The overarching consideration that the belligerent parties in armed conflicts should adhere to must be the need to avoid unnecessary civilian casualties. This, however, is not the sole concern. In addition to taking into consideration the plight of civilians, belligerent parties will also have to take into account the environment. Environmental issues are linked to armed conflicts in a number of ways. For instance, Article 35(3) of the 1977 Additional Protocol I to the Geneva Convention provides that “[I]t is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment”. Likewise, Principle 26 of the Stockholm Declaration states that “[M]an and his environment must be spared the effects of nuclear weapons and all other means of mass destruction” and Principle 24 of the Rio Declaration provides 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”. Thus, international law addresses the need to protect the environment in times of armed conflicts (see also this post by Dan Bodansky over on Opinio Juris). At the same time, the question of whether depletion of natural resources and the environment is a factor leading to armed conflict is becoming more and more prominent. This is particular the case in relation to climate change, scarcity of water and extraction of raw materials. In addition, some environmentalists are even arguing in favour of “ecological intervention”, supporting armed intervention, along the lines of the argument for humanitarian intervention, in the name of the environment. Thus, there are strong links between the environment and the waging of war.
However, one sometimes overlooked link is the need to care for sustainable utilisation of resources and environmental management in post-conflict situations. This area is the subject of a recently released report by the UN’s Environmental Programme (UNEP), available here (pdf.), titled “From Conflict to Peacebuilding – the Role of Natural Resources and the Environment”. In the Report, UNEP discusses the linkages between armed conflict, peace building and the environment. It could be argued that the main “role to play” for environmental considerations in times of armed conflict is exactly in these situations. When hostilities have ceased, there is a strong need to secure relative normality as quickly as possible in terms of providing basic resources for civilian populations, facilitating a stable agricultural and economic infrastructure by securing the delivery of clean water and other resources etc. all in order to secure the return to normality and alleviate the suffering of civilians. In this light, the Report deserves credit for addressing the link between peace building and the environment (the UN has over 100.000 personal serving in various peacekeeping operations across the world).
The Report makes a number of recommendations. Firstly, the Report recommends that the UN system needs to improve its capacity to deliver early warning and early action in countries that are vulnerable to conflicts over natural resources. This is rather uncontroversial and ideas of early warning seems to very much a “flavour of the day” – calls for early warning systems was also put forward in relation to attempts to address genocide by the US Genocide Prevention Task Force. Secondly, the Report recommends that oversight and protection of natural resources during armed conflicts is improved. Thus, the Report, inter alia, calls for new legal instruments protecting natural resources during armed conflicts. This latter recommendation, however, is likely to prove troublesome as the utilisation of natural resources strikes at the heart of state sovereignty and many states are likely to resist international regulation on this issue. In other words, it is doubtful that international consensus can be reached on this point. More interestingly, the Report calls for the taking into account of sharing of natural resources in the deal-making of peace agreements and indeed in the peacekeeping process. Moreover, the Report recommends that the UN’s peacekeeping operations become better at taking the environment and natural resources into account. The Report notes that often it is not until many years into an intervention that the issue of natural resource management receives attention. This is arguably the most important recommendation of the Report. Although it might seem rather obvious, it is paramount that the peacekeeping missions in place in various countries are aware and equipped to deal with the specific environmental conditions in each country. At the same time, it would appear that this recommendation would not be all that difficult to implement within the existing UN peacekeeping organisation. Finally, the Report recommends that the international community ought to help national authorities in post-conflict countries with better administrating extraction processes.
The UNEP’s report is interesting in that it addresses an extremely important issue. At the same time, it holds some valuable recommendations although some are more realistic and relevant than others. For readers with an interest in the links between the environment and armed conflict, it also holds a series of case studies highlighting the need to take a more integral approach in future peacekeeping operations across the globe.
I am responding to your interesting blog post on protecting the environment in times of armed conflict. Thank you for outlining the discussions of the expert meeting on the issue. I am not at all an expert in environmental law, but I would like to take the liberty to comment on the laws of war related to the natural environment.
You write that “one potential response would be to adopt a new legal rule prohibiting the targeting of chemical facilities, because of the environmental harms likely to result.”
At least three rules of international humanitarian law (IHL) already deal with the issue. First, article 35 of the first additional protocol to the 1949 Geneva Conventions contains the basic rules on the means and methods of warfare and prohibits “to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.” In addition, Article 55 contains the protection of the natural environment as it relates to the health and survival of the population. It demands that “care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.”
The problem of targeting chemical factories may arguably also be covered by Article 56 of the First Additional Protocol to the Geneva Conventions. It stipulates that “works or installations containing dangerous forces, namely dams, dykes and nuclear electrical generating stations, shall not be made the object of attack, even where these objects are military objectives, if such attack may cause the release of dangerous forces and consequent severe losses among the civilian population.” (However, the Commentary of the ICRC mentions that the drafters did not agree to include other installations than the examples listed in the article; in which case the problem of chemical factories would be covered by the two previously mentioned articles.)
The text of the first additional protocol can be found here: http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/f6c8b9fee14a77fdc125641e0052b079
The US and a number of other states have not ratified the first additional protocol to the Geneva Conventions. However, these principles have been identified to be part of customary law. The ICRC Study on Customary Humanitarian Law lists state practice and opinion juris to establish that the prohibition of the use of methods or means of warfare that are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment to be part of international customary law applicable in both international and non-international armed conflicts. According to the study, the natural environment is thus considered to be a civilian object and as such it is protected by the same principles and rules that protect other civilian objects (principles of distinction and proportionality and the requirement to take precautions in attack). This means that no part of the natural environment may be made the object of attack, unless it is a military objective, and that an attack against a military objective which may be expected to cause incidental damage to the environment which would be excessive in relation to the concrete and direct military advantage anticipated is prohibited. The ICRC also pointed out that the ICJ in the Nuclear Weapons Opinion, for example, the International Court of Justice stated that “States must take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legitimate military objectives.”
Your reference to the principle of proportionality is thus highly relevant. At the same time, before any analysis of proportionality is made, one must first establish that the objective is indeed a military objective. Only then, the twofold considerations of a) proportionality and b) precautions in attack come into play. If an objective is not a military objective, the attack is in any event unlawful.
I agree with you that having legal norms on the protection of the environment in wartime is clearly not enough. But before establishing new rules, insisting on the existing rules and disseminating them would be a necessary first step.
Thanks for your input on this issue; I am looking forward to your updates.