The TRW Project was delighted to be invited to take part in a recent seminar organised by the University of Leiden’s Jus Post Bellum (JPB)Project. The event took place at the Peace Palace in The Hague and featured a series of panel and roundtable discussions on peacebuilding and environmental damage during and after conflict. The JPB Project, led by Prof. Carsten Stahn, investigates whether and how a contemporary jus post bellum – law after war – may facilitate greater fairness and sustainability in conflict termination and peacemaking.
The JPB Project argues that the concept of ‘jus post bellum’ has an established tradition in just war theory and has long formed part of the ethics of warfare since scholastic writing and classical works on the law of nations. The problem of the ending of conflict and the need for a proper organisation of post-conflict peace has become evident in the context of recent interventions and their aftermath. In this context, jus post bellum has witnessed a renaissance in military ethics and moral philosophy. But it has traditionally been neglected in the conceptualisation of the laws of war in the 19th and 20th century, which remains based on the classical division into jus ad bellum and jus in bello.
During its current phase, the JPB Project is bringing together legal specialists, civil society and other actors to explore and define key issues, principles and law that could form a foundation for a contemporary take on a jus post bellum framework. The work is of clear relevance to the scope of the TRW Project’s work, particularly in relation to exploring obligations for the post-conflict assessment and management of conflict pollutants and environmental damage.
The first panel dealt with legal norms and frameworks, with Cymie Payne of Rutgers University taking on the challenge of defining what we mean by the environment, a job made difficult by the human influences on even apparently pristine wilderness areas. Karen Hulme from Essex University considered human rights-based approaches to environmental protection but suggested that focusing on human rights, where interpretation and adherence can vary around the world, may prove controversial to some states.
Carl Bruch and Olivia Radics of the Environmental Law Institute considered how the law of pillage could be applied post-conflict, particularly in reference to timber or conflict minerals while Britta Sjöstedt of Lund University discussed how multilateral environmental agreements could be used to protect biodiversity hotspots after armed conflict.
The second panel dealt with responsibility for environmental harms. Kirsten Stefanik from the University of Western Ontario suggested how principles of international law, and environmental law in particular, could help improve the protection of the environment and civilians in conflict. In doing so she made particular reference to the precautionary principle and the principle of intergenerational equity. Matthew Gillett of the International Criminal Tribunal for the former Yugoslavia discussed the complexity of gathering evidence sufficient to bring environmental crimes to court, particularly where the effect of damage may be delayed or difficult to assess. Finally, Ilias Plakokefalos of the Amsterdam Center for International Law spoke on the challenge of determining shared responsibility for environmental damage.
Marie Jacobbson of the Swedish Ministry of Foreign Affairs and special rapporteur for the International Law Commission’s current three year programme on conflict and the environment then introduced her programme of work; the preliminary report of which will focus on relevant principles and law and will be published next month. She has proposed that the study be split into phases, with separate reports focusing on law and principles applicable before and after conflict, and during conflict, with a particular – and very welcome – focus on non-international armed conflicts.
(l-r) Manfred Mohr, Onita Das and Aneaka Kellay.
The third panel examined toxic remnants of war. The TRWP’s Manfred Mohr provided a summary of legal principles applicable to reducing the toxic footprint of conflict. Doug Weir then offered an overview of what we understand as toxic remnants of war, before discussing the role that civil society could, and should, play in strengthening rules and obligations to reduce environmental and civilian harm. Aneaka Kellay of the TRWP and Onita Das from the University of Western England presented on the importance of considering the role that private military and security contractors play in contemporary conflict, and the current weakness of regulations governing the environmental impact of their activities. Ursin Hofmann of the Geneva International Centre for Humanitarian Demining concluded by discussing the environmental impact of mines and explosive remnants of war and their management, presenting best practice considerations for reducing harm to the environment during operations.
The final panel addressed legal and regulatory challenges. Anne Dienelt of New York University suggested that the weapons review process under Article 36 of the Geneva Conventions could be of use in considering the potential environmental impact of weapons. Daniëlla Dam of Leiden University considered the wider societal benefits that effective post-conflict natural resource management can bring to peacebuilding efforts, with particular reference to Liberia. The JPB Project’s Jennifer Easterday concluded by examining how environmentally responsible investment policies could contribute to sustainable peace by reducing demand for conflict products and encouraging sustainable resource management in post-conflict states.
The debate during the roundtable discussions that followed, which were moderated by Erik Koppe of Leiden University and Barbara Ruis of the UN Environment Programme, were constructive and wide-ranging. Issues such as the role of the precautionary principle, state obligations and liabilities and the role of environmental assessment were debated. The TRWP was grateful for the consideration and discussion by the group of the TRWP legal working group’s draft TRW declaration.
Overall, the event was both timely and useful. It is clear that there is a notable legal consensus that the current framework for the protection of the environment is wanting. Against this background, principles of domestic, international and human rights law provide a diverse and useful toolkit for informing progress aimed at improving protection for the environment and the civilians who depend on it before, during and after conflict. Nevertheless, complex questions remain, particularly in relation to the extent and limits of state responsibility for harm and assistance, or the limits of precaution in the face of perceived military utility. However, the building blocks for an initiative on conflict and the environment are very much in place.
It just remains to thank all who contributed, and particularly the JPB Project for organising the event and for their hospitality. Finally, and in light of Article 36’s Male Panels Initiative, the TRWP were impressed by the gender balance on the panels at the event – the United Nations should take note.