The environment is often described as the silent victim in armed conflict. To what extent is the current legal framework adequate to protect the environment in armed conflict?

Introduction:

“The law of armed conflict towards environmental protection is not very well developed in comparison to other areas of international law. This is because there are no international institutions in place to deal with its development and implementation, or to monitor its observance. Relying on the parties to implement it during the most heated time of a country’s history is as if asking the thief to guard a jewellery store – the temptation to ignore the obligation and to overstep the mark is enormous. Military restraints are often theoretical rather than real and the promise of punishment for environmental damage does not appear to weigh heavily on the minds of military commanders”[1].

War and military activities such as weaponry and troop movements, land mines, creation and destruction of buildings, destruction of forests by defoliation as well as general military usage all have obvious detrimental impacts on the environment[2]. These, as well as the indiscriminate nature of nuclear weapons which could cause damages to human populations and environments are immense. These warring countries often place victory ahead of environmental concerns for the duration of the war. The deprivation and destruction caused by armed conflicts has always extended to environmental damages and often breaching borders of unanticipated countries, threatening lives and livelihoods of people and animals even after peace agreements were signed[3]. It is often said that the environment is the silent victim of modern warfare.

Centring the issues such as the protection of persons who are not and/or no longer involved in the hostilities as well as the restrictions of methods of warfare, International Humanitarian Law essentially applies only to armed conflict[4] and does not cover internal tensions or disturbances, such as isolated acts of violence. Furthermore, regardless of who first engaged in the hostilities, the laws apply only after a conflict has begun, and then equally to all sides[5]. Indeed, questions such as to the types of international law and treaties protecting the environment; responsibility of states for the implantations and enforcements; as well as how can “conflict resources” avoid their illegal exploitations are all left to be answered.

Another difficulty of environmental protection can be seen from the lack of treaties and customary laws that govern non-international armed conflict; and the obligation to protect environments during non-international armed conflicts are far less than of international armed conflicts. The only major treaty law that regulates non-international armed conflicts is contained within Common Article 3 to the four Geneva Conventions and Additional Protocol II.

However, the administration of International Humanitarian Law does provide protections to the environment through l treaty laws, principles, and customary laws among other policy tools, with only compromising imperatives.  These international treaties and protocols that have been ratified include all four Geneva Conventions of 1949 and their Additional Protocols I and II, the ENMOD convention of 1976 as well as other various conventions limiting and prohibiting biological, chemical or nuclear weapons. These, as well as the principles of distinction, proportionality, military necessity, and humanity all have bearings on environmental protection during armed conflict[6]. The principles also highlight the framework of International Humanitarian Law and its underlying value.

The extents to which these frameworks and principles are adequate to the protection of environments during armed conflicts are exam below. In order to resolve the significant gaps and difficulties of environmental protection, the enhancement of current international framework is dearly required.

Foreword:

“Until a more complete code of the laws of war is issued, the High Contracting Parties think it right to declare that in cases not included in the Regulations adopted by them, populations and belligerents remain under the protection and empire of the principles of international law, as they result from the usages established between civilized nations, from the laws of humanity and the requirements of the public conscience”[7]. Preamble to the 1899 Hague Convention (II)

Despite other treaty laws and protocols, the Martens Clause is recognised as a basic constitution of the fundamental principles of International Humanitarian Law and the heart of environmental protection; and fills the gaps in international framework what governs situations where States much respect a minimum standard of “humanity” and “public conscience” [8].

Treaty Laws:

Additional Protocol I to the 1949 Geneva Conventions (1977)

“It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment”. Article 35 Paragraph 3 of Additional Protocol I to the 1949 Geneva Conventions

Vietnam War raised serious concerns regarding to the protection of civilian population as well as the environment; and thus Additional Protocols I to the Geneva Conventions was taken place in the light of such concerns. It directly addresses the growing environmental and military tactical employment concerns of armed conflict[9].

Article 35 (3) not only applies to intentional damages, but also to expected collateral damage as the important aspect of specific intent is not required[10]; and Article 55 shares the prohibition of warfare that may cause “widespread, long-term and severe damage to the natural environment” in the same light. However, Article 55 specifically addresses the protections for the environment within the context of the protection granted to civilian objects as well as explicitly attacks on the environment by way of reprisals.

However, the Protocol does not display a precise definition for the terms “widespread, long-term and severe damage”. This would in turn constitute in the uncertainty to the threshold as to where the Protocol can apply; and thus reducing the effectiveness of Articles 35(3) and 55 on the applicableness of armed conflicts; and reducing its efficiency.

UN Convention on the Prohibition of Military or Any Other Use of Environmental Modification Techniques [11] (1976)

The ENMOD Convention was established as a reaction to “geophysical warfare” employed by military tactics.

Although it disallows the usage of techniques which would turn environments into ‘weapons’ as Article 1 urges “each State Party to this Convention undertakes not to engage 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”; the monitoring in its implementation and enforcement has still not had a methodical role.

ENMOD has been relatively successful and effective compared to Additional Protocol I as it requires a much lower threshold of damage than Additional Protocol I’s “long-lasting”. ENMOD has clearly defined the period of lasting would be months or approximately a season; yet while under Additional Protocol I “long-term” is interpreted as a matter of decades[12].

Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects[13]  and Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons (1980) [14]

Following a 2001 amendment, the CCW also applies to non-international armed conflict and “attempts to limit the harmful effect of landmines by requesting States to take protective measures such as recording the location of targets in order to allow for later collection of the unexploded devices, and thereby facilitate substantial restoration to prior environmental conditions”[15].

Article 2(4) of the CCW Protocol III explicitly prohibits “making forests or other kinds of plant cover the subject of an attack by incendiary weapons except when such natural elements are used to cover, conceal, or camouflage combatants or other military objectives, or are themselves military objectives”; and “it is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment”.

The Hague Convention IV (1907)

The Hague Convention moderates the ways which warfare are to be used and Article 22 provides that “the right of belligerents to adopt means of injuring the enemy is not unlimited” which is regarded as the core of the Convention[16].

The Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (1925)

The usage of chemical and biological weapons may cause harm to the environment, and thus the Protocol can be seen to provide some level of environmental protection during armed conflicts.

However, this only affects the usage of chemical and biological means of warfare which excludes the research and development as well as possession of such weapons; thereby limiting its ability to serve as a deterrent.

The Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological and Toxin Weapons and on their Destruction[17] (1972)[18]

The BWC[19]  prohibits the transfer of biological agents to other States, groups of States, international organizations or “any recipient whatsoever”[20]; as well as limiting the development, production, stockpiling or any other possession of microbial agents, toxins and weapons[21], and equipment or means of delivery designed to use these agents or toxins for hostile purposes or in armed conflict[22].

Yet, the actual use of biological weapons is not prohibited by the BWC, as the drafters of the agreement took the stance that this aspect is regulated by the 1925 Protocol[23].

Chemical Weapons Convention (1993)

Along with the banishment of development and production chemical weaponries, the Chemical Weapons Convention also categorically prohibits any use of chemical weapons and requires States to destroy existing chemical weapons and production facilities[24]. Whether as “first use” or as a reprisal; States  must refrain from engaging in military preparations which include stockpiling[25] as well as offering means to verify that the States do not resume chemical weapon productions[26].

Thus, the Chemical Weapons Convention has an immediate bearing on the protection of the natural environment during armed conflict, as chemical substances may have particularly direct and severe impacts on the environment.

Comprehensive Nuclear-Test-Ban Treaty (1996) [27]                           

“Noting also the views expressed that this Treaty could contribute to the protection of the environment, Affirming the purpose of attracting the adherence of all States to this Treaty and its objective to contribute effectively to the prevention of the proliferation of nuclear weapons in all its aspects, to the process of nuclear disarmament and therefore to the enhancement of international peace and security,”. Preamble of Comprehensive Nuclear-Test-Ban Treaty

CNTBT was established to provide a termination to all nuclear weaponry testing along with other forms of nuclear explosions. With one hundred fifty United Nation Members sanctioned the treaty, the emphasis of CNTBT can be felt immensely in the support for worldwide restriction of nuclear testings. Even though the CNTBT has a direct bearing to the protection of environments, it is yet to enter into force.

Tlatelolco Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean (1967)

Ratified by all 33 States in Latin America and the Caribbean, the Treaty was entered into force in 1969, and forbade the testing, use, possession, fabrication, production or acquisition by any means of all nuclear weapons in the regions[28].

Protocol II and Protocol V to the Convention on Certain Conventional Weapons (1980)[29]

Protocol II limits the prolonging affect of landmines by requesting States to take protective measures such as recording the location of targets in order to allow for later collection of the unexploded devices, and thereby facilitate substantial restoration to prior environmental conditions and Protocol V seeks to destroy unexploded landmines and abandoned ordnance, and offers similar guidelines that can serve to indirectly protect the environment from post-conflict threats[30].

Convention on Cluster Munitions (2008)[31]

The Convention on Cluster Munitions prohibits all use, stockpiling, production and transfer of Cluster Munitions. Separate articles in the Convention concern assistance to victims, clearance of contaminated areas and destruction of stockpiles. The Convention was adopted in Dublin by 107 states on 30 May 2008.

As Cluster Munitions also pose significant environment risks whether exploded or unexploded ordnances after an armed conflict; and Article 4 subjects the clearance of cluster remnants. Yet many Cluster Munitions nations still object to this Convention.

The Geneva Convention IV and Additional Protocol I and Protocol II to the Geneva Conventions (1949)

Often natural resources in environments are considered collectively of private persons, their destruction could be considered to violate Articles 147 of the Geneva Convention IV on the condition that imperative military necessities were not justified. Article 147 stated that “extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly”.

Article 48 of Additional Protocol I to the 1949 Geneva Conventions provides protection to the environment by positioning that “in order to ensure respect for and protection of the civilian population and civilian objects, the Parties to the conflict shall at all times distinguish between the civilian population and combatants and between civilian objects and military objectives and accordingly shall direct their operations only against military objectives.”

Furthermore, Article 54(2) of Additional Protocol I prohibit attacks against “objects indispensable to the survival of the civilian population”. In stating this, some environmental objects are meaning of basic importance to the population’s livelihood[32] and thus could be protected.

Additional Protocol II addresses non-international conflicts and is much more substantive than Additional Protocol I. Provisions that indirectly address environmental protection are Article 14 on civilian objects; which prohibits attacks on objects indispensable to civilian populations, including foodstuffs, agricultural land, crops, livestock, drinking water installations and irrigation works.

Principles:

The Principle of Distinction

“Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage”. Article 52(2) of Additional Protocol I to the Geneva Conventions

Distinction is a principle under international humanitarian law governing the legal use of force in an armed conflict. Belligerents must distinguish between combatants and civilians[33]; and Chapter II of the Additional Protocol I to the Geneva Conventions covers distinctions between military, civilian persons and objects. Article 50 defines who is a civilian and what a civilian population is while Article 51 describes the protection which should be given to civilian populations. Chapter III regulates the targeting of civilian objects. Thus targeting non-military sites with environmental significance sites would be contrary to the principle of distinction and to Article 52(2)[34].

Not all states have ratified Protocol I and the principle would be difficult in its operation as industrial facilities such as power plants and chemical factories would have important environmental impact as well as being a direct contribution to the military actions.

The Principle of Proportionality

The Principle of Proportionality is codified by Article 57 of Additional Protocol I to the Geneva Conventions.

It can be viewed as harm caused to civilian properties or the environment must be proportionate and not excessive in relation to the concrete and direct military advantage anticipated by an attack on a military objective[35]; and disproportionate attacks to the environment leading to massive environmental damages would be regarded as excessive in relation to the anticipated direct military advantage gained and these responses would be considered illegal.

The Principle of Military Necessity

“To destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war”[36]. 1907 Hague Convention IV as Article 23(g)

Under the principle of military necessity, an attack or action must be intended to help in the military defeat of the enemy; it must be an attack on a military objective[37]. The usage of military forces are only justified to the extent where necessity to be achieved against a defined military objective and the principle prohibit military actions that do not serve any evident military purpose. The harm caused to civilians or civilian property must be proportional and not excessive in relation to the concrete and direct military advantage anticipated.

This principle directly protects the environment as lands, farms and factories are often considered civilian properties. However, it is also dependant on the judgement of field commanders in battles. Military necessity and proportionality principles are rarely subject to domestic or international legal challenge unless the methods of warfare used are illegal[38].

The Principle of Humanity

 “The consequences of the principle of Humanity are not so much boundaries and guidelines for the action, as the other Fundamental Principles are: the principle of Humanity is rather a constant reminder of what the objectives of the Movement are. The principle of Humanity expresses what the Movement places beyond anything else: the need to act in order to prevent and alleviate human suffering”[39]. International Foundation of Red Cross and Red Crescent Societies: Principles and Values. Consequences of the Fundamental principle of Humanity

In the light of principle of humanity, the altering of environments to achieve inhumane purposes are prohibited[40]. This includes the poisoning of wells as well as the destruction of agricultural land and other resources that contribute to the sustenance of the population could be considered “inhumane” means of warfare[41].

Customary International Humanitarian Law (2005)[42]

“This list is based on the conclusions set out in Volume I of the study on customary international humanitarian law. As the study did not seek to determine the customary nature of each treaty rule of international humanitarian law, it does not necessarily follow the structure of existing treaties. The scope of application of the rules is indicated in square brackets. The abbreviation IAC refers to customary rules applicable in international armed conflicts and the abbreviation NIAC to customary rules applicable in non-international armed conflicts. In the latter case, some rules are indicated as being “arguably” applicable because practice generally pointed in that direction but was less extensive”[43]. Customary International Humanitarian Law

Rules 43, 44 and 45 provide direct protection to the environment and the principles of distinction, proportionality, military necessity as well as humanity further support these customary international humanitarian rules.

The Natural Environment (Customary International Humanitarian Law, March 2005)[44]:

Rule 43: The general principles on the conduct of hostilities apply to the natural environment: A. No part of the natural environment may be attacked, unless it is a military objective; B. Destruction of any part of the natural environment is prohibited, unless required by imperative military necessity; C. Launching an attack against a military objective which may be expected to cause incidental damage to the environment which would be excessive in relation to the concrete and direct military advantage anticipated is prohibited.

Rule 44: Methods and means of warfare must be employed with due regard to the protection and preservation of the natural environment. In the conduct of military operations, all feasible precautions must be taken to avoid, and in any event to minimise, incidental damage to the environment. Lack of scientific certainty as to the effects on the environment of certain military operations does not absolve a party to the conflict from taking such precautions.

Rule 45: The use of methods or means of warfare that are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment is prohibited. Destruction of the natural environment may not be used as a weapon.

International Policy Tools[45]:

United Nations General Assembly Resolutions[46]:

“Destruction of the environment and not justified by military necessity and carried out wantonly is clearly contrary to existing international law”…“urges States to take all measures to ensure compliance with the existing international law”…“becoming Parties to the relevant international conventions”…“incorporating these provisions of international law into their military manuals.”[47]

The Resolution in 1995 of UNGA to the implementation of agreements on arms control directly addressed armed conflict and environmental degradation. A/ RES/50/7 6 November 1995[48] comprehended the importance of protection to environments in treaties and agreements regarding arms control.

Furthermore, the reorganisation of “the potential harmful effects of the use of armaments and ammunitions containing depleted uranium on human health and the environment” highlights the detrimental environmental of nuclear weapons as well as “positive potential implications for the environment of a future comprehensive nuclear-test-ban treaty”[49] has had the resolutions addressing depleted uranium-related issues[50].

The San Remo Manual (1994)[51]:

The San Remo Manual stipulated that Parties to the conflict are encouraged to agree that no hostile actions will be conducted in marine areas containing rare or fragile ecosystems or the habitat of depleted, threatened or endangered species or other forms of marine life[52]; and methods and means of warfare should be employed with due regard for the natural environment taking into account the relevant rules of international law. Damage to or destruction of the natural environment not justified by military necessity and carried out wantonly is prohibited[53].

The San Remo Manual also recognised that vessels designated or adapted exclusively for responding to pollution incidents in the marine environment are exempt from attack[54].

Conclusion:

The current existing International Humanitarian Laws framework on environmental protection holds Protocols and Treaty laws which either directly or indirectly concern environmental damages as well as governing the legitimacy of usage of natural resources during armed conflicts. However, the implementation and enforcements of these provisions have not been effective in practice. While Articles 35 and 55 of Additional Protocol to the 1949 Geneva Conventions effectively protects the environment during armed conflict; the requirement of all three conditions must be established to prove for a violation[55]. Thus it would be nearly impossible to achieve in practice.

The principles of distinction, proportionality, military necessity as well as humanity reinforce the agenda of International Humanitarian Laws and provide protections to environments during armed conflict. They frequently present as sources of laws on their own[56] and can be applied to most warring States. Along with the principles of International Humanitarian Law, provisions which govern the protection of civilian objects and properties could also provide more effective legal basis for protecting the environment during armed conflict. While these principles are generally accepted, the “practical difficulty of establishing the threshold of these principles, which lack internationally agreed standards, makes it easier to justify almost any environment damage if the military necessity is considered to be sufficiently high. Thus limiting the practical effectiveness of these principles for preventing damages to the environment”[57].

There are still immense gaps in which Protocols and treaty laws to the applicability of non-international conflicts. Many rules contained within treaties are not universally applicable to all States and this brings about the major limitations of the practical relevance and effectiveness of them, particularly in view of the fact that many have no ratified. The enforcement and implementation particularly to those States who are not a party to them is a must if proper international framework in environmental protection wishes to be established. It would be therefore required for all States to become a part of the major treaties and to ratify to ensure that International Humanitarian Law protection for the environment is real and effective[58].

However, even if every state has ratified towards the treaties and protocols, there are only few norms of International Humanitarian Law that explicitly address the issue of environmental protection, and in most cases, the environment is better protected indirectly by other norms regulating the means and methods of warfare or protecting civilian persons and objects. The indirect means can be seen to provide significantly more comprehensive protection than the norms of International Humanitarian Law that protects the environment[59].

Reference

Articles Used:

• The Environmental Consequences of War: Legal, Economic, and Scientific Perspectives; Edited by: Jay E. Austin And by: Carl E. Bruch
• World Resources Institute; Armed Conflict, Refugees, and the Environment: Wendy Vanasselt July 2003
• Protecting the Environment During Armed Conflict; An Inventory and Analysis of International Law: UNEP
• Malviya, R.A. (2001). Laws of armed conflict and environmental protection: An analysis of their Inter-relationship. ISIL Yearbook of International Humanitarian and Refugee Law, Sydney.
• The Martens Clause and the Laws of Armed Conflict by Rupert Ticehurst BA LLM is Lecturer in Law, King’s College School of Law, London
• Schmitt, Michael N. (2000). “War and the environment: Fault lines in the prescriptive landscape.” In J.E. Austin and C.E. Bruch (Eds.)
• The environmental consequences of war: Legal, economic, and scientific perspectives. Cambridge University Press, Cambridge.
  • Bouvier, A. (1991). “La protection de l’environnement naturel en période de conflit armé.” Revue Internationale de la Croix Rouge, No. 792 & Antoine, P. (1992).
  • Lijnzaad, L. and Tanja, G. (1993). “Protection of the environment in times of armed conflict: The Iraq-Kuwait War.” Netherlands International Law Review, Vol. 40, p. 180.
  • Kellman, B. (2000). “The chemical weapons convention: A verification and enforcement model for determining legal responsibilities for environmental harm caused by war.”
  • J.E. Austin and C.E. Bruch (Eds.), The environmental consequences of war: Legal, economic, and scientific perspectives. Cambridge University Press, Cambridge.
  • Fleck, D. (1996). “Current legal and policy issues.” In J. Dahlitz (Ed.), Future legal restraints on arms proliferation. United Nations, New York and Geneva.
  • Bruch, Carl et al. (2007). Constitutional environmental law: Giving force to fundamental principles in Africa. Environmental Law Institute, Washington, DC, and UNEP, Geneva.
  • ICRC Commentary on Additional Protocol I to the Geneva Conventions: http://www.icrc.org/ihl.nsf/COM
  • Shamash, Hamutal Esther, “How Much is Too Much? An Examination of the Principle of Jus in Bello Proportionality. Israel Defense Forces Law Review, Vol. 2, 2005-2006 Available at SSRN: http://ssrn.com/abstract=908369
  • International Foundation of Red Cross and Red Crescent Societies: http://www.ifrc.org/what/values/principles/humanity.asp
  • International Foundation of Red Cross and Red Crescent Societies: Principles and Values. Consequences of the Fundamental principle of Humanity
  • San Remo Manual on International Law Applicable to Armed Conflicts at Sea, 12 June 1994: International Humanitarian Law – Treaties & Documents ICRC

Treaties and Protocols Used:

• The Hague Convention II (1899)
• Additional Protocol I to the 1949 Geneva Conventions (1977)
• UN Convention on the Prohibition of Military or Any Other Use of Environmental Modification Techniques   (1976)
• Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects   and Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons (1980)
• The Hague Convention IV (1907)
• The Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (1925)
• The Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological and Toxin Weapons and on their Destruction (1972)
• Chemical Weapons Convention (1993)
• Comprehensive Nuclear-Test-Ban Treaty (1996)
• Tlatelolco Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean (1967)
• Protocol II and Protocol V to the Convention on Certain Conventional Weapons (1980)
• Convention on Cluster Munitions (2008)
• The Geneva Convention IV and Additional Protocol I and Protocol II to the Geneva Conventions (1949)
• Customary International Humanitarian Law (2005)
• United Nations General Assembly Resolutions
• The San Remo Manual (1994)

Principles Used:

• Principle of Humanity
• Principle of Proportionality
• Principle of Distinction
• Principle of Military Necessity