Article by Parimal Kashyap
A Brief History of the Legal Framework on Protection of Environment in Armed Conflict
Protection of the environment during armed conflicts is relatively new to international law. As owing to the anthropocentric nature of international humanitarian law, the environment has always been a sidelined issue.
Protection of the environment, therefore, does not find any direct mention in the foundational treaties of the law. In fact, much of the groundwork for protection of environment during armed conflict began only in the aftermath of Vietnam War and armed conflicts spurting out during decolonization. Use of Agent Orange by the US in Vietnam as part of its military strategy meant that environment could well be intentionally sabotaged to gain military benefits.
Concerned by these worrisome developments, the Convention on the Prohibition of Military or Any Hostile Use of Environmental Modification Techniques (hereinafter ‘ENMOD’) was adopted. ENMOD obligated state parties 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”. Later, when Additional Protocol I to the Geneva Conventions was adopted, two similar clauses for protection of environment were included
First signs of inadequacy of newly formed treaty law on this issue were seen in the early 90s as the first Gulf War saw environment being made an object of attack. Massive destruction of the oil wells in Kuwait and its adverse impact on the environment of Middle East prompted the international community to demand an overhaul of the legal regime on protection of environment in armed conflict. The General Assembly encountered constant demand for a comprehensive convention on this issue. However, owing to the resistance posed by the great military powers, the matter was quietly buried by the General Assembly.
Insertion of a provision for the environment under the Rome Statute has been perhaps the only significant progress made in improving the normative setup on protection of environment during armed conflicts. However, to date no person has ever been indicted for harm caused to environment for actions during armed conflict. Given the current setup, it is highly unlikely that the court will be able to prosecute someone for war crime of intentionally destroying the environment during armed conflict and the reasons shall be cleared from the following discussion.
Deficiencies in the Current Treaty Law
As discussed earlier, Additional Protocol I and ENMOD are the sole multilateral treaties governing the conduct of parties in armed conflict in context of environment. However, there is a big inconsistency between the provisions of both the treaties. Article 35(3) of Additional Protocol I reads as: “it is prohibited to employ methods and means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment”. The condition or the threshold in both the treaties differs as Additional Protocol I employs a ‘conjunctive’ test as opposed to ENMOD’s ‘disjunctive’ test. Further, the interpretation of the terms also differs in both the treaties. For example, duration element in ENMOD was to be interpreted to extend to several months while negotiators during the adoption of Additional Protocol I interpreted the element to extend to years. This difference resonates in several inconsistent interpretations.
The legal setup is insufficient for many reasons: Firstly, after the adoption of Additional Protocol I, ENMOD is, to a large extent, deserted. This is reflected in ratification rates of both the treaties and much larger recognition of the Additional Protocol I by international community in general. It is here where the problem lies as the terms ‘widespread’, ‘long-term’ and ‘severe’ that lay at the foundation of the provisions are largely imprecise. Hence, if they are interpreted along the lines of drafting history, it will be almost impossible to meet the threshold by means of conventional warfare. Hence, no matter how disastrous the conflicts in Syria and Iraq have been for environment, we may never see successful application of treaty law. Secondly, even if a situation does manage to meet the threshold, the scope of the prohibition remains uncertain which makes it challenging to enforce.
The Customary Law Perspective
Unlike the treaty law regime, there has been an impressive development in opinion juris. Considering the current state of treaty law, the development is relieving for the legal regime on the issue could benefit from the general principles of international humanitarian law. The application of customary law could be especially useful in context of non-international armed conflicts.
International Environment Law in Context of Armed Conflicts
The issue has been largely viewed through the lens of law of armed conflicts. This approach seems perhaps too shallow, especially when it is settled that international law applicable during armed conflicts goes beyond the normative setup of humanitarian law. In the light of the inadequacies in humanitarian law setup, International Environmental Law could be a useful way out. Several notable multilateral environmental treaties call for protection of environment during armed conflict. However, their application in the context of armed conflicts is complicated for several reasons. Firstly, international environmental law is itself in an evolutionary phase. Secondly, its application in the context of international humanitarian law brings several concerns in realm of status of lex specialis norms in international law. These concerns are compounded by apprehensions regarding fragmentation of international law. Hence, if we are to employ provisions of international environment law in context of armed conflicts, more deliberation is required.
To strengthen the normative setup, ILC introduced the issue to its program of the work in 2014. ILC aimed to advance proposals on legal protections against the destruction of the environment during armed conflicts. The issue has managed to be one of the topics that the commission will deal with in its 70th session. Between 2014 and 2018, ILC has published three reports on the issue and it seems clear that study goes beyond the law of armed conflict. The end product of the study will be compilation of draft principles on protection of the environment in relation to armed conflict. As the title suggests, the commission has taken all the phases, i.e. before, during and after the conflict, into account. While such a compressive approach is praiseworthy, drafting principles for pre-conflict as well as post-conflict phases could involve several complexities. Some of those complexities are well reflected in the current the current drafts as several principles are vague.
Environment continues to be a silent victim amidst contemporary armed conflicts. In an era where around twenty percent of the environmental degradation occurs as a direct result of military activities, legal setup must be well-equipped to deter direct or indirect destruction of environment resulting from such armed conflicts. As discussed above, treaty law is imprecise and leaves much of severe environmental harm outside the its scope. The current ILC program could be a milestone in the strengthening the international regime on the issue.
About the Author:
Parimal Kashyap is a 3rd-year law student at Dr. Ram Manohar Lohiya National Law University, Lucknow. He is an editor of RMLNLU Law Review. He has a keen interest in international law.