Symposium on International Conflict and Security Law: A Research Handbook – Protection of the Environment under International Conflict and Security Law

Symposium on International Conflict and Security Law: A Research Handbook – Protection of the Environment under International Conflict and Security Law

[Dr. Karen Hulme is Professor at Essex Law School.]

As conceptualised by the editors and authors, threats to international peace and security are numerous and not necessarily military in nature. In relation to the environment, there is a clear cycle of conflict demonstrated by the exploitation of, and damage to, the natural environment caused in conflict. The environmental peacebuilding agenda, for example, aims to break the conflict cycle by ensuring that remediation of the environment and fair distribution of environmental resources is included in post-conflict peace processes. Similarly, the numerous threats caused by climate change impacts, the loss of species, desertification and water scarcity, for example, are more likely than ever to be a contributing factor in sparking conflict – and extend beyond the narrowly defined classical areas of peace and security. This aspect is recognised in Tara Smith’s chapter (39) on the links between climate change and armed conflict, and Federico Dalpane and Maria Baideldinova’s chapter (40) on wildlife trafficking as a threat to peace and security. Thus, the environment is an important focus in relation to the broader notion and analysis of threats to international peace and security, and the book addresses the issues through a number of valuable interdisciplinary chapters.

Extrapolating the main jus in bello protections for the environment in armed conflict, Tara Smith (Chapter 20) sets out the multi-faceted approach of the laws of armed conflict. As history evidences, while many philosophers, religious orders and states called for the environment to be shielded from the ravages of war, environmental damage and conflict seem to have always gone hand in hand. Smith maps well the main historical incidents in the area, from the toxic chemical defoliants used in the Vietnam Conflict, to the oil well fires of the Persian Gulf Conflict and the attacks at Pancevo during the Kosovo Conflict which caused massive pollution of the Danube. Lesser known environmental impacts include the slaughter of endangered species, especially in the Virunga forest, the destruction of oil pipelines and facilities in Colombia and Lebanon for example, and the burning of forests. 

As is widely recognised, however, the specific protections afforded to the environment through the laws of armed conflict have a number of limitations and inadequacies. Thus, emphasis is generally better placed on the non-environment specific provisions of IHL, namely those of distinction, proportionality, precautions and pillage. An undoubted high point of post-conflict compensation mechanisms, the UN Compensation Commission managed to secure millions of dollars for surrounding states whose environments suffered as a consequence of Iraq’s invasion of Kuwait in 1991, and the consequent damage caused during the conflict. Ukraine’s current search for similar compensation routes, however, are not so far as successful, notably with the perpetrator of that harm wielding a Security Council veto over any such UN compensation scheme. Beyond Ukraine, however, the inadequacies and limitations of post-conflict compensation and restoration mechanisms have similarly been evident in most peace processes. 

Broader challenges to international peace and security are posed by climate change impacts and wildlife trafficking, as well as exploitation of natural resources more generally, which are the focus of two interdisciplinary chapters by Smith (39) and Dalpane and Baideldinova (40). Smith demonstrates that weather and climate impacts resulting in migration and collapse of empires is not a new phenomenon. As Smith cautions, there is also research demonstrating that states do also work together to cooperate over shared resources more often than coming to blows. However, we also cannot ignore the risks to peace and security that more severe, lasting changes in climate could create a higher likelihood of conflict, or at least provide an additional causal factor to spark existing tensions. Smith focuses on three ways in which climate change is expected to increase instances of conflict, namely resource scarcity, migration that exacerbates geopolitical tensions or ethnic rivalries, and inadequacies in the climate change regime including through inadequate financial resources for adaptation and loss and damage. Policies and politics in Europe and the US, for example, demonstrate the negative perceptions of migration from conflict zones and economic migration as threats to security. As the impacts of climate change will likely be felt most severely by the poorest around the world, and as land in those countries is either lost to the rising seas or dries up through desertification, it is perceivable – although not a foregone conclusion, that migration tensions will exacerbate further. As Smith argues, many of these tensions can be reduced with more through planning (including through state National Adaptation Plans under the UNFCCC) and broader, deeper cooperation between states. Thus, progress made in creating the loss and damage mechanism and in protecting species, for example, beyond national jurisdiction exemplify what states can achieve if they work together, although clearly states must work faster. Hopefully, they are capable of doing that, even as we face the return of Cold War dichotomies through the Russian invasion of Ukraine.

Similar to climate change, Dalpane and Baideldinova in Chapter 40 argue that it is difficult to quantify the exact contribution of poaching and wildlife trafficking to fuelling conflict, but, they suggest, it made a momentous entrance on a core feature of international law, namely Chapter VII Security Council resolutions (p.871). Central to the chapter is the exploration and debunking of theories linking wildlife poaching and terrorism, and the consequent militarisation of conservation that has been witnessed in many states as a method of limiting the actions of poachers. 

Wildlife killings and trafficking is undoubtedly having ghastly effects in the targeted species, and is bringing some to point of extinction. As the authors examine, however, taking an overly militaristic and security focused approach to tackling poaching is often also fuelling conflict. In Botswana, for example, the authors detail a shoot to kill policy for poachers that has turned the parks into war zones, a ‘just war’ some would argue, with poachers viewed as directly participating in hostilities for the purposes of international humanitarian law. Consequently, anti-poaching forces are extremely well-equipped with military grade gear and vehicles, and some states have even turned to the use of private military security companies to carry out or train local rangers. 

Not all poaching is equal in its impact on species, however, but it has often become a way for states to justify the repression of local communities. Arguably, even transnational and large-scale trafficking operations are better dealt with as crimes, rather than through the lens of security and conflict. Consequently, the chapter offers an interesting critique of current approaches and insight into where these are going wrong, and provides a detailed examination of the views of key authors in the area – which is a rarity. As with climate change, the issue of wildlife trafficking and transnational wildlife crime has been elevated to the level of the Security Council in recent years, thus ensuring its place as a major concern, and threat to international security. On a more positive note, the authors also propose that in recent UN General Assembly resolutions an ecocentric approach to poaching and wildlife trafficking is emerging. 

The final chapter that caught my eye as being of interest to environmental lawyers is Chapter 51, in the ‘Crimes’ section of the book, and is entitled ‘Military Ecocide’, written by Peter Hough. This chapter provides an excellent, fascinating historical account of the steps in the process of recognising ecocide as a crime. The chapter draws together military tactics, international relations, public responses, General Assembly Resolutions and the views of other actors to show the captivating evolution of the law in this area. 

The author examines a plethora of incidences of both offensive and defensive attacks on nature (ecocide), from the diversion of river waters, deforestation as a military tactic, scorched earth tactics, and the environmental effects of weapons and weapons testing, the targeting of industrial facilities, and the pollution damage caused by abandoned military bases. The chapter also maps the legal developments, examining significant legal judgments and provisions. Probably my favourite anecdote in the chapter is that Nixon broke off US diplomatic relations with Sweden for 15 months in 1972 as a result of Swedish Prime Minister Olaf Palme’s criticism at the Stockholm Conference and beyond of US chemical defoliation tactics in Vietnam as ecocide (p.1143). 

How exactly to enact an international ecocide crime is still the subject of much debate, including the option of whether to amend the Rome Statute to insert such a provision. Returning to Smith’s chapter, it is clear that the Protocol I environmental provisions do not prevent much by way of environmental damage in conflict due to their excessively high threshold of harm. However, the 1976 Convention on the Prohibition of Military or any Hostile Use of Environmental Modification Techniques (ENMOD) does not suffer from the same issue. The threshold adopted for the ENMOD Convention being in the alternative of ‘widespread, long-lasting OR severe’, results in a much lower threshold of damage before the prohibition begins to apply to prevent environmental modifications – a partial prohibition, at least, on ecocidal activities during armed conflict. 

Environmental security and the environmental dimensions of armed conflict have certainly maintained their prominence in the global psyche since, at least, the devastating defoliation tactics of the Vietnam War. The International Committee of the Red Cross has recently updated its 1993 Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict, adding a comprehensive commentary in 2020. Conducted over a period of fourteen years, the International Law Commission’s analysis of state practice in the area has also produced a landmark contribution in this area of law, namely through the recently-adopted Principles on the Protection of the Environment in Relation to Armed Conflict (PERAC). The key contributions of the ILC’s work became its multi-temporal approach, analysing legal obligations before, during and after conflict, and its ‘beyond IHL’ analysis – including human rights and environmental obligations within its scope of enquiry. At the same time, the conflict in Ukraine, however, has highlighted some of the inadequacies of both the international legal framework for holding states to account for environmental damage in warfare, and the practical dimensions of how to monitor and catalogue those harms. Indeed, probably one of the most harrowing incidents in recent conflicts in relation to environmental threats has been the Russian contempt demonstrated in attacks in and near to, as well as occupation of, nuclear facilities and destruction in the Chernobyl exclusion zone. Such attacks ought to be debated and recognised as possible incidents or threats of ecocide. 

These chapters, thus, provide interesting reading for those working in the area of environment and conflict, drawing upon the many perspectives of conflict analysis. If I had to make one criticism or request of the editors, it would be to include a chapter in the ‘Values’ part of the book on the growing recognition of environmental values in international law, particularly since the adoption of the Geneva Conventions. While aspects of the environment are certainly discussed within the chapter dedicated to the ‘Common Heritage of Mankind’, a separate chapter on the evolving ecocentric worth of the environment could have delved into the human security (including human rights) and environment nexus, and the links between climate change and security, as well as the securitization or militarisation of nature and wildlife. The book remains, however, as a significant contribution to the area of international security and peace.

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