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Steven Freeland

Professor of International Law, Western Sydney University; Co-Principal, Azimuth Advisory, Sydney

s.freeland@westernsydney.edu.au

 

Conflict, scorched earth policies and environmental destruction

History has borne witness to many deliberate acts aimed at destroying the natural environment during the course of military conflict. Herodotus described how, in the fifth century BC, the retreating Scythians scorched earth and poisoned water wells in an effort to slow the advancing Persian army led by Darius. In 146 BC, Roman troops razed the city of Carthage and poisoned the surrounding soil with salt to prevent its future fertilisation. The American Civil War in the mid-19th century saw the widespread implementation of ‘scorched earth’ policies.

More recent warfare has seen further examples including:

• During the Vietnam War, the United States implemented ‘Operation Ranch Hand’ to devastating effect to destroy vegetation used by the enemy for cover and sustenance through the use of chemicals such as Agent Orange. Attempts were also made to deliberately modify the environment to create floods along vital supply routes used by North Vietnamese forces.

• Towards the end of the Gulf War in 1991, retreating Iraqi forces deliberately ignited over 700 burning Kuwaiti oil well heads and emptied millions of barrels of oil into the Gulf waters. These actions gave rise to almost universal condemnation with the then German Chancellor, Helmut Kohl, describing this as a ‘crime against the environment’.

• Over the following ten years, the Saddam Hussein regime constructed barriers and levees to drain the al-Hawizeh and al-Hammar marshes in southern Iraq, an area some believe is the site of the biblical Garden of Eden. This effectively destroyed the livelihood of the 500,000 Marsh Arabs who had inhabited the area of this unique ecosystem.

• During the course of the 2003 invasion of Iraq, Human Rights Watch estimated that US and British forces used almost 13,000 cluster bombs and over 1.9 tonnes of depleted uranium, causing very significant environmental damage, the extent of which would not be known for a considerable period of time.

• The western region of Darfur in Sudan witnessed the poisoning of vital water wells and drinking water installations, as part of a deliberate government-supported strategy by the Arab Janjaweed Militia to eliminate or displace the ethnic black Africans living there.

Resource wars

Access to natural resources – or the lack of access – can itself be the trigger for conflict. In both the Democratic Republic of Congo and Haiti, the United Nations Environment Programme concluded that environmental damage had been a major cause of political unrest and conflict. It has been estimated that, during the 1990s, approximately 5,000,000 people were killed in armed conflicts that related to the exploitation of natural resources, and that a quarter of the 50 active armed conflicts in 2001 were largely ‘motivated’ by resources.

The Iran-Iraq War, the events in Kuwait at the end of the 1991 Gulf War, and the conflicts in African countries such as Sierra Leone, the Democratic Republic of Congo and Liberia, all serve to illustrate how armed conflict that is (partially) driven by disputes over natural resources can also subsequently result in significant destruction to the natural environment. In the latter cases, not only were the conflicts fought over natural resources, but the resources themselves (for example, timber and diamonds) became sources of funding for the combating parties, to be used to acquire weapons for the conflict.

These examples illustrate the phenomena referred to as ‘resource wars’, where the economic value of natural resources serves to fuel or trigger conflict. Exploitation of these resources represents a source of funding for military activities, giving rise to an unvirtuous circle. The misuse of natural resources such as diamonds, or the scarcity of resources like water, may facilitate potential conflict, a situation which then becomes self-perpetuating and protracted. Environmental degradation and destruction of natural resources can therefore be both a cause and a consequence of armed conflict.

Environmental and human consequences

Throughout history the environment has been a silent victim of human conflict. The problem is ongoing. Actions such as those referred to above demonstrate how the deliberate despoliation of the environment can have catastrophic effects, not only on human populations, but also in ecological terms. The devastating effects of environmental warfare can continue long after the conflict is resolved, jeopardising or destroying the lives and livelihoods of those reliant on the natural environment.

Given the increasingly diverse ways in which armed conflict might be conducted, and in light of the development of ever more destructive weapons technology, there is even greater scope for such destructive actions in future warfare.

In November each year, the UN marks the ‘International Day for Preventing the Exploitation of the Environment in War and Armed Conflict’. While this has raised international consciousness into the issues, it is time that we even more tangibly recognise the criminality of crimes against the environment and make those responsible for such crimes fully accountable. In this author’s opinion, the most appropriate method to address the issue is not through (civil) environmental protection measures, but rather under international criminal law (though it is hoped that this will have positive consequences for the environment), so that those who intentionally instigate such destruction can be made criminally liable.

Defending the environment

Environmental degradation and exploitation can be both a cause and a consequence of armed conflict. The International Court of Justice has recognised that damage to its environment may constitute an ‘essential interest’ of a state. The Court also affirmed that, ‘the environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn’. This is a truism even during times of warfare and certainly extends to the preservation of, and access to natural resources.

Of course, warfare by its very nature results in damage to the natural environment and to natural resources, as well as to other ‘protected sites’. However, this alone cannot be justification for the intentional targeting of them.

Inadequacies of existing international law

Despite all of the evidence, deliberate environmental destruction during warfare is still largely regarded as an unfortunate consequence of war. The existing rules under international humanitarian law and international criminal law purporting to limit deliberate environmental destruction have largely been ineffective and inappropriate. The impact of any environmental destruction has typically been considered to pale in significance when measured against perceived military advantages.

Although some commentators regarded the polluting of the air and waterways by the deliberate igniting of the Kuwaiti oil wells at end of the First Gulf War as constituting a violation(s) of article 53 of the Fourth 1949 Geneva Convention, no action was initiated under that instrument. Others called for the finalisation and implementation of a ‘Fifth Geneva Convention’ specifically directed towards such acts, arguing that the existing legal regime was shown to be incapable of providing appropriate protection and enforcement in the circumstances. This proposal did not proceed.

The concept of an ‘environmental crime’ has not, until quite recently, been a point of focus in the otherwise rapid evolution of international criminal law. It is now accepted that international criminal law is an appropriate mode to deal with this issue, and it is addressed in one provision of the Rome Statute, which is regarded by many as the most up-to-date codification of the nature and scope of international crimes. Article 8(2)(b)(iv) of the Rome Statute provides that a war crime within the context of an international armed conflict (and therefore not extending to armed conflict that is not of an international character) and ‘within the established framework of international law’ may have been committed in the event that an accused:

‘[i]ntentionally launch[es] an attack in the knowledge that such attack will cause […] widespread, long-term and severe damage to the environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated’.

This specific provision draws on principles also found in the 1977 Additional Protocol I to the Geneva Conventions, which proscribe methods or means of warfare that are intended, or may be expected to cause ‘widespread, long-term and severe’ environmental damage. At the time that the 1977 Additional Protocol I was concluded, those provisions were regarded as an important step forward in acknowledging the issue of environmental damage during conflict. Similar language is used in article 55(1) of the 1977 Additional Protocol I, and article I(1) of the 1976 ENMOD Convention.

Several points bear further elaboration here. First, it is apparent that article 8(2)(b)(iv) demands a very high threshold of injury to the environment before an act would fall within the scope of the crime. The use of the conjunctive (‘and’) between the words widespread, long-term and severe, rather than the disjunctive form, has, at least from an environmental protection perspective, effectively meant a ‘regression’ from the standard that had been specified in the ENMOD Convention (where the disjunctive form is used).

Moreover, a comparison of article 8(2)(b)(iv) with article 55(1) of the Additional Protocol I indicates how the degree of culpable action necessary to amount to a war crime under the Rome Statute appears to have been increased. Acts that would contravene article 55(1) would not necessarily constitute a war crime under article 8(2)(b)(iv), since this latter provision includes the need for the damage to be ‘clearly excessive’.

The difficulties relating to the requirement of ‘excessive’ damage under article 8(2)(b)(iv) were highlighted in the 2000 Committee Report examining NATO’s actions during Operation Allied Force. However, not only must the damage be ‘excessive’, but it must also be ‘clearly’ so. Irrespective of any uncertainties as to what ‘excessive’ means, the inclusion of the descriptor ‘clearly’ suggests an intention to set an even higher level of damage as the requisite threshold, although how this is to be determined is unclear.

It is true in one respect that express reference to environmental damage as a war crime in the Rome Statute is to be regarded as a step forward in the development of international criminal law. At least the issue has been raised, and there is an acceptance, in relation to the jurisdiction of the ICC, that completely unfettered environmental destruction is no longer accepted.

However, there is a real risk that resort will not be had to the environmental damage variant in article 8(2)(b)(iv). This provision is but one of a multitude of different war crimes set out in the Rome Statute, and the requirements necessary for it to be applied appear virtually impossible to satisfy in practical terms. Article 8(2)(b)(iv) is insufficient and inadequate to address the problem, due to the uncertainties of the provision and the inordinately high threshold level of damage that it requires, and even then only after taking account of the military contingencies.

A way forward

Hence, we are now at a crossroads: there is, in this author’s view, an imperative to address the intentional targeting of the environment during armed conflict. Yet, article 8(b)(2)(iv), and indeed the Rome Statute as a whole, is simply not performing the role that it should with respect to such acts and, frankly, is incapable of doing so as presently constituted.

This is notwithstanding the ICC Prosecutor’s 2016 Policy Paper in which she stated that her Office ‘will give particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment …’ While this policy is laudable and, in theory at least, would give greater scope for victims from affected communities to participate in, and give evidence to cases relating to the impact of deliberate environmental destruction on their lives, in this author’s view, it may not be practically feasible under the terms of the Rome Statute as they stand. The current legal framework fails to provide sufficient protection for the environment against such acts and consequently fails humanity on this issue.

It is therefore submitted that a new crime – ‘crimes against the environment’ – be included within the terms of the Rome Statute so as to create international criminal responsibility in appropriate circumstances for those who deliberately target the environment as a strategy of armed conflict. This author has elsewhere elaborated on this argument and has provided a detailed draft of his proposed definition and structure for this crime.[1]

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