Harm prevention lessons from peacetime norms and standards

Harm prevention lessons from peacetime norms and standards

Industry and development are synonymous with potentially harmful chemicals, waste products and processes. Human or mechanical errors, or technical failures, can result in industrial accidents, which can threaten environmental and public health. Many of the substances involved in industrial processes and accidents are common to military activities and are therefore of relevance when assessing post-conflict environmental contamination.

The legislation and conventions in place to prevent industrial harm to the environment, alongside the response and procedures in place to treat contamination are, at present, very different to those relevant to military activities.

The first consideration when comparing industrial accidents and post-conflict environmental damage (PCED) is the legislation that has arisen as a result of previous pollution incidents. The Seveso disaster, was an accident where carcinogenic dioxin was released into the atmosphere  due to a runaway reaction in a chemical processing plant which exposed thousands of people in the town of Seveso, and nearby towns in Italy. This led to the Seveso directive (2012/18/EU) being passed in the European Union to ensure that operators handling large volumes of hazardous chemicals have a policy in place to prevent a major accident[1].

Industrial accidents have also led to the development of International Environmental Law (IEL).  The Trail Smelter Dispute between the USA and Canada was the first transboundary pollution case. Sulphur dioxide released into the atmosphere by a metal smelting plant in British Columbia was reaching the USA with detrimental effects. American farmers successfully pressed for compensation after crops were damaged[2]. This dispute, now known as The Trail Smelter Principle, has been incorporated into the Stockholm Declaration[3] of environmental law[4].

A number of treaties have also been established following the realisation that industrial processes and the use of certain substances were detrimental to environmental health. These conventions aim to prevent, reduce or limit the release of certain substances into the environment. Examples include the Stockholm Convention[5], the Montreal Protocol[6] and, most recently, the Minamata Treaty[7]. Nevertheless, the military use of some treaty controlled substances is often exempted on the grounds of national security and self defence[8], [9]. This questionably normalises the idea that environmental damage is an expected and acceptable form of collateral damage. It also points to the reason why there have been so few diplomatic and political settlements or successful prosecutions in the International Court of Justice (ICJ), or through other means of enforcement.

The legal provisions for the protection of the environmental during conflict are currently far less developed than domestic or industrial legislation.  The environmental impact of the US Army’s targeted crop destruction and deforestation in Vietnam contributed to the development of the ENMOD[10] Convention. This convention does not directly deal with environmental damage from armed conflict but the deliberate manipulation and modification of the environment and is therefore unclear and limited in scope[11],[12]. The Vietnam conflict also led to two provisions in the Geneva Conventions, Additional Protocol 1 (GC AP1) articles 35(3) & 55[13]. Not all states have signed or ratified these protocols and their wording is open to interpretation, preventing them from being passed into customary international humanitarian law [12] and making it hard to hold belligerents liable for monitoring and clean-up efforts.

A fundamental part of environmental law is the Polluter Pays Principle (PPP)[14].  The PPP has been enshrined into EU law under the Directive of Environmental Liability (EC/35/2004)[15], which then passed into the domestic law of member states, such as the Environmental Damage (Prevention and Remediation) Regulations (2009) in English law.

It is difficult to adopt the PPP in armed conflict as the belligerent responsible for the damage may be hard to identify and pre-existing damage may be hard to separate from conflict inflicted damage[11]. If it is easy to identify the “polluter” it may still be difficult to apply the PPP as reasons for causing any damage may have been in the interest of self defence or national security[14]. PPP’s incompatibility with post-conflict situations, alongside the limited scope of international humanitarian law concerning environmental protection, makes it difficult to hold belligerents liable or for affected states and individuals to claim compensation.

The PPP has passed into other legislative conventions concerning specific types of industrial accidents, such as oil spills. These environmentally damaging events have strict restrictions and compensation schemes in place (MARPOL[16] and the IOPC[17] compensation fund) to ensure liable parties are held responsible and do everything in their means to ensure the environment is restored to its previous condition. It also helps compensate those who have encountered economic losses from the damage.

Holding states liable and claiming compensation is a lot harder to achieve on the international stage. The fact that some conventions are not signed and ratified by all states, and the few clearly defined environmental laws dealing with PCED, means that successful claims are quite scarce.

Lebanese oil spill

Oil from the bombed power plant at Jiyeh near Beirut contaminating a beach in Lebanon.

The Israel-Lebanon war of 2006 had a number of complicated instances of environmental damage inflicted by both sides. Israel suffered massive forest fires and damage to an asbestos factory, while Lebanon witnessed its worst ever coastal oil spill following air strikes. The first difficulty was that Hezbollah, a non-state actor, had carried out the attacks on Israel, meaning that Lebanon could not be held responsible in an international court.  Military exemptions also prevented Lebanon claiming compensation from the IOPC fund. Moreover, neither state could pursue claims in the International Criminal Court as Lebanon had not signed the Rome Statute, while Israel has not ratified it[14].

Another example of International law failing to result in a successful claim followed the NATO air strikes on an industrial site at Pančhevo in Serbia. The strikes led to the release of thousands of tonnes of toxic chemicals into the environment. The Federal Republic of Yugoslavia brought claims against NATO for environmental damage to the ICJ, with the most applicable laws being the Geneva Convention AP1 Articles 35 & 55. However the extent of the damage failed to meet all of the threshold criteria of “widespread, long-term and severe” damage, therefore NATO was deemed not to have violated the Geneva Conventions[11],[12].

The only current successful compensation claims relate to the 1991 Gulf War and Iraq’s retreat from Kuwait, where oil fields were set ablaze and oil purposefully released into the sea. The United Nations Compensation Commission (UNCC) was established to deal with damages as a result of the Iraqi occupation, including environmental damage. The UNCC dealt with 179 claims, amounting to US$80 billion[18] worth of compensation. This was aided by the fact that Iraq was an oil rich nation, combined with a mixture of international laws and fuelled by the political will of the victors.

It is clear that further work is required to bridge the gap between the regulatory responses to industrial accidents and the response to environmental damage resulting from conflict and there is considerable scope for improving IHL provisions for the protection of the environment. Military exemptions in existing treaties surrounding applications for dual-use substances such as mercury need to be challenged in order to accelerate the search for less harmful alternatives. The aim of peacetime regulatory standards and norms is to prevent harm to human and environmental health and this principle of harm prevention is no less relevant during and after conflict.

Andy Garrity holds degrees in Environmental Science and Pollution Control and is a research assistant with the Toxic Remnants of War Project.

 


[1] Seveso Directives: http://ec.europa.eu/environment/seveso accessed October 2013

[2] Read J.E (2006) The Trail smelter Dispute (Abrdiged), ‘Transboundary Harm in International Law: Lessons from the Trail Smelter Arbitration (eds. Miller R.A & Miller R.A)  pg:27

[3] UN  Declaration of the United Nations Conference on the Human Environment 1972 Principle 21: http://www.unep.org/Documents.multilingual/Default.asp?DocumentID=97&ArticleID=1503 accessed Oct 2013

[4] Kiss A & Shelton D (2007) A Guide to International Environmental Law, Martinus Nijhoff  pg.90

[5] restricts or bans the use of certain POPs (Persistent Organic Pollutants)

[6] banning the use of CFCs (chloroflurocarbons-ozone depleting chemcials)

[7] International Minamata Mercury Convention: http://www.mercuryconvention.org/Convention/tabid/3426/Default.aspx accessed Oct 2013

[8] US EPA Montreal Exemptions for military activity: http://www.epa.gov/ozone/title6/exemptions/ accessed October 2013

[9] UNEP International Mercury Convention Exemptions: http://www.unep.org/hazardoussubstances/Portals/9/Mercury/Documents/INC5/5_7_e_annex_advance.pdf accessed Oct 2013

[10] Convention on the prohibition of military or any hostile use of environmental modification techniques: .http://www.icrc.org/ihl/INTRO/460 accessed October 2013

[11] Das, O. (2013) Environmental protection, security and armed conflict: A sustainable development perspective.

[12] Hulme, K. (2004) War Torn Environment: Interpreting the Legal Threshold, Martinus Nijhoff

[13] Protocol Additional to the Geneva Conventions (AP 1 35(30 &55): http://www.icrc.org/ihl/INTRO/470 Accessed Oct 2013

[14] Takshe A.A, Van der Molen I & Lovett J.C (2012) Examining the Lack of Legal Remedies for Environmental Damage in the 2006 Lebanon-Israel War, Envi. Policy and Gov.,22:27-41

[15] http://ec.europa.eu/environment/legal/liability/ accessed Oct 2013

[16] International Convention for the Prevention of Pollution from Ships,

[17] International Oil Pollution Compensation Fund, http://www.iopcfunds.org/about-us/ accessed Oct 2013

[18] UNCC category F4 Environmental damage http://www.uncc.ch/claims/f_claims.htm accessed Oct 2013

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