To mark the UN’s environment and conflict day 2015, the Toxic Remnants of War Project has published a major new report that explores how a more formalised system of post-conflict assistance could increase the protection of civilians and their environment, and help to create and strengthen norms against environmentally destructive military behaviours.
Why have we written it?
For the last forty years, legal scholars have been debating how legal protection for the environment before, during and after armed conflict could be strengthened. Since 2009, the debate has been given added impetus after interventions from the UN Environment Programme, the International Committee of the Red Cross and the International Law Commission.
Generally speaking, the debate has found that Human Rights Law, International Environmental Law and even Disarmament Law could be used to help inform how we could ensure greater protection for the environment than that which is currently provided by International Humanitarian Law. It’s an important debate because the health and livelihoods of civilians are often intimately connected with the quality of their environment.
This sounds complicated
One of our observations from the debate during the last few years has been that the sheer quantity of law available, and the broad scope of environmental damage associated with conflict, have made it hard to focus in on what’s really important and what greater protection might actually look like in practice. It’s made even more complicated by the fact that since the 1990s, the UN Environment Programme and others have been undertaking work to protect, clean-up and restore the environment after conflicts. This important work has developed organically in the absence of a clear framework so by necessity it is ad hoc. We believe that much more could and should be done, this is particularly true for efforts to minimise wartime environmental damage, but is also true of how we fund and implement post-conflict assistance and in how we identify and help those affected.
So what we wanted to explore was whether a clearer framework could do more to protect the environment and the people who depend on it than at present. We wanted to see whether we could identify the legal principles and structures that could help such a system function, and we wanted to identify the thematic areas where more focused legal and political debate would be important to achieve this goal.
Which areas did we look at?
We based the report’s chapters and the report’s hypothetical environmental assistance and protection framework on six main questions:
1. International assistance and co-operation
What would be an appropriate model for establishing the principle of international assistance and cooperation with respect to managing wartime environmental damage?
2. Financing assistance
What is the best way of ensuring that urgent funding and technical assistance is always available to states affected by wartime environmental damage?
3. Monitoring harm and access to information
How can we increase the amount of information that is gathered on the human and environmental impact of wartime damage?
4. Community assistance
How can we ensure that communities and individuals affected by wartime environmental damage or degradation are identified and assisted?
5. Remediation and restoration
To what extent should states affected by wartime environmental damage be obligated to ensure that the rights of their citizens are protected?
6. Norm building
What is the most effective way to establish and promote new behavioural norms, guidelines and best practice that could minimise environmental damage in both international and non-international armed conflicts?
What did we find?
The report finds that widely accepted principles and norms from all of the legal regimes mentioned above could be applied to protecting the environment and civilians from the impact and legacy of conflict. The same was also true of the structures created by treaty regimes designed to deal with marine pollution, hazardous waste, the trade in endangered species and explosive remnants of war.
Graphic from the report Environmental Mechanics showing how the hypothetical elements of a new system of post-conflict environmental assistance could interact.
One key finding was the vital role that the flow of information would have in any new system, something that will require a significant improvement in how we monitor and record wartime environmental damage and its humanitarian consequences.
The report also finds that by creating a forum where states would be required to review the environmental legacy of conflicts, information gathered during conflicts and on how we respond to damage could help create and promote new norms that could help reduce environmentally damaging military practices.
Doug Weir, the author of the report said: “Examining what an idealised system of post-conflict environmental assistance might look like has helped highlight the gaps in how the international community currently responds to wartime environmental damage. Reassuringly, the lessons from environmental and disarmament treaty regimes show that we understand how these gaps could be filled, if there were the political will to do so. The humanitarian consequences of the environmental damage caused by the fighting in Ukraine, Syria, Iraq and many other conflicts around the world show that strengthening protection for the environment is not just an issue of academic interest but is a question of protecting civilian lives and livelihoods.”
The main purpose of the report was to help those engaged in the debate on strengthening the protection of the environment to be able to better visualise their objective. We also wanted to help make the debate more accessible to those who aren’t legal experts. By taking a systems approach to the topic, we wanted to show how possible solutions to the thematic questions above relate to one another and, in doing so, explore how the elements of a hypothetical environmental assistance framework might interact.
Our Project believes that four decades of general legal debate is sufficient time to explore the topic. Therefore our challenge to those seeking to strengthen protection for the environment in relation to conflicts is to now focus in on the really important questions, and on how solving them might work in practice.
The report contains five recommendations for states and civil society organisations that wish to support the new discourse on strengthening protection for the environment in relation to armed conflicts.
1. States should review the effectiveness of the UN system’s ability to address the environmental dimensions of peace and security.
This report has highlighted a number of shortcomings in how the international community collectively responds to environmental damage in relation to armed conflicts. Significant improvements could be made at a number of levels and across the UN system, for example in relation to more effectively integrating environmental considerations in the mandates of peacekeeping operations.
Consideration is needed over whether UNEP has sufficient resources and mandate to assess and address the environmental and humanitarian impact of the widest possible range of conflicts. Where gaps exist, civil society should be encouraged to support and augment UNEP and other UN agencies’ efforts in this regard. In order to ensure greater visibility and prioritisation of the environment than exists at present, a forum may need to be identified where the environmental dimensions of peace and security can be discussed by states, international organisations, civil society and experts.
2. States should promote progressive interpretations of the applicability of environmental and human rights law.
This study, and the decades of legal discussions that preceded it, has shown how principles, practice and precedents from International Environmental Law, Human Rights Law and Disarmament Law could help inform new approaches on conflict and the environment. This progressive approach has also been in evidence in the interventions of some states during UN Sixth Committee debates on the International Law Commission’s ongoing study on protection of the environment in relation to armed conflicts. States that support progress on conflict and the environment should recognise and endorse the utility and applicability of the principles within these regimes during statements in relevant fora.
3. Support focused work to define the humanitarian imperative for strengthening environmental protection in relation to armed conflicts.
There is already a broad understanding that environmental damage, be it pollution or the degradation of resources, carries with it a cost to civilian health and livelihoods, but it is debateable whether this is being properly explored or communicated at present. Improving how we define and document harm, and how we communicate it, would help build a clearer understanding of the humanitarian consequences of wartime environmental damage. This is an area that is severely under-addressed at present and improving documentation will be a pre-requisite for any meaningful political effort to strengthen legal protection. Donors, international organisations, academia and civil society all have an important and complementary role to play in defining what we mean by harm, and in documenting it, and should deepen their collaboration to achieve this objective.
4. States should ensure that environmental practitioners, affected states, civil society organisations and communities can fully engage with the new discourse on strengthening protection of the environment in relation to armed conflict.
The last few decades of debate on strengthening protection of the environment in relation to armed conflict have primarily focused on legal analysis, or have been weighted towards military, rather than humanitarian considerations. In order to move beyond this, it will be necessary for states and international organisations to facilitate the inclusion of a wider range of perspectives. This should not only include the practitioners of international organisations who work on these issues day to day, but also expertise from states affected by wartime environmental damage, civil society organisations and representatives from affected communities. Without the inclusion of these perspectives, the topic risks remaining of academic interest only, making further progress difficult.
5. The ICRC should continue and intensify its engagement on conflict and the environment.
The 2011 Pledge by the Nordic governments and Red Cross societies to pursue research and host expert meetings on conflict and the environment during the last five years has made a useful contribution to the developing debate. A second Pledge to continue this work would be a welcome outcome of the 2015 ICRC conference and efforts should be made to engage states and national societies from beyond the Nordic group to ensure a more inclusive and globally representative approach. National societies should consider the merits of establishing a focal point for the topic within the movement to help create and sustain relevant expertise. Finally, the movement as a whole should help contribute to efforts to document and define the humanitarian consequences of wartime environmental damage.