About the author(s):
Yiokasti Mouratidi is a Doctoral Candidate in the Department of International and Operational Law at the Swedish Defence University, focusing on compliance with the law of armed conflict. Previously, Yiokasti obtained her LLM in Public International Law from Utrecht University, the Netherlands (2022) and her LLB in Law with European Law from the University of Nottingham, UK (2019). Yiokasti has a strong interest in international humanitarian law and international security law.
Her work on the AGIL blog is provided in a personal capacity and does not necessarily reflect the views of any present or previous employer.
In recent years, legal scholars have sought to answer the question of whether, and if so how, non-State armed groups (NSAGs) are bound by international human rights law (IHRL). In the same vein, however, it remains unexplored whether NSAGs have obligations under international environmental law (IEL). This gap was addressed by Thibaud de La Bourdonnaye, one of the “emerging voices” of the December 2021 issue of the International Review of the Red Cross. His article, titled “Greener insurgencies? Engaging non-State armed groups for the protection of the natural environment during non-international armed conflicts”, primarily outlines the IHL rules relating to the environment which apply to NSAGs engaged in armed conflicts, which the ICRC considers to be customary international law (for example, Rule 43). He does dedicate, however, a brief section on NSAGs and IEL (p. 596-599), exploring whether they ought to also be bound by this separate area of international law.
The proposition put forward by de La Bourdonnaye is that NSAGs ought to be bound by obligations under IEL “as a matter of policy” (distinguishing this from the question of whether they are arguably bound as a matter of law). To this end, he adopts the “sliding scale” approach, developed in relation to arguments that NSAGs should have obligations under IHRL. According to this, NSAGs controlling territory as State-like entities ought to comply with both negative and positive obligations under IEL, whereas NSAGs with only limited or no territorial control ought to comply with negative obligations under IEL.
Whilst de La Bourdonnaye acknowledges that this matter requires further research, the proposition he puts forward provides a helpful starting point to consider this multifaceted and complex issue. Adopting the same sliding scale approach, this blog post will evaluate some key policy considerations relating to binding NSAGs under IEL, highlighting in the process some contradictions and tensions underlying this proposition. It will first, however, briefly contextualise the significance of this issue.
Environmental protection in armed conflicts: where are we at?
The environment is often described as a “hidden” victim of armed conflicts. Recent efforts to clarify the protection afforded to the environment during armed conflicts include the ICRC’s Updated Guidelines (2020) on protection of the natural environment under IHL and the UNEP’s Inventory (2009) which considers protection afforded during armed conflict not only under IHL, but also IEL and IHRL. The ILC is soon anticipated to finalise its Draft Principles on the protection of the environment in relation to armed conflicts. A shortcoming of each of these efforts, however, is the failure to specifically assess whether or how NSAGs are bound by IEL.
This is a particularly pertinent issue given that the majority of conflicts today involve NSAGs and the ICRC estimates that 60 to 80 million people worldwide live in territories controlled by NSAGs. At the same time, customary IEL’s growth in the last half century has led to a number of binding principles upon States, which today can also be viewed against the emerging threats posed by climate change and ongoing rhetoric around criminalising ecocide. It is therefore important to maximise the existing IEL framework and, to this end, it remains a crucial yet unexplored question of international law whether NSAGs ought to be bound by IEL. Let us now turn to some policy considerations in favour of and against de La Bourdonnaye’s proposition.
Addressing a legal vacuum
On the upper side of the sliding scale, when NSAGs control part of a State’s territory, the key argument for them to be bound by IEL is the need to avoid a legal vacuum vis-a-vis environmental obligations and protections. To this end, an analogy can be drawn with arguments made in relation to NSAGs being bound by IHRL, such as the need to uphold the principle of effectiveness. Given that human rights themselves can be implicated by environmental harm, extending this reasoning seems apt.
Avoiding this legal vacuum is particularly significant given that IEL has progressively developed from a State-centric regime seeking to protect the sovereign rights of States towards a framework aiming to protect the environment per se (p. 66). In line with this, de La Bourdonnaye refers to the principle of intergenerational equity, which some NSAGs have reportedly incorporated into their doctrines, requiring the preservation of the environment for future generations. Given that environmental harm may often have irreversible and transboundary consequences, its regulation is thus of concern to the international community as a whole. There is therefore a strong policy argument that NSAGs which control territory ought to also play their part and comply with both positive and negative obligations under IEL.
The dangers of copying and pasting rules intended for States
However, there is a significant counterargument to simply extending the same rationale for binding NSAGs under IHRL to IEL. Whilst human rights obligations are centred around protecting the rights of the individual, IEL entails obligations owed towards other States. For example, de La Bourdonnaye refers to the prevention principle as a customary IEL rule that NSAGs controlling territory should comply with. This, however, entails a procedural duty to cooperate with other States, particularly through notification and consultation regarding conduct which is likely to impact these other States (p. 68-69).
The proposition that NSAGs that control territory ought to comply with existing positive and negative IEL obligations thus presents a double-edged sword. Whilst IHL contains a disclaimer that binding NSAGs with obligations under IHL does not affect their legal status, the same does not explicitly exist under IEL. If NSAGs seek to cooperate with other States pursuant to their purported duties under customary IEL, and succeed in doing so, this could seemingly be used as a means to boost their claims to legitimacy. Other States that engage with and cooperate with NSAGs under the guise of preventing cross-border environmental harm and enabling NSAGs to fulfil their IEL duties will likely have their motives questioned.
It follows from this that there are numerous policy perspectives on the desirability of binding NSAGs under existing IEL norms. A solution to this tension could be provided by Sassoli’s suggestion that it is possible for customary rules to be different for different subjects of international law. As such, it could be examined whether inter-State obligations of cooperation are in fact intended to extend to NSAGs under customary IEL. This would come, however, at the cost of watering down such procedural obligations required under IEL.
Equality of belligerents
On the lower side of the sliding scale, when NSAGs are engaging in a non-international armed conflict against a State but exercise no or limited control over territory, there is a need to uphold the principle of equality of belligerents. This principle underlies the entire regime of IHL: both parties to the conflict are bound by the same obligations, as non-reciprocity may risk non-compliance.
But how is this relevant in relation to IEL? In order to answer this, we must take a step back to consider the continuing application of IEL as binding upon States during armed conflicts. It has been asserted in the abovementioned UNEP Inventory that “[u]nless otherwise stated, IEL continues to apply during armed conflicts and could be used as a basis for [environmental] protection” (Finding 8). Adding to this, the ILC’s Commentary on its proposed Draft Principles states that IEL (and IHRL) “remain relevant” for the purposes of interpreting IHL (p. 251); this builds upon the ICJ’s Nuclear Weapons Advisory Opinion that international law “indicates important environmental factors that are properly to be taken into account” in the implementation of IHL (para. 33).
Two preliminary remarks ought to be made in respect of the above. First, the question of how IEL continues to apply during armed conflicts and its relationship with IHL remains in need of further exploration and clarification. Second, given that the ILC explicitly opted not to distinguish between international and non-international armed conflicts in its Draft Principles (p. 216), its above Commentary implies that NSAGs must also, as a matter of law, take IEL into account when interpreting IHL. The ILC did not, however, explain the basis for this proposition.
Nonetheless, the seeming starting point is that States remain legally bound by IEL principles during armed conflict, which are in turn capable of influencing the interpretation of their obligations under IHL. Arguably, pursuant to the principle of equality of belligerents, IEL ought to therefore also apply to NSAGs when they are engaged in a non-international armed conflict against States. To do otherwise would create an imbalance in the manner in which IHL obligations are interpreted, which could lead the State to comply with its duties under IEL at its potential detriment, or simply not comply at all.
At present, given the lack of research on how IEL can influence the interpretation of IHL, this argument seems highly abstract. Yet, the exponential rise of customary IEL, even accompanied by analysis of whether IEL norms are capable of amounting to jus cogens, means that IEL’s ongoing application during armed conflicts merits further exploration, akin to the attention given to the ongoing application of IHRL. Within this analysis, the principle of equality of belligerents would require that insofar as IEL norms inform the interpretation of IHL, such interpretation should apply equally to both sides of a non-international armed conflict.
The search for ownership continues
Finally, however, as regards NSAGs on either side of the sliding scale, the proposition that they be bound by existing IEL on policy grounds leads to the issue of the so-called ownership gap. This notion pertains to the non-inclusion of or consultation with NSAGs in international norms they are expected to comply with. Whilst de La Bourdonnaye purports that there is some practice of NSAGs incorporating IEL principles in their doctrines and undertaking to carry out duties such as environmental impact assessments, does that mean we should assume that all NSAGs can and should do so? Can we assume, for example, that all NSAGs controlling territory have the required scientific knowledge and equipment to complete highly technical environmental impact assessments?
While deeds of commitment or unilateral declarations are one way to bridge the ownership gap, they are an ex-post facto solution: the IEL principles we would purport to bind NSAGs with are already in existence, having been established based on State practice and opinio juris. As such, they do not address the issue at the root of its cause. With this ownership gap still persisting, is it wise, “as a matter of policy”, to keep piling international law obligations onto NSAGs? As noted by Sassoli, “unrealistic rules do not protect anyone” (p. 50); arguably, the early stage discourse around environmental protection in armed conflicts presents an opportunity to take a step back and re-assess the methodology pursuant to which NSAGs ought to have IEL obligations.
To this end, if it is in fact the case that there is NSAG practice in relation to IEL norms, perhaps we ought to first explore in detail what this practice is and whether it is better suited and more realistic for NSAGs than simply imposing upon them the IEL framework intended for States. Indeed, the IEL principle of common but differentiated responsibilities provides a hook for the argument that IEL responsibilities of NSAGs ought to be formed based on their own capabilities and practices.
Concluding remarks
This blog post has set out the key arguments in favour of and against the proposition that NSAGs ought to be bound by IEL “as a matter of policy”. Although this author agrees with the general proposition that NSAGs, to different extents, ought to be bound by obligations under IEL, caution is needed in simply transposing IEL obligations that were intended for States to NSAGs. Moreover, the continuing unaddressed ownership gap for NSAGs bound by international law will only broaden the more obligations NSAGs are required to comply with. If we wish to meaningfully and realistically bind NSAGs with obligations under IEL, we would be amiss to simply recycle previous rhetoric which although not quite broken, could do with some fixing.