CLIMATE CHANGE AND INTERNATIONAL ENVIRONMENTAL LAW: WHERE DO WE STAND

WHEN NATURE BECOMES A VICTIM OF WAR: EXAMINING LEGAL GAPS IN INTERNATIONAL LAW

INTRODUCTION

The issue of environmental degradation and armed conflict has become a pressing global concern in the recent past. The rising number of global conflicts has led to collateral damage to the natural world, including deforestation, pollution, and devastation of ecosystems. These realities have been epitomized in the present conflicts, among which are the conflicts of Ukraine and Gaza It is evident how these can bring about long-term environmental degradation that leads to climate change and also have direct impact on humans by impacting public health and food security caused by the damage inflicted upon water, arable lands, and wildlife habitats. This blog aims to explore the legal gaps and lacunas in environmental protection during war and to provide that solution that can protect nature from war.

LEGAL FRAMEWORKS GOVERNING ENVIRONMENTAL DESTRUCTION IN ARMED CONFLICT

International humanitarian law (IHL), which regulates the conduct of war, is essentially governed by four Geneva Conventions and their three additional protocols. Environmental concerns were, however, side-lined in these frameworks till the Vietnam War, where the extensive use of chemical weapons led to the adoption of the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques Convention (“ENMOD”). This convention prohibited using environmental modification techniques that would have widespread, long-lasting, or severe effects as a means of destruction or injury to other states. Further, Article 35(3) was added in 1977 to prohibit ways or means that are intended or expected to cause “widespread, long term, and severe damage to the natural environment” during wars in Additional Protocol I. Moreover, Rule 45 of the International Committee of the Red Cross’s (ICRC’s) Customary International Humanitarian Law (IHL) Study (“IHL Study”) establishes that in wars, the preservation and maintenance of the natural environment must be given careful consideration in wars. It also prohibits environmental degradation for war purposes. Lastly, In 2002 under Article 8(2)(b)(iv) of the Rome Statute, causing damage to the environment that is “widespread, long-term, and severe” and “clearly excessive” in relation to the military advantage was established as a war crime.

HIGH THRESHOLDS AND LEGAL AMBIGUITIES

Despite being classified as a war crime under International Law, “ecocide” during the war still goes unpunished primarily due to inadequate, inconsistent, and unclear protections offered. The initial issue lies within the ENMOD and the Additional Protocol I to the Geneva Convention, both of which are riddled with discrepancies in defining key terms and inconsistencies in the definition of terms used to classify a military action for prohibition. The Additional Protocol I provides for three cumulative thresholds for prohibition; as per this, the damage must be widespread, long-term, and severe and must be met for military action to be held violative of these provisions. However, the meaning of these three terms radically differs from the meaning accepted in the travaux of ENMOD. As a consequence, these provisions cannot impose any prohibition on the countries waging wars. Further, the cumulative nature of these thresholds sets a very high standard, rendering it exceedingly challenging to punish military action damaging the environment. This is evident from the fact that only the Iraqi force’s act of setting fire to Kuwaiti oil fields met these stringent criteria and was eligible for prosecution. Other environmentally devastating acts of warfare have largely gone unpunished under this framework. Even though the damaging nature of the pursuit of military objectives is classified as a war crime under the Rome Statute, the terms used in Article 8(2)(b)(iv) remain undefined in the Rome Statute. For example what is meant by “clearly excessive” is subject to various interpretations. Ambiguities in the definition have placed significant impediments in holding perpetrators accountable, creating a situation where prosecuting environmental damage as a war crime has become painstakingly difficult.

EXPLORING SOLUTIONS: INTERNATIONAL ENVIRONMENTAL AGREEMENT, AND CLARIFICATION OF EXISTING LAW

International environmental governance frequently includes agreements that demand the cooperation of various state parties. In the recent past various multilateral environmental agreements (“MEA”) have been signed to deal with various issues of environmental degradation. MEA’s can protect the environment both during war-time and the peace that follows.i However, the constraints in advancement in international environmental governance resulting from the pressure of influential countries and non-enforcement still remain a challenge to their efficiency. The International Law Commission’s report, which deals with issues related to environmental protection in wars, has provided draft principles to ensure that the environment can be protected during war-time. According to these principles are rules of war should be applied to the environment with the view of its protection. However, this draft has also failed to define the exact meaning of terms like widespread, long-term, and severe. Defining these words would not only ensure that the violating party can be legally prohibited but it will also ensure that the party is bound under Article 3 of Hague Convention IV and Article 91 of the additional protocol the party which violates the provision of the conventions is liable to pay compensation.

CONCLUSION

Environmental degradation during armed conflict and wars poses a critical challenge that seeks urgent attention from all the stakeholders. While existing legal frameworks, including the Geneva Conventions, Additional Protocol, ENMOD, and the Rome Statute, offer protection to the environment during warfare, significant loopholes and ambiguities hinder their effectiveness and Implementation. The high bars set for proving environmental damage as a war crime create barriers to accountability, allowing states to easily evade responsibility for their actions. To safeguard nature, it is essential to bring clarity in the existing framework and strengthen enforcement mechanisms within international environmental governance. Furthermore, harnessing the power of MEA’s can improve protection not only during conflicts but also in the post-conflict recovery phase. It would not be an understatement to say that by prioritising environmental integrity in conflict scenarios, we can ensure that nature is no longer a silent casualty of the power game of man, paving the way for sustainable peace and rehabilitation efforts that benefit both humanity and the environment.

REFERENCES

Sjöstedt, B. (2016). Protecting the Environment in Relation to Armed Conflict - The Role of Multilateral Environmental Agreements. [Doctoral Thesis (monograph), Department of Law]. Lund University (Media Tryck).