Post War Environment Restoration: Identifying Stakeholders And Imputing Liability

This article pertains to the destructive effects of war on the environment. The author writes about the history of war and the resulting repercussions regarding environment , laws and conventions regarding war and how fruitless they have been in preventing and mitigating environmental damage.

1. History

Concern for the destructive effects of war on environment has a long history.

Philo said:

Why vent anger on inanimate things, which are themselves kindly, and bring forth fruit? Do trees, like the men who are your enemies, display signs of hostility, so that for the things they do or threaten to do, they must be uprooted?

Nevertheless, at one point, Grotius stated that devastation was acceptable in pragmatic politics.

States have deliberately targeted the environment, attempting to obtain any possible advantage over their adversaries, for instance, ruin of a considerable part of the South in the US Civil War in order to break the morale of the Confederacy in spite of the Lieber Code which comprised rules regarding treatment of civilians and prisoners of war as well as limiting the means of warfare to protect property whose destruction was not necessary to the war effort; in World War I the Roman oilfields were set afire by the British; Germany and erstwhile USSR engaged in ‘scorched earth’ tactics in world War II and in the Korean War, North Korean Dams were bombed by the United States.

The principle of military necessity has led to the acquittal of many accused of committing war crimes. Nevertheless, the researcher believes that however “necessary” a military act maybe, it cannot be justified in any way as the severity and longevity of losses it causes to mankind and the environment is unparalleled.

2. Identifying Stakeholders And Imputing Liability

In World War II General Luthar Rendulic was accused of violating Article 23 (g) of the 1907 Hague Regulations which proscribed seizure or destruction of enemy’s property unless such seizure was very vital to the “necessities of war”. Forces under his command were engaged in scorched earth tactics. Moreover, he had ordered the evacuation of civilians from that area. The Nuremberg Tribunal held that he could avail of the defence of military necessity though he had erred in ordering the evacuation of civilians from that area.

Hiroshima and Nagasaki were immediately demolished by the atomic bombings of 6^th and 9^th August, respectively. People died due to lack of food and became infected with a wide range of diseases, particularly tuberculosis. Whenever the rivers flooded, nothing could prevent or rectify the destruction brought about: American President Harry Truman stated that saving the lives of many American soldiers and the Japanese attack on Pearl Harbour were the reasons that made the atomic bombings “necessary”. The 1923 Draft Hague Rules of Air Warfare designated combatants as the sole subjects and objects of warfare. Although the rules were not as authoritative as Treaty law, they were accorded high status by military officers and were cited by the District Court of Tokyo in the 1955 Shimoda case, brought by five Japanese plaintiffs to recover damages for injuries caused by the U.S. atomic bombings. On jurisdictional grounds, the plaintiffs were denied recovery but the Court held US guilty of violating the provisions of international law.

The Vietnam War was a glaring instance of devastating environmental effects of modern military technology, with the ecosystems entirely affected. The United States engaged in massive defoliation tactics to prevent the growth of groundcover and even made an endeavour to change weather patterns to assist its war efforts. Since then, the public health implications of environmental warfare in Vietnam, mainly birth defects, infirmities and premature death related with exposure to Agent Orange have become obvious. These adverse effects led to the first international legal provisions specifically proscribing environmental warfare: the Environmental Modification Convention (ENMOD), 1976 and the 1977 Additional Protocol I to the 1949 Geneva Conventions (Protocol I).

The 1990-91 Gulf War was perhaps the most resolute endeavour to destroy an adversary’s environment, as Iraqi troops detonated more than 7000 Kuwaiti oil wells, igniting over 600 of them. Smoke from the fires produced black rain elsewhere; discharge of oil into the Gulf destroyed the marine environment, for instance, the water table got contaminated. Some years later, due to exposure to the oil smoke, the public became affected with respiratory problems. The Gulf War caused such severe environmental damage that the international community was forced to create an institution to enforce legal norms. After the War, the UN Security Council pronounced Iraq liable for all damages, including the environmental destruction and founded the United Nations Compensation Commission to review claims and make compensation awards. The environmental damage caused in the war was not one-sided. The Coalition (largely US) Forces dropped a large amount of weaponry which targeted environmental infrastructure.

In the 1999 Kosovo conflict, Serbian forces poisoned wells and allegedly engaged in scorched earth tactics to impel Kosovar Albanians to flee. NATO’s 78-day bombing campaign severely damaged some areas, especially oil refineries and industries. Targeting of civilian infrastructure caused damage in Romania and Bulgaria also. However, there was widest public participation in assessing wartime environmental damage. Nongovernmental organisations and concerned citizens monitored and documented the environmental effects of the conflict producing reports on Internet and in the media. As soon as the war ended, the United Nations Environment Programme established an expert task force to estimate the environmental damage. This indicated a promising role for the environmental NGO community also comprising the NGO representatives.

Due to decades of war, Kabul has been experiencing a wide array of environmental problems. Every year 3,000 Afghans die of air pollution and a large number of children are afflicted with many respiratory diseases. Huge amount of firewood is consumed by the public and the city is overcrowded with vehicles.

Therefore, not only international but also internal conflicts impair the quality of environment and bring about huge amount of damage which persists for several decades. The soldiers as well as civilians are severely affected and face long term repercussions.

3. Prevention Of Environmental Damage

Following the Gulf War, the United Nations Compensation Commission Governing Council tried setting the criteria for compensation for environmental destruction and therefore, submitted five kinds of damages. Firstly, there should be reduction and prevention of environmental damage, comprising expenses directly linked to fighting oil fires and deterring the flow of oil in coastal and international waters. Secondly, rational measures already taken to clean and restore the environment or potential measures which can be considered essential to clean and restore the environment must be implemented. Thirdly, adequate monitoring and estimation of the environmental damage in order to evaluate and mitigate the harm and restore the environment should be done. Pragmatic monitoring of public health and performing medical screenings in order to examine and strictly control rising health risks caused by environmental damage is mandatory. Lastly, there should be damages for depletion of natural resources.

The Working Group of Experts overtly added an additional class (“Other Environmental Damage”), quoting the decision of The Permanent Court of International Justice (PCIJ) in the Chorzow Factory (Indemnity) Case. The Court ruled that reparation for an illegal act should as far as possible eliminate all the repercussions of the act as well as rectify the wrongs so that there can be reconstruction of the situation which would have existed had the act not been committed. In particular, the damages have to be “in kind”, but if that is not feasible, damages entail “payment of a sum corresponding to the value which restitution in kind would bear”. Therefore, United Nations Environment Programme stated that the additional group of damages comprised recuperation for permanent harm to the environment where clean up or restitution was not successful and recoveries for temporary harm in anticipation of full clean up or restoration.

The Conventions regarding effects of war on environment began in 1899 with the Hague Convention. There were subsequent Hague Conventions followed by the Geneva Conventions. The principles established in the Hague and Geneva Conventions form the basis of the modern law of war. Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques is the international law of war agreement particularly directed at environmental protection. Known as the 1977 ENMOD Convention, 36 States ratified it. ENMOD Convention proscribes application of techniques that modify the environment and result in “widespread, long-lasting or severe” destruction or injury to another party. In 1980, considering the use of chemicals during Vietnam War, the international community sought to regulate the use of inflammable weapons and Article 2(4) of the Protocol III to the UN Conventional Weapons Convention was enacted to address this concern. The General Assembly Resolution in 1991 stated that the use of nuclear weapons would be contrary to the United Nations Charter. Using nuclear arms was declared a crime against humanity.

The 1999 Kosovo conflict brought to the fore the failure of the existing legal mechanisms for hearing and ascertaining charges of wartime environmental destruction. The International Court of Justice, restricted by its content based jurisdiction could not address the grievances of Yugoslavia. Yugoslavia’s petition against the ten NATO States alleged breach of “the obligation not to cause far reaching health and environmental damage” and the “obligation not to use prohibited weapons”. Prima facie these charges could have, in all probability, attracted the provisions of Geneva Conventions, Protocol I and customary international law. Moreover, a lawsuit filed by a group of Canadian, Greek and US lawyers attempted to inquire into the legality of NATO’s bombing campaign and prosecute the NATO leaders, which included Tony Blair and Bill Clinton. When the adverse impact of the bombing on environment and health were discovered, Serb lawyers considered filing civil damage suits against United States. Both the actions failed, the former due to political reasons and the latter due to issues regarding sovereign immunity and venue.

Therefore, it is opined that new strategies are required to combat wartime environmental damage. The legal provisions need to prevent and mitigate environmental damage. The existing international institutions need to be strengthened and if the need arises, new institutions should be established. Grievances should be quickly redressed and as far as possible, restitution should be such that the situation which existed prior to the environmental damage can be reconstructed. Ambiguities need to be removed from the existing Conventions. It should be endeavoured that political motives do not hinder the protection of the environment. Prevention and rectification of environmental loss should take precedence over realpolitik and discriminatory legal provisions which protect the wealthy and powerful States. The individuals and States liable for the damage should be penalised severely for the far-reaching and devastating effects of war waged by them. The war waged between two foes is turning into a war on environment and urgent measures are required to prevent the same from happening.