AN APPRAISAL OF THE LEGAL FRAMEWORK FOR INTERNATIONAL ENVIRONMENTAL PROTECTION UNDER
1.1 Historical Background
In modern times, the legal framework for environmental protection during armed conflict i.e. environmental law of warfare, is broadly divided into Principles of Customary International Humanitarian Law of warfare and the treaty provisions of international humanitarian law. The evolution of environmental law of war dates back to period when some basic principles of international humanitarian law were developed. Some of these international humanitarian law principles are that the right of states to use method and means of warfare is not unlimited, the principle of humanity and public conscience popularly known as the Martens Clause, principle of distinction, military necessity and proportionality. The relevance of the principles customary international humanitarian law (IHL) lies in the fact that it binds all states as a general principle accepted as binding, by all nations. Thus, customary IHL is very effective as it does not depend on the consent of state before it become operative.
Despite this advantage, it could not prevent the horror and massive destruction of lives and property experienced during armed World War II. The experiences acquired from successive armed conflicts brought to light the inadequacy of the principles of International Humanitarian Law and the need for a more comprehensive legal regime to protect the environment during armed conflict. This brought out the establishment of various Conventions such as the 1899 Hague and 1907 Hague Conventions, the
Four Geneva Conventions of 1945 and the Two Additional Protocols to the Geneva
Convention of 1977, just to mention but a few.
However, it must be pointed out at this junction that it was not until 1977 through the Additional Protocol I and II that the environment was specifically made an object of protection during armed conflict. In fact, all provisions effort at regulating means and methods of warfare are targeted at protecting the civilian and to reduce human suffering. Thus, effort at protecting the environment during armed conflict through the instrumentality of the international humanitarian law was rather indirect or collateral.
Yet the existence of environmental law of war could not prevent massive destruction of vegetation by the U.S. army during the Vietnam War, could not prevent the attempt by the U.S. to modify the environment to gain military advantage.
The consequences of armed conflict today have gone far beyond human suffering, displacement and damage to infrastructure and homes. Armed conflicts also cause environmental destruction and degradation.
Environmental destruction or degradation or both during wartime whether deliberately or inadvertently done, have been part of war since ancient times. As early as 146 BC, Roman troops razed the city of Coutlage and salted the surrounding earth to sterilize soil. Thus environmental damage in wartime has for decades been recognized as one of the most immediate threats to human existence. This is because the destruction associated with armed conflict spills over to the natural resources such as water, agricultural land, trees and wildlife. The destruction during armed conflict can undermine human survival, act as a driver of poverty and forced migration.
Due to technological advancement, nations have the capability and potential to destroy large areas in a matter of seconds, and such destruction to the environment could be irreversible and for others, it could take many decades to recover. Few examples will suffice. Today, some battlefields of the World War I and World War II remain unfit for cultivation or dangerous to the population because of the unexploded mines and projectile still embedded in the soil. During the Vietnam War, the United States instituted operation Ranch Hand for the purpose of destroying vegetation used by the enemy as cover and as a source of sustenance. It has been estimated that the chemical based incendiary weapons, such as Agent Orange, have caused destruction of eight percent of the regions crop lands, fourteen percent of its forests, and half of its swamp areas.
During the Persian Gulf War, it was reported that the Iraq Forces set fire in more than 160 oil installations. One report suggested that the fires released numerous toxins, including the emission of sulphur dioxide and hydrogen sulphide from the burning oil field. The ensuing oil slick devastated the coral reef communities disrupting the sensitive ecological system .
More recently, in 1999 dozens of industrial sites were bombed during the Kosovo conflict, leading to toxic chemical contamination at several hotspots. In another example, an estimated 12,000 to 15,000 tons of fuel oil were released into the Mediterranean Sea following the bombing of the Jiyeh power station during the conflict between Israel and Lebanon in 2006.
Armed conflict apart from having direct impact on the environment, the environment may equally suffer indirect consequence from armed conflict. For example, overexploitation and illegal exploitation of natural resource particularly high valued resources have been on the increase in recent years to generate revenue for financing armed forces and acquisition of weapons. A report had it that since 1990, at least eighteen civil wars have been fuelled by natural resources. Natural resources like diamonds, timbers, oil, minerals and cocoa have been exploited in internal conflicts in countries such as Democratic Republic of Congo, Cote d’Ivoire, Liberia, Sierra Leone, Angola, Somalia, Sudan, Indonesia and Cambodia just to mention but a few.
In addition to direct and indirect impacts on the environment, armed conflict often weakens already fragile governance structure and causes a disruption of state institutions, initiatives and mechanisms of policy coordination. This in turn creates space for poor management, lack of investment, illegality and the collapse of positive environmental practices. For example, according to national review processes, concessions over natural resources granted during conflicts in countries like Liberia and the Democratic Republic of Congo have lacked legitimacy and often failed to the broader interests of the state.
The foregoing illustrates the direct and indirect as well as the realist potential impact of war on the environment. These impacts increase with technological capability of sates in developing weapon of mass destruction. All these issues suddenly awaken the need to protect the environment that has continued to be the silent victim of armed conflicts.
The evolution of law of armed conflict proceeded without direct consideration of the environment. The Hague Law (regulates method and means of warfare) and the Geneva Law (protects some category of persons and things during (armed conflict) though made oblique reference to the environment.), do not in general tie those prohibitions to the protection of the environment, but to the ultimate impact upon human dignity, survival and welfare. The prohibitions are covered by international human right law and international humanitarian law. These laws represent the desire of the international community at protecting the basic rights of the individual during wartime and peacetime. It was later realized that the rules of international humanitarian law are most often than not, subordinated by military necessity. Thus use of particularly devastating means of warfare could cause a large scale destruction to the environment as to render illusory or even prevent the implementation of provisions to protect the victims of armed conflict.
Although the international community was rudely shaken by the aftermath of the United States environmental devastation during the Vietnam War, it was deliberately
excluded from the 1972 Stockholm Conference on the Human Environment. However, the Stockholm Conference still came up with some declarations that form the bedrock of international environmental law. Though conceived mainly for application in peacetime, they can influence the development of the law for the protection of the environment during armed conflict. Some of these principles are: the obligation for states to avoid causing environmental damage beyond their borders and the obligation for states to respect the environment in general.
Later environmental protection was raised in more specific context of international human right law. It is now recognized that personal growth and happiness cannot be achieved in a severely damaged environment. Thus, right to a healthy natural environment is gaining acceptance as a fundamental human right.
Unfortunately, all these efforts did not prevent environmental destruction during the Persian Gulf War. It was reported that on the 21st January, 1991, the US military in
Kuwait accused the Iraqis in occupation of Kuwait of opening valves at the sea island (Mina al-Ahamadi) oil terminal near Kuwait city and of pumping crude oil into the gulf. Also the coalition bombing and missile attacks resulted in damage to a large number of facilities in including chemical installations, refineries and factories. These destructions to the environment, Iraq’s acts in particular caused a worldwide sense of outrage. That development led to reappearance in the agenda of government, international bodies and others, the need to provide adequate laws to protect the environment in times of armed conflict. In this regard, two significant international meetings where the issues were debated were convened. The first was the London
Conference on a Fifth Geneva Convention on the protection of the Environment in
Time of Armed Conflict of 3rd June, 1991 while the second was the Ottawa
Conference on the Use of the Environment as a Tool of Conventional Warfare of 1012th July, 1991. These conferences have raised awareness on the importance and need to protect the environment during wartime. Yet, to date, there is still no agreement on this topical issues and the environment continues to be the silent victims of modern warfare.
1.2 Literature Review
International environmental law of war is a recent subject of law. Because of the recent nature of the subject of this research, not much text or journal publications exist in it. The few works that exist to the limited knowledge of this writer on the subject of research are examined here.
Prof. Brauer while writing on the topic: The Effects of War on the Natural Environment discusses extensively, the direct and induced effect of war, on the natural environment, and came to the conclusion that among human activities, by far the most damage to the natural environment is wrought not by war, but by peacetime commerce. His preoccupation was a comparison between peacetime commerce and war which is more damaging to the environment. This being his concern, the paper did not consider environmental damage occasioned by armed conflict materially serious to warrant any legal protection. Williams writing under the title land mines. Dealing with the environmental impact concentrates entirely on impact of landmines on human. The paper is devoid almost completely of information on the environmental impact of land mines. Also Westing’s contribution on the environmental aftermath of
Vietnam War deals almost exclusively either with the human impact or with the impact on cultivated environments transmitted to humans. This article deals essentially with the humanitarian aspect of armed conflict. Prof. Barnaby while writing on the environmental impact of Gulf War is similarly empty of actual scientific data on environmental damage assessment. In fact, the article dwells on speculations For example, what could happen and what may happen and what is likely to happen and what will happen to the environment? There is no discussion whatsoever on the actual environmental damage the war has caused.
The point here is that these contributions did not even deliver on the topic chosen by the respective authors i.e. the actual impact of war on the environment not to even talk of identifying or analyzing the legal framework for protecting the environment. Some authors, while discussing the impact of armed conflict on the environment, brims classification of environmental effects of war. These authors are Dahl, LanierGraham, El-baz and Levy. The main draw back with emphasis on classification is that it tends to focus on environmental damages that only have immediate impact on human. These appear to be of no thought of intrinsic or existence value of non-human nature for its own sake. With due respect, Dahl fell into this error.
Jensen’s contribution on the international law of environment warfare focuses on the need to clearly differentiate between active and passive environmental warfare. According to him, active environmental warfare requires the intentional use of the environment as a weapon of waging armed conflict and this violates international law per se, while passive environmental warfare includes acts not specifically designed to use the environment for a particular military purpose but have a degrading effect on the environment and this violates international law only when it produces effects that are widespread, long term and severe. While this distinction may be relevant for the purpose of imposing state responsibility, it is rather too subjective.