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Protection of the Environment and Non-State Armed Groups: IHL and Islamic Law Perspectives

November 6, 2020

Dr Ahmed Al-Dawoody is the legal adviser for Islamic law and jurisprudence at the ICRC. He also teaches at the Geneva Academy of International Humanitarian Law and Human Rights in Geneva, Switzerland, a course on the Islamic law of armed conflict. Prior to joining the ICRC, he was an Assistant Professor in Islamic Studies and Islamic law and jurisprudence at Al-Azhar University in Cairo. He has published more than two dozen articles and book chapters on Islamic Law and is the author of The Islamic Law of War: Justifications and Regulations (Palgrave Macmillan, 2011). He is writing this piece in his personal capacity.

Sarah Gale is a Protection Delegate with the International Committee of the Red Cross. She completed her Juris Doctor (law degree) in Canada at the University of Victoria and her Master of Laws at the Geneva Academy of IHL and Human Rights. She has worked with various organizations in multiple conflict and post-conflict contexts prior to joining the ICRC in 2016. She is writing this piece in her personal capacity.

Introduction

There are a range of ongoing efforts to strengthen and clarify the protection of the environment, including during armed conflict. This blog post focus on using existing tools, the most basic principles of International Humanitarian Law (IHL), distinction, proportionality and precautions, to protect the environment in armed conflict. Reflecting on and utilizing already existing instruments is important, given the fact that efforts to enhance or strengthen rules on the protection of the environment during armed conflict takes time. Additionally, in current debates on how to better protect the environment during armed conflict, non-state armed groups (NSAGs) are often underrepresented. As important players in times of conflict, we need to improve engagement with such groups who play an equal part in working to protect the environment during armed conflict. One means of doing this is by going back to the basics, using these as tools to begin the conversation alongside other means of influence such as Islamic law. Islamic law contains important provisions on the protection of the environment and can be invoked in relevant contexts to reinforce IHL principles.

This blog post is seeking to touch on how the basic principles of IHL can be used to engage with both NSAGs and armed forces to improve protection of the environment during international and non-international conflicts. Islamic law is a powerful source of influence when working with NSAGs which align with Islamic principles, in encouraging and facilitating respect for the law.

Country/Region: IRAQ. Caption: Fao. Palm trees damaged during the Iran-Iraq war in the 1980s have not grown back.Photographer: KHALAF, Mike Mustafa. Copyright: ICRC

Definition of the Environment

This blog post refers to the ‘environment’ or ‘natural environment’ (terms which are not defined in IHL), “to constitute the natural world together with the system of inextricable interrelations between living organisms and their inanimate environment, in the widest sense possible” (see footnote 23, citing Sands et al).

It is generally accepted that the natural environment is civilian in character. The ICRC’s updated Guidelines on the Protection of the Natural Environment in Armed Conflict provides a concise summary of the debate around the anthropocentric versus intrinsic approach to classifying all aspects of the environment as civilian or not. (p. 18) In this blog post, we adopt the intrinsic approach as interpreted by the ICRC in the Guidelines. According to the Islamic worldview, everything in this universe is the creation of God, and human beings are entrusted with the responsibility of protecting it and contributing to human civilization. The second caliph Abu Bakr (d. 634) instructed his army commander: “do not cut down fruit-bearing trees or destroy buildings; do not slaughter a sheep or a camel except for food; do not burn or drown palm trees; do not loot; and do not be cowardly.” (Ahmed Al-Dawoody, p. 1003)

With the natural environment established prima facie as comprised of civilian objects, the application of the basic principles of IHL becomes quite straightforward. There must be a distinction between military objectives and civilian objects, with a prohibition on targeting civilian objects, which includes all parts of the natural environment. The natural environment being comprised of civilian objects also means that during the proportionality assessment, damage to such objects has to be taken into account to ensure that it is not excessive to the military advantage gained. In addition, under the principle of precautions, constant care must be taken to spare all parts of the natural environment as civilian objects, with all feasible precautions taken to avoid and minimize incidental damage.

These concepts are core principles in Islamic law, since all fighting must be directed solely against enemy combatants and civilian objects must not be deliberately harmed during hostilities. Seventh-century Muslim jurists deliberated the permissibility of certain indiscriminate means (catapults and poison or fire tipped-arrows) and methods of warfare (nights attacks and shooting at the human shield) with the same IHL objectives of minimizing incidental harm to civilians and civilian objects. Further, Islamic law prohibits the deliberate destruction of enemy animate and inanimate property. Hence, wanton destruction of enemy property as advocated by the renowned jurist al-Awzāʻı̄ (d. 774) constitutes the criminal act described metaphorically in the Qur’ān as fasād fī al-arḍ (literally, ‘destruction in the land’).

Reflective of the Islamic law prohibition of ‘destruction in the land’, in addition to the protected status of all parts of the environment as civilian objects, there are specific IHL rules which serve to prohibit the destruction of any part of the natural environment, not justified by imperative military necessity. (Guidelines, Rule 13)

How can these rules be used to protect the environment

Recognizing the civilian status of the natural environment as well as its sanctity through Islamic religious/legal perspectives, immediately places the absolute protection that in and of itself, the natural environment cannot be targeted, unless it becomes a military objective due to its location, purpose, or use. Furthermore, from a pragmatic perspective, medieval Muslim armies would not resort to wanton destruction because of the customary practice for enemy possessions to be distributed among the members of the winning side of the battle. The challenging aspect lies in the practical application of these rules and the interpretation of what is disproportionate damage to the environment.

To take an example, if there was an attack on a military objective, such as a military base located near a river, through the proportionality and precautions assessment it would have to be determined that the impact on the river would not be disproportionate to that of the perceived military advantage anticipated. However, there are inherent ambiguities in conducting such assessments and is difficult to do in practice. As a starting point, when planning the attack and assessing the means/methods of warfare, the NSAG should ask questions such as, is the river used as drinking water for nearby communities, is there sensitive fish habitat in the river, what would the impact of harmful chemicals be on water quality over the longer term. This example is reminiscent of the premodern Muslim jurists’ deliberations over the permissibility of the use of poison-tipped arrows, referred to above, which is prohibited. To be noted that in IHL there is an absolute prohibition on the use of poison or poisoned weapons. (ICRC Customary IHL Study, Rule 72)

In another example, if a military used a forest to hide military weapons or personnel, part of that forest may become a military objective. However, the entire forest does not then become a military objective. The specific area where the weapons/personnel are hidden may become a military objective, but the rest of the forest remains civilian in character. Further, the civilian use of the specific section which has become a military objective would still need to be taken into account. This specific section of the forest where the weapons/personnel are hidden may be considered to be a dual use object (an object that may be used for both military and civilian purposes), where the civilian impact would have to be taken into consideration. (ICRC, Expert Meeting Report, p. 37) While the separation of military and civilian parts of a dual use object is debated, we are arguing for the most protective interpretation of the basic principles as applied to the environment. Should the attack on weapons hidden in the forest release toxic chemicals, this may have direct as well as reverberating impacts on the health of the forest, otherwise a civilian object. Such impacts need to be taken into account through proportionality and precautions assessments. While a certain level of collateral damage is permitted to the environment, the same for any civilian object, the extent of the damage must be lawful. For instance, the United Nations Environment Programme has highlighted, “burning an entire forest to reach a single minor target”, would be disproportionate. (p. 13)

Application to NSAGS

In order to keep NSAGs central to the discussion, it is necessary to recognize the capacity of NSAGs to undertake environmental assessments for certain attacks to ensure they respect the principles of proportionality and precautions. NSAGs vary in size and capacity. While some may have the capabilities to undergo complex assessments, others may not, which has implications in assessing whether everything feasible was done to protect the environment as civilian objects. (IHL Customary IHL Study, Rule 15) For the sake of being practical and engaging in realistic dialogue with NSAGs, in the view of the authors, it could be argued that the ‘sliding scale’ of obligations could be an applicable argument when it comes to assessments of potential environmental harm. (p. 426) Long term environmental harm from military actions can be difficult to assess, for even the most sophisticated of players. In the Final Report to the Prosecutor of the Committee Established to Review the NATO Bombing Campaign against the Federal Republic of Yugoslavia, it was admitted the environmental impact of the bombing campaign was unknown and difficult to measure (at para 23). Such a sliding scale would recognize that not all NSAGs have the ability to undertake sophisticated assessments on potential environmental damage, but allows space for the conversation to be had with the understanding that at least a basic level of assessment is required when it comes to environmental impact of operations. However for NSAGs with a certain level of sophistication, information on long-term environmental risks has improved since the NATO Bombing Campaign, which translates into an expectation that this information will be gathered and included when making assessments on incidental damage to the natural environment (Guidelines, p.54)

Relying on Islamic law as a source of influence for NSAGs who refer to this framework as their source of reference can also be used to support NSAGs in fulfilling obligations on the protection of the environment. Ideally, developing codes of conduct by NSAGs based on the sources of references they are willing to abide by, that ensure the protection of the environment, is a pragmatic approach to fill in the gap where an NSAG lacks the capacity to undertake assessments aiming at the protection of the environment. This is an example where engagement with NSAGs to provide expertise that helps them develop their capacities to undertake environmental assessments is important.

Conclusion

NSAGs can either act as a positive or negative force in the protection of the environment during armed conflict. This emphasizes the need to engage with NSAGs, starting from the most basic provisions of IHL, reinforcing these messages through Islamic law in Muslim contexts. We have seen attacks by NSAGs causing destruction to farmland, as well as burning oil wells releasing toxic chemicals into the atmosphere resulting in significant damage to the environment. (see here, article by Kira Walker) On the other hand, there are examples of NSAGs who play a proactive role through including rules on the protection of the environment in their codes of conduct. Engaging with NSAGs is a necessary step in the growing recognition on the importance of protecting the environment in armed conflict. Without engaging NSAGs, the environmental conversation will only ever be one sided, and incomplete.

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