Saeed Bagheri
Here, I make some legal observations regarding the alleged environmental impacts of the IDF’s actions, including air strikes, in Gaza. This discussion is informed by calls for international investigations into the environmental losses and damages resulting from Israeli actions in Gaza. It considers the law of armed conflict (LOAC) rules regarding the protection of the natural environment during armed conflicts.
Ecological Concerns and Limiting Methods and Means of Warfare
The relevant LOAC provision on the protection of the natural environment during armed conflict is codified in Article 35(3) of Additional Protocol I to the 1949 Geneva Conventions (AP I), which restricts the selection of means and methods of attack by conflict parties:
It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.
This is also the position in Rule 45 of the International Committee of the Red Cross (ICRC) Customary Law Study, which provides:
The use of methods or means of warfare that are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment is prohibited. Destruction of the natural environment may not be used as a weapon.
Although Israel is not a party to AP I, there is now sufficient state practice to support that this prohibition is considered a rule of customary international law applicable in international and non-international armed conflicts. In the context of AP I, however, it remains uncertain what the term “widespread” in Article 35(3) refers to. The term “severe” is understood to refer primarily to ecological concerns (Rule 2 of the ICRC’s 2020 Guidelines on the Protection of the Natural Environment in Armed Conflict). Although the meaning of the term “long-term” damage to the natural environment contained in Article 35(3) is still disputed, it seems that it is understood to refer to “a period of decades” (see ICRC Commentary on Article 35, 1987, para. 1452).
Thus, the major revelation from this section is that a method or a means of warfare would become lawful under Article 35(3) of AP I unless it cumulatively causes damage that is simultaneously widespread, long term, and severe. That is, each condition must be present to fulfill the threshold of environmental harm. The question is therefore whether Israel has violated Rule 45 through its air strikes on Gaza.
Environmental Degradation and the Health or Survival of the Population
The prohibition of widespread, long-lasting, and severe damage to the natural environment as a result of conflict is also regulated by Article 55(1) of AP I, which stipulates the obligation to protect the natural environment during armed conflicts:
1. Care shall be taken in warfare to protect the natural environment against widespread, long-term, and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.
State practice has matured the provision of Article 55(1) into customary law. However, neither AP I nor its commentaries, or the travaux préparatoires, define the phrase “widespread, long-term and severe damage” contained in Article 55(1). What is certain, however, is that Article 55(1) implies a connection between the environment and humankind. This particular meaning stretches back to the ICRC Commentary on Article 55 (1987) that advises that the term “natural environment” should be interpreted in general terms. This means that the natural environment does not only consist of objects that are indispensable to the survival of a civilian population—such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water supplies, and irrigation works—but also includes forests and other vegetation as well as fauna and other biological or climatic elements.
That being so, the objective of Article 55(1) is the survival of the civilian population and the environment, which is protected against attacks during armed conflict. Article 55(1) envisages the protection of the environment as an essential element of protection of the civilian population because of the dependence of civilians on their natural environment for sustenance and development. Yet the inclusion of the phrase “care shall be taken in warfare to protect the natural environment” in Article 55(1) seems to reduce the effect of the provision by allowing some latitude of judgment, as it excludes a great deal of short-term environmental damage. It can therefore be reasonably assumed that this provision requires conflict parties to refrain from resorting to unconventional and lethal means and methods of warfare, such as chemical weapons, which could produce widespread, long-term, and severe damage to the natural environment.
As with Article 35(3), the meaning of the term “widespread” in Article 55(1) remains uncertain. The term “severe” is, however, generally understood to refer to damage prejudicing the health or survival of the population (Rule 2 of the ICRC’s 2020 Guidelines on the Protection of the Natural Environment in Armed Conflict). As with Article 35(3), the term “long-term” in Article 55(1) is understood to refer to decades in the context of Article 55(1).
Bearing these definitions in mind, uncertainty in the three required components may enable conflict parties to resort to using conventional means and methods of warfare such as cluster munitions or any other internationally nonbanned weapons simply because they are not of a nature to affect the natural environment for the long term. In all cases, however, it is widely accepted that the impact of such weapons goes beyond civilian casualties, as extensive submunition contamination can have far-reaching and widespread environmental consequences, hindering postconflict reconstruction and development. What can be said with certainty is that state practice considers the environment to be a prima facie civilian object. It is not considered to be a military objective under Rule 10 of the ICRC Customary Law Study, which reads: “civilian objects are protected against attack, unless and for such time as they are military objectives.”
The IDF’s Actions in Gaza
If the IDF asserts that it is admittedly targeting the military objectives of Hamas within the meaning of the LOAC, it has to acknowledge the fact that there is still a need to avoid excessive long-term damage to the natural environment. Military objectives should not be targeted if the attack is likely to cause incidental harm to the environment that would be excessive in relation to the direct military advantage that the attack would be expected to confer. This is evident from Rule 43 of the ICRC Customary Law Study and Rule 7 of the ICRC’s 2020 Guidelines on the Protection of the Natural Environment in Armed Conflict, whereby “launching an attack against a military objective which may be expected to cause incidental damage to the natural environment which would be excessive in relation to the concrete and direct military advantage anticipated is prohibited.”
In addition to the environmental damage caused by air strikes, there are also a number of lethal weapons being used by the IDF in Gaza. On Oct. 12, Human Rights Watch verified that the IDF has used white phosphorus in both Gaza and Lebanon. White phosphorus weapons are technically referred to as means with highly flammable incendiary material that ignites when exposed to oxygen. They have incidental, incendiary, and destructive effects on the environment that can severely burn fields and other civilian objects in the vicinity on fire. Their effects may remain within the deep soil for several years without any changes. Although white phosphorus weapons are not internationally banned arms, it is relatively uncontroversial that weapons with incendiary effects cannot be used in areas heavily populated by civilians. However, this is the position in Article 2 of Additional Protocol III to the Convention on Certain Conventional Weapons (1980) to which Israel is not a party.
As a matter of the LOAC, the issue remains regarding the determination of the threshold of damage to the natural environment in a region of conflict. While it has been argued that soil may turn infertile, and chemicals from lethal weapons and tons of explosives dropped in Gaza may linger in the air for years to come, we must consider two factual points. First, the impacts of white phosphorus weapons would be the case only if the IDF used them on a large scale, but that is not what current reporting suggests.
Second, even if the IDF used such weapons on a large scale, identifying the extent and level of the environmental destruction and the impact on population and wildlife in “a period of decades” will require scientific data and evidence on which the environmental impact allegations are based. Based on the information currently available, Israel would likely argue that there appears to be little evidence of widespread, long-term, and severe environmental damage from the IDF’s air strikes on the heavily civilian-populated Gaza. This is because the present and long-term environmental impacts of the lethal weapons and explosions used by the IDF in Gaza are not known at present, and measuring them will be tricky and complex, if not impossible. Determining pollution levels and assessing the risks to the civilian population and their environment in Gaza, thus, will depend on precise studies and scientific certainty as well as the monitoring and evaluation of air, water, and soil. This has been much debated in the case of the 1991 Gulf War, where it was suggested that a permanent UN body might be required to investigate and decide with scientific certainty on alleged environmental damage during international and non-international armed conflicts (see the experience of the 1991 Gulf War).
Therefore, due to the disputed nature of the phrase “widespread, long-term and severe damage” and the logic of targeting, and the uncertainty of the exact threshold for environmental damage contained, it becomes unlikely that Israel has currently violated Article 55(1) by using either white phosphorus weapons (other targeting issues aside) or any other types of weapons in Gaza. In the same vein, it seems evident that Israel has not violated Rule 45 of the ICRC Customary Law Study, because the vast bulk of the air strikes have been conventional explosives in an urban environment.
Nevertheless, even if the IDF’s air strikes have not clearly violated Article 55(1) and Rule 45, the legally proportionate collateral damage by lethal weapons used in civilian populated areas would be thoroughly immoral. As Kevin Jon Heller has superbly pointed out, “legality is not morality.” Thus, the legality of the IDF’s large-scale air strikes on the Gaza Strip does not commit one to accept the morality of those operations while it is obvious that there will inevitably be an environmental crisis, by dint of air pollution and potentially serious contamination of ground and surface waters in Gaza, conceivably for quite a while, if not for decades.
Despite the disputed nature of the general prohibition of “widespread, long-term and severe” damage to the natural environment, Article 8(2)(iv) of the 1998 Rome Statute of the International Criminal Court (ICC) considers such acts to constitute serious violations of the laws and customs of war, and they can be considered as war crimes. If the LOAC is a system of protection that is intended to minimize harm and suffering during conflicts, nothing would stop the ICC from investigating intentional and disproportionate attacks by using lethal weapons and explosions that could produce damage to the natural environment not only for decades but also for several months to the degree that the health or survival of the civilian population is concerned. If the uncertainty and ambiguity of the meaning of the “long-term” environmental damage is the rationale for Israel to justify the disproportionate impacts of the IDF’s mass revenge strikes on Gaza, it would be convenient to merely take an opposite perspective backing Gaza and its natural environment and population whose health and survival is at risk of damage from the IDF’s air strikes. Note in this regard that damages and injuries, even the legally proportionate ones, would always reflect the severity of the violations. That is, the legally proportionate wider-scale collateral damage or injury caused even by small-scale bombardments must be observed in the context of the LOAC considerations that are rooted in moral standards.
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