ARMED conflict or wars endanger and damage the environment in ways or forms such as the long-lasting chemical pollution on land, maritime and atmospheric pollution, despoliation of land by mines and other dangerous objects, and threats to water supplies and other necessities of life.
The existing law
From the standpoint of customary law, environmental protection during wartime may be inferred from the general protection of the civilian population and property based on the fundamental rule expressed in the 1868 Declaration of St. Petersburg that military actions by States should be limited to the objective of weakening the military force of the enemy. In addition, Principle 24 of the UN Declaration on Environment and Development states: “Warfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary.”
And then of course, there are the principles embedded in the law of war. The principle of necessity asks whether the potential target, weapon or tactic is necessary in order to achieve a legitimate military advantage. The principle of proportionality asks whether, even if an action is necessary, the expected military advantage outweighs the anticipated collateral damage to civilian objects and non-combatants. The principle of non-discrimination asks whether the chosen weapon or tactic sufficiently discriminates between military and civilian objects or between combatants and non-combatants and the principle of humanity requires that militaries use the minimal force necessary to achieve the enemy’s submission.
Together, those principles provide some legal recourse for the protection of the environment against acts of warfare. But apart from those general law of war principles, there are two major groups of international conventions or treaties which protect the environment during wartime.
The first is the Geneva Conventions, a body of treaties governing the behavior of belligerents and provides varying degrees of protection of combatants, prisoners-of-war, civilians and their property, and cultural property.
The second is the Hague Conventions (governing weapons) so named after the Hague Conventions which first sought to ban “weapons that cause unnecessary suffering.” In the course of time, restricted weapons have come to include various exploding munitions, poisonous gas, chemical and biological weapons, blinding lasers and land mines.
Deficiencies and current challenges
Like the rest of international law, international humanitarian law has been slow in providing the environment with a set of rules of law specific to it. Thus, the word “environment” does not even appear in the Geneva Conventions (1949) and the Hague Conventions (1907) mentioned above nor do they address specific environmental issues.
The Kosovo conflict is a case in point. According to reports at the time, a fertilizer, oil refinery and petrochemical plant complex in Pancevo, 10 miles from Belgrade, was deliberately and repeatedly bombed. NATO claimed that in addition to making products for civilian consumption, the Pancevo complex supplied gasoline and other essential materials to the Serb army and therefore was a legitimate military target. Other categories of environmental concern during the war in Kosovo were the pollution of the Danube River resulting from the bombing of the industrial facilities; impact of the war on protected natural areas, and the use of depleted uranium shells and cluster bombs. Earlier, the Vietnam War showed what could happen when defoliation was not implemented to destroy forests per se but was a strategy to eliminate cover for enemy fighters in jungle areas. Add to the list the land mines left in Laos and Cambodia.
An emerging new approach
Currently in circulation for comments by States is a Draft Convention on the Prohibition of Hostile Military Activities in Internationally Protected Areas, an initiative of the International Council of Environmental Law (ICEL), a public interest organization in environmental law development and implementation. Articles worthy of mention are Art.2 which states, “Each resolution adopted by the Security Council to take action under Chapter VII of the Charter, in response to a situation of armed conflict shall include a list of relevant environmentally protected areas, thereby designated as non-target areas in which all hostile military activities shall not be permitted during the armed conflict in question,” and the proposed Art. 3 which says, “Any internationally protected area….shall cease to enjoy such protection when the State Party in whose territory the area is situated : (a) maintains military installations of any kind within….of the area in question, (b) decides to use the area in question to carry out any military activities during an armed conflict.”
Indeed, if an area is interesting to the military for strategic or other reasons, what are the available ways to protect the environment? Art. 3 strives to achieve this by making the protected area uninteresting for the military so as not to be targeted by military operations. The draft convention, however, stopped short of categorizing environmental destruction as a war crime or a crime against humanity considering the potential damage that maybe caused by the development of new and more powerful weapons as well as the perceived deprivation of the benefits of natural resources not only for the present but the future generations as well.
More significant are the suggestions of ICEL, Unesco and the International Committee of the Red Cross at a previous consultation on protection of the environment in general in times of armed conflict, some of which are: 1) Any new instrument concerning the protection of the environment in times of armed conflict should be based on the concept that the environment per se has to be protected; 2) Further international and national measures to prevent harm to the environment be developed. In particular, two lists should be prepared: a catalogue of human activities with hostile purposes injurious to the environment. Some acts would be prohibited absolutely and others would be permitted conditionally. Conduct involving a prohibited act would constitute a grave breach of State duties to protect the environment. Since the environment itself is the object of a State’s duty to provide protection, the list of hostile acts would include, but is not limited to: (i) intentional attacks on the environment; (ii) the manipulation of natural processes causing environmental damage (e.g. contemplating techniques like the alteration of atmospheric conditions to alter weather patterns, ocean current modification (tidal waves, etc.): and (iii) A registry of all protected areas should be completed.
In the light of advances in scientific understanding of environmental damage, States should revise and update their military procedures in order to ensure protection of the environment to the fullest extent possible in times of armed conflict. To illustrate, sinking of oil tankers which could contaminate marine waters and resources therein should be avoided in favor of other military tactics that could prevent or impede delivery of oil on which and adversary State’s military forces depend. Moreover, sites which although not inherently dangerous, are essential to human health or the environment should not be military targets. Examples are water purification facilities and waste treatment plants. Likewise, the UN should establish a system of emergency preparedness and response to protect the environment in times of armed conflict. States should be invited to such a system by offering appropriate expert personnel, logistics, facilities, equipment and funds.
Lastly, damage, actual or potential, and restoration should include all reasonable measures to reinstate or restore damaged or destroyed components of the environment equivalent to those impaired or lost. Compensation in kind shall be required when restoration is not physically possible. For instance, establishing a fish hatchery where a natural nursery for fish is lost or planting a new wetland area in lieu of one which cannot be restored.