If There Must Be War, There Must Be Environmental Law - 6 Nov 2003
6 November 2003 – War must and should always be a last resort, and if armed conflict occurs, warring factions have a duty to minimize the casualties and the suffering of those caught in the cross-fire.
Another duty must also be considered, namely to minimize the damage and pollution to air, water and soil supplies.
A post conflict society will struggle even harder to recover its dignity, its health and its future if the very life support systems upon which people rely have been partially or wholly destroyed.
The environment has, since the dawn of time, been one of the casualties of war.
In the fifth century BC, the retreating Scythians scorched the earth and polluted drinking water supplies, to slow the advancing Persians.
At the end of the final Punic war, in the second century BC, the conquering Romans, salted the soils around Carthage to make them infertile and the area uninhabitable. A damaged and degraded land was seen as way to permanently end the Phoenicians’ might.
During the Vietnam War of the 1970s, the United States used defoliants to expose enemy positions in heavily forested areas.
Tests were also carried out on ‘rain seeding’ in an attempt to trigger downpours to impede and bog down enemy movements on the Ho Chi Min Trail.
More recently, during the first Gulf War of the early 1990’s, Iraqi troops deliberately sabotaged oil installations with smoke turning day into night and oil spills severely polluting the desert and the waters of the Gulf.
The environment is what you might also call an “innocent bystander” damaged not deliberately but as a result of a hit on a target such as a chemical plant or hydro-electric dam.
The environment can also be a casualty as a result of a military machine deliberately over exploiting natural resources. During World War I Turkey severely depleted the forests in the Lebanon for fuel for its railways.
More recently, in the Democratic Republic of the Congo, Rwanda and the Sudan, rhinos, gorillas and other wildlife have been killed to raise money for armies.
While human-kind’s ability to wage war continues apace with new and even more potentially devasting weapons, international rules and laws designed to minimise the impact on the Earth’s life support systems have lagged far behind.
We have the four Geneva Conventions of 1949 that do have environmental implications. However, their primary aims are the protection of civilians, prisoners of war, the sick and wounded and cultural objects such as internationally important monuments.
There have also been a myriad of treaties attempting to outlaw specific targets such as dams, or military acts such as torching crops that are seen by many as targeting and attempting to demoralize the civilian population rather than an enemy army.
There are also treaties that attempt to regulate specific weapons that may have environmental implications. One thinks of the Chemicals Weapon Convention of 1997 and ones covering nuclear weapons and landmines.
This does not mean that there have not been attempts to specifically address the environmental aspects of war.
One, article 35 of what is known as the Geneva Protocol I, prohibits combatants from “ methods or means of warfare which are intended, or may be expected, to cause widespread, long term and severe damage to the natural environment”.
The other, the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD), aims to tackle new technologies that might, for example, alter weather systems as a way of waging war.
But most legal experts have concluded that these and others fall far short of what is ideal and what is needed.
In a new report, commissioned by the German Environment Ministry, Daniel Bodansky of the School of Law, University of Georgia, argues that the requirement of proving “widespread, long term and severe damage” renders the Geneva Protocol I ineffective in respect of environmental protection.
The environmental damage caused by the Iraqi forces in 1991 that resulted in nearly 700 oil fires and oil spills 40 times greater than the Exxon Valdez disaster in Alaska, is a case in point.
The Protocol also appears silent on the issue of long term risk, of the so called ‘precautionary approach’ which guides many of our modern environmental treaties covering everything from the the ozone layer to climate change.
It is possible that, 20 or so years down the road, some of the pollution arising from recent theatres of war may prove to be a long term environmental and public health hazard. But the Protocol only applies to expected damages rather than possible ones.
Civilian casualties, the displaced and the dispossessed, will be and should be the focus of our attention during and immediately after hostilities cease. But the environment, which has a key role in ensuring the stability of a country and its citizens, cannot be ignored.
The world is slowly waking up to the powerful links between a healthy environment and national and regional stability, or to use the buzz phrase “environment security”. And there there are many ways in which the world can improve the security of natural resources and nature’s life support systems during conflict.
Some are legal, others are codes of conduct or improved guidelines for military commanders on what constitute legitimate targets.
Should striking an oil tanker sailing near a coral reef be deemed unacceptable or a legitimate act of war? Does the crippling of an enemy’s oil supplies justify the killing of an ecosystem upon which hundreds, maybe thousands, of the poor rely for food in the form of fish?
These are the kinds of issues that the world needs to grapple with. International law is in its infancy, war is not. It is time for international law, or at the very least the rules of engagement, achieved some kind of maturity if not full adulthood.
The original Geneva Conventions have demonstrated that the world can take humanitarian steps designed to minimize suffering and many countries adhere to these principles.
The United Nations, since the war in the Balkans, has been increasingly linking environmental assessments and clean up with the humanitarian effort, which gives some indication of the importance of the issue.
So, on this second observance of the International Day for Preventing Exploitation of the Environment in War and Armed Conflict, let us reflect on the next steps needed to bring the laws of war into a more sustainable, 21st, century.