The acceptance that legal protection for the environment from the ravages of armed conflict needs improvement has a long history. During the last three decades, initiatives have repeatedly flowered, only to wither and die in seminars and conference rooms, while wartime environmental damage continues largely unchecked. What lessons should a new generation wishing to tackle the topic take from past failures?
As we reported earlier, Ukraine needs to find $30m to cover the cost of a two year programme of urgent environmental assistance, doubtless millions more will be needed beyond that. Damage to Ukraine’s natural environment and direct and urgent threats to public and environmental health thanks to damage to industrial sites are widespread. In Iraq and Syria, protracted conflicts are continuing to create new environmental threats and exacerbate pre-existing problems. Environmental damage from conflict is not just of historical or academic interest, it is threatening civilians and livelihoods around the world. How then to recapture a sense of urgency in efforts to minimize damage and ensure that environmental assistance gets to where it’s needed?
Big bang advocacy
The Vietnam War contributed to the development of the ENMOD Convention and the Geneva Conventions’ Additional Protocols on the environment and, it was briefly hoped that Iraq might also prove to be a fulcrum whereby new law could be developed.
Gulf War oil fires and environmental damage were triggers for a flurry of legal debate in 1991.
In June 1991, Greenpeace International, the London School of Economics and the Centre for Defence Studies organised a Fifth Geneva Convention conference in London. In what turned out to be a busy year for environmental lawyers, the government of Canada convened a Conference of Experts on the Use of the Environment as a Tool of Conventional Warfare, while in Munich, the IUCN and World Conservation Union organised Consultations on the Law Concerning the Protection of the Environment in Times of Armed Conflict.
The London conference proved the most ambitious. The focus of debate was whether a 5th Geneva Convention should be developed, aimed primarily at the protection of the natural environment. In doing so it went beyond IHL’s anthropocentric interpretation of the environment as a civilian object. The conference wrestled with the IHL principles of proportionality and necessity, with issues of intent and negligence, with gradations of harm and degrees of responsibility and liability, with defining specific protections for sites of environmental importance, with international and non-international armed conflicts and with issues of compensation and criminalisation. As befits conflict and the environment, their scope was vast and their solutions politically and legally complex.
The meetings that year and the global disquiet over the impact of the Gulf War (and perhaps aided by the suggestion that a ‘Green Cross’ be established) jolted the Red Cross into action. A report was prepared at the behest of the UN General Assembly but the enthusiasm and suggestions from the 1991 conference circuit soon became mired in a stupefying mix of law and conservatism. In its 1992 report to the General Assembly, the Red Cross concluded that, while it agreed: “…to a great extent with the initial conclusions reached in the various meetings of experts organized in recent months. It has reservations about proposals to undertake a new process of codification of the rules protecting the environment in times of armed conflict. For one thing, ICRC feels that the result would be of dubious value and could even be counter-productive. Moreover, the institution believes that if several aspects of the existing law were elaborated on and if that law were more fully implemented, it would provide adequate protection of the environment in times of armed conflict.
The thrust of their argument that a new convention would be counter productive, was that any negotiations on a new system of protection would ultimately fall foul of attempts by states to weaken it, with a race to reach the lowest common denominator. With a whiff of fudge, the ICRC proposed that more thought was needed on particular topics, such as ‘the harmonisation of the interpretation of the specific provisions of the ENMOD Convention and Protocol I; the simultaneous applicability of the rules of international environmental law and humanitarian law; determining what body of law is applicable between a belligerent and states which are not party to the conflict but are nevertheless affected by means of warfare harmful to the natural environment; and the need to do more to protect the natural environment as such and to find better ways of preventing damage to the environment in times of armed conflict.’ Radical stuff.
With the proposal for a Fifth Convention effectively buried, and with the memories of Iraq falling foul of the international community’s limited attention span, little progress would be made in the years that followed. Military guidelines intended to minimise environmentally damaging behaviours were published by the ICRC in 1996, and received a less than rapturous reception. In 1999, the conflict in Yugoslavia would see the birth of what would become UNEP’s post-conflict branch but this would remain more sticking plaster than long-term solution.
With the ICRC tentatively back in game since 2011, with its report and the subsequent pledge from the Nordic governments and societies to work on the topic. And after UNEP’s 2009 intervention facilitated conflict and the environment’s inclusion onto the agenda of the International Law Commission in 2012, there are perhaps grounds for optimism that substantive progress will finally be made. But what lessons should be taken from the failure of the Fifth Convention?
1-Don’t try and do it all at once. The overarching lesson from the failure of the Fifth Convention seems to be that initiatives that seek to address conflict and the environment as a whole are doomed to failure. As a topic it’s too broad, too complex, and that scope logically tempts grandiose solutions, like reopening the Geneva Conventions or trying to introduce an Ecocide convention that would cover damage in peacetime and conflict alike. In the absence of substantive international legal progress, the last few decades have seen the topic naturally fragment, for example the developments in the field of natural resource management. This is all to the good as it means that different strands of the topic can pursue those trajectories most relevant to them, reducing the need for a single uber convention.
2-This is too important to leave to the lawyers. This is not to belittle the remarkable and, at times, Herculean efforts of the legal experts who have kept this issue alive during the last few decades, but sooner or later the topic needs to break out of the workshops and seminars and open itself up to civil society and environmental practitioners. There is always a temptation to put too much store in legal debate over arcane principles, but when that leads to excessive complexity, the debate becomes impossible to communicate beyond those rarefied circles. Similarly, too much focus on elaborating or refining existing law all too often feels like a conceptual cul-de-sac – particularly when it has been used as an excuse for inactivity in the past.
3-It’s fine to pick and mix. The environment is a cross-cutting issue, at times this is a weakness, for example allowing it to be relegated amidst other post-conflict concerns, but it can also be a strength. Future solutions need not reinvent the wheel. Instead they can select the best tools from peacetime environmental protection, civilian protection and public health and agreements on indiscriminate weapons. It’s an embarrassment of riches, where the main challenge lies in curbing your imagination and selecting the most useful and relevant principles.
4-Encourage civil society engagement. Look, this isn’t going to happen without the support of NGOs. From mercury to land mines and killer robots, we need to ensure that the virtuous circle of progressive States, legal experts, international organisations and civil society is intact and flourishing. This shouldn’t just be an issue for the big environmental NGOs, from humanitarian disarmament to human rights and public health, there is a wealth of experience out there that should, and must, be brought to bear on the issue. Beyond advocacy, data from the field will be critical. It’s not enough to rely solely on UNEP post-conflict assessments; this needs more data, data that is as close to real-time as possible and which can sustain political interest and stop the environment falling off the agenda.
By now, regular readers may have noticed that these are all issues that we have been raising for some time. On the first lesson, and as proposed by the ICRC in 2011, yes we believe that an initiative focused on conflict pollution and toxic remnants of war is not only necessary to protect civilians and their environment, but could also be a manageable and pragmatic way to deal with one notable aspect of the wider topic. It could even have a deceptively simple message – minimize harm and guarantee assistance. On the second, as civil society we are allowed to be impatient, on the third, we are also allowed to be imaginative. On the final lesson, this isn’t just enlightened self-interest – this is what we can bring to the table but we need support to be able to do so.
With the work of the 2011 Nordic Pledge up for discussion at December’s ICRC conference, this autumn should be used to ensure that the momentum triggered by UNEP’s intervention in 2009 does not suffer the same fate that befell the Fifth Convention. Together with our civil society partners, we’ll be launching a new NGO network to advocate for progress, more news on that after the summer.
manages the Toxic Remnants of War Project
 A/47/328 (1992) Protection of the environment in times of armed conflict, report of the UN Secretary General.