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Armed conflict pollutes and destroys the environment, often on the landscape and biodiversity of affected states. The Russian , for example, demonstrates the devastation caused to fauna and flora when states engage in on a massive scale in areas rich in . It also witnessed a as the world saw what happens when warfare takes place in a . Thus, from the destruction of targets in forests or protected areas, to collateral harm caused by oil spills in the marine or desert environment, toxic chemical pollution from abandoned munitions, destruction of agricultural lands, and – armed conflict inflicts a on the .

The WCEL Specialist Group on Peace, Security and Conflict has, therefore, been following closely the work of the on its programme of work on the . In May 2022 the ILC adopted the final version of its recommended 27 , sending them to the General Assembly for final consideration before adoption. Many of the Draft Principles are already rooted in international law, while some provide best practice guidance.

The culmination of over , there is no doubt that the Draft Principles represent a significant moment in the advancement of legal protection of the wartime environment. Before the creation of the Draft Principles, the current ILC Special Rapporteur, Ambassador Marja Lehto, opined that there was no “coherent legal framework for the protection of the environment in relation to armed conflict”. The approval of the ILC mandate by states, therefore, reflected an acceptance that the law in this area was . Certainly, there are limited treaty rules protecting the war-torn environment, particularly in civil wars – the most prevalent type of conflict. Thus, the Draft Principles draw together an extensive body of rules covering both international armed conflicts as well as civil wars (non-international armed conflicts) and are addressed to a wide range of non-state actors.

Two key dimensions of the ILC’s analysis warrant fanfare. Innovative was the decision to take a holistic approach, ensuring analysis of the legal protections afforded not just during conflict, but prior to the outbreak of conflict and post-conflict. Methodologically unique, this temporal approach allowed for the second innovative approach, namely a focus beyond the laws of armed conflict. Any area of law today is a complex web of interactions between hitherto distinct areas of law. Throwing off the shackles of a pure laws of armed conflict analysis, the ILC undertook a comprehensive analysis of the issues, drawing from areas such as environmental law, human rights law, arms control and business and human rights obligations. Having said that, it is still less than clear how these other legal regimes apply during the combat phase of conflict.

The Draft Principles are, thus, a blend of treaty law, including the , and novel guidance or best practice (known as ‘progressive development’) – which states and other actors are encouraged to follow. For example, reiterates the clearly established treaty rule that pillage of natural resources is prohibited (effectively theft during conflict), and the equally clear application of the foundational laws of armed conflict to the environment, such as the principles of distinction, proportionality and precautions. Novel rules are included on cooperation for post-conflict environmental assessments and remedial measures () for example. A key one of which is the obligation for removal of of war ().

The novel structure has certainly helped the Special Rapporteurs to approach the issues from new angles, highlighting novel issues for consideration. One example being the part, which analysed obligations of environmental remediation, liability and cooperation – issues which are generally omitted from legal instruments and are proving rather elusive in the current Russia-Ukraine conflict.

The recent humanitarian crisis created by the Russian invasion of Ukraine, when added to the plethora of other events causing people to flee their homes and lands, such as climate-related events, has pushed the number of IDP’s and Refugees above an estimated globally according to UNHCR. Thus, displaced people must be considered during armed conflict, as must the environment that they are inhabiting. Environmental protection of lands housing displaced persons is, therefore, a welcome addition to the Draft Principles, particularly in a world where displacement is increasing at a dramatic pace. takes a novel look at the issue, recommending that states not only ‘protect the environment where they are located’, but also provide ‘relief and assistance for such persons and local communities’. Importantly, environmental protection also extends to areas of transit.

respectively require that states ensure business enterprises ‘exercise due diligence and protect the environment and human health’ in conflict affected areas. These two provisions are an important addition to the field to deter corporate actors from preying on local populations and natural resources during such turbulent times, and preventing conflict financing through the .

Implementation of the Draft Principles will be the final step with states expected to implement them through domestic law and military manuals. They present a concise statement of law in one document, undoubtedly expanding the law on certain issues. Thus, the Draft Principles will undoubtedly serve as a point of dialogue for states to further the discussion of how to protect the environment during the conflict cycle.

"Codification conventions and draft articles completed by the International Law Commission are often - and increasingly - invoked by courts, tribunals, governments and international organizations as ‘reflections of customary international law’."

The Draft Principles, therefore, represent, an important opportunity to make a tangible, meaningful difference in the lives and environment of people caught in the crosshairs of conflict.

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Authors:
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Karen Hulme

Professor Karen Hulme, School of Law, University of Essex, UK, specializes in the legal protection of the environment during armed conflict. She has published on environmental human rights, environmental security, post-conflict obligations, the legality of specific weapons, as well as climate change, biodiversity/nature protection, oceans and protected areas. Karen is Chair of the ������ϲʿ�������ֳ�ֱ�� WCEL Specialist Group on Environmental Security and Conflict Law.

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Elizabeth B. Hessami

Elizabeth B. Hessami, J.D., LL.M. (Environmental Law), is a licensed attorney and Faculty Lecturer of International Environmental Policy and Environmental and Natural Resources Security for The Johns Hopkins University. She has also served as a Visiting Attorney for the Environmental Law Institute (remote) for several years.