OP-ED: The environment is also a casualty

Similar to innocent civilians, the environment is a casualty of wars and armed violence and conflicts. Weapons and explosives that are used against humans can damage the environment as well. But the harm caused to the environment is hardly given any thought due to the concern of loss of lives and other humanitarian crises that usually follow such conflict.

Sometimes, exploitation and illegal trade of natural resources also add a new dimension to such conflicts. From the US dropping the atomic bomb in Hiroshima and Nagasaki to IS targeting the rural environment upon which Yezidi farmers’ livelihood depends -- wars and conflicts always have a drastic impact on the environment. The use of weapons and destructive force can result in severe pollution, damage to sensitive landscapes, and escalated deforestation.

To protect the natural environment, Article 35(3) of Protocol I Additional to the Geneva Conventions prohibits the employment of methods or means of warfare which are intended or may cause widespread, long-term, and severe damage to the natural environment. This provision was added due to the fears that if peacetime activities can unleash such damage on the environment, wartime will result in far worse consequences.

Article 55 again prohibits attacks against the natural environment as a way of reprisals and puts an obligation on parties in a conflict to protect the natural environment against widespread, long-term, and severe damage. However, these provisions were not the first to provide protection to the environment.

Just a year before, the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD) was drafted, which prohibited hostile use of the environment as a means of warfare. But the protocol and convention do not overlap, as the convention was aimed at prohibiting the use of environmental modification as a weapon, whereas the protocol covers the use of all sorts of weapons.

Besides these provisions, the Martens Clause, ie, preamble to the 1899 Hague Convention II -- Laws and Customs of War on Land (Hague IV); article 1(2) of Protocol I, and the preamble to Protocol II of the Geneva Conventions, which is considered as a foundational principle of International Humanitarian Law and part of customary international law, stipulates for following the “laws of humanity” and “dictates of public conscience.”

It can be very well argued that laws of humanity and public conscience do not envisage causing damage to the environment during armed conflicts, either directly or incidentally. Protocol III to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons, which may be deemed to be excessively injurious or have indiscriminate effects, entered into force in 1983.

Article 2(4) prohibits making forests or other kinds of plants cover the object of attack by incendiary weapons, unless they are used to cover, conceal, or camouflage combatants or other military objectives, or are themselves military objectives.

Furthermore, destruction of the environment can also fall under the purview of war crimes under article 8 of the Rome Statute of the International Criminal Court.

Despite these provisions, very little attention has been given to the environmental damages caused during wars and conflicts. Although some of the perpetrators of genocide, war crimes, and crimes against humanity have been brought to justice in different national and international tribunals, there has hardly been any judicial action against environmental damages caused during armed conflicts.

However, the International Court of Justice in its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons deliberated the impact of the use of nuclear weapons on the environment. Some of the states in their written and oral statements argued that the use of nuclear weapons will be unlawful as it stands in violation of the provisions of Additional Protocol and ENMOD, as well as Principle 21 of the Stockholm Declaration of 1972, and Principle 2 of the Rio Declaration of 1992, regarding the protection of the environment. 

Although the court stated that the states must take environmental considerations into account and conform to the principles of necessity and proportionality, it was of the opinion that the treaties in question did not deprive the states of the exercise of their rights of self-defense under international law because of its obligations to protect the environment.

Citing the General Assembly Resolution 47/37 on the “Protection of the Environment in Times of Armed Conflict,” the court opined that environmental considerations constitute one of the elements to be taken into account in the implementation of the laws.

Although the court did emphasize the issue of protecting the environment, it missed the opportunity to prohibit the use of nuclear weapons. Even putting limited restrictions on nuclear weapons due to environmental concern could have borne great results in placing further sanctions on methods and means of warfare that affect the environment in the future.

It would have provided the necessary boost to implement the rules of international law regarding the protection of the environment. However, Judge Weeramantry in his dissenting opinion held nuclear weapons as illegal and their use a breach of state obligation, due to environmental considerations among others.

As the world is increasingly setting its sights on fighting the adverse impacts of climate change, it is imperative to put more consideration into the protection of the environment during both peace and war.

International humanitarian law was an attempt to “civilize” barbarism, that is war. It’s high time that it also looks into making them eco-friendly, for the sake of the survival of humankind. The environmental impacts of wars and conflicts may continue to destabilize societies long after the cessation of hostilities.

Thus, states and institutions must work to bring the perpetrators to justice and integrate the considerations of the environment in their post-conflict efforts.

Arafat Ibnul Bashar is a student of law and Editor, Project Bajho, and asia blogs.