A/HRC/5/5
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Several general principles governing the conduct of hostilities are relevant to the problem posed
by the release of toxic and dangerous products during armed conflict, but there are also specific
rules which address the issue of damage to the environment.
48. The general principles of the conduct of hostilities, namely distinction, proportionality and
precautions, apply to attacks which could result in the release of toxic or dangerous products into
the environment. The principle of distinction prescribes that parties to the conflict must at all
times distinguish between civilian objects and military objectives, and that civilian objects must
not be the object of attack. This principle is enshrined in article 52 of Additional Protocol I to the
Geneva Conventions49 and State practice shows it to be a binding rule of customary international
law, applicable to both international and non-international armed conflicts.50 Military objectives
are defined as objects which by their nature, location or purpose make an effective contribution
to military action and whose destruction offers a definite military advantage.51 This is
particularly important in the context of attacks on industrial facilities, which could result in the
release of toxic products. Indeed, most of these facilities are civilian in nature; in order for an
attack to be legitimate, the destruction of the site must confer a definitive military advantage, for
example a petroleum refinery which provides fuel to the military. If the site has no link to
military operations and the objective of the attack is to destroy the economic capability of the
State, the attack could be deemed to be illegal. It is important to note that the environment and its
different elements (i.e. land, forests, oceans) are considered to be civilian objects. Elements of
the environment, for example forest cover in a specific area, can be the object of attack only if it
is used to conceal military objectives.
49. If an industrial facility deemed to constitute a military objective is to be targeted, the
principle of proportionality must be respected by the parties to the conflict. An attack is
prohibited if it is expected to cause incidental loss or damage which would be excessive in
relation to the concrete and direct military advantage anticipated. Article 51, paragraph 5 (b) of
Additional Protocol I codifies this principle and State practice shows it to be a binding rule of
customary international law applicable to both international and non-international armed
conflicts.52 An attack which could cause the release of toxic and dangerous products would
violate this principle if the toxic products released could be expected to cause deaths or health
problems in the civilian population or damage to civilian objects, including the natural
environment, which would be excessive in relation to the military advantage gained from the
destruction of the facility.
49
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the
Protection of Victims of International Armed Conflicts (Protocol I), (8 June 1977).
50
Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian
Law (Cambridge, Cambridge University Press/International Committee of the Red Cross
(ICRC), 2005), p. 25.
51
52
Additional Protocol I, art. 52, para. 2.
Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian
Law (Cambridge, Cambridge University Press/ICRC, 2005), p. 46.
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