Legal Advisor to the Executive Director Legal Regulation of the Effects of Military Activity on the Environment 4/24/2017 The Hague Conference on Environment, Security and Sustainable Development 9-12 May 2004 Amy Hindman Legal Advisor to the Executive Director UNEP

“Inter Armes, Silent Leges” (In times of war laws fall silent) -Cicero 4/24/2017 There are actually a number of treaties, international agreements and other forms of regulation governing how war is waged. The most obvious and famous are the Geneva Conventions, designed to provide humanitarian safeguards to both military and civilian personnel. There are also some limited legal protections provided for safeguarding the environment in the context of international conflict. But why would we want such laws, and why would we want to make sure that they are sufficiently effective and comprehensive? Humanitarian law in the context of war makes sense, as there are certain boundaries that, even in wartime, we do not disregard (torture, rape, deliberately targeting the civilian population). Why would protecting the environment be on par with this? Because making war on the environment (or unintended environmental consequences of some actions) can be as devastating to the innocent, and have as horrific long-lasting consequences as many forms of conduct prohibited by international humanitarian law. (For example, activity that poisons a water supply).

Damage to the Environment through military conflict 4/24/2017 Intentional damage Collateral damage Wanton damage Other indirect effects and aftermath Intentional damage: to crops, water supply, damage through fire, flooding, use of herbicides such as agent orange by the US during war in Vietnam Collateral: such as the release of chemical pollution from attacks on industrial plants Wanton: purposely harming the environment out of spite – destruction of oil wells and intentional release of oil during the first Gulf war Indirect effects: government no longer in a position to address damage, safeguard protected areas etc. Examples in Africa

Potential protection for the human environment in the context of armed conflict 4/24/2017 Basic principles of humanitarian law Environmental Conventions The law of the Hague 1899 and 1907 Hague Conventions codifying the laws and customs of war The law of Geneva Protection of classes of people and objects outside of combat Principles: Limitation, military necessity, distinction, proportionality and humanity Environmental conventions: do they even apply in wartime? In the event of conflict, to what extent do they apply? Under most interpretations, they apply to they extent they are not inconsistent with the laws and customs of war – but this is not sufficient. In any event, they are not designed to specifically address envrionmental damage resulting from military conflict Law of the Hague: further developed in various treaties to address particular types of weapons (chemical weapons and land mines) and targets (cultural objects) and methods of warfare such as environmental modification techniques. Geneva: sick and wounded, prisoners of war and civilians. Originated with the 1864 Geneva convention and is now codified in the four Geneva Conventions of 1949 which have been accepted almost universally by states Overlap: prisoners and occupied territories protected under both Hague and Geneva

Express protection for the environment in armed conflict 4/24/2017 1977 First Geneva Protocol Geneva Protocol I, Art. 35(3) Geneva Protocol I, Art 55(1) Environmental Modification Convention (ENMOD) Both developed in response to environmental damage caused during the Vietnam war. Not as universal as say, the basic Geneva Conventions and even where states are not parties, they do not have the effect of customary international law. Geneva Protocol I: Article 35(3) prohibits belligerents from employing “methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the environment.” has to be widespread, intentional and severe – pretty bad. Norms and language seen as malleable by experts Geneva Protocol I Art. 55(1) Provides an illustration of Art. 35 – singling out methods or means of warfare that are intended or expected to prejudice the health or survival of the civilian population.” ENMOD inspired by US cloud-seeding during Vietnam. Focuses not so much on environment damage, but on environmental modification as a means of warfare. Substantive provision prohibits states from engaging in “military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects, as the means of destruction, damage or injury to a state party.” Very limited – appliess to deliberate manipulation of natural processes – eathquakes, tidal waves, hurricanes, etc. Geophysical warfare

Specific rules limiting the means and methods of warfare 4/24/2017 Limitations on Targets Dangerous forces Cultural objects Limitations on Weapons Biological and chemical weapons Landmines Limitations based on Area Antarctica Neutral states Protections Come from Geneva Protocol I and Arms control treaties, among others Limitations on targets: 1 objects indispensible to the civilian population (Geneva 1, Article 54(2) – prohibits attacks on objects indispensible for the survival of the civilian population, such as foodstuffs Installations containing dangerous forces Article 56 (dams, dykes, nuclear plants – we think) still permitted if the target is used in regular, significant and direct support of military operations. Does not reflect customary international law. Cultural objects. Dates back to 1899 and 1907 Hague Conventions – protection for buildings dedicated to religion, art science. World War II resulted in the 1954 Cultural Property Convention under ECOSOC.(Also has exemptions for military imperatives) Prohibits using cultural property for military purposes Limitation on weapons: No general prohibitions: in its Nuclear Weapons Advisory Opinion, the ICJ concluded that the threat or use of nuclear weapons would generally be contrary to the rules of international law applicable in armed conflict,” but was unable to conclude that it was unlawful in the event of extreme self-defense And 1963 partial test ban treaty – designed to reduce radioactive fall-out resulting from atmosphere testing of nuclear weapons Biological and chemical weapons:1925 Geneva Gas Protocol, 1972 bacteriological weapons convention and 1993 Chemcial weapons convention – last expressly applies to herbicides Incendiary weapons, land mines Limitation based on area: San Remo Manual, Antarctica treaty, outer space treaty, 1949 Geneva convention and geneva protocol on neutral states

Sufficiency of existing laws, rules and policies: one assessment 4/24/2017 Sufficiency of existing laws, rules and policies: one assessment With the exception of article 35(3) of Geneva Protocol I, law of war does not expressly protect environmental resources Important environmental provisions have not entered into customary international law General principles of humanitarian law are too open-ended to preclude most environmental damage Very few norms address the problems of environmental harms stemming from non-international conflicts Assessment shared by many experts is that laws are not sufficient. This particular assessment provided in a study conducted by Daniel Bodansky of the University of Georgia School of Law, commissioned by the German Ministry of the Environment and presented to UNEP as a gift by the German Minister of Environment Jurgen Trittin. Example of important environmental provisions: “dangerous forces” General principles of humanitarian law make you balance concerns – sinking an oil tanker – proportionate? Worth the damage? What if it’s near a protected area such as a coral reef

Potential Solutions: Bodansky Recommendations 4/24/2017 Potential Solutions: Bodansky Recommendations A comprehensive review of the environmental effects of war A UN or ICRC Resolution urging states to protect the environment during non-international conflict Inclusion of environmental concerns in military manuals (such as the ICRC environmental guidelines) Inclusion of environmental rules in NATO Combined Rules of Engagement Binding instruments, such as a convention on the prohibition of military activities in protected environments Review would give the issue a higher profile and might define specific areas for priority action Proposed conventions follows work of IUCN - little clear opposition Could also propose procedural requirements, including environmental assessments and statements of reason. Could take the form of a UN Resolution. To promote familiarity with proposals – could lead to a binding agreement.

4/24/2017 “Wars are not acts of God. They are caused by man, by man-made institutions, by the way in which man has organized his society. What man has made, man can change.” - Frederick Moore Vinson Even if we accept that war is inevtible, the laws we have adopted demonstrate our willingness to prevent some of its more egregious harms. We have the power to address environmental harms in the same manner