CC BY
115Review of Business and Economics Studies 2018, Vol. 6, No. 2, 19-29
Doi: 10.26794/2308-944X-2018-6-2-19-29
Protection of Environment during Armed
Conflicts
Tshibola Lubeshi Aimée Murphie
Ph.D. student, Department of Legal Regulation of Economic Activities, Financial University, Moscow, Russia; [email protected]
Abstract
Environmental protection during the armed conflicts is rarely considered as a prioritized concern. Due to the concept of state sovereignty, this is especially problematic when examining interference of warfare and environmental protection in non-international conflicts. Not only it is challenging to find any exhaustive and explicit legal provisions regulating the matter, but this issue has also been forgotten by international legal scholars. Therefore, in this article, the author reviews are written and customary norms laid down in documents of different branches of international law, such as human rights law, international humanitarian law, environmental law and international criminal law, which directly or by way of interpretation may favour environmental protection during the internally armed conflict. This is to be done in order to gather information about the sufficiency of the legal framework on the preservation of the environment during the non-international armed conflicts. After doing this research, a few possible means to improve current legal framework are suggested. The author suggests to impose civil liability, enact new comprehensive document, initiates changes in international criminal law and other. Keywords: environmental law; international criminal law; humanitarian law; international human rights law; non-international (internal) armed conflict; legal vacuum; insufficient international regulation JEL Classification: K32, 051, 056, 059
Although since it's very beginning the purpose of International Humanitarian Law (IHL) was to make war more humane (United Nations Environment Programme, 2009, p. 4), the international community is increasingly concerned with the protection of objects that are not directly related with human suffering. An important anxiety in terms of IHL and its application concerns the protection of the environment during the armed conflict. The environment was not even mentioned in international documents regulating conduct in the war until Additional Protocol I (AP I) of Geneva Conventions (GC's) came into force in 1977. With the realization of an inevitable need to regulate protection of the environment during armed conflicts, it, however, was left to do for the norms, such as Articles 35(3) and 55 of AP I, which is subjects of intensive criticism (Bothe et al., 2010, pp. 576-578). According to the author's opinion, criticism of these norms should not be of the most prioritized concern. An extremely sensitive issue and quite a remark-
able gap in IHL is a questionable sufficiency of regulation for the protection of the environment during non-international armed conflict (NIAC). Gaps in international law usually attract the attention of legal scholars. They try to elaborate on legal contributions and disputes, how it would be possible to solve the problem. This, however, is not the case in environmental protection during the NIAC. After some research, the author came to the conclusion, that there are very few contributions regarding this issue. Scholars tend to focus on the criticism of Articles 35 (3) and 55 of the AP I, analyze norms applicable to the protection of the environment in IACs and are quite reluctant to get into a deeper analysis of internally armed conflicts. Nonetheless, it is generally acknowledged by most of them that legal regulation tends to be insufficient on this matter (Bouvier, 1991).
Therefore, this article examines the question whether the current legal framework on the protection of the environment during the non-
international armed conflicts, given the absence of explicit and direct provisions, nonetheless may be deemed as sufficient for this protection. This is to be achieved by analyzing if there are any explicit or implicit statutory obligations dispersed in other than IHL branches of written or customary law that may contribute to the integrity of the framework. The underlying problem of the possible legal vacuum and the lack of existing legal framework on the above-mentioned issue in written and customary norms, directly and indirectly regulating the protection of the environment in internally armed conflicts, will be examined first. Afterwards, an answer to the question "Is the legal framework, provided in international humanitarian and other branches of law, sufficient for the sound protection of the environment during the non-international armed conflict?" may be found. In the final part of this research, the author proposes possible ways to improve the situation in terms of legislature and enforcement.
Existing Relevant Law
Provisions relevant to the research can be found in documents of international environmental law, human rights law, international humanitarian law and international criminal law. The customary humanitarian law provides customary rules, when application of written (treaties') obligations due to their vagueness and/or high threshold of applicability is complex. The mechanism of environmental protection in internally armed conflicts is an outcome of different types of law merging together for the sake of environmental protection.
Legal Framework
Despite the fact that Geneva Conventions do not include environmental norms, Additional Protocol I, which applies during times of international armed conflicts, made a huge step forward with Articles 35 (3) and 55. Art. 55 establishes a general obligation to protect the environment during armed conflict, but this obligation for belligerent states is aimed at the protection of civilian population. Article 35(3) is meant to protect the environment as such
1 Bouvier, A. Protection of the Environment in Time of Armed Conflict. International Review of the Red Cross. 1991 12 31, 285, part C.
Although a subject to criticism mostly referring to the high threshold of applicability, these articles were a first step towards the recognition of the necessity of environmental norms in the law of war. Because of the notably narrow regulation of Common Article 3 and the majority of the conflicts after 1945 being internal, the adoption of Additional Protocol II (hereinafter — AP II) was more than necessary. Despite the absence of explicit environmental norms in Additional Protocol II, an implicit environmental provision exists. Article 14 prohibits attacks against "foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works"2, objects that are "indispensable to the survival of the civilian population"3 Article 15 prohibits attacks against dangerous forces, such as dams, dykes and nuclear electrical generating stations, if "attack may cause the release of dangerous forces and consequent severe losses among the civilian population."4 These two provisions are clearly aimed at protection of the civilian population, nonetheless, the environmental impact of the provisions is also evident.
In The 1971 UN Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, the purpose of protecting the population and the environment is expressed in Article 2: "In implementing the provisions of this Article all necessary safety precautions shall be observed to protect populations and the environment". The convention prohibits the use of biological agents "in any circumstances"5 if it does not have justification for using it for peaceful purposes. It suggests that the Convention applies in times of non-international armed conflict. Part 2 of Art. 1 specifically prohibits hostile purposes and using bacteriological agents in war.
2 1977 Protocol Additional to the Geneva Conventions of 12 August, 1949, and relating to the Protection of Victims of NonInternational Armed Conflicts (Protocol II) (adopted 8 June, 1977, entry into force 7 December, 1978). 1125 U.N.T.S. 609/ [1991] ATS 30/16 ILM 1442 (1977), Article 14.
3 Ibid.
4 Ibid. Art. 15.
5 The Convention on the prohibition of the Development, pro-
duction and Stockpiling of Bacteriological (Biological) and
Toxin Weapons and on Their Destruction, op. cit.
The 1977 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD) prohibits, in terms of the environmental protection, technical and scientific manipulation of natural processes, which may affect the environment, and when this manipulation is used as a weapon6.
Art. 1 of the Convention does not make the distinction between IACs and NIACs. On the contrary, it says "not to engage in military or any other hostile use of environmental modification techniques"7 (emphasis added). Presumably applicable in NIAC, the basic obligation in Article 1 is constructed very similarly to the wording of AP I of GC's. There is one crucial difference though. While AP I requirements "Widespread, long-lasting and severe" are cumulative, ENMOD convention uses the conjunction "or", which implies that only one of the requirements can be sufficient for the Convention to apply. Being of the lower threshold than AP I, and, moreover, applicable in NIAC, the ENMOD convention has its disadvantages. Firstly, it is not created for the protection of the environment. A careful reading of Article 1 (1) shows that it seeks to prevent injury of another state party, not the environment per se8.15 Tarasofsky names several points of criticism of ENMOD: "No prohibition exists against the damaging environment of nonparties or to the global commons. [...] it does not prevent testing and development of environmental modification techniques."9 This argument, however, can be rebutted by saying that in case of damage while using techniques for non-hostile purposes, international environmental law and its prohibitions apply. However, the above-described imperfections of the Convention may explain the fact that only 76 states are parties to it. Therefore, the ENMOD convention cannot be considered as a strong instrument contributing to the environmental protection in NIACs.
In 1980, the Certain Conventional Weapons Convention (hereinafter — the CCWC) based on
6 Verwey, W. D., supra note 1, p. 16.
7 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (adopted 10 December, 1976, entry into force 5 October, 1978). 1108 U.N.T.S. 151.
8 Tarasofsky, R. G. Legal Protection of the Environment during International Armed Conflict. Netherlands Yearbook of International Law. 1993: 17-79. Also see p. 47.
9 Ibid.
three general principles of IHL — unnecessary suffering, distinction and limited means of warfare, was signed10. Three original protocols on non-detectable fragments, mines, booby-traps and other devices and incendiary weapons were adopted together with the treaty in 1980. Talking about crucial steps in the development of international law documents applicable in NIAC, it should be emphasized that the amendment of the Article 1(2)" extended the CCWC and its protocols' application to the NIAC that are described in Common Article 3, that sets the lower threshold for the internal conflict to be considered as such than does the AP II. This broadens the scope of application to the nowadays' most common armed conflicts. The preamble of the Convention recalls prohibition "to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment."12
The CCWC Protocol III relating Incendiary Weapons refers to prohibition „to make forests or other kinds of plant cover the object of attack by incendiary weapons."13 Other protocols do not refer to the environment by any means directly or indirectly. However, prohibition of such indiscriminate weapons itself is a type of the environmental protection, especially regarding its application in NIAC. Unfortunately, only 114 states have signed the Convention, and only 75 states recognize the application of the Convention in NIAC, as in amended article 1(2)14.
The 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons, regulate the use of toxic chemicals and their precursors, which has been established in the context quite similar to
10 For this section, see generally Solis, G. D. supra note 1, p. 578-591.
11 Amendment of the Article 1.2 of 1980 Convention on Prohibition or Restrictions on the Use of Certain Conventional Weapons which may be Deemed to be Excessively Injurious or to have Indiscriminate Effects (adoption 21 December, 2001, entry into force 18 May, 2004) 2260 U.N.T.S. 82.
12 The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects, supra note 9, Preamble.
13 The Chemical Weapons Convention Protocol on Prohibitions or Restrictions on the Use of Incendiary Weapons (Protocol III), supra note 9, Article 2(4).
14 Official Website of International Committee of the Red Cross.
Geneva, 2013 [interactive]. [accessed 06-06-2013]. http://www.
icrc.org/ihl.nsf/WebSign? ReadForm&id=600&ps=P.
the BWC — "never under any circumstances."15 In Art. 2 (9), this Convention indicates peaceful purposes of using chemical substances that are not prohibited. Therefore, an inference can be made that the Convention of Chemical Weapons is applicable in times of peace, international and non-international armed conflicts.
For the applicability of International Environmental Law in Times of Non-International Armed Conflict, it is logical to refer to binding environmental treaties and environmental soft law instruments. The following question can be asked: Does the environmental law continue to apply during the internally armed conflict?
In the legal doctrine, the principle clausula rebus sic stantibus is one of the justifications for terminating the application of certain treaties. Moreover, in a case of an armed conflict, principle specialia generalibus derogant applies. Wartime laws are undoubtedly specialia and prevail over peacetime laws.
According to Voneky, peacetime treaties cease to apply in times of hostilities due to the following reasons: (1) treaties expressly provide for continuance during war, (2) treaties are compatible with the maintenance of war, (3) treaties creating international regime or status, (4) human rights treaties and (5) ius cogens rules and obligations erga omnes16.
However, treaties compatible with the maintenance of war raise fewer questions, so do human rights treaties, which are proclaimed not to cease to be applied in a case of an armed conflict by the International Court of Justice17.
Human rights treaties, though being designed for the protection of human rights, protect the environment via proper exercising of the former. Since the above-mentioned treaties are primarily meant to apply in the peacetime, it is logical that they do not make the distinction between the NIAC and the IAC. Attention has to be paid to soft law instruments, such
15 The 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons, supra note 9.
16 Voneky, S. Peacetime Environmental Law as a Basis for State Responsibility. Environmental Consequences of War. Legal, Economic and ScientifcPerspectives. Cambridge: Cambridge University press, 2000, p. 190-225.
17 Legal Consequences of the Construction of Wall in the Occupied Palestinian Territory. International Court of Justice, Advisory Opinion I. C. J. Reports. 2004, p. 136, para. 106.
as Stockholm Declaration18, Rio Declaration19, World Charter for Nature, the UN GA resolution 47/3729 and also the UNESCO convention for the protection of the World Cultural and Natural Heritage.
However, principles established in the soft law are not binding. In order to invoke any legal obligations, these principles have to approach international customary law stage. In times of an armed conflict, it "could not reasonably meet the test of general practice and opinio juris."20
Continued applicability of International Environmental Law is of a grave importance, showing rapid evolution and spread of environmental awareness. Nonetheless, it still lacks efficiency to provide the proper protection during times on the NIAC.
Analyzing the Statutes of International Criminal Tribunals and environmental protection, any kind of prohibition functions the best if it criminalizes the conduct. Thus, leaving aside Nuremberg, when modern IHL and environmental norms were only started to be established in treaties, a look can be taken at the statutes of the International Criminal Tribunal for Former Yugoslavia (hereinafter — the ICTY), the International Criminal Tribunal for Rwanda (hereinafter — the ICTR) and the International Criminal Court (hereinafter — the ICC).
Statutes of the ICTY and the ICTR, created to establish the jurisdiction of the tribunals over the crimes committed during the very particular time in the very particular area, fail to explicitly name environmental damages in the list of crimes.
By way of interpretation and especially bearing in mind the significance of environmental damage in the Former Yugoslavia21, it can be concluded that environmental issues are covered, at least
18 1972 Declaration of the United Nations Conference on the Human Environment (adopted at the United Nation Conference on Human Environment in Stockholm, 16 June, 1972). 11 I.L.M. 1416 (1972).
19 1992 Rio de Janeiro Declaration on Environment and Development (adopted at Rio de Janeiro Declaration on Environment and Development in Rio de Janeiro, 13 June, 1992). 31 I.L.M. 881 (1992).
20 Bothe, M.; Bruch, C.; Diamond, J. and Jensen, D., supra note 2, p. 585.
21 Final Report to the Prosecutor by the Committee Established
to Review the NATO Bombing Campaign Against the Federal
Republic of Yugoslavia. The International Criminal Tribunal for Former Yugoslavia. 13 June, 2000 [interactive]. [accessed
on 2013-06-07]. http://www.icty.org/sid/10052/en.
partially, by Article 3 of the statute of the ICTY and Article 4 of the statute of the ICTR.
Regarding the Rome Statute, one of the crimes, over which the ICC has jurisdiction, is in the Article 8(2)(b) (iv) described prohibition to launch an attack causing "widespread, long-term, and severe damage to the environment that would be clearly excessive to [...] the military advantage anticipated."22 However, this ICC statute article is very controversial and does not favourably collaborate with this research for the environmental protection in times of the NIAC mostly due to its inapplicability in the NIAC. Articles 8(2) (c) and (e), that name crimes punishable within non-international armed conflicts, do not include environmental crimes in the list.
In Human Rights treaties, the link between human rights and the environmental law can be drawn from the perspective of the third generation human rights, right to the healthy environment being one of them. It is especially well developed under the European system in the jurisprudence of the European Court of Human Rights as indirect right, protected through the right to life, right to property and private life. The UN approach also affirms that "the environment is a pre-requisite for the enjoyment of human rights."23 The application of human rights treaties during an internally armed conflict is undisputable. Since Common Article 3 of the GCs and AP II establish the basic protection of human rights in times of the NIACs, some areas remain unregulated by the law of an armed conflict as lex specialis24. Therefore, the rights to private life and property remain the subjects of human rights law. Former rights are precisely those, from which environmental rights are derived. Pollution caused by noise, fume, and various substances impact private life and health of people. It quoted Voneky confirming sufficient state practice for application of certain kinds of peacetime treaties or provisions in times of an
22 The Rome Statute for the International Criminal Court (adopted 17 July, 1998, entry into force 1 July, 2003). 2187 U.N.T.S. 90. Article 8 (2)(b)(iv).
23 High Level Expert Meeting on the New Future of Human Rights and Environment: Moving the Global Agenda Forward. United Nations Environmental Programme. 2009. [accessed 2013-06-07]. http://www.unep.org/environmentalgovernance/ Events/HumanRightsandEnvironment/tabid/2046/language/ en-US/Default.aspx.
24 Legal Consequences of the Construction of Wall in the Occupied Palestinian Territory. International Court of Justice, supra note 26, paras. 106-109.
armed conflict25. The above-mentioned rules of human rights treaties can be attributed to "treaties that are compatible with the maintenance of war."26 Hence, it may be concluded that human rights law indirectly contributes to the sufficiency of environmental protection during the internally armed conflict because human rights' instruments' provisions regulating private life, property27, do not cease to apply. Absence of such provisions in humanitarian law does not deny the existence of rights as such28. However, the general principle of military necessity, which is certainly applicable in the NIACs, may easily overcome such contribution.
Customary Law
The aforementioned lack of clarity in treaties and written obligations suggest the further object of the study — customary international law. First of all, the international customary humanitarian law helps with two main disadvantages we have faced when examining treaty obligations. Treaties only apply to states that have ratified them; consequently, it narrows down the geographical scope of application. Customary law rules are applicable to all parties to the conflict, despite its nature, or whether parties have ratified certain documents or not29. It, therefore, fills up some gaps in the regulation of non-international armed conflicts.
A significant study of International Customary Humanitarian Law by the International Committee of the Red Cross (hereinafter — the ICRC) have brought some clarity in what rules exactly can be held as part of it. Customary law study per se does not impose any obligations based on customary law. Nonetheless, the ICRC being quite an authoritative body, it has been rendering the recognition of international community.
Concerning the environmental customary humanitarian law rules, Rule 42 contains a duty of particular care when launching an attack against works and installations containing dangerous forces.
25 Voneky, S., supra note 25.
26 Ibid.
27 Right to property, however, can be subjects of limitation during times of the emergency situation.
28 Hampson, F. J. The Relationship between International Humanitarian Law and Human Rights Law from the Perspective of a Human Rights Treaty Body. International Review of a Red Cross. 2008, 90, 549-572.
29 Hampson, F. J., supra note 40, p. 177.
Rule 43 prohibits attacks on the natural environment in the NIACs as well as in the IACs unless it is justified by a military intervention or elements of the environment become a military object30. Normally, the natural environment is considered to be a civilian object31. However, hostilities can change its use or purpose32 and the general principles of the IHL come in use. The Customary Law Study also makes the link between environmental protection and protection of the property in Rule 5033. This prohibition of the destruction of property, not justified by the military necessity, is applicable in internally armed conflicts, as well.
Other customary rules, providing higher protection for the environment in the NIAC, are rules on weapons and their prohibition. Since weapons' conventions only bind parties to them, certain rules of weapons conventions have developed into customary norms, applicable in both the IACs and the NIACs. Laid down in the rules 70-76 of the Customary Law Study, they impose obligations of all the states, regardless of their membership in a certain convention, thus indirectly increasing the level of the environmental protection in the NIACs.
The distinction, unnecessary suffering, proportionality and military necessity — the main principles of IHL- are deeply settled in the international humanitarian customary law.
General IHL principles included in GCs are not applicable in the NIAC as a whole, but these principles, expressed in the rules 7-14 of the customary law study, are considered as applicable in international and internal armed conflicts, as well.
Therefore, even if certain customary law provisions are not applicable in internally armed conflicts or do not cover gaps in treaty obligations, the environmental protection falls under the protection of the main IHL principles. As it has been mentioned before, the elements of the environment are considered as civilian objects34. This is not an absolute prohibition. Attacks against
30 Henckaerts, J. M. and Doswald-Beck, L. Customary International Humanitarian Law. International Committee of the Red Cross, Vol. I, Rules. New York: Cambridge University Press, 2009, p. 143.
31 Henckaerts, J. M. Study on Customary International Humanitarian Law: A Contribution to the Understanding and Respect for the Rule of Law in Armed Conflict. International Review of the Red Cross. 2005, (87): 175-212, also see p. 191.
32 More about location, purpose and use, see in Solis, G. D. supra note 1, p. 524-528.
33 Henckaerts, J. M. and Doswald-Beck, L., op. cit., p. 175.
34 Bothe, M.; Bruch, C.; Diamond, J. and Jensen, D., supra note 2.
civilian objects are prohibited unless it is justified by the military necessity. Bothe, Bruch, Diamond and Jensen in their article name one of the main issues when applying the main IHL principles — the transformation of the environmental elements into military objectives. Such transformation may justify attacks against the environment directly; therefore, such transformation should be prevented35.
Evaluating the Law
After the analysis of relevant treaties and customary law, it is now possible to identify deficiencies and merits of the law of a noninternational armed conflict when it comes to the protection of the environment and to make inferences on its integrity. In this section, the results of this research will be summarized, answering the question: «is there a legal framework providing the sufficient environmental protection in times of internally armed conflict?». Despite the variety of legal instruments related to the environment in the NIAC, the environment does not function as an independent subject of protection. Most of the provisions require interpretation or to be linked to civil objects as subjects of the protection. The protection is invoked as a post factum matter, not as a preventive matter. Some documents are indirectly applicable to internal environmental issues only due to the application in other fields, such as disarmament, protection of civilian objectives and protection of property. Certain documents, such as the AP II, set very high level for the application of this document as such, and, therefore, makes it more difficult to apply even the vaguest norms that could favour the environment in the NIAC. The environmental law of war, and especially of noninternational "war", is very much dependent on customary humanitarian law principles36. However, these principles lack authoritativeness. The principle of the military necessity tends to supersede other objectives. Available instruments are also incoherent, dispersed in too many types of sources and in too many agree-
35 Bothe, M.; Bruch, C.; Diamond, J. and Jensen, D., op. cit., p. 577.
36 Falk, R. The Environmental Law of War: an Introduction. Environmental Protection and the Law of War. London: Belhaven Press, 1992, p. 93.
ments37. Terms, that describe the environmental damage, which could be prerequisite for the responsibility, are vague and lack specification. It gives the room for interpretation, which can, and mostly do, do not vary in the advantage of the environment. Back to the beginning of the 90's, initiative to take care of the negligent regulation of the environment in times of war took place in the form of the proposal for the Fifth Geneva Convention on the Protection of the Environment in Time of Armed Conflict38. It would have been the document, which had not made the distinction between the NIAC and the IAC. Proposals included requirements to avoid environmental damage, regardless of its connection to any other objects of the protection. They concerned the application of the principle of proportionality and the military necessity. Moreover, the proposals referred to the crite-rions of "widespread, long-term and severe" in ENMOD Convention and AP I as being too high of the requirement 39. However, this initiative was turned down, which, according to the author's opinion, is simply based on the unwillingness of the states to recognize damage to the environmental elements as the matter of as much concern as other negative consequences or effects of war. Customary humanitarian law, in this perspective, cannot do much change either, since it is completely dependent on the state practice. Therefore, the overall assessment of the existing framework for the environmental protection during internal wars cannot be positive. Fortunately, it also cannot be claimed that the environment in a non-international conflict is completely abandoned. There are rules ensuring the very minimal protection. This minimal protection, however, does not amount to the effective legal regime.
Building a New Regime. Suggestions for the Improvement
In order to upgrade the current system, a posteriori mechanisms have to be introduced as much and as effectively as a priori ones. New
37 Ibid., p. 66.
38 Gasser, P., Proposal for Action. American Journal of International Law. 1995, (89): 637-643, p. 639.
39 Turk, H. The Negotiation of a New Geneva-style Convention:
a Government Lawyer's Perspective. Environmental Protection
and the Law of War. London: Belhaven Press, 1992, p. 98-103.
and/or improved statutory obligations should avoid indeterminacy. A crucial role has to be granted to transforming the approach of states and societies with the aim of prioritizing environmental concerns. Further in section 3, possible measures of achieving abovementioned purposes are described.
Civil Liability
When the environmental consequences of an internal war get in the way of post-war recovery, it is usually the financial problems that states are facing. Therefore, civil liability for entities responsible for environmental devastation, when such liability is imposed by a specific international organ, would help to solve the problem. "Civil compensation has the potential to provide a rapid and satisfactory route by which environmental damage caused during armed conflict may be redressed as soon as possible after it occurs." 40 One of the possible means to implement such a measure would rely on the example of the United Nations Compensation Commission (hereinafter — the UNCC) — an independent system established to provide compensations for damage in the Iraq-Kuwait armed conflict. Claims for the environmental damage are also included in the Commission's framework.
With a compensational system model similar to the UNCC, belligerent parties would see the costs of the conflict, realize them rising. Therefore, they might choose either to cease the hostilities entirely or modify their means and methods of warfare to ensure that the least possible level of damage to the environment is caused41. Such a compensational body could accept claims submitted by governments and international organizations representing nongovernmental belligerent parties, thus not excluding possibilities to bring claims arising in the situations of an internally armed conflict. If subjects of the claims were not only governments but also other entities, such as organized rebel groups and their leadership, it would increase
40 Smith, T. Criminal Accountability or Civil Liability: Which Approach Most Effectively Redresses the Negative Environmental Consequences of Armed Conflict? International Law and Armed Conflict. Challenges in the 21st Century. The Hague: Asser Press, 2010, p. 95-114, see p. 104.
41 Smith, T., op. cit., p. 104.
the assurance that the non-governmental belligerent party would assess its combat plans, as well. Full-time functioning of this kind of body, not being limited to one particular issue, would encourage belligerent parties, simply talking, to think before acting. Another suggestion, likewise concerning civil liability, would be to create an international insurance scheme42. Such a scheme would receive contributions in a form of international mandatory states' payments or as part of states' taxation system, specifically aimed at creating the insurance fund. The use of the fund would be possible in a case of the need to support carrying out environmental post-war cleanups and restorations.
Focus on Existent Legal Framework and National Legislations
Although present rules of the environmental protection in times of an internal conflict are insufficient, it is still capital to develop society's respect for them by way of teaching international law, incorporating it into military manuals and training. While some rules concerning the issue are only approaching customary law status and the level of the rules being binding is limited, states can always adopt certain practices under the national law. Legal standards in the national legislation can go further than rather narrow international obliga-tions43. Since the NIACs are primarily the sovereign matter of the state, sovereign legislation imposing criminal and/or civil liability for military commanders would most likely be effective.
Changes in the International Criminal Law
Many suggestions have been made for establishing international crimes against the environment during the negotiations44 on the new
42 Drumbl, M. A. Waging War against the World: the Need to Move from War Crimes to Environmental Crimes. Environmental Consequences of War. Legal, Economic and Scientifc Perspectives. Cambridge, New York, Melbourne, Madrid: Cambridge University Press, 2000, 620-646, see p. 644.
43 Roberts, A. The Law of War and Environmental Damage. Environmental Consequences of War. Legal, Economic and Scientifc Perspectives. Cambridge, New York, Melbourne, Madrid: Cambridge University Press, 2000, p. 47-86, see p. 77.
44 The London Round Table Conference on 'A "Fifth Geneva" Convention on the Protection of the Environment in Time of Armed Conflict.' Read about the conference in more detail in the following section.
substantial treaty for the environmental protection in times of war45. Some changes, such as the adoption of the Rome Statute, were implemented in International Criminal Law since then. However, the need for international crimes against the environment in the NIACs was not taken into consideration. Therefore, a suggestion in favour of the environmental damage control would be the amendment of the ICC statute including a provision, similar to 8 (2) (b) (iv), to the list of war crimes committed in internal conflicts.
M. A. Drumbl says that "magistrates and judges of the International Criminal Court likely will not have expertise in the areas of environmental law, policy, or science (...)."46 This could invoke an increase of the costs of proceedings and ineffective jurisprudence. The logical question then is whether the appropriate solution would be an establishment of the new international tribunal in particular for environmental crimes. C. Ripa di Meana in the same above mentioned negotiations contributes to this idea47. Implementation of an arbitration institution, dealing with environmental claims not only in times of war, regardless of internal or international, but also in the peacetime, would be another possibility. The question is whether modern society is ready for such drastic changes and whether states are ready to sacrifice a level of their sovereignty for the protection of the environment.
The Need for a New Document
In June 1991 was organized the London Round Table Conference on 'A "Fifth Geneva" Convention on the Protection of the Environment in Time of Armed Conflict', which would be applicable not only in the IACs but also in the NIACs. Although the conference did end in the proposal for a new document, such document is still only in the minds of environmental lawyers. However, it does not mean that the need of its adoption has disappeared. Properly arranged and formulated with the support of the states, the new comprehensive document would be
45 Turk, H., supra note 54, p. 99.
46 Drumbl, M. A., supra note 58, p. 640.
47 Ripa di Meana, C. Environmental Protection and the Law of War. Introductory Speech. London: Belhaven press, 1992, p. 65-67.
the most beneficial contribution favouring the environmental protection in times of war. Notwithstanding the unproductive outcome of the conference, suggestions for a new document have been expressed in several contributions of authors until these days. Adding up the proposals, there are three forms in which the new instrument could be adopted — as the 5th Geneva Convention, as the IVth Additional Protocol to Geneva conventions48 and as the Ecocide Convention 49 (following the example of the Genocide Convention, applicable in times of war as well as in peacetime and criminalizing the environmental damage). Turk and Falk suggested that regardless of the form taken, the new instrument should consider the following elements:
Relation of the environmental damage and principles of proportionality and military necessity. The evocation of these principles should be declared more precisely than only leaving it for the margin of appreciation of military commanders. Even with the adoption of this new instrument or criminalization of environmental damage in the NIAC, the absence of the determination would lead to the same initial problem of the IHL principle of military necessity overweighting environmental devastation.
Maintaining the prohibitions of disarmament treaties and focusing on the use of these weapons.
Answering the question whether only intentional actions lead to the prosecutable and/or punishable consequences or the rules also should include the negligence.
Specifying types of harm, degrees of responsibility and liability.
Introducing the definition of protected areas, sites, objects, natural processes. It could be done by providing the general definitions or made as a form of a list of protected properties that could be considered as Natural Heritage (similarly to World Heritage List, provided by the World Heritage Convention).
Either establishing new grave environmental breaches of the convention, criminalizing environmental devastation not only in the IAC, but
48 Turk, H., supra note 54, p. 101.
49 Brunch, C. E. Introduction. Environmental Consequences of War. Legal, Economic and Scientific Perspectives. Cambridge, New York, Melbourne, Madrid: Cambridge University Press, 2000.
in the NIAC as well, or introducing the notion of ecocide.
Establishing a new body ensuring execution of the new instrument -compensatory and/or (semi)judicial.
The creation of a new legal instrument would definitely be a major contribution to the sufficiency of the legal framework protecting the environment in times of the NIACs. However, creating an effective and sufficient legal regime is not limited to achieving this adoption. The process will be successful only if the international opinion is supportive of the regime. All this requires a thorough and long negotiation process and achievement of genuine consensus among the governments.
Conclusions
Despite the slowly growing concern on the issue, environmental devastation in times of internal conflict still is an underestimated consequence of the hostilities.
Environmental protection in times of NIAC is regulated by a number of incoherent, implicit and quite vague norms that are dispersed in too many types of sources among humanitarian law, international environmental law, international criminal law and human rights law. Elements of the environment are not independent subjects of protection and have to be linked to other subjects of protection, such as civilian objects or human rights. The current legal framework is not sufficient for a proper regulation of environmental protection times of internally armed conflict.
Improvements of the legal framework could have the form of:
Creation of the compensational system model or establishing international insurance scheme, which would prevent potential harms to the environment as well as would help in post-war recovery processes.
Adopting changes in the international criminal law in order to establish international environmental crimes in internal conflicts.
Encouraging states to amend their national legislation.
Adopting a new comprehensive document, exhaustively addressing all the issues and obstacles related to the regulation and implementation of the environmental preservation in times of non-international armed conflicts.
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Защита окружающей среды во время вооруженных конфликтов
TshiboLa Lubeshi Aimée Murphie
Аспирант Департамента правового регулирования хозяйственной деятельности, Финансовый университет, Москва, Россия; [email protected]
Аннотация
Охрана окружающей среды во время вооруженных конфликтов редко рассматривается в качестве приоритетной задачи. С учетом концепции государственного суверенитета это особенно проблематично при рассмотрении вопроса о вмешательстве в военные действия и защите окружающей среды в конфликтах, не имеющих международного характера. Трудно найти какие-либо исчерпывающие и четкие правовые положения, регулирующие этот вопрос, так как он забыт международными правоведами. Поэтому в данной статье автор рассматривает нормы, закрепленные в документах различных отраслей международного права, таких как права человека, международное гуманитарное право, экологическое право, международное уголовное право, которые непосредственно или путем толкования могут способствовать охране окружающей среды во время внутреннего вооруженного конфликта. Это должно быть сделано для того, чтобы собрать информацию о достаточности правовой базы по сохранению окружающей среды во время такого рода вооруженных конфликтов. На основе проведенного исследования предлагается несколько возможных способов совершенствования существующей правовой базы. Автор рекомендует ввести гражданскую ответственность, принять новый комплексный документ, инициирует изменения в международном уголовном праве и другое.
Ключевые слова: экологическое право; международное уголовное право; гуманитарное право; права человека; немеждународный (внутренний) вооруженный конфликт; правовой вакуум; недостаточное международное регулирование
