s argument that the civilian structures damaged during the strike on Vitez were lawful military targets because they were utilized for military purposes was rejected by the Trial Chamber of the International Criminal Tribunal (ICTY) in the Blaškić case. The Trial Chamber concluded that it was difficult to determine any military or strategic justification for the attack on Vitez and Stari Vitez on April 16, 1993, given the circumstances surrounding the attack and the general state of affairs. If there had been, it would not have been necessary from a military standpoint given the destruction caused to the town. Rather, by murdering Muslim people and damaging their property, the attack aimed to carry out a deportation plan, if needed (para. 509) The Court further held that the attacks carried out by the HVO in April and June 1993 were unquestionably justified because they did not only target Muslim civilians and their property, but also on the basis of military necessity (para. 627). In the Blaškić case, the Trial Chamber (paras. 401 and 509–510) also stated that, despite the presence of armed civilians defending themselves from armed attacks, this population continued to enjoy protection as civilians, and their village could not be regarded as a military objective.

The international Criminal Tribunal for the former Yugoslavia (ICTY) had to rule on the Croatian defense’s claim that its attack on the Muslim population of the Lava valley was a lawful retaliation for attacks allegedly committed by Muslims against the Croatian population in particular in its ruling on January 14, 2000, in the Kupreškić case. Because of their interaction with soldiers, it also called into question the population’s status as civilians. The Trial Chamber concluded in its ruling that there would be “no justification for widespread and indiscriminate attacks against civilians, even if it can be proven that the Muslim population of Ahmici was not entirely civilian but comprised some armed elements” (para. 513).

The Court reiterated that it is forbidden to strike people on purpose and that, while targeting a military target, reasonable care must be used to prevent inadvertently injuring civilians through negligence (paras. 521–524). The Court further declared that, as long as the enemy is in possession of civilians, retaliation against them is expressly forbidden by both conventional and customary international law. It also reminded us that Articles 51(6) and 52(1) of Additional Protocol I of 1977 forbid retaliation against civilians and civilian property in a war zone (para. 527). It said that a customary international law has developed in this respect as a result of pressure from humanitarian requirements and public conscience (paragraph 531). The Court concluded that the CIHL regulations that apply to both international and non-international armed conflicts substantially mirrored these conventional requirements (paras. 527-536). As a result, the Court came to the conclusion that there was now a customary ban on retaliation against both enemy-possessed civilians and those who were in the fighting zone. All participants in armed conflicts, whether international or domestic, should be subject to this ban.

Conclusion

To conclude, even in areas where military combatants are present with civilians,. Still, no justification would exist for causing indiscriminate attack on civilian object and civilians. No ground of military objective can be taken in such a case

Contributed by; Lucky Singh (Intern),Army institute of law,Mohali