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Law of war vs environmental law

September 14, 2019

AMADO S. TOLENTINO, JR.

SINCE time immemorial, the devastation brought about by armed conflict extended beyond the battlefields and caused not only the destruction of lives, but the environment as well. In the recent past, damage to the environment featured much in “pocket wars” around the world as a necessary consequence of armed conflict. Among those: Gulf War — Millions of cluster bombs were dropped in the Persian Gulf and littered the desert with an estimated 320 tons of depleted uranium. Retreating forces set ablaze the oilfields of Kuwait causing pollution of incalculable damage; Kosovo conflict — A fertilizer, refinery and petrochemical plant complex in Pancebo was deliberately and repeatedly bombed because it was claimed that in addition to making products for civilian consumption, the Pancevo complex supplied gasoline and other essential materials to the Serb army and was therefore, a legitimate military target; Vietnam War — Aside from utilizing bulldozers to remove topsoil from thousands of hectares of land, a large-scale defoliation campaign using Agent Orange as a strategy to eliminate cover for enemy fighters in jungle areas was later traced as the cause of birth defects among children born after the war because of the indiscriminate use of the chemical. It turned out the Vietcongs had been well ensconced in an elaborate underground tunnel complex the whole time.

Add to those instances the widespread destruction in Syria as a consequence of an Islamic State deterrence strategy of the Syrian regime and allies Russia and Iran against that of the US, Turkey and Saudi Arabia. Reportedly, militaries are carrying out a “scorched earth” campaign of air strikes hitting medical facilities, schools and other civilian infrastructures, such as markets and bakeries. The frequency of attacks has left entire villages destroyed or almost completely destroyed. The environmental crisis (starvation and famine) brought about by the civil war in Yemen is worth mentioning, too.

International conventions on war

Apart from a general law of war principles (necessity, proportionality, discrimination and humanity), there are two major groups of international conventions on war or armed conflict.

The Geneva Conventions consist of treaties governing the behavior of belligerents and provides protection of combatants, prisoners of war, civilians and their property, and cultural property. It entails some form of balancing military necessity against collateral damage.

Notable is the later Convention on the Prohibition of Military or Any other Hostile Use of Environmental Modification Techniques, which explicitly protects the environment from use of techniques such as alteration of atmospheric conditions to alter weather patterns and ocean current modification (tidal waves, etc.).

The Hague Conventions — This body of treaties govern weapons that “cause unnecessary suffering” in recognition that in any armed conflict, the right of the parties to the conflict to choose methods or means of warfare is not unlimited. Restricted or banned weapons have come to include various exploding munitions, poisonous gas, chemical and biological weapons, blinding lasers and land mines.

Choice of weapons

Of late, weapons choice could be said to have humanitarian and environmental concerns. For example, the precision “smart bombs” widely use in the Gulf War have the dual advantage of increasing the likelihood that the bomb would hit its desired target thereby reducing unnecessary collateral damage. Additionally, some countries expect to make a transition from lead ammunition to bullets made of tungsten and tin or tungsten and nylon, removing a large source of lead pollution in the environment.

Like the rest of international law, the law of war or international humanitarian law has been slow in providing the environment with a set of rules specific to it. In fact, the word “environment” does not even appear in the Geneva Conventions (1949) and Hague Conventions (1907) nor do they address specific environmental issues. And, granting that the rules of war are sufficient, perhaps what is needed is to ensure greater compliance with the rules. But to be able to comply, it is necessary to clarify and interpret the scope and context of those rules. For instance, what constitutes “widespread, long-term and severe damage to the environment” or the obligation “not to cause far-reaching damage to health”?

Other categories of environmental concern during wartime include, but is not limited to, the impact of war on protected natural or cultural heritage sites (e.g. Asean Heritage Parks, World Heritage Sites) and the planting of explosives in agricultural or even barren lands.

Protection of environment

At a consultation of legal experts at which the United Nations Educational, Scientific and Cultural Organization, the International Council of Environmental Law and the International Committee of the Red Cross were represented, suggestions on further protection of the environment in times of armed conflict were recommended, some of which are as follows: 1) Any new international legal instrument should be based on the concept that the environment per se has to be protected; 2) A catalogue of human activities with hostile purposes injurious to the environment should be prepared, e.g. intentional attacks on the environment, manipulation of natural processes causing environmental damage, and significant collateral damage to the environment; and 3) Sites which, although not inherently dangerous, are essential to human health or the environment should not be military targets, e.g. water purification facilities, waste treatment plants, etc.

The recommendations went on to include revision and update of military procedures in order to ensure protection of the environment to the fullest possible extent during armed conflict in the light of advances in scientific understanding of environmental damage. For example, the sinking of oil tankers, which could contaminate marine waters and resources, should be avoided in favor of other military tactics that could prevent or impede delivery of oil on which an adversary state’s military forces depend.

Equally important is the suggestion on coverage of damage and reparation for consequences of the armed conflict. 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. To illustrate, restoration in kind could include establishing a fish hatchery when a natural hatchery for fish is lost, or planting a new wetland area in lieu of one which cannot be restored. In short, compensation in kind should be required when restoration is not physically possible.

Furthermore, the United Nations should establish a system of emergency preparedness to protect the environment during wartime.

The recommendations clearly suggest that more legal effort is needed to answer questions unresolved by existing law. What are inhumane weapons of war at this point in time? Is civilian infrastructure a legitimate target when it contributes to the war effort?

Should there be an International Court of the Environment with jurisdiction, among others, over environmental war damage and crimes? What about creating a no-fault international environmental remediation fund that could overcome troublesome gaps in the civil and criminal liability approaches? Above all, however, the need is for a mechanism that, together with the entire body of laws protecting the environment in times of armed conflict, can be practically and efficiently implemented.

Actually, the most difficult issue confronting the community of nations in regard to the law of war vis-à-vis environmental law is how to apply the law against powerful nations. Examples are: the US in Vietnam; Western allied forces (including France, US and UK) in the Gulf War and Kosovo conflict; the respective contending allies in the ongoing armed conflict in Syria and Yemen.

Certainly, the often quoted Martens Law interpreted in such a way 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” which to date still expects equal application among nations in the 21st century.

*Before joining the Philippine diplomatic corps, the author served as consultant to the United Nations (UN) Environment Program in Nairobi (Kenya). He was executive-governor (for developing countries) of the International Council of Environmental Law, a Bonn-based public interest organization with consultative status at the UN.

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