For Earth Day: Protecting Nature from War

April 22nd, 2018 - by admin

The United Nations Environment Programme – 2018-04-22 00:51:43

Protecting Nature from War
United Nations Environment Programme

NAIROBI, Kenya (2009) — The environment continues to be the silent victim of armed conflicts worldwide. The toll of warfare today reaches far beyond human suffering, displacement, and damage to homes and infrastructure. Modern conflicts also cause extensive destruction and degradation of the environment. Environmental damage, which often extends beyond the borders of conflict-affected countries, can threaten the lives and livelihoods of people well after peace agreements are signed.

The existing international legal framework contains many provisions that either directly or indirectly protect the environment and govern the use of natural resources during armed conflict. In practice, however, these provisions have not always been effectively implemented or enforced . . . with one notable exception: holding Iraq accountable for damages caused during the 1990-91 Gulf War, including billions of dollars’ worth of compensation for environmental damage.

Public concern regarding the targeting and use of the environment during wartime first peaked during the Vietnam War. The use of the toxic herbicide Agent Orange, and the resulting massive deforestation and chemical contamination it caused, sparked an international outcry leading to the creation of two new international legal instruments.

The Environmental Modification Convention (ENMOD) was adopted in 1976 to prohibit the use of environmental modification techniques as a means of warfare. Additional Protocol I to the Geneva Conventions, adopted in the following year, included two articles (35 and 55) prohibiting warfare that may cause “widespread, long-term and severe damage to the natural environment.”

The adequacy of these two instruments, however, was called into question during the 1990-91 Gulf War. The extensive pollution caused by the intentional destruction of over 600 oil wells in Kuwait by the retreating Iraqi army and the subsequent claims for $85 billion in environmental damages led to further calls to strengthen legal protection of the environment during armed conflict.

In 1992, the UN General Assembly held an important debate on the protection of the environment in times of armed conflict. While it did not call for a new convention, the resulting resolution (RES 47/37) urged Member States to take all measures to ensure compliance with existing international law on the protection of the environment during armed conflict.

It also recommended that States take steps to incorporate the relevant provisions of international law into their military manuals and ensure that they are effectively disseminated.

As an outcome of the UN debate, the International Committee of the Red Cross (ICRC) issued a set of guidelines in 1994 that summarized the existing applicable international rules for protecting the environment during armed conflict.

These guidelines were meant to be reflected in military manuals and national legislation. Yet armed conflicts have continued to cause significant damage to the environment — directly, indirectly, and as a result of a lack of governance and institutional collapse.

For instance, dozens of industrial sites were bombed during the Kosovo conflict in 1999, 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.

In recent years, concern has also been raised about the role of natural resources — particularly “high-value” resources — in generating revenue for financing armed forces and the acquisition of weapons. Indeed, easily captured and exploitable resources often prolong and alter the dynamics of conflict, transforming war into an economic rather than purely political activity.

Since 1990, at least 18 civil wars have been fueled by natural resources: diamonds, timber, oil, minerals, and cocoa have been exploited in internal conflicts in the Democratic Republic of the Congo, Côte d’Ivoire, Liberia, Sierra Leone, Angola, Somalia, Sudan, Indonesia, and Cambodia.

Given that natural resources such as water, soil, trees, and wildlife are the “wealth of the poor,” their damage and destruction during armed conflict can undermine livelihoods, act as a driver of poverty and forced migration, and even trigger local conflict.

As a result, successful peacebuilding — from reestablishing safety, security, and basic services to core government functions and the economy — fundamentally depends on the natural resource base and its governance structure.

Natural resources themselves can either unite or divide post-conflict countries depending on how they are managed and restored. It is thus paramount that they be protected from damage, degradation, and destruction during armed conflict.

Findings from More Than
20 UNEP Post-Conflict Studies, 1999-2009

* Articles 35 and 55 of Additional Protocol I to the 1949 Geneva Conventions do not effectively protect the environment during armed conflict due to the stringent and imprecise threshold required to demonstrate damage: while these two articles prohibit “widespread, long-term and severe” damage to the environment, all three conditions must be proven for a violation to occur.

* To improve the effectiveness of Articles 35 and 55 of Additional Protocol I, clear definitions are needed for “widespread,” “long-term,” and “severe.”

As a starting point, the precedents set by the 1976 ENMOD convention should serve as the minimum basis, namely that “widespread” encompasses an area on the scale of several hundred square kilometers; “long-term” is for a period of months, or approximately a season; and “severe” involves serious or significant disruption or harm to human life, natural economic resources, or other assets.

* The majority of international legal provisions protecting the environment during armed conflict were designed for international armed conflicts and do not necessarily apply to internal conflicts: given that most armed conflicts today are non-international or civil wars, much of the existing legal framework does not necessarily apply.

* The provisions for protecting the environment during conflict under the four bodies of international law have not yet been seriously applied in international or national jurisdictions. Only a very limited number of cases have been brought before national, regional, and international courts and tribunals.

* Destruction of the environment and depletion of natural resources may be a material element or underlying act of other crimes contained within the Rome Statute. It is therefore subject to criminal liability and prosecution by the International Criminal Court. Acts of pillage as a war crime are of particular interest and could be used to prosecute the practice of looting natural resources during conflicts.

* Linking environmental damage to the violation of fundamental human rights offers a new way to investigate and sanction environmental damages, particularly in the context of non-international armed conflicts.

A variety of human rights fact-finding missions, including that led by Judge Richard Goldstone in the Gaza Strip in 2009, have investigated environmental damages that have contributed to human rights violations.

* To ensure that environmental violations committed during warfare are prosecuted, provisions of international law that protect the environment in times of conflict should be fully reflected at the national level.

* The UN Compensation Commission was established by the Security Council to process compensation claims relating to the 1990-91 Gulf War. United Nations Member States may want to consider how a similar structure could be established as a permanent body — either under the General Assembly or under the Security Council — to investigate and decide on alleged violations of international law during international and non-international armed conflict.

* A new legal instrument granting place-based protection for critical natural resources and areas of ecological importance during international and non-international armed conflicts should be developed. This could include protection for watersheds, groundwater aquifers, agricultural and grazing lands, parks, national forests, and the habitat of endangered species.

At the outset of any conflict, critical natural resources and areas of ecological importance would be delineated and designated as “demilitarized zones.” Parties to the conflict would be prohibited from conducting military operations within their boundaries.

* The UN General Assembly should consider requesting the secretary-general to submit a report annually on November 6 (International Day for Preventing the Exploitation of the Environment in War and Armed Conflict) on the environmental impacts of armed conflicts.

The report should detail the direct, indirect, and institutional environmental impacts caused by ongoing and new international and non-international armed conflicts. The report should also recommend how the environmental threats to human life, health, and security can be addressed and how natural resources and the environment in each can be used to support recovery and peace-building.

United Nations Environment Programme,
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PO Box 30552, 00100
Nairobi, Kenya