Armed conflicts directly and indirectly impact the environment with the damage caused frequently extending over large areas and continuing for years, sometimes even for decades, after the war is over. 1Droege, Cordula, and Marie-Louise Tougas. “The Protection of the Natural Environment in Armed Conflict – Existing Rules and Need for Further Legal Protection.” Nordic Journal of International Law, vol. 82, no. 1, 2013, p. 21-52. These environmental effects have serious consequences for civilians as has been seen in the use of herbicides in Vietnam, the burning of oil wells during the first Gulf War, the polluting of groundwater in the Gaza Strip in 2008, and deforestation in the Democratic Republic of the Congo.2Maurer, P. (2021). Protecting the Natural Environment in Armed Conflict. Environmental Policy and Law, 51(1-2), 21–24. The environment is not only a casualty in armed conflicts but can also serve as a tool with which to wage war and as a result may be used for military advantage. It can also cause more conflict, with environmental effects and environmental damage leading to greater competition over resources. Climate change is considered to be the most significant environmental challenge of our time and poses a real challenge for the protection of civilians during conflicts. Moreover, it may also make conflicts more likely in the future. As with climate change, conflicts are unfair and unevenly distributed, in that they increase the vulnerability of those already vulnerable.3ibid. International humanitarian law does protect the environment during an armed conflict as well as the use of natural resources. However, the law itself is anthropocentric, focusing as it does on the protection of civilian life and reduction of human suffering rather than allocating intrinsic value to the environment itself.4ICRC (2020), Guidelines on the Protection of the Natural Environment: Rules and recommendations relating to the protection of the natural environment under international humanitarian law with commentary, ICRC, Geneva As such, many argue, it does not adequately protect the environment during an armed conflict.
This month’s theme at the Diplomacy, Law and Policy forum is the climate and conflict. The articles on the website consider whether climate change acts as a driver of conflict, the ways in which climate change is linked to sexual violence in conflict, and whether ecocide should be an international crime. This editorial explores environmental damage during an armed conflict and the ways in which IHL protects the natural environment.
Armed Conflicts and the Environment
Armed conflicts cause significant harm to the environment as well as to communities which rely on natural resources – more often these are vulnerable communities which are in turn harmed by both the conflict and the resultant environmental damage it causes.5“Protecting the Environment during Armed Conflict: An Inventory and Analysis of International Law.” Global Environmental Law Annual, 2013, 2013, p. 187-268. Natural resources such as water, soil, trees, and wildlife are sometimes called the “wealth of the poor” and their destruction can affect livelihoods, increase poverty, force migration and spark conflicts.6ibid. Many civil wars in the past few decades have been fuelled by natural resources such as diamonds, timber, oil, minerals and cocoa.7ibid. Moreover, many international armed conflicts have also involved huge amounts of environmental damage. For instance, the U.S. used chemical defoliants in Vietnam which caused large-scale human suffering through death, cancer, mutations, and birth defects, as well long-term environmental contamination and the destruction of forests and wildlife.8ibid. During NATO’s bombing of Kosovo in 1999, industrial sites were bombed which led to toxic chemical contamination in some areas.9ibid. The conflict between Israel and Lebanon in 2006 led to 12,000 to 15,000 tons of oil being released into the sea after Israel bombed the Jiyeh power station.10ibid.
The risk of conflict is also looking to increase owing to environmental changes. The United Nations Intergovernmental Panel on Climate Change has warned that current climate change patterns will produce “irreversible changes in major ecosystems and the planetary climate system”.11IPCC, Press Release, Climate change widespread, rapid, and intensifying – IPCC The IPCC report of 2021 makes for alarming reading. It states that over the next 20 years, the global temperature is expected to reach or exceed 1.5°C of warming and unless there are immediate, rapid and large-scale reductions in greenhouse gas emissions, limiting warming to close to 1.5°C or even 2°C will be beyond reach.12ibid. There has been much research done on the correlation between climate change and armed conflict, though it has remained inconclusive as to whether there is a direct link between the two.13Koppe, Erik V. “Climate Change and Human Security during Armed Conflict.” Human Rights & International Legal Discourse, vol. 8, no. 1, 2014, p. 68-83. Some argue that there is a strong causal connection and that climate change will substantially increase conflict around the world.14Ibid; see also Saul, Ben. “Climate Change, Conflict and Security: International Law Challenges.” New Zealand Armed Forces Law Review, 9, 2009, p. 1-20 Others say it operates as a threat multiplier, in that it makes the situations ripe for unrest, such as poverty, poor governance, migration, inequality over resources, more likely.15ibid.
IHL Provisions which Protect the Environment during an Armed Conflict
Direct Protection under Additional Protocol I
There are a number of rules in IHL which directly or indirectly protect the environment during an armed conflict. Some argue that these are inadequate due to their lack of clarity and due to the fact that they are excessively restrictive.16Bothe, Michael, et al. “International law protecting the environment during armed conflict: gaps and opportunities.” International Review of the Red Cross, vol. 92, no. 879, September 2010, p. 569-592. However, their framing proceeds from the assumption that environmental damage during an armed conflict is inevitable and therefore do not endeavour to prevent this damage entirely.17Wolfrum, Rudiger. “The Protection of the Environment in Armed Conflict.” Israel Yearbook on Human Rights, 45, 2015, p. 67-86. Instead, they aim to limit collateral environmental damage to a tolerable level and eliminate ecological warfare through the use of modification techniques as a means and method of warfare.18ibid.
Additional Protocol I was negotiated after the Vietnam War and the international community’s reaction to actions taken during the war, particularly the use of Agent Orange to defoliate Vietnam’s jungles are apparent. Articles 35 and 55 of Additional Protocol I protect the environment during an armed conflict by prohibiting 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 55 also specifically protects the environment within the context of protecting civilian objects and prohibits attacks on the environment as a form of reprisal. However, an issue with these provisions is that both use the terms “widespread, long-term, and severe damage” and both require that all three conditions be met for their breach. The meaning of the terms is also stringent, with long-lasting being interpreted to mean lasting for decades, ‘widespread’ is understood to refer to several hundred square kilometres, and ‘severe’ means a serious disruption of the ecosystem.19Droege, Cordula, and Marie-Louise Tougas. “The Protection of the Natural Environment in Armed Conflict – Existing Rules and Need for Further Legal Protection.” Nordic Journal of International Law, vol. 82, no. 1, 2013, p. 21-52. This standard is very high and some argue do not sufficiently protect the environment given they are almost impossible to achieve.20“Protecting the Environment during Armed Conflict: An Inventory and Analysis of International Law.” Global Environmental Law Annual, 2013, 2013, p. 187-268.
Indeed, the threshold has not yet been reached in jurisprudence. The Eritrea-Ethiopia Claims Commission held, regarding Ethiopia’s claim for damages for environmental destruction in its conflict with Eritrea, that the allegations and evidence of destruction fell below the threshold of widespread, long-term and severe.21Eritrea-Ethiopia Claims Commission, Ethiopia’s Central Front Claim, Partial Award, 2003, para. 100 Similarly, the high standard set was noted by the Special Committee established by the International Criminal Tribunal for the Former Yugoslavia in the Yugoslavia v. NATO case.22ICTY, Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, 19 (June 13, 2000) The Committee’s report examined the environmental damage caused by NATO by bombing chemical plants and oil installations, noted that Article 55 of Additional Protocol I may reflect customary international law but concluded ultimately that “Articles 35(3) and 55 have a very high threshold of application. Their conditions for application are extremely stringent and their scope and contents imprecise. Consequently, it would appear extremely difficult to develop a prima facie case upon the basis of these provisions, even assuming they were applicable.”23ibid.
Moreover, the standard for criminal accountability for environmental damage is also very high. Article 8(2)(b)(iv) of the Rome Statute states that it is prohibited to “intentionally launch an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated” thereby adding the tests of proportionality and military necessity to the triple requirements of widespread, long-term and severe. However, this is not formulated in the Statute as a ‘grave breach’ of the Geneva Conventions and therefore States are not formally obliged to prosecute this as a crime. Furthermore, there is no corresponding war crime for non-international armed conflicts, leaving a lacuna in its enforcement in civil war contexts.
State responsibility for environmental damage caused during an international armed conflict has rarely been enforced, with one exception; that of holding Iraq accountable for damages to Kuwait during the first Gulf War.24“Protecting the Environment during Armed Conflict: An Inventory and Analysis of International Law.” Global Environmental Law Annual, 2013, 2013, p. 187-268. The retreating Iraqi army had intentionally destroyed over 600 oil wells in Kuwait and then Iraq had to pay 85 billion USD to compensate for the harm caused to the environment.25ibid. The Security Council held that Iraq was liable for the environmental damage and established the UN Compensation Commission to provide for compensation.26UNSC Resolution 687, 3 April 1991 The UN General Assembly has also passed a resolution stating that Israel is to provide prompt and adequate compensation to Lebanon for the environmental damage caused by the oil spill during the 2006 conflict between the two nations. However, the General Assembly lacks the enforcement measures available to the Security Council.
The Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD Convention) entered into force in 1978 and was also negotiated following the Vietnam War. The treaty prohibits the use of environmental modification techniques which weaponise the environment, such as by provoking earthquakes, tsunamis or weather changes. Article 1 prohibits State parties from using such techniques which have widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party. This is a lower threshold of damage which requires merely that any of these standards be met, i.e. that the damage be either widespread, long-lasting, or severe. Moreover, the terms are defined differently, while ‘widespread’ is similarly understood to encompass an area on the scale of several hundred square kilometres; ‘long-lasting’ is defined as lasting a period of months or around a season, and ‘severe’ involves serious or significant disruption or harm to human life, natural economic resources or other assets.27Thadani, Karmanye, and Rohit Ayyagari. “Law of Armed Conflict and the Environment.” Environmental Policy and Law, vol. 45, no. 6, November 27, 2015, p. 285-290. However, it does not protect the natural environment generally during conflict, just prohibits using the environment as a weapon. It has been argued that the agreement has been a success as no tactics such as those seen in Vietnam have been employed since.28“Protecting the Environment during Armed Conflict: An Inventory and Analysis of International Law.” Global Environmental Law Annual, 2013, 2013, p. 187-268.
The Convention on Certain Conventional Weapons and the Inhumane Weapons Convention (CCW) also restates the prohibitions in Additional Protocol I in its Preamble – prohibiting means and methods of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment. An amendment to Article 1 of the Convention also extends its application to non-international armed conflicts governed by Common Article 3 of the Geneva Conventions. Article 2(4) of the Third Protocol to the CCW prohibits making forests or other kinds of plant cover the object of attack unless they are used to cover, conceal, or camouflage combatants or other military objectives or are themselves military objectives.
Indirect protection of the environment is also achieved through provisions which regulate the means and methods of warfare or protect civilian property and objects during an armed conflict, as these will also often protect natural sites.29“Protecting the Environment during Armed Conflict: An Inventory and Analysis of International Law.” Global Environmental Law Annual, 2013, 2013, p. 187-268 The environment, when it is a civilian object, is protected by the principle of distinction.30Article 48, Additional Protocol I However, the issue arises with the fact that the environment can also be used as a military objective – in that it may contribute effectively to military action and its neutralisation may offer a military advantage, such as in the case of a hill offering a vantage point or a mountain pass offering a shortcut to the enemy.31See Bothe, Michael, et al. “International law protecting the environment during armed conflict: gaps and opportunities.” International Review of the Red Cross, vol. 92, no. 879, September 2010, p. 569-592. In Vietnam, the trees provided camouflage and therefore arguably their defoliation offered a concrete and definite military advantage.32ibid. Environmental damage could also be seen as ‘disproportionate’ and similarly those methods and means of warfare which destroy resources which sustain a civilian population could be considered ‘inhumane’.33“Protecting the Environment during Armed Conflict: An Inventory and Analysis of International Law.” Global Environmental Law Annual, 2013, 2013, p. 187-268.
The International Court of Justice in its Nuclear Weapons Advisory Opinion directed States to account for the environment in determining what would be necessary and proportionate in the pursuit of legitimate military objectives.34Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, 241 (July 8) Article 54(2) of Additional Protocol I also prohibits attacks against objects indispensable to the survival of the civilian population, which may also protect natural resources such as agricultural land, cattle, and drinking water which would be seen as important for a population’s livelihood. This is replicated in non-international armed conflicts by Article 14 of Additional Protocol II. Article 56 of Additional Protocol I prohibits attacks against works and installations containing dangerous forces, such as dams, dykes and nuclear electrical generating stations, replicated also in Article 15 of Additional Protocol II to apply to non-international armed conflicts. These provisions were included as there had been a history of military forces destroying dams and flooding land in order to stop invasions. For instance, in 1938, Chinese armed forces destroyed the Huayuankow Dam on the Yellow River to stem the invasion of Japanese forces by flooding the land.35Wolfrum, Rudiger. “The Protection of the Environment in Armed Conflict.” Israel Yearbook on Human Rights, 45, 2015, p. 67-86. However, the flood destroyed millions of acres of farmland and killed thousands.36ibid. The same tactics were used by Germany in 1944 when dykes were opened in the Netherlands to destroy agricultural land.37ibid.
International Environmental Law
The need to protect the environment during an armed conflict is also found in provisions of international environmental law. Principle 24 of the Rio Declaration states that “[w]arfare 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.”38Rio Declaration on Environment and Development, U.N. Doc. A/CONF.151/5/Rev.1 (June 14,1992) The inclusion of this principle seems to have been inspired by the Iraqi assault on the environment in Kuwait during the first Gulf War.39van der Vyver, Johan D. “The Environment: State Sovereignty, Human Rights, and Armed Conflict.” Emory International Law Review, vol. 23, no. 1, 2009, p. 85-112.
There are many prisms through which the environment can be linked to conflict – it can be a casualty of conflict, used as a tool for warfare, it can cause armed conflict in the form of climate change, and conflicts can also be responsible for climate change. IHL does provide protection for the environment in times of armed conflict, however, it has been argued that these are inadequate due to their stringent conditions and restrictive framing. Some critics advocate for a fifth Geneva Convention which would focus on the environment whereas others argue for a permanent international mechanism which would monitor legal infringements and consider compensation claims for environmental harm during armed conflicts. This process would deter States from reckless environmental damage, enforce environmental protections and ensure that States are held responsible for legal violations.40“Protecting the Environment during Armed Conflict: An Inventory and Analysis of International Law.” Global Environmental Law Annual, 2013, 2013, p. 187-268. Whilst the ways in which the international community will come together to address the impacts on the environment are as of yet unclear, climate change makes it all the more necessary that States cooperate to address the impacts of global warming, prime among them being the increased likelihood of more conflict in the future.