scholarly journals Taking care to protect the environment against damage: a meaningless obligation?

2010 ◽  
Vol 92 (879) ◽  
pp. 675-691 ◽  
Author(s):  
Karen Hulme
Keyword(s):  
General Principle ◽  
Armed Conflict ◽  
Customary Law ◽  
High Threshold ◽  
Care Provision ◽  
Additional Protocol ◽  
Environmental Value ◽  
State Practice ◽  
Taking Care

AbstractLittle attention is paid to the obligation of ‘care’ in Article 55(1) of Additional Protocol I. Beyond a general principle of upholding environmental value in times of armed conflict, what is the scope and content of the obligation? If it is worthless, what makes it so? Since the care provision includes the same high threshold of harm found elsewhere in the environmental provisions, has this stumbling block now been removed by state practice? Rule 44 of theCustomary Law Studymight appear to suggest that this is so, or does it? Ultimately then, is the care obligation worth caring about?

Without order, anything goes? The prohibition of forced displacement in non-international armed conflict

2009 ◽  
Vol 91 (875) ◽  
pp. 547-565 ◽  
Author(s):  
Jan Willms
Keyword(s):  
Armed Conflict ◽  
The Other ◽  
Customary Law ◽  
Forced Displacement ◽  
Other Hand ◽  
State Practice

AbstractAt first glance, merely the ‘ordering’ of displacement seems to be prohibited in non-international armed conflict. However, after interpreting Article 17(1) AP II and Rule 129(B) of the ICRC Customary Law Study with particular regard to State practice and opinio juris, the author concludes that these norms prohibit forced displacement regardless of whether it is ordered or not. On the other hand, the ICC Elements of Crimes for the crime of forced displacement under Article 8(2)(e)(viii) ICC Statute require an order. It remains to be seen whether the ICC adopts that interpretation in its jurisprudence.

6 Customary Principles—Indiscriminate Weapons

2016 ◽  
Author(s):  
Boothby William H
Keyword(s):  
Nuclear Weapons ◽  
Armed Conflict ◽  
Customary Law ◽  
Additional Protocol ◽  
Current Formulation ◽  
Law Of Armed Conflict ◽  
The Law

This chapter traces the evolution of the principle discrimination in the law of armed conflict. It also examines its current formulation in the law, and considers its status in customary law. The targeting law and weapons law elements of the discrimination principle are disentangled; it is noted that the weapons law element had not been specifically articulated before 1977 and the implications of this are discussed. The relevance and interpretation of the now customary prohibition of weapons that are by nature indiscriminate are explained. The language of article 51(4) of Additional Protocol 1 is discussed and the terms of the corresponding customary rule are analysed. The applicability of the rule to nuclear weapons is also set forth. Examples of the kinds of weapon that are considered to breach the rule are given.

scholarly journals The Principle of Ambituity and the Prohibition against Excessive Collateral Damage to the Environment during Armed Conflict

2013 ◽  
Vol 82 (1) ◽  
pp. 53-82 ◽  
Author(s):  
Erik V. Koppe
Keyword(s):  
International Law ◽  
General Principle ◽  
Armed Conflict ◽  
Intrinsic Value ◽  
Fundamental Principle ◽  
Collateral Damage ◽  
Legal Basis ◽  
Additional Protocol ◽  
Military Necessity ◽  
Law Of Armed Conflict

This article aims to clarify the legal basis of the protection of the environment during armed conflict in general, and of the prohibition against excessive collateral damage to the environment in particular. It is submitted that the legal basis for the conventional and customary rules which protect the (intrinsic value of the) environment during armed conflict cannot be deduced from the four fundamental principles of the law of armed conflict: the principles of military necessity, distinction, proportionality and humanity. Rather, the specific obligations relating to environmental protection in times of armed conflict flow from the fundamental principle of ambituity. Similar to the principle of humanity, the principle of ambituity, which qualifies as a general principle of law in the sense of Article 38(1)(c) ICJ Statute, provides for an absolute limitation to the necessities of war. As such the principle of ambituity may be used to interpret existing conventional or customary rules of international law during armed conflict, to supplement, or under exceptional circumstances to modify or set aside these rules. With regard to the prohibition against excessive collateral damage to the environment during armed conflict, it is submitted that this prohibition flows from a customary rule which emerged in the 1990s, rather than from Articles 51 and 52 of Additional Protocol I, and which complements Articles 35 and 55 AP I (i.e. for States Parties to AP I). This article argues that any military action which causes collateral damage to the environment must first be assessed under this relatively new customary prohibition; and subsequently, if no breach can be established and if applicable, by reference to Articles 35(3) and 55 AP I. In order to enhance the scope of this prohibition and provide better protection for the environment against collateral damage it is suggested that further investigations should be conducted into the consequences of warfare on the environment.

The Conventional Weapons Convention: Underlying Legal Principles

1990 ◽  
Vol 30 (279) ◽  
pp. 510-520 ◽  
Author(s):  
Frits Kalshoven
Keyword(s):  
Natural Environment ◽  
General Principle ◽  
Armed Conflict ◽  
Armed Conflicts ◽  
Severe Damage ◽  
Civilian Population ◽  
Legal Principles ◽  
Additional Protocol ◽  
Conventional Weapons ◽  
The Right

Neither the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to have Indiscriminate Effects, adopted in Geneva on 10 October 1980, nor the Protocols annexed to it specify in their operative parts the principles on which the prohibitions and restrictions rest. Such principles are, however, found in the preamble to the Convention.Four of the twelve preambular paragraphs are relevant here. They list: the “general principle of the protection of the civilian population against the effects of hostilities”; the principle “that the right of the parties to an armed conflict to choose methods or means of warfare is not unlimited”; the ban on “the employment in armed conflicts of weapons, projectiles and material and methods of warfare of a nature to cause superfluous injury or unnecessary suffering”; and the fact that it is prohibited “to employ methods or means of warfare which are intended, or may be expected, to cause widespread, longterm and severe damage to the natural environment.” The fifth paragraph reiterates the well-known Martens clause, in the formulation accepted for Article 1, paragraph 2, of Additional Protocol I of 1977.

scholarly journals THE USE OF METHODS OR MEANS OF WARFARE WHICH CAUSED DAMAGE TO THE NATURAL ENVIRONMENT BASED ON THE INTERNATIONAL HUMANITARIAN LAW

2021 ◽  
Vol 4 (2) ◽  
pp. 207-225
Author(s):  
Muhammad Ryan Dwi Saputra
Keyword(s):  
Armed Conflict ◽  
The United States ◽  
Gulf War ◽  
Oil Wells ◽  
International Humanitarian Law ◽  
High Threshold ◽  
Humanitarian Law ◽  
Environmental Modification ◽  
Additional Protocol ◽  
Environmental Damages

Abstract Environment has been widely recognized as international interest and all states shall avoid any activities that may damage the environment. The adoption of Stockholm Declaration 1972, World Charter for Nature 1982, and Rio Declaration 1992 denotes that protection of the environment reflects customary international law. War or armed conflict was one of the principal contributors to the environmental damages. As in the Vietnam War, the United States attempted to create artificial rain by seeding the cloud which led to the establishment of the 1976 Convention on the Prohibition of Military or Any Hostile Use of Environmental Modification Techniques (ENMOD Convention) and the Additional Protocol I 1977. However, the Gulf War 1990-1991 gave rise to the questions whether those two instruments were sufficient to encompass the environmental damages caused by the Iraqi methods of warfare by burning oil wells and spilling oil to the sea. This issue was raised by the author since these two instruments set a high threshold and unclear terms on a degree of environmental damages to be considered as a violation. Accordingly, this paper discusses whether the environmental damages caused by the Persian Gulf War meets the threshold set by the Additional Protocol I and the ENMOD Convention, and further discusses the international responsibility that arose from the damages caused by the War. The result of this research shows that environmental damages caused by Iraqi burning oil wells and oil spill apparently did not satisfy the threshold set by the Additional Protocol I and the ENMOD Convention.  Keywords: Armed Conflict, Environment, Gulf War, International Humanitarian Law, Responsibility   Abstrak Lingkungan sudah diakui sebagai permasalahan internasional dan semua negara wajib untuk menghindari kegiatan yang berakibat kerusakan terhadap lingkungan. Pembentukan Deklarasi Stockholm 1972, Piagam Dunia Untuk Lingkungan 1982 dan Deklarasi Rio 1992 menunjukkan bahwa perlindungan terhadap lingkungan telah merefleksikan hukum kebiasaan internasional. Perang atau konflik bersenjata merupakan salah satu penyebab utama kerusakan lingkungan. Seperti percobaan untuk membuat hujan buatan yang dilakukan oleh Amerika Serikat dalam Perang Vietnam yang berujung dibentuknya Convention on the Prohibition of Military or Any Hostile Use of Environmental Modification Techniques 1976 (Konvensi ENMOD) dan Protokol Tambahan I 1977. Namun, Perang Teluk 1990-1991 menimbulkan pertanyaan apakah kedua instrumen tersebut dapat mencakup kerusakan lingkungan yang diakibatkan oleh metode berperang Irak dengan membakar dan menumpahkan minyak. Permasalahan tersebut diangkat oleh penulis karena kedua instrumen tersebut menetapkan kriteria kerusakan lingkungan yang kurang jelas dan standar yang terlalu tinggi untuk dinyatakan sebagai pelanggaran. Oleh karena itu, penelitian ini akan membahas apakah kerusakan lingkungan yang diakibatkan oleh Perang Teluk memenuhi syarat yang ditetapkan oleh Protokol Tambahan I dan Konvensi ENMOD, dan juga membahas tanggung jawab internasional yang timbul sebagai akibat dari kerusakan lingkungan yang diakibatkan oleh perang. Hasil penelitian menunjukkan bahwa kerusakan lingkungan yang diakibatkan oleh Irak dengan membakar dan menumpahkan minyak ternyata tidak memenuhi standar yang ditetapkan oleh Protokol Tambahan I dan Konvensi ENMOD. Kata kunci: Hukum Humaniter Internasional, Konflik Bersenjata, Lingkungan, Perang Teluk, Pertanggungjawaban

Of Rebels, Insurgents, and Belligerents

2018 ◽  
Author(s):  
Tilman Rodenhäuser
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Armed Conflicts ◽  
Laws Of War ◽  
Armed Group ◽  
State Practice

The first chapter opens the substantive analysis of the organization requirement for non-state parties to armed conflicts. First, it briefly examines why the laws of war have originally been state-focused, and shows how this state focus coined international law requirements of main characteristics of a party to an armed conflict. Second, it analyses how philosophers broadened the legal notion of ‘war’ as to include conflicts involving certain non-state entities. Subsequently, this chapter examines state practice to identify which qualities a non-state armed group needed to possess to obtain the ‘belligerent’ status. It also examines the question of which kind of entities could qualify as ‘insurgents’ or ‘rebels’.

The Formation of a Customary International Crime: Global Terrorism Human (In) Security

2015 ◽  
Vol 15 (4) ◽  
pp. 665-699 ◽  
Author(s):  
Noemi Gal-Or
Keyword(s):  
Armed Conflict ◽  
International Criminal ◽  
International Crime ◽  
Customary Law ◽  
International Criminal Law ◽  
General Assembly ◽  
The Past ◽  
Peace And Security ◽  
Global Terrorism ◽  
Definition Of

The article studies the concept of human security (hs) as embraced by the un General Assembly and Secretary Generals, and its instrumentality in the promotion of a customary international crime of global terrorism. Such a crime exists in the opinion of the Appellate Chamber of the Special Tribunal for Lebanon. Regarding terrorism in international criminal law (icl), not in armed conflict, I maintain that the concept of hs has been pivotal in furthering the “criminalisation” of terrorism in matters peace and security. I submit that (i) that the absence of a universally agreed upon definition of (global) terrorism does not suffice to detract from the finding that such a transnational crime exists, and (ii) in addition to the various and largely agreed constitutive elements of customary law, normative paradigmatic developments – here in the case of terrorism, and in the past two decades – have significantly supported this customarisation trend.

Grotian Moments and Peremptory Norms of General International Law: Friendly Facilitators or Fatal Foes?

Grotiana ◽  
2021 ◽  
Vol 42 (2) ◽  
pp. 335-353
Author(s):  
Dire Tladi
Keyword(s):  
International Law ◽  
The Other ◽  
High Threshold ◽  
Other Hand ◽  
State Practice ◽  
The One ◽  
Jus Cogens ◽  
The Right ◽  
Peremptory Norms ◽  
Law Making

Abstract The concept of a Grotian moment remains rather obscure in international law. On the one hand, it can refer simply to an empirical fact which galvanises the ordinary law-making processes, whether treaty-making or State practice, resulting in major shifts in international law. On the other hand, a Grotian moment might be seen as an event so significant that it results in an extraordinary shift in international law without full adherence to the processes for law-making. The former understanding has little legal significance, while the latter, which would be legally significant, would be controversial and without legal basis. Against this background the article discusses the intersections between peremptory norms and Grotian Moments. It does this by looking at the intersection between the two concepts as well as the intersection between Grotian Moments, on the one hand and, on the other hand, particular jus cogens norms. With respect to the former, for example, the article will consider whether the high threshold of peremptory status facilitates and hinders Grotian moments. With respect to the latter, the article will consider particular norms that have been said to have shifted on account of the Grotian moments, namely the right to use of force in self-defence as well humanitarian intervention.

Applying Additional Protocol II of the Geneva Conventions to the United Nations Forces

2017 ◽  
Vol 8 (1-2) ◽  
pp. 234-254 ◽  
Author(s):  
Artem Sergeev
Keyword(s):  
United Nations ◽  
Armed Conflict ◽  
Legal Issues ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
The Third ◽  
Additional Protocol ◽  
Geneva Conventions ◽  
Legal Nature ◽  
Hostile Environments

Following the widespread participation of United Nations (UN) forces in hostile environments, this article aims to expand the obligations of the UN under International Humanitarian Law. The article argues that Additional Protocol II (AP II) to the Geneva Conventions can bind UN forces, even though the UN is not formally a party thereto. The argument is built on three distinct legal issues: the first issue is whether the UN’s involvement in a conflict internationalizes a non-international armed conflict; the second issue is the legal nature of the UN’s obligations under AP II, which will be explained through two legal theories of indirect consent; and the third issue is the conformity of UN forces to the criteria of an armed group outlined in AP II. The article concludes that if UN forces meet certain conditions, as will be outlined herein, they should be bound by the provisions contained in AP II.

The Legal Interoperability of the Laws of Armed Conflict

2019 ◽  
pp. 70-88
Author(s):  
Michael Newton
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Centripetal Force ◽  
Military Operations ◽  
Law Of Armed Conflict ◽  
State Practice ◽  
Pragmatic Aspects ◽  
Shared Norms

The chapter considers some of the pragmatic aspects of engaging in multinational military operations in relation to cooperation among the various participating states. These aspects include differing treaty obligations, diverging interpretations of shared norms, or different command structures. Coalition partners deployed to pursue such larger goals must manage operational friction in order to achieve the necessary cohesion. State practice demonstrates discrepancies between partners over what international law obligations apply to forces in the field, which in turn produces disagreements about the conditions those duties entail. At the same time, the modern law of armed conflict provides a sort of centripetal force providing essential cohesion to modern multinational coalitions. It provides normative regularity constraining the class of persons against whom violence may be lawfully applied.

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