ENVIRONMENTAL DAMAGE: A WAR CRIME
R. ASHWIN, Student, KLE Society’s Law College, Bengaluru.
Several scientists all around the globe are taking various measures in protecting the environmental resources. Since 1990s, there has been constant depletion in the natural and wildlife resources and held military forces and their effects accountable for damage to environment. These forces have caused various operations in different parts of the world damaging and destroying the natural habitats. Scientists have claimed that brutal toll of war which was driven and backed by various governments, destroying livelihoods of vulnerable communities. They have also hope that the government with the consideration of International Law will enshrine newer policies and schemes which shall imbibe the fact of conserving environment. They have also taken the notion of making environmental damage a war crime as interference of environment shall be considered on par with indulgence of human rights. There are numerous issues citied by the scientists against the actions done and issued a letter having two dozen renowned scientists all over the globe as signatories to help the cause and to bring it to the notice of the United Nations.
Due to environment protection and conservation, 24 prominent scientists sent an open letter to the journal named ‘Nature’ the previous year urging the international lawmakers to adopt a new addition to the existing Geneva Conventions. They have adopted a scheme which talks about various crimes against the environment which ultimately becomes crimes against humanity. The letter had mentioned and asked the United Nations to make environmental damage a war crime in conflict zones. The letter had titled “Stop Military Conflicts from Trashing the Environment” and recommended the United Nations to adopt a fifth Geneva Convention to protect the environment and to hold governments accountable for the various damage done to the environment by the militaries.
From the abovementioned letter, one of the signatories have mentioned the impacts of the armed forces causing endangerment in various wildlife species from the Middle East and North Africa. The drafters of the letter were Sarah M. Durant of the Zoological Society of London and José C. Brito of the University of Porto in Portugal. The 22 other signatories, mostly from Africa and Europe, are affiliated with organizations and institutions in Egypt, France, Mauritania, Morocco, Niger, Libya, Portugal, Spain, the United Kingdom, Hong Kong and the United States. The letter had also mentioned Sahara-Sahel region including the most recent conflict collapsing large populations of Cheetahs, Gazelles and other species which was later linked to the spread of Libya’s civil war. The scientists also confirmed that such act by the militaries is in violation of human rights and shall be considered on par with war crime.
But there are various contradictory statements and existing laws for environment protection against the militaries. All the protections are found to be inadequate, inconsistent, unclear and most military behaviour won’t be applicable under these laws. After the major Vietnam War, led to the formation of protection for the environment from armed conflict. The war led to formation of two important developments in the field of law. The first one being, the Convention on the Prohibition of Military or Any Other Hostile Use of Environment Modification Techniques (ENMOD) and the second being inclusion of provisions in Additional Protocol I (API). ENMOD is an international treaty for prohibiting military for the use of environmental modification techniques for the purposes of protection of damage or destruction. The convention was signed by 48 states including India and 16 of the signatories have not ratified. The prime motive of the convention is that it bans weather warfare which was one of the techniques used for the purposes of inducing great damage to the wildlife resources. Similarly, Convention on Biological Diversity, 2010 would also act as some forms of weather modification. Under the latter provisions, the element of widespread damage, long term and severity must be met by the military in action.
The drawback of these is that it shall not fall under the category even when damaging the environment and it can’t be under the violation of these provisions. Only some of recent environmental destruction has considered to be in alignment with those elements. Of over 600 Kuwaiti Oil Fields by the Iraq armed forces during the 1991 Gulf war were destroyed which led to large amount of environment damage. Under the said act which was committed by the Iraq, the United Nations Compensation Commission held it liable for the damages caused. In turn the defendants stated that it was not a party to either ENMOD or API and shall not be held liable to the committed act.
The environmental impact of war is a major study which focuses on the modernisation of the warfare in increasing effects. The impact of various modern warfare technologies ultimately led to devastation of the environment. The introduction of the chemical weapons to nuclear weapons has constantly created stress in the biological diversity. There are various examples such as the Vietnam War, World War I and II, Syrian War, Kosovo War etc.
The letter had also pointed out the act done by the U.S Military during the Vietnam war that it had used Agent Orange, a powerful herbicide to eliminate millions of acres of forest cover and crops for the North Vietnamese troops and Viet Cong troops which directly had depleting consequences over the human health and wildlife. The report from the Vietnam Red Cross estimates that the Agent Orange has affected over three million Vietnamese including 150,000 children. More recently the battles in Mali and Sudan had resulted in rise in number of elephant killings in that particular region.
The Vietnam war was the prime reason for constituting and adding environmental protections to the Geneva Convention and thus required in instituting a global commitment in avoiding the likely extinction of emblematic desert fauna over the upcoming decades. Similarly, Syria had faced almost 85 chemical attacks since 2013 according to the Organisation for the Prohibition of Chemical Weapons (OPCW) in collaboration with the United Nations. In the year, 2018 OPCW issued an interim report on the attack carried by the United States, British and French governments against multiple government sites in Syria. The attack was taken over in the place of Douma and caused deaths over 50 people and injuries over 100. The OPCW FFM (Fact-Finding Mission) concluded the following year on the use of toxic weapons in the attack and held that it was reactive chlorine as the toxic chemical was likely molecular chlorine.
Accordingly, there are four Geneva Conventions made and three Additional Protocols which are made to regulate conduct during the armed conflict at the times of war. The existing legal framework is equipped to deal only with direct attacks on the natural environment, but not the indirect ways the environment is facing conflicts. Resources such as diamonds, coltan, timber and ivory cost large amounts of natural and wildlife resources which are completely ignored by the present legal framework. But a new treaty, excluding existing ones cannot be considered without significant political will. Such a treaty shall not be beneficial in the longer run, as it seems unlikely by any attempt for an agreement would be successful. When the domestic courts are unwilling or unable to play a vital role in prosecuting international crimes such as crimes against humanity and war crimes, the International Criminal Law (ICL) can intervene. The International Criminal Law is a public body assigned to prohibit serious crimes of the international law such as the genocide, war crimes, crimes against humanity and crimes of aggression. It also focuses on the international law which may or may not be under the body of international criminal law.
The International Criminal Court (ICC) plays an important role in prosecuting international crimes which includes war crimes. There are instances when the domestic courts cannot implement their jurisdiction in prosecuting international crimes and thus the role of ICC comes into play. The court also gives authority to two bodies of international law that deal with the treatment of individuals i.e. human rights and humanitarian laws. This gave rise to the Rome Statute of the International Criminal Court. The Rome Statute which is governing the International Criminal Court, contains set of rules which the court may rely on. Under the Statute, Article 8 deals with the war crimes and held in applicable for the matters involving International Armed Conflict within the established framework and the Court shall have jurisdiction in respect of war crimes. According to Article 8(e)(xiv) of the Rome Statute employing asphyxiating, poisonous or other gases or any other liquid form shall also constitute as a war crime.
The International Criminal Court had mentioned to work in matters relating to environmental crimes and adjudicating them in the year 2016. This was made in respect to the environmental law as there are no international courts with special jurisdiction in access to the Environmental Law. It had also mentioned that the access of non-state actors – either as plaintiffs or defendants to existing international courts that address environmental issues. It is also made to understand that the international protection of the environment is vital and also can be understood as a common concern of humanity. If any of the countries who have ratified the Rome Statute faces any climate-change crimes, the International Criminal Court has the jurisdiction to intervene. In order to fall under the said jurisdiction, crimes must have taken place in the Rome Statute which limits the court’s ability to prosecute crimes related to historic emissions.
Recently, in the year 2019 the country Brazil had faced over 88% of deforestation in the Amazon region when compared to last year. By destruction they have promised in opening up more agricultural and mining investments and trying to put end to the environmental crimes. The Brazilian Government has targeted the National Indian Foundation, the Institute of Environmental and Renewable resources and the Chico Mendez Institute. The federal agencies are actually responsible for conservation of forests, biodiversity under Article 231 of the Brazilian Constitution. The government had said that the agribusiness companies that destroy the forest to extend agricultural land and those in the mining sector are interested in gold and other minerals. The main issue with the International Criminal Court is that it does not recognise criminal liability of corporations and can be done only by the individuals. Even though when the international law provides other mechanisms, they do not have any real binding force which is another limitation of ICC.
The UNICRI (United Nations Interregional Crime and Justice Research Institute) has declared any crime which poses a serious thread and growing danger for development, global stability and international security. Since 1999, the UNICRI has contributed to the various combating crimes which are against the environment and are threats through applied research and awareness. It had also held a conference with UNEP in partnership with the Italian Ministry for the Environment and the Italian Ministry of Justice. The main purpose of the conference is to address the various environmental issues faced and to handle it efficiently.
Keeping the above mentioned letter and its notion into consideration, the International Law Commission (ILC) had released a report on August, 2019 for protecting the environment during the armed conflict. It was held that the fundamental principles of the rules of war should be accepted with ‘protection’ of the environment. It was clarified that the impact on the environment shall be taken into consideration with the military operations and the work of International Law Commission is to inform governments in interpretation of existing law. The governments are supposed to give more focus to the environment in operational guidelines issued by their militaries.
In the matter of Common Cause, A Registered … vs Union of India & Ors, the hon’ble Supreme Court of India had invoked the ‘Doctrine of Public Trust’ to entrust the government for safe, proper use and proper protection. The doctrine provides trust in public for the use of sustainable use of natural and wildlife resources. This doctrine rests on all the resources such as air, water, sea and forests and are unjustified to have private ownership against them. This is similar to what the scientists have claimed from the abovementioned letter, which tries to portray the unwanted control used by the governments through militaries. The initial approach of this doctrine was first seen in the matter of M.C. Mehta V. Kamal Nath (1997) 1 SCC 388. The court on the doctrine held that “This Doctrine is an ancient and somewhat obscure creation of Roman and British law which has been discovered recently by environmental lawyers in search of a theory broadly applicable to environmental litigation”. Similarly, in the matter of State (NCT OF DELHI) V. Sanjay (2014) SCC 672, the Hon’ble Supreme Court of India had relied on the Public trust doctrine, which ultimately focuses on private ownership and has become the law of the land. The court held that, “The doctrine of public trust extends to natural resources and there should be balance b/w the conservation of natural resources and urban development.” The court also considered the above mentioned doctrine as assets to the nation and the governments and the citizens have the obligation in conservation of the same. The court have also mentioned the UNEP Global Environmental Alert Service Report, which claimed the impact of sand mining and its destructive call in the environment.
- Image sourced from https://medium.com/@xeniatech/fighting-agent-orange-today-a106f559382e