Credits: Ahmed Akacha/pexels
By Ashwin Goel
A historic resolution adopted by the UN General Assembly affirms the right to a clean, healthy and sustainable environment as a human right. This resolution was voted in favour by 161 countries including the State of Israel. It calls upon States to promote the human right to a clean, healthy and sustainable environment and requires the full implementation of the multilateral environmental agreements under the principles of international environmental law.
However, the effect of ongoing military action by Israel in Gaza is not limited to humans but has taken a huge toll on the sustainability of the environment. The Hindu had reported the use of “herbicidal warfare” in Gaza which involves “unannounced aerial spraying of crop-killing herbicides,” destroying “entire swaths of formerly arable land” and Palestinian farmers’ livelihoods with it. The Guardian reported a catastrophic environmental situation in Gaza, as much of the farmland, energy and water infrastructure has been destroyed or polluted, with devastating health implications probably for decades to come.
Owing to such inhuman living conditions and irrevocable damage to the environment, this blog shall delve into obligations owed by the State of Israel to protect the environment in Gaza under international law.
Belligerent occupation of Israel
In order to find a jurisdictional link for both positive (obligations to protect) and negative obligations (obligations not to harm), it is imperative to establish that Gaza is under the belligerent occupation of the State of Israel. Under customary international law, as reflected in Article 42 of the Hague Regulations of 1907, territory is considered to be occupied when it is actually placed under the authority of the hostile army, and the occupation extends only to the territory where such authority has been established and can be exercised (Armed activities Case; ICJ).
Today Gaza is under complete siege by Israeli forces. Israel controls the Gaza Strip's northern borders, as well as its territorial waters and airspace. United Nations Security Council resolutions also recognise Gaza as a “territory occupied in 1967.” Recently ICJ also recognised the same in its advisory opinion. Thus, it is evident that Gaza is under the authority of the military of Israel and thus under the belligerent occupation of Israel.
Obligations owed by the State of Israel
1. Not to engage in active environmental warfare
Active environmental warfare involves the intentional ‘use’ of the environment as a weapon for waging armed conflict (e.g., inducing earthquakes or other natural disasters) under the International Law of Environmental Warfare. Israel had voted in favour along with other 96 parties to the UN Resolution which adopted the ENMOD convention (Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques). Article 1 and 5 of the Convention prohibit States from engaging in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party as well as any place within the jurisdiction or control of the State.
Further, the 1981 Convention on Certain Conventional Weapons which has been ratified by Israel also prohibits States from employing methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.
However, according to CEOBS, Israel has been selectively targeting water, energy, and agricultural infrastructure, which has created vulnerability and undermined livelihoods in the West Bank and Gaza Strip. It has been characterised as ‘environmental apartheid’ by IMEU. In 2017, Amnesty International released a report entitled, “The Occupation of Water” showcasing how Israel continues to control and restrict Palestinian access to water in the OPT to a level which neither meets their needs nor constitutes a fair distribution of shared water resources.
These incidents show Israel engaging in active environmental warfare under international humanitarian law and violating the conventions which it had voluntarily signed.
2. Not to engage in passive environmental warfare
Passive environmental warfare on the other hand involves actions, which may have been based on different intentions of the parties, which nevertheless have a direct degrading effect on the environment, which in turn has direct effects on the right to health, the right to a clean environment and the right to life of individuals.
An example of passive environmental warfare is the use of artillery. While artillery bombardment is not a “use” of the environment, it has secondary environmental effects on as destruction of plant life, disruption of natural animal habitats, etc.
Following Principle 24 of the Rio Declaration on Environment and Development, States have an obligation to respect international law to provide protection for the environment in times of armed conflict and cooperate in its further development. The International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICECSR) are ratified by Israel and are also directly applicable.
ICESCR has various provisions which are directly affected due to the environmental warfare conducted by Israel. Article 11 guarantees the right to an adequate standard of living, and Article 12 guarantees the highest attainable standard of health. Further, the United Nations Convention on the Rights of the Child of 20 November 1989 includes similar provisions in Articles 16 and 24.
These human rights obligations of Israel are triggered because Israel factually has effective control over Gaza according to UN resolutions, reports and the ICJ. The ICJ has confirmed in its Wall Advisory Opinion that human rights obligations and international humanitarian law obligations can and do apply at the same time in a case of effective control over territory, as is the case in Gaza.
The Guardian had reported a catastrophic environmental situation in Gaza, as much of the farmland, energy and water infrastructure has been destroyed or polluted, with devastating health implications probably for decades to come. Thus, the international community must evaluate violations of Israel’s obligation to not engage in passive environmental warfare, as well as violations of its obligations under international environmental and human rights law towards the environment and the human population in Gaza.
3. Special responsibility in Belligerent Occupation
As per Article 43 of the Hague Regulations of 1907, the occupying power has to take all measures in its power to restore and ensure, as far as possible, public order and safety in the occupied area. Although Israel has not ratified the Hague Regulations, the Regulations were recognised by most civilised nations and are considered as being declaratory of the laws and customs of war.
Further, pursuant to the Fourth Geneva Convention, which has been ratified by Israel, Article 56 places an obligation on a belligerent State to provide for public health and hygiene with particular reference to the adoption and application of the prophylactic and preventive measures necessary to combat the spread of contagious diseases and epidemics.
Recently adopted Draft Principles on the Protection of the Environment in Relation to Armed Conflicts (2022) by the International Law Commission also seek to place obligations in situations of armed conflict including those of occupation of territories. Principle 3 indicates that States are under an obligation to take further measures, as appropriate, to enhance the protection of the environment in relation to armed conflicts; Principle 5 places an obligation on the State to consider remedial measures where conflict has adversely affected the environment of the lands and territories that Indigenous peoples inhabit or traditionally use.
Thus, the complete disregard by the state of Israel for the environmental damage caused in Gaza, which causes many problems relating to health and public order, needs to be evaluated, as they violate the above-mentioned international instruments.
Conclusion
Article 1 of the World Charter for Nature adopted by the UN General Assembly calls for respect for Nature including situations of degradation caused by warfare or other hostile exercises. Such gross misuse of the environment affects the deepest of human rights, such as the right to live with dignity and the right to a clean environment, as well as obligations to protect the environment. As the Israel-Hamas conflict proceeds unabated in 2024, it is incumbent upon the international community to call the actions of Israel in Gaza into question and hold it accountable for the irreparable damage caused to the environment due to its military actions.
Bio:
Ashwin Goel is a student at the National Law School of India University, Bengaluru (NLSIU).