ARGUMENTS ADVANCED

I. THE ACTIONS OF ANHUR WITH RESPECT TO THE MENHIT WETLAND COMPLEX DID

NOT VIOLATE INTERNATIONAL LAW

1.1 The Government of Anhur has not violated International Humanitarian Law with

respect to the Menhit Wetland Complex

While the damage to the Menhit Wetland Complex is unfortunate, no violation of

international law has occurred since – firstly, with respect to international humanitarian law,

the camp was a legitimate military target, despite being located in a Ramsar Site [1.1.1] and

secondly, the natural environment is not civilian in character in this instance because no

civilians resided in the Menhit Wetland Complex [1.1.2]; therefore international humanitarian

law does not apply.

1.1.1. The camp was a legitimate military target

Military operations often take place in the natural environment or in its vicinity, as has been

witnessed in numerous global instances. The ANP-FF camp set up in Menhit Wetland

Complex fulfilled the two pronged definition of a military objective – First it must, by its

nature, location, purpose or use, make an effective contribution to military action [a], and its

total or partial destruction, capture or neutralization, in the circumstances ruling at the time,

must offer a definite military advantage [b].1

1
ICRC, Additional Protocol I (1977), Art. 52(2); Henckaerts & Doswald-Beck (eds.), Study on Customary

International Humanitarian Law, Vol. I, Rule 8, ¶ 29.

a. Effective contribution to military action

It is well accepted in international law that the natural environment may make an effective

contribution to military action owing to its location, purpose or use. For example, a hill may

contribute effectively to the military action of enemy forces by location if it provides them

with a vantage point over an adversary’s camp, 2 and similarly a mountain pass may

contribute effectively to the military action of enemy forces if it allows them to advance more

quickly as they occupy territory. 3 The purpose (i.e. intended future use) or use of foliage in a

specific forest area4 may contribute effectively to military action by providing cover for a

troop manoeuvre.

Similarly, in the case at hand, 50 members of the ANP’s organized armed group had set up

camp in the dense foliage area of Menhit Wetland Complex5 and in early November 2019,

launched attacks with armed drones on the territory of Anhur from the Menhit Wetland

Complex killing several Anhuri citizen sand damaging two residential buildings and one

government building.6 In the ICRC’s view this means that the contribution must be directed

towards the actual war-fighting capabilities of a party to the conflict. 7 The dense foliage

2
United Kingdom, “The Joint Service Manual of the Law of Armed Conflict”, ¶ 5.4.5(f), (2004).
3
United States, Law of War Manual, pp. 218–219, ¶ 5.6.8.4 (2016).
4
Sandoz et al. (eds.), Commentary on the Additional Protocols, p. 636, ¶2022.
5
Stetson Record ¶19.
6
Id. ¶20.
7
L. Gisel, “The relevance of revenue- generating objects in relation to the notion of military objective”; ICRC/

College of Europe, The Additional Protocols at 40: Achievements and Challenges, Proceedings of the 18th

Bruges Colloquium, (October 2017), Collegium, No. 48, Autumn 2018, pp. 139–150. See also Dinstein, The

Conduct of Hostilities under the Law of International Armed Conflict, p. 109.

concealed the enemy camp and allowed it to launch covert attacks from the location,

therefore, making an effective contribution to enemy military action.

b. Definite Military Advantage

To fulfil the second prong of the definition of a military objective, the total or partial

destruction, capture or neutralization of a distinct part of or specific object belonging to the

natural environment, in the circumstances ruling at the time, must offer a definite military

advantage. The term “definite” requires that the advantage be concrete and perceptible, and

thus that those ordering or executing the attack have concrete information as to what the

advantage offered by attacking the distinct component of the natural environment will be.8

Most relevant in this regard, a number of States have stated that an area of land can fulfil the

definition of military objective, and this position is widely accepted. 9 Accordingly, neither the

principle of distinction nor the prohibition of indiscriminate attacks prevent, for example; the

direction of fire at thick plantation to generate a line of sight that enables the identification of

enemy forces using the plant cover to attack; or interdiction fire directed, for example, at a

river crossing by which the adversary intends to move troops to mount an attack.10

8
Sandoz et al. (eds.), Commentary on the Additional Protocols, p. 636, ¶2024.
9
Henckaerts/Doswald-Beck (eds), Customary International Humanitarian Law, Vol. II, Part 1, practice related

to Rule 8 (Areas of Land), pp. 223–227.

10
Y. Dinstein, “Legitimate military objectives under the current jus in bello”, International Law Studies, Vol.

78, 2002, p. 150; S. Oeter, “Methods and means of combat”; D. Fleck (ed.), The Handbook of Humanitarian

Law in Armed Conflicts, 3rd ed., Oxford University Press, Oxford, 2013, pp. 192–193.
Finally, the phrase “in the circumstances ruling at the time” must be understood as a

situational and temporal aspect of the whole concept of military objective. It means that

where the destruction of a part of the natural environment must cease as soon as the military

advantage is realized.11

[1.1.2] The natural environment is not civilian in character in this instance because no

civilians resided in the Menhit Wetland Complex

The system of IHL classifies everything that can be the subject of an attack or destruction as

either a civilian object or as a military objective; civilian objects are all objects which are not

military objectives.12 In this regard, it is notable that, although Article 55 of Additional

Protocol I does not specifically designate all parts of the natural environment as civilian

objects, this provision falls under Part IV, Section I, Chapter III of the Protocol, entitled

“Civilian objects”. On this basis, all parts or elements of the natural environment are civilian

objects, unless some become military objectives.13 Its various parts are, therefore, protected

as such by the general rules of IHL protecting civilian objects. 14 However, parts of the natural

environment can become military objectives according to the normal rule – that is, if, by their

nature, location, purpose or use, they make an effective contribution to military action and

11
Droege & Tougas, “The protection of the natural environment in armed conflict: Existing rules and need for

further legal protection”, p. 28.

12
A. Roberts and R. Guelff (eds.), Documents on the Laws of War, 3rd ed., Oxford University Press, Oxford,

2000, pp. 502, 505, 507 and 511; CK. Hulme, War Torn Environment: Interpreting the Legal Threshold,

Martinus Nijhoff Publishers, Leiden, p. 300, (2004).

13
Droege & Tougas, “The protection of the natural environment in armed conflict: Existing rules and need for

further legal protection” pp. 25–27.

14
ICRC, Henckaerts & Doswald-Beck (eds.), Study on Customary International Humanitarian Law, Vol. I, Rule

43, p. 143.
their total or partial destruction, capture or neutralization, in the circumstances ruling at the

time, offers a definite military advantage, as it did in this case.

Scholars consider that the protection of the natural environment should be based on an

anthropocentric approach, rather than on its “intrinsic value”.15 According to the

anthropocentric view, the natural environment is only protected by IHL if it affects the

civilian population. Under this view, not all parts of the natural environment are “objects” as

the term is understood in IHL; rather, a part of the natural environment constitutes a civilian

object only when it is used or relied upon by civilians or when harm to it affects civilians. 16

Consequently, if a part of the natural environment is not used or relied upon by humans in

any way or does not affect humans – for example, a bush in the middle of the desert – it is not

a civilian object under this view and is therefore not protected by the general rules of IHL

protecting such objects; accordingly, such parts need not be considered in conduct of hostility

assessments. Therefore, since no civilians resided in the Menhit Wetland Complex, 17 its

natural environment does not possess a civilian character.

1.2 Widespread, long-term and severe harm has not been caused to the Menhit Wetland

Complex by the Government of Anhur

15
M. Bothe, K.J. Partsch and W.A. Solf, New Rules for Victims of Armed Conflicts: Commentary on the Two

1977 Protocols Additional to the Geneva Conventions of 1949, 2nd ed., Martinus Nijhoff Publishers, Leiden,

2013, p. 387.
16
M.N. Schmitt & J.J. Merriam, “The tyranny of context: Israeli targeting practices in legal perspective”,

University of Pennsylvania Journal of International Law, Vol. 37, No. 1, 2015, p. 99; Bellinger & Haynes, “A

US Government response to the International Committee of the Red Cross Study on Customary International

Humanitarian Law”, p. 455.

17
Stetson Record ¶15, 25.
1.2.1 Anhur’s military operations have not resulted in widespread, long-term and severe

harm to the natural environment

It must be noted that Anhur’s military operations were focused on and limited to neutralizing

the ANP-FF camp located within the Menhit Wetland Complex. As illustrated in Issue 1.3,

the damage caused to the 80,000 hectares of peat swamp in the Menhit Wetland Complex

was a direct consequence of the drought conditions prevailing at Menhit Wetland Complex

since 2014.18 Furthermore, it is a matter of record that Rongo had failed to fulfil its

obligations under Article 3.2 of the Ramsar Convention, by not informing the Ramsar

Secretariat about this significant and consequential change in the ecological characteristics of

the site.19

While Articles 35(3) and Article 55(1) of Additional Protocol I prohibit the use of “methods

or means of warfare which are intended, or may be expected to cause, widespread, long-term

and severe damage to the natural environment”. 20 These provisions were clearly new when

they were adopted. Upon ratification of Additional Protocol I, France and the United

Kingdom stated that the risk of environmental damage falling within the scope of these

provisions must be assessed “objectively on the basis of the information available at the

time”.21

18
Stetson Record ¶16, 21.
19
Id.
20
Geneva Convention Additional Protocol I, art.35(3), art.55(1).
21
France, Reservations and declarations made upon ratification of Additional Protocol I, § 6; United Kingdom,

Reservations and declarations made upon ratification of Additional Protocol I, § e;France, Interpretative

declarations made upon ratification of the ICC Statute, § 7.

The three conditions, that are, widespread, long-term and severe are cumulative and the

phrase “long-term” was understood by the adopting States to mean decades. 22 The Committee

Established to Review the NATO Bombing Campaign Against the Federal Republic of

Yugoslavia stated in its final report in 2000 that the threshold was so high as to make it

difficult to find a violation. The report indicated that for this reason there was disagreement

as to whether the damage in the Gulf War crossed this threshold.23

As the drafters understood that it may be difficult to estimate in advance the exact scope and

duration of environmentally damaging military operation, this prohibition has an extremely

high threshold, which is met only in the rarest of rare circumstances. For example, in

particular, it may be argued that nuclear weapons should be outlawed because they almost

inevitably would have to be expected to cause damage that is “widespread, long-term and

severe.” However, it must be noted that in its 1996 Advisory Opinion on nuclear weapons,

the ICJ recognized that important environmental factors had to be taken into account in the

implementation of IHL, but did not conclude that the use of nuclear weapons would

necessarily be unlawful on this account. 24 In the present case at hand, the damage that has

been caused directly by the firing of artillery shells does not meet this high threshold and

neither is it directly responsible for burning down of 80,000 hectares of the Wetland

Complex.

22
Y. Sandoz, C. Swinarski, B. Zimmermann (eds), Commentary on the Additional Protocols of 8 June 1977 to

the Geneva Conventions, (1949); ICRC/Martinus Nijhoff, Geneva/Dordrecht, 1987, paras 1452 and 1457.

23
Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of

Yugoslavia, Final Report.

24
ICJ, Legality of the Threat or Use of nuclear weapons, op. cit. (note 38), paras 29–31.
1.2.2. The prohibition of wide-spread, long-term and severe damage to the environment

as a result of non-international armed conflict is not customary international law

There exists a considerable amount of practice that indicates doubt as to the customary nature

of the rule in Additional Protocol I, in particular with respect to the phrase “may be expected

to cause”. The submissions of the United Kingdom and the United States to the International

Court of Justice in the Nuclear Weapons case stated that Articles 35(3) and 55(1) of

Additional Protocol I were not customary.25 The Court itself appeared to consider the rule not

to be customary as it only referred to the applicability of this provision to “States having

subscribed to these provisions”.26 Upon ratification of the Convention on Certain

Conventional Weapons, which recalls, in its preamble, the rule in Articles 35(3) and 55(1) of

Additional Protocol I, both France and the United States made a statement of interpretation to

the effect that this was not a customary rule.27

The applicability of the prohibition of wide-spread, long-term and severe damage to the

environment as customary international law to non-international armed conflicts is less clear

than for international armed conflicts. The proposal to include the same rule as Article 35(3)

of Additional Protocol I in Additional Protocol II was adopted by Committee III of the

Diplomatic Conference leading to the adoption of the Additional Protocols in 1974, but

rejected in 1977.28 The reason for the change of mind is not clear but may have been linked to
25
United Kingdom, Written statement submitted to the ICJ in the Nuclear Weapons case; United States, Written

statement submitted to the ICJ in the Nuclear Weapons case.

26
ICJ, Nuclear Weapons case, Advisory Opinion
27
France, Reservations made upon ratification of the Convention on Certain Conventional Weapons; United

States, Statements of understanding made upon ratification of the Convention on Certain Conventional Weapons
28
State practice in the context of the negotiations at the Diplomatic Conference leading to the adoption of the

Additional Protocols.
the simplification process undertaken in the last stages of negotiations in order to ensure the

adoption of Additional Protocol II. This rule is contained in other instruments pertaining also

to non-international armed conflicts.29

1.3 The actions of the Government of Anhur are not violative of their treaty obligations

The Ramsar Convention and the World Heritage Convention, do not continue to apply during

non-international armed conflict [1.3.1.]. Furthermore, the principles of self-defense, force

majeure and necessity override any potentially relevant duties and obligations of the

Government of Anhur, under the Ramsar Convention[1.3.2.].

1.3.1 The Ramsar Convention and the World Heritage Convention do not apply during

non-international armed conflict

In line with Article 3 of ILC’s Draft Articles on the Effects of Armed Conflicts on Treaties,

the starting point as to the continued application of an international environmental law treaty

is whether the terms of a treaty address its applicability in armed conflict. 30 During a non-

international armed conflict, in principle international environmental law continues to apply

between States, at least in the case of conflicts without the involvement of third States. 31
29
IHL, Memorandum of Understanding on the Application of IHL between Croatia and the Socialist Federal

Republic of Yugoslavia, § 6; Agreement on the Application of IHL between the Parties to the Conflict in Bosnia

and Herzegovina, § 2.5.

30
ILC, Draft Articles on the Effects of Armed Conflicts on Treaties (2011).
31
UN, Report of the Secretary-General on protection of the environment in times of armed conflict, 1992, para.

30.
Whether a State party to either type of armed conflict failing to fulfil its obligations under

international environmental law in its relationship with other States can raise the existence of

an armed conflict as a circumstance precluding its responsibility for wrongfulness is unsettled

and will likely depend on case specificities.32

The Ramsar Convention does not expressly clarify its application to belligerents. 33 The

Ramsar Convention is not a regulatory regime and has no punitive sanctions for violations of

or defaulting upon treaty commitments – nevertheless, its terms do constitute a solemn treaty

and are binding in international law in that sense. The whole edifice is based upon an

expectation of common and equitably shared transparent accountability.34 Rongo violated this

edifice by not fulfilling its duties under Article 3.2 of the treaty, wherein, Parties are expected

to report to the Secretariat any changes or threats to the ecological character of their listed

wetlands and to respond to the Secretariat’s inquiries about such reports received from third

parties.35

32
ILC, Draft Articles on Responsibility of States for Internationally Wrongful Acts, adopted at its fifty-third

session, 2001, Articles 23 and 25, reprinted in ILC, Yearbook of the International Law Commission 2001, Vol.

II, Part Two, UN, New York/Geneva, 2007, pp. 76 and 80.
33
UNEP, Protecting the Environment during Armed Conflict: An Inventory and Analysis of International Law,

p. 13; International Law Association (ILA), Study Group on the Conduct of Hostilities in the 21st Century,

“The conduct of hostilities and international humanitarian law: Challenges of 21st century warfare”,

International Law Studies, Vol. 93, No. 322, 2017.

34
An Introduction to the Convention on Wetlands (previously The Ramsar Convention Manual), Ramsar

Convention Secretariat, Gland, Switzerland (2016).

35
Stetson Record ¶16.
Similarly, scholars suggest that the World Heritage Convention does not apply to non-

international armed conflicts and civil conflicts.36 Furthermore, while Rongo has listed the

Menhit Wetland Complex on its WHC Tentative List in 2015, the Site has not been

nominated for inclusion on the World Heritage List.37

1.3.2. The principles of self-defense, force majeure and necessity override any

potentially relevant duties and obligations of the Government of Anhur, under the

Ramsar Convention

a. Self-Defense

The ICJ in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons

provided some guidance on this question. One issue before the Court was whether a use of

nuclear weapons would necessarily be a breach of environmental obligations because of the

massive and long-term damage such weapons can cause. The Court said: [T]he issue is not

whether the treaties relating to the protection of the environment are or are not applicable

during an armed conflict, but rather whether the obligations stemming from these treaties

were intended to be obligations of total restraint during military conflict. 38 The wrongfulness

of an act of a State is precluded if the act constitutes a lawful measure of self-defence taken in

conformity with the Charter of the United Nations. 39 Article 51 of the Charter of the United

Nations preserves a State’s “inherent right” of self-defence in the face of an armed attack and

36
Lostal, M., 2017. International cultural heritage law in armed conflict: Case-Studies of Syria, Libya, Mali,

the Invasion of Iraq, and the Buddhas of Bamiyan. Cambridge University Press.
37
Stetson Record ¶15.
38
ICJ, Legality of the Threat or Use of nuclear weapons, Advisory Opinion,Reports 1996, 242.
39
ILC, Yearbook of the International Law Commission, 2001, vol. II, Part Two.
forms part of the definition of the obligation to refrain from the threat or use of force laid

down in Article 2, paragraph 4. Thus, a State exercising its inherent right of self-defence as

referred to in Article 51 of the Charter is not, even potentially, in breach of Article 2,

paragraph 4.40

b. Force Majeure

The wrongfulness of an act of a State not in conformity with an international obligation of

that State is precluded if the act is due to force majeure, that is the occurrence of an

irresistible force or of an unforeseen event, beyond the control of the State, making it

materially impossible in the circumstances to perform the obligation. 41 Force majeure is quite

often invoked as a ground for precluding the wrongfulness of an act of a State. 42 It involves a

situation where the State in question is in effect compelled to act in a manner not in

conformity with the requirements of an international obligation incumbent upon it.

Force majeure may be due to a natural or physical event (e.g. stress of weather which may

divert State aircraft into the territory of another State, earthquakes, floods or drought) or to

human intervention. In the case at hand, Rongo did not possess information of the drough

conditions that had prevailed in the Mehit Wetland Complex, since Anhur had not fulfilled its

treaty obligations of reporting change in ecological character, under Article 3.2 of the Ramsar

Convention. Furthermore, the Record clearly provides that the artillery rounds sparked a fire

because of the drought conditions.43

40
ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, Reports 1996, 244-263.

41
ILC, Yearbook of the International Law Commission, 2001, vol. II, Part Two.

42
ILC, Yearbook of the International Law Commission, 1978, vol. II (Part One), p. 61, document A/CN.4/315).

43
Stetson Record ¶21.
With regard to Article 61 of the 1969 Vienna Convention, ILC took the view that force

majeure was a circumstance precluding wrongfulness in relation to treaty performance, just

as supervening impossibility of performance was a ground for termination of a treaty. 44 The

same view was taken at the United Nations Conference on the Law of Treaties.45

c. Necessity

Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an

act not in conformity with an international obligation of that State unless the act: (a) is the

only way for the State to safeguard an essential interest against a grave and imminent peril;

and (b) does not seriously impair an essential interest of the State or States towards which the

obligation exists, or of the international community as a whole. 46 Herein, Anhur launched the

military operation against the ANP-FF camp, in order to safeguard its citizens and property

against future attacks, such as the one carried out by the ANP-FF from its camp, which killed

several Anhuri citizens and damaged residential as well as government buildings.47

State practice and judicial decisions support the view that necessity may constitute a

circumstance precluding wrongfulness under certain very limited conditions, and this view is

embodied in article 25. The cases show that necessity has been invoked to preclude the

44
ILC, Yearbook of the International Law Commission, 1978, vol. II (Part One).
45
Proposal of the representative of Mexico, United Nations Conference on the Law of Treaties, First and second

sessions, Vienna, 26 March–24 May 1968 and 9 April–22 May 1969, Documents of the Conference (United

Nations publication, Sales No. E.70.V.5), Report of the Committee of the Whole on its work at the first session

of the Conference, document A/CONF.39/14, p. 182, para. 531 (a).

46
ILC, Yearbook of the International Law Commission, 2001, vol. II, Part Two.
47
Stetson Record ¶20.
wrongfulness of acts contrary to a broad range of obligations, whether customary or

conventional in origin.48 It has been invoked to protect a wide variety of interests, including

safeguarding the environment, preserving the very existence of the State and its people in

time of public emergency, or ensuring the safety of a civilian population.

48
ICJ, Fisheries Jurisdiction (Spain v. Canada), Jurisdiction of the Court, Judgment, Reports 1998, p. 432.