The Principle of Proportionality; Synthesis of Segregation Principles and Military Necessity in Protecting the Environment in International Armed Conflicts

Document Type : Original Independent Original Article

Authors

1 Assistant Professor, Department of International Law, Karaj Branch, Islamic Azad University, Karaj, Iran.

2 Lecturer, Department of International Law, Shahr-e-Kord Branch, Islamic Azad University, Shahr-e-Kord, Iran.

3 Lecturer, Department of International Law, Karaj Branch, Islamic Azad University, Karaj, Iran.

Abstract

The increased importance of the environment over the past years and its incorporation among the third-generation human rights justify the considerable need to protect it during armed conflicts. Obviously, such conflicts can cause irreparable damage to the environment, occurring either as intentional destruction based on Military Necessity and non-distinction, or as non-intentional destruction resulting from the collateral damage of military attacks. The main research question is: “What is the position of the Principle of Proportionality in environmental protection in connection with the Distinction and Military Necessity principles?” Using a descriptive-analytical approach, this paper sought to assess the relationship of IHL’s three principles of Distinction, Military Necessity and Proportionality with environmental destruction during armed conflicts. It concluded that when the Distinction and Military Necessity principles intersect, a third principle called “synthesis” comes in, seeking to reduce the damage of military operation. Violation of this principle is one of the conditions for committing the war crime of environmental destruction, i.e. the Principle of Proportionality. Since the Distinction and Military Necessity principles can be in conflict with each other during environmental attacks, resulting in the conquest of the Principle of Military Necessity, the presence of the Principle of Proportionality can balance this conflict.

Highlights

Extended Abstract

Introduction

Wars are always devastating. They may have short-and long-term human and non-human consequences, sometimes too profound and enduring to be compensated within less than one or more generations. Since the very beginning of his creation, man has always been engaged in war, thus both harming himself and damaging the environment. However, there has always been an obvious contradiction in human behavior in this regard, waging wars on the one hand and adopting protective rules for the wartime on the other hand. In other words, humans initiate wars and then make rules to reduce their impacts on themselves and the environment. That is why a set of rules have been adopted within the international humanitarian law (IHL) to both protect persons and military and civilian property and regulate the conduct of war. However, bellicose persons violate these rules which they themselves have once laid down for protection purposes. The IHL does not prevent wars, but it can effectively reduce their destructive impacts. This law contains important principles for these purposes, including the principles of Distinction, Military Necessity, and Proportionality, among which we sometimes have to choose because they fail to be met concurrently.

Method

This applied study has used the inductive approach to identify the legal percepts and finally analyze the IHL and international criminal law (ICL) rules regarding environmental protection.

Findings

The IHL principles are both preventive and protective in nature in the sense that they are aimed at reducing the direct and collateral damages of wars on persons and property, especially civilians, and providing effective and maximum protection of such persons and property. Among the main principles of the IHL are the three principles of Distinction, Military Necessity, and Proportionality, which play this preventive and protective role. These three principles have different functions which follow a logical sequence. First, the military and civilian targets should be distinguished based on the Principle of Distinction, then the necessity of the military operation should be decided based on the Principle of Military Necessity, and finally the damage caused by the military operation must not exceed the concrete and direct military advantage anticipated. These principles, especially the Distinction and Military Necessity principles, normally follow this sequence, although they sometimes intersect during attacks, in which case it is difficult to choose among them.

This study has focused on the effect of these principles on the environment as a type of civilian property. Wars occur in the context of the environment, including air, land and sea. Even short-term wars have negative impacts on the environment. The IHL has sought to provide adequate protection of the environment by adopting these principles and recognizing the environment as an inherently civilian object. Findings indicate that this law contains a variety of rules for environmental protection, each seeking to protect it in a specific area. Human rights, the IHL, and the ICL play their own parts in this regard. Human rights have considered it to be among the third-generation rights. However, the IHL has regarded it as a part of civilian property, prohibiting any aggression against it unless it is used for military purposes. Finally, the ICL has considered environmental destruction during armed conflicts to be a war crime.

The combination of these three types of protection can prevent environmental destruction in both peacetime and wartime. Yet, the IHL and ICL can play a more effective role in this prevention. The result of integrating the IHL and ICL principles for environmental protection is that environmental destruction is considered a war crime. This consideration is the result of a violation of the Principle of Distinction. This is the point where the principles of Military Necessity and Proportionality appear. The IHL does not provide an absolute protection of the non-destruction of the environment, meaning that the Principle of Military Necessity can overcome the Principle of Distinction, resulting in targeting and destroying the environment. This exception has led the IHL and ICL to resort to the Principle of Proportionality in order to prevent further environmental destruction. Ultimately, the Principle of Military Necessity overcomes the Principle of Distinction, justifying environmental attacks. Nevertheless, the Principle of Proportionality, which seeks to prevent further damage than military advantage, synthesizes the Distinction and Military Necessity principles, trying to neutralize the effect of the Principle of Military Necessity and protect the environment as much as possible.

Results

The environment is too vulnerable to be protected by the three principles of IHL, and the rules of ICL alone. Although IHL and ICL have apparently effective norms for environmental protection during wars, neither the IHL principles nor the ICL’s criminalization of environmental destruction can ensure this protection. It seems that other measures need to be taken in this regard. For example, environmental destruction must be prohibited absolutely and unexceptionally, and its criminalization scope must not be limited to war crimes. It must possibly be criminalized as an independent crime, and if this is impossible in reality and unacceptable by the international community, it should be criminalized directly as a genocide crime or as a crime against humanity that can occur in both wartime and peacetime.

Keywords

Main Subjects

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