Public Law Studies Quarterly

The Relationship Between the Principle of Military Necessity in ‎Humanitarian Law and Environmental Protection;‎ Solutions and Challenges

Document Type : Article

Authors

Afife Gholami 1
Ali Mashhadi 2
Javad Nikjah 3

1 ; Assistant Professor, Law, Faculty of Law and social sciences, University of Tabriz, Tabriz, Iran.

2 Associate Professor, Public and International Law, Faculty of Law, University of Qom, Qom, Iran

3 Ph. D. Candidate in Public International Law, College of Farabi, University of Tehran, Qom, Iran

https://doi.org/10.22059/jplsq.2023.340913.3059
Abstract
The principle of military necessity is a cornerstones of the law of armed conflict, embedded in both codified and customary norms. In many cases, the limited rules that provide environmental protection in armed conflicts are overshadowed by this principle. However, supportive and compatible foundations can be drawn from other principles of humanitarian law, such as the principles of distinction and proportionality. On the other hand, the effects of methods and tools used in armed conflicts, justified by the principle of necessity, can persist for years in the environment of conflict areas and even neighboring territories. The primary mission of international humanitarian law is to protect victims of armed conflicts. Protecting humanity is not possible without considering the necessities of its natural environment. This paper assumes that the legitimacy and manner of invoking the aforementioned principle, specifically to justify environmental damages by perpetrators, deserve attention and examination as some believe that environmental considerations are not prioritized in situations of war and can be overlooked in light on account of military necessities.

Keywords

armed conflict
military ‎necessity
environmental ‎commitments
military ‎advantage.‎
Subjects

  1. English

    1. A) Books
    2. Henckerts, J-M., Doswald-Beck, L. (2007). Customary International Humanitarian Law, Vol I: Rules. NewYork: Cambridge University Press.
    3. Melzer, N. (2009). Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law. ICRC.
    4. Ole Kristian Fauchald, H., David, W. X. (2008). Yearbook of International Environmental Law, Vol. 19, Northampton: Oxford University Press.
    5. Rogers,A.P.V .(2000). Zero Casualty Warfare. Vol. 82. ICRC.
    6. .Schmitt, M. (1997). Green War: An Assessment of the Environmental Law of International Armed Conflict. Newport: Naval War College.
    7. United Nations Environment Program (2009). Protecting the Environment During Armed Conflict, An Inventory and Analysis of International Law. United Nations Environment Program.
    8. Walter G. Sharp (1992). The Effective Deterrence of Environmental Damage During Armed Conflict: A Case Analysis of the Persian Gulf War. A Thesis Presented to The Judge Advocate General's School, United States Army, 137 Mil. L. Rev. 1.

     

    1. B) Articles
    2. Carnahan, B. M. (1998). Lincoln, Lieber and the Laws of War: The Origins and Limits of the Principle of Military Necessity. The American Journal of International Law. 92(2), 213-231. https://doi.org/10.2307/2998030
    3. Dubarry Huston ,Meredith(2002). Wartime Environmental Damages: Financing The Cleanup. Journal of International Law 23(6), 899-929. https://scholarship.law.upenn.edu/jil/vol23/iss4/6
    4. Nobuo Hayashi (2010). Requirements of Military Necessity in International Humanitarian Law and International Criminal Law. Boston University International Law Journal. 28(39),41-140 . https://ssrn.com/abstract=2156122
    5. Nurbani, E. S. (2018). Environmental Protection in International Humanitarian Law. UNRAM Law Review. 2.(1), 27-41. https://doi.org/10.29303/ulrev.v2i1.28
    6. Ryan G. (2011). Expanding Environmental Justice After War: The Need for Universal Jurisdiction Over Environmental War Crimes. Colorado Journal of International Environmental Law and Policy. 22(3), 448-471.
    7. Schmitt, M. (2010). Military Necessity and Humanity in International Humanitarian Law: Preserving the Delicate Balance. Virginia Journal of International Law. 50(4), 796-839. https://ssrn.com/abstract=1600241
    8. Smith, T. (2019). Critical Perspectives on Environmental Protection in Non-International Armed Conflict: Developing the principles of distinction, proportionality and necessity. Leiden Journal of International Law. 32(4), 759-779. doi:10.1017/S0922156519000372
    9. Tania, V. (2001). Pointing The Finger: Civilian Casualties of NATO Bombing in The Kosovo Conflict. American University International Law Review. 16(4), 1083-1113.
    10. Vincze, V. (2016). Taming the untamable: The Role of Military Necessity in Constraining Violence. ELTE Law Journal. 2, 93-117.

     

    C)Documents

    1. International Court of Justice,LEGALITY OF THE THREAT OR USE OF NUCLEAR WEAPONS,Advisory Opinion of 8 July 1996.
    2. Trial of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law, No. 10. Case of The United States of America v. Wilhelm List et al. (Case No. 7), Nuremberg Oct 1946-Apr 1949, Vol. Xi, 1959.
    3. ICTY,The Prosecutor Against Radislav Krstic, Amended Indictment,Case No. It-98-33, 27 Oct 1999.
    4. ICTY, Prosecutor v. Galic, Case No. IT-98-29-A, Appeals Chamber Judgment, Nov. 30, 2006.
    5. ICTY, Prosecutor v. Strugar, Case No. IT-01-42-T, Judgment, Jan. 31, 2005.
    6. Independent International Commission on Kosovo, The Kosovo Report 178, 2000.
    7. Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, 2000.
    8. Protecting the Environment During Armed Conflict, An Inventory and Analysis of International Law, United Nations Environment Program, 2009.
    9. C.R.C Commentary to Art. 35 Protocol Additional to the Geneva Convention (Protocol I),1987.
    10. Draft code of crimes against the peace and security of mankind,Yearbook of the International Law Commission, 1991, vol. I, Part Two.
    11. Draft Code of Crimes against the Peace and Security of Mankind with commentaries,Yearbook of the International Law Commission, 1996, vol. II, Part Two.
    12. L.C Commentary to Art.20 of Draft Code on Crime against Peace and Security of Mankind, Yearbook of the International Law Commission, 1996, vol. II, Part Two.
    13. San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994.
    14. Environmental Considerations in Military Operations, Headquarters, Department of The Army, Washington DC, 11 May 2001.
    15. Texts and titles of the draft preamble and the draft principles adopted by the Drafting Committee, United Nations, A/CN.4/L.968, 20May 2022.
    16. Elements of Crimes, International Criminal Court, 2011.
    17. Third report on protection of the environment in relation to armed conflicts, by Marja Lehto, United Nations, A/CN.4/750, 16March 2022.
    18. United Nations Environment Program And United nations Centre For Human Settlements (Habitat), The Kosovo Conflict: Consequences For The Environment & Human Settlements, U.N. Sales No.E.00.Iii.D.98, 1999.

     

    References In Persian:

    1. A) Books
    2. Abdollahi, M., & Sajedi, Z. (2009). Environmental Criminal Law: Considerations and Strategies. Tehran: The official newspaper of the country (In Persian).
    3. Fahimi, A., & Mashhadi, A. (1395). Protecting the environment in armed conflict, Tehran: Khorsandi Publications (In Persian).
    4. Henkertz, J-M., & Dussoldbeck, l. (2008). International Committee of the Red Cross Customary International Humanitarian Law. Tehran: Majd Scientific and Cultural Association (In Persian).
    5. Hosseini Azad, A., & Mohammadi, M. (2013). Protecting the Environment in Armed Conflict from an International Law Perspective. Tehran: Shahr-e-Danesh Institute for Legal Studies and Research (In Persian).

     

    1. B) Articles
    2. Abdollahi, M. (2003). Crimes against the Environment in International Law. Environmental Sciences. 1 (1), 49-64 (In Persian).
    3. Azadbakht, B., & Poorhashemi, A. (2013). Legal Protection of the Environment in Armed Conflicts with Emphasis on the Second Gulf War. Geopolitics Quarterly. 9(31), 195-222 (In Persian).
    4. Momtaz, j. (1999). The use of nuclear weapon and the protection of the environment: the contribution of the International Court of Justice. Translator Mahmoud Souresrafil. International Law Review. 17(24), 5-30 (In Persian).
    5. Norouzi, A. (2021). Examining the Principle of Military Necessity in International Humanitarian Law (Restrictive or Justifying). Research of Nations. 52(5), 101-124 (In Persian).
    6. Nouri, W., & Zamani, S.Q. (2020). Military necessity as an exception in the law of armed conflict. Public Law Studies. 49,(3), 717-734 (In Persian).

     

    1. C) Thesis

    Kian Ersi, N. (2009) Environmental protection in armed conflicts with a particular view of the Convention on the Prohibition of Military Use of Environmental Modification Techniques, Master's thesis, Tehran: University of Tehran, Faculty of Law and Political Science, 23/9/2009 (In Persian).

Public Law Studies Quarterly
Volume 54, Issue 4
Winter 2025
Autumn 2024
Pages 2547-2572

  • Receive Date 12 April 2022
  • Revise Date 07 November 2022
  • Accept Date 30 January 2023

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