Armed Con fl ict

Commodity activities in scenarios of armed conflict are particularly sensitive.

Resource dependencies have proven to correlate with an increased risk of armed conflict.¹⁵⁴Commodity deposits can i.a. play key roles in (attempted) coups d’état, the financing of warlordism, secession movements, mass rebellions, and foreign interventions in armed conflicts.¹⁵⁵Generally speaking, one can distinguish between three core issues that are associated with armed conflicts, which occur in connection with natural resources:‘resource supply conflicts’,‘conflict resources’, and ‘ com-munity-level resource conflicts’.¹⁵⁶ However, most of the applicable rules still constitute indirect TCL.

First and foremost international humanitarian law (IHL) qualifies a state’s sover-eignty in armed conflict.¹⁵⁷With regard to the protection of commodities, one can roughly distinguish three‘indirect’legal avenues, which serve this very purpose and shall be considered subsequently: commodities can be protected ascivilian objects,

150For a more detailed account of these methods, see Margalioth (2011b), paras. 71–78. On the so-called‘sixth method’, Grondona (2018).

151Cf. e.g. UNCTAD (2016), p. 8.

152Cf. also Carbonnier and Zweynert de Cadena (2015), paras. 2–5.

153Cf. OECD (2017a), p. 2.

154Le Billion (2005), p. 13.

155Le Billion (2005), pp. 37–43.

156Le Billion et al. (2016), p. 2. Mostly original emphasis.

157With an elaborate account, Dam-de Jong (2010), pp. 37–52. However, also norms of interna-tional criminal law, particularly of the Rome Statute, will feature in the subsequent section wherever they are relevant for our discussion of commodity-related issues arising in armed conflict.

viaenvironmental protectionprovisions, and through theprohibition to destroy or seize property, which includes the prohibition to pillage.

According to Article 52(1) of Additional Protocol I (AP-I),¹⁵⁸civilian objects shall not be the object of attack or reprisals. They are being defined as all objects, which are not subject to military objectives, according to Article 52(1) AP-I. Arti-cle 52(2) AP-I specifies these objects to ones, which i.a.‘make an effective contri-bution to military action’and ‘offer[] a definite military advantage.’¹⁵⁹While the threshold of‘military advantage’set here does not seem to be very hard to over-come,¹⁶⁰Article 54(2) AP-I provides specific protection for objects that are‘ indis-pensable to the survival of the civilian population’, including i.a. foodstuffs, crops, and livestock.

According to Article 54(2) AP-I, such objects may not be attacked, destroyed, removed, or rendered useless, thus not be damaged in any way.¹⁶¹ The same obligation exists with regard to NIACs, according to Article 14 of Additional Protocol II (AP-II).¹⁶²As Dam-de Jong points out, the list of indispensable objects provided by Articles 54(2) AP-I and 14 (AP-II) is not meant to be exhaustive, but rather may also include forests, lakes and rivers, and even mineral oil.¹⁶³

Commodities may also fall under the general protection, which is being accorded to theenvironment.¹⁶⁴Articles 35(3) and 55 AP-I set forth a prohibition to cause widespread, long-term, and severe damage to the environment. They entail a pre-cautionary approach and may thus serve to prevent environmental damage resulting from the exploitation of commodity deposits, i.a. through impact assessments.¹⁶⁵ This basic protection of the overall environment however only applies during international armed conflict.¹⁶⁶ However, again the threshold of these protection

158The Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (AP-I), of 8 June 1977, available at ICRC, https://www.icrc.org/en/doc/assets/files/other/icrc_002_0321.pdf(last accessed 14 May 2021).

159Dam-de Jong (2010), p. 37.

160Dam-de Jong (2010), pp. 37–38.

161According to Article 54(3) AP-I, this obligation does not apply in cases where the objects in question are used exclusively for the sustenance of the adverse party’s military forces or in direct support of military action.

162Dam-de Jong (2010), p. 38. Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (AP-II), of 8 June 1977, available at https://treaties.un.org/doc/publication/unts/volume%201125/volume-1125-i-17513-english.pdf(last accessed 14 May 2021).

163Dam-de Jong (2010), p. 39. While according to Article 54(2) AP-I, the damage done to indispensable objects needs to be carried out‘for the specific purpose of denying them for their sustenance value to the civilian population’, this provision is generally not understood as requiring a specific corresponding intent. It may thus‘be interpreted broadly so as to encompass all instances in which parties to an armed conflict deprive the population of objects indispensable to their survival, regardless of the motive’, Dam-de Jong (2010), p. 40.

164Dam-de Jong (2010), p. 40.

165Dam-de Jong (2010), p. 42.

166Dam-de Jong (2010), p. 41.

4.2 The Contribution of TCL to a‘Balanced’Commodity Sector 95

provisions is set at a very high level, which as a consequence grants wide margins of discretion to states performing military operations.¹⁶⁷Incidental damage resulting from commodity exploitation or plundering alone arguably does not suffice to constitute a violation of Articles 35(3), 55 AP-I since the damage generally must last several decades.¹⁶⁸

In terms of soft law instruments, principle 24 Rio Declaration recognises that‘[w]

arfare is inherently destructive of sustainable development.’ As a consequence, states are held to‘respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary.’

The UN General Assembly Resolution on the Protection of the Environment in Times of Armed Conflict i.a.,‘[u]rges States to take all measures to ensure compli-ance with the existing international law applicable to the protection of the environ-ment in times of armed conflict.’¹⁶⁹The fact that depletion of natural resources can cause the liability of the acting state, is being demonstrated by UN SC Resolution 687, which

reaffirms that Iraq [. . .] is liable under international law for any direct loss, damage – including environmental damage and the depletion of natural resources–or injury to foreign Governments, nationals and corporations as a result of its unlawful invasion and occupation of Kuwait.¹⁷⁰

Within the realms of classical IHL,finally also the so-called‘Martens clause’has been said to provide environmental protection.¹⁷¹The clause wasfirst incorporated in the 1899 Hague Convention (II) With Respect to the Laws and Customs of War on Land, and also features in the 1949 Geneva Conventions and the two 1977 additional protocols thereto.¹⁷²

Moreover, the environment is also protected under international criminal law.

According to Article 8(2)(b)(iv) Rome Statute, knowingly launching an attack that

167Dam-de Jong (2010), pp. 42–43.

168Dam-de Jong (2010), p. 43, who also highlights that‘[t]he understandings that states have adopted concerning certain provisions of the ENMOD Convention have defined“widespread”as

“encompassing an area on the scale of several hundred square kilometers”and“severe”to involve

“serious or significant disruption or harm to human life, natural and economic resources or other assets’, pointing to UN GA (1976) Report of the Conference of the Committee on Disarmament, volume I, 31st Session, Supplement no. 27, Doc. A/31/27,http://www.un.org/ga/search/view_doc.

asp?symbol¼A/31/27[VOL.I](SUPP)(last accessed 14 May 2021), at 91–92; cf. also Vöneky and Wolfrum (2016), para. 36.

169UN GA (1992) Resolution 47/37 of 25 November 1992,http://www.un.org/documents/ga/res/

47/a47r037.htm(last accessed 14 May 2021), para. 1. On the resolution cf. ICJ (1996)Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 8 July 1996, para. 32; cf. Vöneky and Wolfrum (2016), para. 1.

170UN SC (1991) Resolution 687 of 3 April 1991,https://unispal.un.org/DPA/DPR/unispal.nsf/0/

FAB11BBFEA7E0B6585256C3F0065AEAE(last accessed 10 February 2019), para. 16; Vöneky and Wolfrum (2016), para. 49, who, however, contend that‘[f]rom a realistic point of view, such a decision will not easily be taken again.’

171Vöneky and Wolfrum (2016), para. 48.

172Ticehurst (1997), pp. 125–126.

brings about ‘damage to civilian objects or widespread, long-term and severe damage to the natural environment’ that is disproportionate ‘to the concrete and direct overall military advantage anticipated’constitutes a war crime.¹⁷³

Apart from these rules, natural resources are also protected by theprohibition to destroy or seize property.¹⁷⁴According to Article 23(g) of the 1907 Hague Regu-lations, it is ‘forbidden [t]o destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war[.]’ According to Article 53 of Geneva Convention IV Relative to the Protection of Civilian Persons in Time of War, in times of occupation any destruction of private or public property is prohibited, unless it is absolutely necessary for military opera-tions.¹⁷⁵In addition, Article 28 Hague Regulations prohibits pillaging a village or town,‘even when taken by assault’; Article 33(2) Geneva Convention IV prohibits pillage altogether.¹⁷⁶Pillage is likewise illegal in times of occupation according to Article 47 of the Hague Regulations, as well as in a NIAC, according to Article 4(2) (g) AP-II.¹⁷⁷

Again, the unnecessary destruction or seizure of property, according to Articles 8 (2)(b)(xiii) and 8(2)(e)(xii) Rome Statute,¹⁷⁸as well as‘pillaging a town or place, even when taken by assault’, according to Articles 8(2)(b)(xvi) and 8(2)(e)(v) Rome Statute constitute a war crime in both IACs and NIACs.¹⁷⁹Furthermore, Article 147 Geneva Convention IV defines the ‘extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly’ as a grave breach under the Convention; such act constitutes a war crime according to Article 8(2)(a)(iv) Rome Statute.¹⁸⁰The term‘property’within the relevant IHL conventions was always meant to include the natural environment, and thus with it the commodities, which form part of it.¹⁸¹