Environmental Damage in Armed Conflict: A TWAIL Perspective

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Introduction

Between 1950 and 2000, 80% of the world’s major armed conflicts occurred in biodiversity hotspots. Today, fourteen out of the twenty-five countries most vulnerable to climate change are riddled with armed conflict, and all fourteen can be grouped as ‘Third World’ nations. Many of these conflicts, like those in Yemen and Afghanistan, are also hotspots of military intervention. Such intervention is specifically relevant from the perspective of Third World Approaches to International Law (TWAIL) because the school of thought condemns the use of international law to further  powerful nations’ agendas (Chimni and Gathii). Frequently international law’s attitude to foreign military intervention, particularly from the West, fits this narrative.

This blogpost will use a TWAIL analytical framework to explore existing norms of International Humanitarian Law and the applicability of the International Law Commission’s (ILC)  Draft Principles on the Protection of the Environment in Relation to Armed Conflicts (DPPERAC). After establishing international law concerned with violations of the obligation to protect the environment during armed conflict, this blogpost will discuss the attribution of State responsibility in cases of third-State intervention, particularly in conflicts in Third World countries.

Relevant IHL 

Articles 35(3) and 55(1) of the Additional Protocol I to the Geneva Conventions (AP1) require three factors to be fulfilled by the chosen means of warfare to trigger protection: widespread, long-term, and severe damage to the natural environment. Unfortunately, the International Committee of the Red Cross’(ICRC) interpretation of these terms suggests a very high standard of damage extending over a hundred square kilometers and having an impact on the ecosystem, population health, or economic assets lasting over ten years. Given that 174 countries have ratified AP1, these provisions could potentially stand the test of customary international law (CIL). This raises an issue because the AP1 standard exceeds the general IHL standards of military necessity, proportionality, and prohibition of unnecessary suffering (widely considered CIL), essentially permitting disproportionate and unnecessary environmental destruction which is not widespread, long-term, and severe.

Furthermore, AP1 only applies to international armed conflicts (IACs). From a TWAIL perspective, this presents as an enormous drawback because Protocol II Additional to the Geneva Conventions (AP2), which applies to non-international armed conflicts (NIACs), does not provide similar environmental protection. Moreover, the ICRC concedes that the already-low standard of due regard for the environment in military operations may not apply during NIACs.

The ILC’s Draft Principles

The DPPERAC provisionally adopted by the International Law Commission (ILC) seek to be based on State practice compiled by the ICRC. Interestingly, the DPPERAC extends protection to the environment before, during, and after armed conflict, casting a much wider net than AP1, which only applies during armed conflict. It also designates as ‘protected zones’ areas of significant environmental importance that cannot be attacked during conflict [DP4].

However, the DPPERAC provides for conflicting standards of protection. While it prescribes for ‘care to be taken’ to protect the environment against the triple test of AP1 [DP13(2)], it also prescribes the general rules on distinction and so on [DP14]. Consequently, while the DPPERAC are certainly more comprehensive than the existing IHL framework, it is unclear which standards must be proven to hold States liable for environmental damage. Irrespective, the lower protection threshold and its specific safeguards make the DPPERAC a critical step towards better environmental protection.

Afghanistan: Applying the DPPERAC post-conflict

Following the United States of America’s (US) withdrawal from Afghanistan, a significant question that has gone unaddressed is the ‘toxic environmental legacy’ that their military bases have left behind.

Though prohibited by US military policy, open-air burn pits are sources of contamination when not in use, leaching polycyclic aromatic hydrocarbons and metals including lead and copper into surrounding water and soil. Additionally, US-produced specialized firefighting foam (used to put out petroleum fires) produces Perfluoroalkyl and polyfluoroalkyl substances (PFAS), an established cause for increased cholesterol levels, decreased infant birth weight, and a heightened risk of kidney or testicular cancer, among others.

The DPPERAC presents a unique opportunity to enforce post-conflict responsibility to mitigate and compensate for environmental damage [DP1]. It mandates parties to the conflict to “remove or render harmless toxic and hazardous remnants of war under their jurisdiction or control that are causing or risk causing damage to the environment” post-conflict [DP27]. If States violate this obligation, they must make full reparation for the environmental damage [DP10] and damage to human health and life. Thus, the DPPERAC ensures that foreign powers who interfere in armed conflict pay the price for the environmental damage they leave behind.

Application from a TWAIL lens

When the DPPERAC is read with the principles of State responsibility, it would likely create accountability for environmental damage in proxy wars. For instance, the US could be held responsible for aiding and assisting Afghanistan with the environmental damage caused in the nation (Similarly, Saudi Arabia in Yemen).

Of relevance here are two modes of attributing responsibility as per the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA): First, the test of aiding and assisting under Article 16 of the ARSIWA which requires a lesser responsibility and more straightforward test to establish responsibility. Second, the test under Article 8 of ARSIWA to attribute responsibility for unlawful conduct directed or controlled by a State. The former mode is preferred owing to the difficulties in establishing effective control of intervening States over the State directly engaged in proxy wars.

Aiding and Assisting in Environmental damage

To meet the standards of the customary test of aiding and assisting States in committing internationally wrongful acts, four factors need to be satisfied. Firstthe State aids or assists another State in committing an internationally wrongful act; Secondsuch aid or assistance contributes to the commission of that act; Third, the assisting State intends to facilitate and knows of the circumstances of the internationally wrongful act; and fourththe recipient State’s act would also be wrongful if committed by the assisting State (para 420, the Genocide Case).

Two questions arise in the context of foreign States involved in armed conflict causing environmental damage: Firsthow much control or contribution is required for such ancillary responsibility to be attributed to foreign States? Second, what intention is required to satisfy the abovementioned test?

Consider the ongoing armed conflict in Syria, where forest cover has reduced by 20,681 hectares over the last 20 years, largely owing to the war. Russia, one of the Syrian Government’s most significant allies, has supplied over 63,000 military personnel since 2015. In such a scenario, would prolonged Russian military aid be sufficient to attribute that the nation contributed to the damage done to the Syrian environment? Importantly, it is unnecessary for the aid or assistance to have been essential to the performance of the internationally wrongful act; it is sufficient if it contributed significantly to that act (ILC Commentary on ARSIWA, page 60, para 5). Much of the operational-level planning in Syria is controlled by the Russian command in the nation, implying that Russia is involved both on the ground and in the strategic end of the conflict. Moreover, Russia has been reported to have aided Syria in bombing oil refineries, contributing to colossal environmental damage. This suggests a significant Russian contribution to the environmental destruction that has ensued because of the conflict.

Establishing intention for this mode of responsibility can be especially challenging. Per the ILC (ILC Commentary for Article 16, para 3), intent or purpose on the part of the assisting State must exist, which can be imputed by actual or near-certain knowledge of illegality ( Crawford at 408 and Jackson at 160).

Russia is a State party to AP1, making it difficult to dismiss knowledge of the legal consequences of environmental destruction during its contribution to the Syrian armed conflict. Moreover, Russian assistance goes well beyond the mere provisions of arms- supplying its military personnel, commanding a high strategic position and likely directly assisting oil refinery bombings. It is therefore difficult to disprove Russia’s near-certain knowledge of the illegal consequences of its conduct.

All of this is contingent on establishing the destruction of the natural environment in Syria as an international legal violation. Given that AP1 would not apply here, this blogpost turns to the DPPERAC and its extension of the principles under Article 35 and 55 of AP1 to NIACs [DP13].

Syrian forest cover has deteriorated spatially at 4400.0 ha per year between 2015 and 2020, leading to a loss of over 200 square kilometers of forest land. While the exact amount of forest cover lost due to armed conflict cannot be determined owing to the region’s instability, some of the heaviest losses have been concentrated in major areas of conflict (Mohamed at 204). One of the main causes of forest fires, which led to the loss of 26,161.0 ha of forest land in 2020 (Mohamed at 207), is the mutual bombardment and fighting between the conflict parties in dense forests. Thus, the loss caused by Syrian armed forces should meet the standards of widespread, long-term, and severe damage to the natural environment.

Analysis 

Article 16, ARSIWA imposes a very strict standard to link Russia to the specific environmental damage caused by requiring States to make a  “significant contribution to the IWA”, despite the challenges of  accurately establishing such contribution. It would be preferable to broaden the standard required and  hold Russia responsible because of its influence over Syria’s military strategy.

On the other hand, the DPPERAC provides a  lower standard to establish a legal violation and extends protection to the environment during NIACs. This presents a valuable contribution from a TWAIL perspective because it helps offset the narrative that international law protects powerful countries from accountability for their legal infractions.

Still, the DPPERAC has its disadvantages. First, it does not extend to non-State actors, unlike AP1. This is a considerable drawback because armed conflicts in Third World nations often have at least one non-state armed group (NSAG). Moreover, the DPPERAC is based solely on State practice, unfortunately excluding the importance of NSAGs and their conduct, failing to capture the realities of armed conflicts that plague affected nations. Second, by virtue of being an ongoing preparation of the ILC, the DPPERAC’s enforceability remains in limbo.

Conclusion 

The DPEERAC is preferred from a TWAIL perspective. The tests under the regimes of State responsibility and IHL are too strict and benefit powerful States to the detriment of weaker States. The DPEERAC fills a gaping legislative hole by granting environmental protection during NIACs, something neither CIL nor Additional Protocol II to the Geneva Conventions sufficiently fills. Thus, the DPPERAC – with its lower thresholds for environmental protection – captures powerful States’ wrongful conduct more comprehensively and is therefore favorable.

Manasa Sainidhi Venkatachalam is a final year student of the B.A. LL.B. (Hons.) at the Gujarat National Law University, India

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