by Madhura Sapkal, Student at Maharashtra National Law University, Mumbai
Until the 1970s, the environment was not the concern of IHL. In situations of armed conflict, human life is disturbed and the environment is also damaged which contributes heavily to the pollution. It is impossible to avoid environmental damage completely, but legal measures can definitely be taken to mitigate the damage. This blog will aim to provide the currently available legal measures for the protection of the environment in times of war. Also, it will look into the challenges and effectiveness of the legal framework.
Until the 1970s, the environment was not the concern of IHL. One may argue that IHL is humanitarian law, concerning only humankind, but one should also not ignore its implications if left untouched. The effects of climate change are noticeable everywhere and armed conflict contributes to it significantly. In situations of armed conflict, human life is disturbed and the environment is also damaged which contributes heavily to the pollution. It is impossible to avoid environmental damage completely, but stringent measures can definitely be taken to mitigate the damage. The scars of the armed conflict on the environment can be best seen in the case of Vietnam and Kuwait.[i] Though the use of natural resources as weapons under International Humanitarian Law is restricted, it was still practised in these cases.
Since the end of World War II, the number of internal conflicts is more than international conflicts. Also, the nature of conflict is ambiguous as various domestic and international actors are involved in it. Identifying the nature of conflict helps in the implementation of respective protocols. The framework for IAC is more specific in nature as compared to NIAC, therefore identifying the nature of conflict helps in taking action. The Civil Wars are long-lasting, and as many actors are involved, parties to the conflict have access to weapons of mass destruction that harm the environment in various ways (debris and rubble responsible for soil and air pollution).
Protection of the environment in armed conflict was brought into the centre stage after introducing the Additional Protocols I&II, which directly concerns environmental harm. But the general provisions are indirect, and additional and specific provisions are inadequate and do not address the issue satisfactorily. Moreover, the specific provisions are in AP-I which leaves internal conflicts. The environmental damage will have some impact on IAC and NIAC. The 1994 guidelines on the Protection of the Natural Environment in Armed Conflict were inadequate, which is why it was updated in 2020. In 2018, the concerns were taken by UN’s International Law Commission, and the Commission decided to come up with a draft for the protection of the environment in the complete period of armed conflict.
This blog will aim to provide the currently available legal measures for the protection of the environment in times of war. Also, it will look into the challenges of interpretation and ICRC 2020 Guidelines on Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict[ii]. Further, it will analyse the International Law Commission (ILC) draft on protecting the environment in times of war.
The legal framework for the protection of the environment in cases of armed conflict
The Vietnam War, which witnessed massive environmental damage, was also the war that was televised which helped in spreading the awareness of environmental damage. There was awareness for environmental degradation, and the concept of environmental protection during armed conflict was first introduced in AP-I in 1977. The legal framework involves direct and indirect protection for environmental protection.
The Additional Protocol I to the Geneva Conventions directly concerns the protection of the environment in conflict situations. Article 35 (3) states that “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 term ‘may be expected’ in the provision is vague as some attacks take longer to show effects. The conflict in the Himalayan region may not show the effects of an attack immediately. Still, attacks have widespread and long-lasting damage to the natural environment after a period of time.[iii] The focus of the article on foreseeable damage often neglects the environmental needs.
Article 55 of the AP I states that “Care shall be taken in warfare to protect the natural environment against widespread, long-term, and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.” The wording of the article is such that it concerns the protection of the environment as long as it affects the population. The article here shows the anthropocentric approach.
ENMOD- the convention aims to prevent the manipulation of the environment as a weapon during hostilities. The convention reads that “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.”[iv] The lower threshold for damage is a step forward for this convention, but at the same time, it concerns intentionally using the environment as a method of attack and does not protect the environment from the actual damage.
Article 8(2)(b)(iv) of the Rome Statute states that “intentionally launching an attack in the knowledge that such attack will cause … widespread, long-term and severe damage to the natural environment which would be excessive concerning concrete and direct military advantage anticipated.”
The majority of indirect provisions are found in the article of AP-I: Prohibition of indiscriminate attacks (Article 51), Protection of civilian objects, which could include aspects of the environment (Article 52), Prohibition of attacks on objects indispensable to the civilian population’s survival.
Effectiveness of Legal Framework
Though the ENMOD and AP-I have almost the same wording, the threshold for damage differs. In case of widespread, long-lasting or severe damage, seldom one or two conditions are fulfilled. For example, the current conflicts going on Himalayan Region[v] can have widespread and long-lasting effects on its flora and fauna, but there may not be severe damage. The ENMOD talks only about damage arising from environmental modification techniques.[vi] Though the ENMOD has a lower threshold, there are limitations on attacks to be considered damaging the environment, narrowing the scope of application. On the other hand, AP-I, which has a high threshold (which is rarely met) and concerns only IAC, would not concern itself with such a situation because there is no severe damage. Due to the development of customary international law, the attacks severely damaging have decreased, but there are widespread and long-lasting effects that massively contribute to climate change.
The fundamental of customary international law is that methods and means of warfare are not unlimited. The indirect provisions of the IHL consider the environment as a ‘civilian object’, and an attack should be made considering the environment. The ambiguity as to what extent ‘military necessity’ lies. The same issue of interpretation grapples with the proportionality principle. Article 53 of the Geneva Convention states that the destruction of property in occupied territory “except where such destruction is rendered necessary”. In the Gulf War, Iraq set ablaze more than 500 Kuwaiti Oil wells, which had a negative impact spreading to the neighbouring states to have black snow. Despite Iraq not being party to the AP-I at that time, this situation did not satisfy AP-I’s conditions. What proportionality such devastating attacks must have.
As previously mentioned, there has been a significant rise in the NIAC. There is no direct protection given to the environmental damage in NIAC and the existing protection is inadequate, making the environment even more vulnerable. In cases of civil wars, the customary principles of distinction, proportionality and necessity are used. But there are loopholes as well as insufficient literature to interpret correctly. Further, as non-state actors are involved, they often do not sign the treaty and rarely adhere to the principles.
The draft proposed by ILC contains 28 principles. The principles aim to protect the natural environment throughout an armed conflict. Along with preventive measures, the ILC Draft also provides remedial measures, including post-conflict environmental assessments, compensation to individuals and communities affected and compensation that contributes to the peace-building and reconstruction efforts. The obligations under the ILC draft are similar and do not create new legal obligations. Rather, they articulate the current/existing international obligation from different sources of relevant law such as International Human Rights Law (IHRL), International Criminal Law (ICL), International Humanitarian Law (IHL), and International Environmental Law.
With the commission being set up, it is expected that there will be significant changes in the way the environment is dealt with. But these draft principles are merely advisory and ponder upon the existing legal obligations. Also, these draft principles put an obligation on the respective states to ensure all the protections are met. The country going through civil wars might not have enough resources or power to make laws and make a party to the conflict obligatory. The similar is the case with ICRC 2020 Guidelines, which recommends and does not make it an obligation.
The issue of the environment has not been given importance in the past, and at present, the provisions merely exist for the namesake purpose. There are myriad loopholes, and violations are clear, but they seldom fall into the bracket due to ambiguity. There are more problems than ambiguity, such as countries not being a party to the convention or treaty, which gives them way out of all violations. The domestic courts in the majority of the situations do not look at environmental damage with a similar gravity as that of Human Rights. Environmental issues should be looked at with the same intensity as using nuclear weapons.
Further, the growing numbers of NIAC and lack of direct provisions deteriorating the conditions. Through the ILC draft principles have heavily dealt with the issue of NIAC, it is not obligatory. The environment is looked at from anthropocentric lenses, which puts the environment on a secondary basis. The environment should be understood in the broadest sense possible, and the separate legislation biding all the parties in the conflict should be made to adhere to environmental protection laws should be given priority.
Disclaimer – All views and opinions expressed in this article are personal and belong solely to the author(s) and do not necessarily represent those of the LAABh Foundation or the individuals and institutions associated with LAABh Foundation.
[i] Conflict and Environment Observatory, How does war damage the environment, June 4 2020, https://ceobs.org/how-does-war-damage-the-environment/, Accessed on 5th August 2021.
[ii] 2020 Guidelines on the Protection of the Natural Environment in Armed Conflict, https://shop.icrc.org/guidelines-on-the-protection-of-the-natural-environment-in-armed-conflict-pdf-en.
[iii] Geneva Academy, South Asia: Several Armed Conflicts Affect the Himalayan Region, Academy of International Humanitarian Law and Human Rights, https://www.geneva-academy.ch/news/detail/381-south-asia-several-armed-conflicts-affect-the-himalayan-region, Accessed on 10th Aug 2020.
[iv] Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, Dec. 10, 1976, 1108 U.N.T.S. 17119
[v] Supra Note iii.
[vi] Article 2 of the Convention on the prohibition of Military or Any Other Hostile Use of Environment Modification Techniques, 1977.