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Legal Mechanisms for addressing the Environmental Consequences of Armed Conflicts
Carl Bruch, Director, Africa Programme
Environmental Law Insitute

Programme

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Armed conflict can have devastating short- and long-term effects on the environment, particularly on biological diversity and the ecosystems on which plants and animals depend. There are four general types of environmental impacts from armed conflict:

1. Combatants frequently deliberately or indiscriminately target the environment, seeking to deprive opposing troops of shelter, food, water, and fuel. For example, in the Vietnam War, U.S. forces engaged in a massive defoliation campaign to hamper Viet Cong troop movements and provide protection for U.S. river patrols, spraying herbicides over 10% of South Vietnam and scraping the topsoil from another 2%. Thirty years later, large tracts of former Vietnamese forests remain treeless. More recently, defoliation in Central and South American conflicts have devastated forests, albeit on a smaller scale. Additionally, anti-personnel landmines maim and kill civilians and wildlife in Cambodia, Colombia, Mozambique, and other countries rich in biodiversity.

2. Increasingly, combatants plunder natural resources to finance military operations. Examples include illegal logging of tropical hardwoods in Cambodia; extraction of teak, ivory, diamonds, and petroleum in Angola; and deforestation in Colombia’s forests to cultivate marijuana, coca, and heroin poppies. In turn, opponents have waged economic warfare by attacking the resources that finance the opposing forces. These attacks include, for example, rebel attacks on Colombian petroleum pipelines (which has spilled millions of barrels of crude oil into rivers) and aerial fumigation of Colombian drug crops that are located in otherwise pristine rainforests.

3. Refugees and displaced persons requiring shelter, food, water, and heat frequently impact the environment where there is not the necessary infrastructure to meet their needs. For example, Rwandan refugees seeking firewood devastated the habitat of endangered mountain gorillas in the Virunga National Park.

4. During and following conflict, an armed and lawless society can have dire impacts on the environment. For example, poaching of gorillas and elephants is thriving in the wake of Congo’s war. Similarly, in Cambodia, illegal commercial logging was widespread during the government’s prolonged struggle against the Khmer Rouge, and the profusion of landmines, machine guns, and artillery shells are now used to trap and kill tigers and other wildlife even after the armed conflict has ceased.

To respond to the human and environmental devastation of war, a growing body of law has emerged. This includes the international law of war (generally and as it relates specifically to environmental impacts), peacetime international environmental law, and national laws governing military actions. These bodies of law are still emerging: the law of war can be vague, incomplete, and difficult to enforce, particularly in internal conflicts or against powerful nations; it is unclear to what extent peacetime environmental law can apply to armed conflicts; and national laws and military guidelines are only starting to contemplate environmental issues. Nevertheless, environmental protection is becoming a routine concern in the conduct of war, on a par with humanitarian concerns, refugee impacts, and other issues.

In recent years, a number of international conventions, practices, and institutions have been proposed or created to address the various environmental and human casualties of armed conflict. For example, the International Union for the Conservation of Nature—World Conservation Union (IUCN) has proposed a Draft Convention on the Prohibition of Hostile Military Activities in Protected Areas, which would be the first area-based system specifically protecting the environment during armed conflict. The Draft Convention would require designating protected areas in which hostile military activities would be prohibited (these could be areas rich in biodiversity or of other special environmental interest), subject to certain clearly defined exceptions; as well as provide for compliance monitoring and compulsory arbitration for inter-party disputes.

Second, criminal liability for environmental atrocities during armed conflict may present a strong tool for deterring individual actions. In fact, Article 8(2)(b)(iv) of the Rome Statute of the newly created International Criminal Court prohibits intentional attacks that cause "widespread, long-term and severe damage to the natural environment, which would be clearly excessive . . .." While this particular provision is vague ("widespread, long-term and severe" remain undefined), some also have argued that "the most egregious acts of environmental degradation are inherently inseverable from" the Statute’s core crimes of genocide and crimes against humanity. Once the Rome Statute comes into force, the ICC could prove to be a valuable standing forum for holding individuals accountable for their actions.

Third, civil liability and compensation can be useful in holding nations accountable for violations of the law of war (including environmental damage), providing funds for remediating environmental harm, and deterring harmful actions. For example, the ad hoc United Nations Compensation Commission is adjudicating claims for compensation from the environmental, human, and business losses associated with Iraq’s 1990 invasion and occupation of Kuwait. Another model is the negotiated settlement between Colombia and Venezeula, whereby Colombia’s national petroleum company agreed to compensate for costs incurred in remediating damage downstream in Venezuela arising from the Colombian rebels’ detonation of oil pipelines.

Fourth, guidelines for military, peacekeeping, and humanitarian activities can provide a means to operationalize and give detail to legal provisions that seek to prevent, minimize, remediate, and punish wartime environmental damage. Increasingly, national militaries are incorporating environmental norms into their operational and law-of-war manuals. Similarly, in 1998, the UN High Commissioner for Refugees adopted environmental guidelines addressing forestry, livestock, and domestic energy in refugee situations.

Fifth, import bans and trade embargoes can be particularly useful where armed conflicts are being financed by illicit extraction of natural resources. The attempts to develop a certification system for diamonds while prohibiting trade in diamonds from Angola and Sierra Leone (where they provide funds to purchase arms) could provide "lessons learned" in developing and applying trade embargoes against resource extraction that supports conflict. Another model to consider might be the development and ongoing monitoring of a logging ban in Cambodia by international and non-governmental organizations.

Finally, emergency remediation mechanisms could provide a "no-fault" or insurance-like system of emergency environmental remediation. Most proposals center on an international fund that would finance early response, mitigation, and remediation efforts, and a standing taskforce that could respond to environmental disasters in the way that the International Committee of the Red Cross responds to humanitarian disasters,.

Different legal and institutional responses may apply to the various types of environmental damage outlined. For example, deliberate and indiscriminate actions that target the environment can be deterred and punished by individual criminal liability and state responsibility and liability. Adoption of the IUCN Draft Convention or a similar instrument would expressly import ecological conservation concerns into the law of war, especially if linked to a strong enforcement regime and then incorporated into military guidelines. Similarly, when armed conflict is being supported by exploitation of natural resources, international embargoes and commodity import bans may help hasten peace. Unfortunately, at the international level, there are significantly fewer legal options when it comes to addressing the impacts of refugees (aside from preparation and mitigation through guidelines in siting and operating refugee facilities) and the general lawlessness associated with armed conflict and its aftermath. In these circumstances, a no-fault fund might be one of the few options available.

The various proposed and emerging norms and institutions described here constitute practical, near-term steps to addressing wrongful environmental damage. In many cases, they can be put into place through the logical, incremental extension of existing legal theories and institutions. If developed in concert and used in appropriate cases, each of these mechanisms could contribute toward the clarification, development, and implementation of a comprehensive regime for preventing, punishing, and redressing wartime environmental damage.