How Israel’s Resistance to ILC Drafts Foreshadowed its actions in Gaza
INTRODUCTION
The escalation of conflict between Israel-Palestine since 7 October, 2023 has had shocking results and greatly plundered the environment in the Gaza strip. Sewage, wastewater and solid waste management systems and facilities have collapsed. The destruction of buildings, roads and other infrastructure has generated over 39 million tons of debris, some of which is contaminated with unexploded ordnance, asbestos and other hazardous substances. One indicator of the impacts is the increasing rates of communicable disease in Gaza: in the three months following the escalation of conflict, WHO reported 179,000 cases of acute respiratory infection, 136,400 cases of diarrhoea among children under five, 55,400 cases of scabies and lice and 4,600 cases of jaundice.
The relationship between International Humanitarian Law (hereafter, LOAC) and International Human Rights Law (hereafter, IHRL) remains one of the most debated issues in international legal discourse due to the difference of application of the two laws. While LOAC applies strictly during armed conflicts, IHRL is applicable even in the absence of war situations with derogatory provisions.
This article argues that Israel’s resistance to the International Law Commission (hereinafter, ILC) 2022 Draft Principles on Environmental Protection in Armed Conflict foreshadowed its actions in Gaza. The article then seeks to expose the gaps in international law and its inability to prevent ecological harm during warfare.
UN DRAFT REGULATIONS ON PROTECTION OF ENVIRONMENT IN ARMED CONFLICT
Draft principles on protection of the environment in relation to armed conflicts was adopted by the ILC at its seventy-third session in 2022. The ILC’s draft principles aimed to strengthen environmental protection before, during, and after armed conflicts, including occupation. This draft was posed as a milestone capable of achieveing a harmonious construction between LOAC and IHRL since LOAC rules under Additional Protocol I previously only addressed environmental harm during an active warzone. These principles were to serve as a comprehensive list of principles to be followed by States before, during and after conflict and also included scenarios of State occupation. The principles seeked to drive home the point that the guidelines enshrined under IHRL subsist even during conflict and cannot be brushed aside in the name of war. The principles actively encourage States to account for environmental factors so as to not cause any irreparable harm to any zone even during conflict. They ingeniously balance human rights as well as future economical and environmental reverbating rights as an outcome of conflict.
Key provisions of the Draft required states to prevent and remediate environmental harm, apply LOAC rules to the environment, prohibit reprisals, pillage, and ecologically destructive weapons, and ensure sustainable resource use in occupied territories. Post-conflict obligations include cleanup of hazardous remnants and cooperation on reparations.
The binding nature of ILC Articles has been a much debated topic in international law. During the 6th Committee Session, during discussions on the Responsibility of States for Internationally Wrongful Acts, member states debated whether the ILC's draft articles should be converted into a binding international treaty or maintain their persuasive power only. Though their status was discussed at length, the conversation around their binding power has been continually procedurally deferred and therefore, the legal and binding status of ILC Articles still remains inconclusive.
While progressive, the effectiveness of Draft Articles hinge on state compliance which is ultimately, the Achilles’ heel of every one of ILC’s Drafts.
ISRAEL’S RESPONSE TO ILC DRAFT
While the ILC’s Drafts advocate for tenants of protection of environment to be read into LOAC, Israel’s response to the draft made it clear-in no uncertain terms- that it believed that natural environmental protection is anthropocentric in nature i.e. it only comes into play when the harm so caused to the environment directly impacts civilians’ health/ survival. Israel also shone a light on the tension that exists in reading a body of international rules into another, in this case- LOAC & IHRL and believes that in the context of armed conflict, rules of LOAC constitute the applicable lex specialis. Israel disagreed with the application of the alternative “intrinsic value” approach proposed in the Draft which considers each and every element of the natural environment to be a civilian object unless it is a military objective.
The Martens Clause is a rule in International law dictating that in cases not explicitly covered by international agreements, civilians and combatants remain under the protection of customary international law, humanity, and public conscience. This clause is enshrined in Draft Principle 12. According to Israel, the Martens Clause is triggered only by the lack of treaty rules and not lack of any rules and is therefore inapplicable. Further, Israel contended that the Martens Clause was created to protect civilians and animate objects and transplanting such a clause to inanimate objects would be a gross misapplication of the Clause.
Israel’s stance on proportionality tilts the axis in favor of non-accountability of actions undertaken by States engaged in armed conflict. Israel stated that paragraph 8 of the commentary of the Draft Principle 18 inaccurately rephrased the proportionality rule to hold that the incidental environmental effects as a result of armed conflict must not exceed the value of the military objective in question. Israel also relied on Article 55 of the Hague Regulation to claim that a reasonable use of natural resources that is not wasteful or negligent is lawful. Israel referred to the ruling in re Krupp and Others while stating that the ruling doesn’t necessarily imply that it is completely forbidden to use natural resources in the Occupying Power’s territory. While Israel cites Krupp to justify resource use, the ruling’s emphasis on ‘reasonable burden’ clashes with Gaza’s post-2023 collapse. Israel also rejected the language Draft Principle 27(1) and instead advocated for the principle enshrined in Draft Principle 27(7) wherein it is acknowledged “different States thus have varying obligations relating to remnants of war”.
ISRAEL’S ILC OBJECTIONS IN ACTION
Israel’s legal position on the Draft Article translated into concrete actions during the 2023- 2024 conflict.
The Interim Damage Assessment records that 57 per cent of water infrastructure and assets have been destroyed or partially damaged, 162 water wells and two of the three connections with Mekorot- Israel’s national water company that supplies water to Gaza. As a result of damage to infrastructure and lack of power, the Water, Sanitation and Hygiene (WASH) system has collapsed, and the water production capacity was in March 2024 estimated at below five per cent of the usual output. In addition, Gaza’s wastewater networks- three out of six treatment facilities, and five out of six waste management sites- have been damaged or destroyed.
This falls in line with Israel’s rejection of the “intrinsic approach” theory and its support to the anthropogenic nature of LOAC and accordingly, since the water system (WASH) cannot be clearly placed in either civilian object or military object, Israel treads the loopholes carefully. Interestingly, Israel had suggested that it would, while proportionality assessment of “civilian objects”, consider the weight given to a drinking water reservoir that a village depends upon to be greater than the weight given to one fruit-bearing tree.
In a press statement issued on 10 December 2023, the Israel Defense Forces confirmed to have hit 22,000 targets in Gaza, more than 300 hits or bombings per day. The Mines Advisory Group, a partner of the UN Mine Action Service, estimated in February 2024 that more than 25,000 tons of explosives have been used on the Gaza Strip since 7 October 2023, “equivalent to two nuclear bombs”. There have been reports of the use of specific types of weapons in Gaza, including white phosphorus. Draft principle 18’s proportional rule would incite questions as to value of the military objective in question but Israel’s objection to the principle and its following actions, clarify its stance on the Principle.
The destruction of buildings and roads has generated an enormous quantity of debris: by May 2024, the amount was estimated at over 39 million tons. For each square metre in the Gaza Strip, there is now over 107 kg of debris, which may contain UXO, hazardous substances and human remains. This action could also be predicted by Israel’s response to the Draft when it rejected the language of Draft Principle 27(1).
Israel’s reliance on Article 55 of the Hague Regulation over the Draft principles is substantiated by its actions with respect to the Gaza Tunnel System. If large quantities of seawater were pumped into an extensive network of tunnels, it could result in contamination of groundwater below the tunnels and potential instability of the area above the tunnels.
It is important to acknowledge, at this juncture, that Israel has claimed that the civilian infrastructure so destroyed by it was being used by the Hamas for military purposes. If that is the case, Israel’s actions would stand justified as under Article 52(2) of Additional Protocol I of LOAC, civilian infrastructure as a “civilian object” loses its protection if used by non-state armed groups for military action. However, despite conversion of a civilian object to a military object, the Article 51(5)(b) of Additional Protocol I to the Geneva Conventions, reinforced by Article 57(2)(a)(iii), states that such conversion cannot allow a belligerent party unrestricted discretion to destroy it. Further, Article 35(3) & Article 55 of the Additional Protocol I specifically prohibit employing methods or means of warfare intended or expected to cause such damage and prejudice the health or survival of the population. Therefore, despite such claims by Israel, discretion and caution must be exercised.
HOW THE BLENDING OF LOAC & IHRL RULES MAY CAUSE A PARADIGM
Many States such as the United States, France and UK argued that LOAC must remain the lex specialis and any blending of LOAC rules with IHRL rules would dilute the LOAC rules for military activities. States also strongly objected against the Draft’s proposition of dropping “natural” from the principles while retaining “environment” as this could lead to significant confusion while distinguishing natural environment from man-made environmental structures such as dams.
Canada also specifically rejected Draft Principle 7 since it found its basis in non-binding documents such as NATO obligations. This merged codification of the binding law with non-binding laws without any clear distinguishing line between the two and similar obligations being imposed under both leads to the creation of pseudo-obligations even in the absence of any legal duty. This also causes legal uncertainty with States rejecting the entire draft framework on procedural grounds rather than engaging with its substantive environmental goals.
Further, Part IV of the Principles call for post-war cleanup. This is a highly unrealistic claim in politically unstable States where State authority is non-existent. Lapses during such environmental clean ups might open up a pandora box of retroactive legal claims by these States. Non-State groups lack the administrative capability to organise and conduct such post-war clean up and such standard cannot be imposed on a party that is greatly undersourced to meet out such expectations.
SUGGESTIONS
1.Early Warning Systems via ILC Engagement= It would do well if a UN-monitored database could be instated for tracking state responses to ILC drafts to predict future violations. For instance, Israel’s rejection of the "intrinsic value" approach in the 2022 Draft Principles foreshadowed its disregard for environmental protections in Gaza.
2. Proportionality Audits for Military Operations= Mandates for independent environmental impact assessments (EIAs) for states with a history of rejecting ILC proportionality rules should be incorporated.
3. Lex Specialis Loophole Mitigation= Advocate for amendments to the Martens Clause to close the "lex specialis" loophole exploited by states.
4.Real-Time Monitoring of Draft Compliance= UNEP-led monitoring teams ought to be deployed to conflict zones where states have opposed ILC environmental protections based on satellite imagery and AI-driven debris tracking (as used by UNOSAT).
CONCLUSION
The Gaza conflict underscores a systemic flaw: states can exploit ambiguities in international law to justify environmental harm. Israel’s rejection of the ILC’s Draft Principles and their subsequent operationalization in Gaza reveals the urgent need for reforms that bridge the lex specialis loophole and enforce accountability. While military necessity remains a contested doctrine, the humanitarian and ecological costs demand tools to preempt, rather than merely document, destruction. The ILC’s framework, if strengthened by monitoring mechanisms and state-specific compliance regimes, could offer a path toward meaningful protection
