Armed conflict: an emerging new approach

RECENT armed conflicts around the world brought to fore much more information on damage to the environment caused by the armed aggression of a country against another. Some legal quarters point at better and more effective implementation of the existing 1977 Protocol 1 additional to the Geneva Conventions (1949) where the provision about damage to the environment incidental to military activities can be found.

The Enmod Convention is also mentioned as a possible recourse, but it covers environmental modification used as a weapon, or a means to cause damage to the enemy, which is a rarity. There is general agreement that much more needs to be done.

Draft conventions in circulation

Currently in circulation for comments 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 Bonn-based public interest organization on environmental law development and implementation with consultative status at the United Nations and the International Union for Conservation of Nature (IUCN), a worldwide environmental organization consisting of States and nongovernmental organizations.

The draft convention, however, stopped short of categorizing environmental destruction as a war crime, or a crime against humanity considering the potential damage that may be caused by developments in 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.

At a consultation of senior international legal experts convened by the same ICEL/IUCN at which the International Red Cross Committee and Unesco (United Nations Educational, Scientific and Cultural Organization) were represented, methods to increase the effectiveness of existing legal norms and proposals to ensure better development of environmental protection in times of armed conflict were recommended.

These include, among others: 1) mapped natural sites designated in the 1971 Ramsar Convention on Wetlands of International Importance, the 1972 World Heritage Convention, the UN List of Parks and Protected Areas, and the Unesco Biosphere Reserve system; 2) all designated cultural and natural sites should be considered as analogous to demilitarized zones; 3) States should be encouraged to enter into bilateral agreements on the establishment of international parks and protected areas in transboundary locations and for the joint protection of habitats, and to enter into other agreements to enhance protection of such parks and protected areas in times of armed conflict.

Significant also are the suggestions of ICEL, Unesco and the International Red Cross 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) In the light of advances in the 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. This necessitates reconsideration of traditional targets.

For example, sinking of oil tankers, which could contaminate the marine waters and resources therein, should be avoided in favor of other military tactics that could prevent or impede delivery of oil on which an adversary States’ military forces depend; 3) The UN should establish a system of emergency preparedness to protect

the environment in times of armed conflict; 4) 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, restoration in kind could include establishing a fish hatchery where a natural hatchery for fish is lost, or planting a new wetland area in lieu of one, which cannot be restored, or any compatible measure where, for example, it may not be possible or practical to remove oil that settled on the sea bed.

Law application vs powerful nations

Actually, the most difficult issue confronting the community of nations in regard to protection of the environment in times of armed conflict is how to apply the law against powerful nations. Examples are: the United States in Vietnam; Russia in Afghanistan; the Western allied forces (including the US, France and the United Kingdom) in the Gulf War and Kosovo; and the US in Iraq.

Certainly, the often quoted old Martens Clause, which provides that where the law of war does not address a particular case, reference should be to the “rule of the principles of the law of nations, as they result from the usages established among civilized people from the laws of humanity and the dictates of public conscience” still expects equal application among nations in the 21st century.

Fast-forward. In that connection, a Covid-19 survivor was quoted as saying, “We can be another generation that was not able to succeed in ending armed conflict, just as we may be the last to have a chance of saving the planet.”