Law of armed conflict: Deficiencies and 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 Hague Conventions (1907), nor do they address specific environmental issues. And, granting that the rules of war are sufficient, perhaps what is needed is to ensure greater compliance with the rules. But to be able to comply, it is necessary to clarify and interpret the scope and context of some of those rules.

For instance, what constitutes “widespread, long-term and severe damage” to the environment? There is a need for the stricter application of the principle of proportionality and a more precise definition of its scope in specific situations. Also, the importance of defining with certainty the threshold of application of the rules, the need for a clear decision regarding the applicability in wartime of provisions of international environmental law and the advisability of setting up a mechanism to sanction breaches thereof.

The Kosovo conflict

Destruction of the environment featured much in “pocket” wars around the world. The Kosovo conflict is a case in point. According to reports, a fertilizer, oil refinery and petrochemical plant complex in Pancevo, 10 miles from Belgrade, was deliberately and repeatedly bombed. NATO (North Atlantic Treaty Organization) 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. Typically, military commanders balance the military necessity of destroying targets against the undesirable civilian and environmental impact.

Other categories of environmental concern in wartime Kosovo were the pollution of the Danube River resulting from the bombing of industrial facilities; impact of the war on protected natural areas; and the use of depleted uranium shells and cluster bombs.

Interestingly, at the height of the NATO bombing campaign, Yugoslavia filed a case before the International Court of Justice (ICJ) at The Hague alleging breaches of “the obligation not to cause considerable environmental damage,” “the obligation not to cause farreaching health and environmental damage” and “the obligation not to use prohibited weapons.”

The Gulf War

Be that as it may, NATO’s actions in Kosovo were significantly less expansive than those of the United States and its allies in the 19901991 Gulf War. Reports pointed out how the US and coalition forces devastated Iraqi factories and refineries, employing the same necessity justification; dropped millions of cluster bombs leaving an estimated 1.2 to 1.5 million unexploded bomblets in the Persian Gulf; and littered the desert with an estimated 320 tons of depleted uranium.

Earlier, the Vietnam War showed what could happen when defoliation was not implemented to destroy forests per se but was a strategy used to eliminate cover for enemy fighters in jungle areas.

However, because two NATO countries — the US and Spain —

do not recognize the compulsory jurisdiction of the ICJ and had not consented to jurisdiction in the case at hand, the ICJ held that it manifestly lacked jurisdiction against them. Otherwise, the ICJ could have examined the NATO bombing campaign in the light of the prohibition on indiscriminate attacks.

NATO’s assertion that the anticipated important military advantage to be gained as a result of the attacks outweighed the incidental human and environmental loss “underscores the highly subjective nature of the assertion as well as the lack of meaningful criteria for evaluating it.” NATO’s decision could have been reviewed by the ICJ and its rationale called into question. Curiously, even in dismissing the case, the ICJ opined “the Court is profoundly concerned with the use of force in Yugoslavia … which, under the present circumstances, such use raises very serious issues of international law.”

Challenges to law of war

A deficiency in the current law of armed conflict is with regard to the prohibition of hostile military activities in natural sites or protected areas referring to “natural areas of outstanding international significance from the point of view of ecology, history, science, ethnology, anthropology or natural beauty which may include areas designated under any international agreement or inter-governmental program which meets the criteria.”

A listing of such natural areas of “outstanding international significance,” for example, exists under the 1971 Ramsar Convention on Wetlands which maintains a List of Wetlands of International Importance (Ramsar List) and makes available to countries with degraded wetlands on the list opportunities for financial assistance for rehabilitation purposes.

Additionally, the Vietnam War, the Kosovo conflict and the Gulf War emphasized gaps in the current scientific and economic methodologies for assessing and valuing the environmental consequences of war. For one, the environmental and health impact of an armed conflict is difficult to assess and predict. Baseline environmental conditions are uncertain, and it is difficult to discern which contamination is due to wartime trans-boundary pollution due to inadequate or nonexistent monitoring facilities.

Proof of direct causation is lacking and even if the ecological and health impact can be accurately estimated, the economic value may be difficult to determine for purposes of assessing liability or setting cleanup priorities. Simply said, war introduces many difficulties in applying traditional peacetime valuation methodologies.

Other unanswered questions

Indeed, more legal effort is necessary to answer questions unresolved by existing law. Should there be an International Court of the Environment with jurisdiction, among others, over environmental damage and crimes? What about creating a no-fault international environmental remediation fund that could overcome troublesome gaps in the civil and criminal liability approaches. Above all, the need is for a mechanism which, together with the entire body of law protecting the environment in times of armed conflict, can be practically and efficiently implemented.