This blog considers the extent to which we can use international humanitarian law (IHL) to define or judge the environmental impact and acceptability of weapons. How do weapons damage the environment? Should we be thinking only in terms of their direct impact, or should we focus on how weapons are used? Or do we also need to take a more holistic approach, one that considers their impacts on the environment from production to disposal?
During the debate among states over the International Law Commission’s (ILC) ongoing study on strengthening protection for the environment in relation to armed conflicts, one of the topics where consensus has been noticeably elusive has been on the environmental impact of weapons. In the context of the debate “weapons” should be viewed in the broadest sense, covering WMD, conventional and those that blur the boundaries between or fit poorly into these definitions.
As noted in the first of the Special Rapporteur’s reports, disagreement over whether weapons should be included in the scope of the ILC’s study has been present from the outset, both within the ILC itself, and latterly among states.
“During the informal consultations in the Commission in 2013, some members cautioned against addressing the issue of weapons, whereas a few members took the view that it should be addressed. A similar pattern emerged during the debate in the Sixth Committee.”(A/CN.4/674 para 66)
By definition, armed conflicts involve weapons, the use of which typically results in the introduction of heat, explosive force and a range of radiologically or chemically toxic pollutants into the environment. Given that everything from a humble lead bullet to a strategic nuclear weapon is capable of leaving an environmental footprint, from a solely environmental standpoint, the ILC’s reticence on the weapons issue is a curious one. A point noted by Portugal in 2014: “…since the impact of armed conflicts on the environment depended largely on the type of weapons used, the issue of weapons must necessarily be addressed.”
The omission was supported by the Special Rapporteur, who, writing in 2014 was of the view that “…addressing the effect of particular weapons should not be the focus of the topic. Nor should “weapons” be addressed as a separate issue.” She argued that the existing principles of IHL – distinction, precaution, superfluous injury or unnecessary suffering etc, are sufficient to deal with the legality or otherwise of weapons, and that the prohibition of particular weapons that fail to meet these tests has always been subject to divergent views:
“Furthermore, States’ reasoning for concluding these [disarmament] agreements is not always identical. For example, views may differ on how to regard agreements and particular provisions: as a disarmament measure, a law of armed conflict measure, or both? This flexible understanding has proved highly valuable in achieving the ultimate goal, that is, prohibitions or restrictions on the use of a specific weapon.”
Absence of consensus
Enthusiasm among states for efforts to strengthen the protection of the environment before, during and after armed conflicts is far from universal. As far as the post-2009 discourse is concerned, it was evident at the 2011 conference of the ICRC, and is becoming ever more apparent during the debates on the ILC study. It is therefore understandable that those states that do support a progressive outcome do not wish to antagonise those that do not.
Yet during the ILC study debates, a number of states have continued to call for the inclusion, or at the very least, the recognition of the environmental consequences of certain weapons. Meanwhile others are pointedly backing the ILC’s decision to exclude them from the study’s scope. How this tension will play out is unclear at present but seems unlikely to be resolved to anyone’s satisfaction over the course of the project. When you review those for and against their inclusion, at times it feels as if the environmental impact of one particular kind of weapon, of the nuclear variety, is still distorting the debate, as it has done so since before the 1996 ICJ’s advisory opinion on the use or threat of use of nuclear weapons.
Defining the impact of weapons on the environment
With a few specific exceptions, such as a nuclear exchange or the widespread use of chemical defoliants, the direct environmental impact of weapons is often a comparatively small part of a much broader narrative about how the environment and those who depend on it suffer in relation to armed conflicts. However, how and where particular weapons are used is of course of critical importance for environmental protection, just as it is for the protection of civilians.
When weapon impacts are viewed solely as a question of the direct effect of a particular weapon on the environment, the Special Rapporteur’s assertion that judgements of legality or acceptability based only on the existing principles of IHL are sufficient appear superficially attractive. Although needless to say, if IHL’s provisions on the environment are also included in the equation, you still have the persistent problem of the ill-defined and largely useless widespread, long-term and severe thresholds to tackle.
But a more useful approach would begin with considering how and where weapons are used and how that affects the environment. For example, the UK’s first choice of targets in the hours after parliament voted to support the extension of airstrikes from Iraq were installations on the Omar oil field in Syria, which were attacked with 500lb Paveway bombs. Advocates for the targeting of such sites would of course highlight the perceived necessity of such actions, with their environmental impact and any derived public health risks subservient to operational success. It might also be argued that each single strike has only a localised impact. But what of the widespread effects of the strategy as a whole, particularly as it is not only being pursued the Coalition aircraft in Syria, but also by Russia?
Oil infrastructure, industrial facilities and arms dumps may all be viewed as militarily important targets but damage to such sites can have serious repercussions for the environment and public health. In this respect, the debate perhaps has more in common with that on the use of explosive weapons in populated areas (EWIPA). With some specific exceptions, such as particular explosive weapons with wide area affects – such as GRAD MLRS rocket systems, EWIPA addresses the “where and how” of weapons use more than the “what” of particular weapons, as historical weapon-specific disarmament initiatives have done.
The law and the lifecycle
Nevertheless seeking to understand and judge the environmental impact of weapons through an IHL prism alone feels limiting. For one thing, by definition it ignores the fact that weapons, both conventional and WMD, impact the environment throughout their lifecycle. The vast majority of weapons are never used in conflict but nevertheless impact the environment during their production, storage, abandonment, disposal, or in training.
One of the most extreme examples of environmental damage from weapons production is that of the Hanford Site in Washington State – one of dozens of facilities that contributed to the production of the US’s nuclear weapons. When its plutonium production reactors were closed at the end of the Cold War it had produced 200,000m3 of high-level radioactive waste, stored in 177 storage tanks, 710,000m3 of solid radioactive waste, and created 520km2 of contaminated groundwater beneath the site. Remediation will take decades and will likely last into the next century.
Another extreme example is that of mélange rocket fuel, so toxic and volatile that stockpiles have the potential to spark serious environmental emergencies. Such was the threat from the stocks left in former Soviet and Balkan states that the OSCE embarked on a 15 year mission to remove and stabilise them. The management and disposal of other types of abandoned rocket fuel, such as dimethylhydrazine, has also been a major environmental headache following a number of conflicts, such as Afghanistan and Libya. Scud missile sites containing it have also been deliberately targeted during conflicts, for example in Yemen earlier this year.
While the environmental risks posed by the production, storage and disposal of the obviously hazardous residues of nuclear and chemical weapons continue to receive international attention – the at sea processing of Syria’s chemical weapons stockpile being a case in point, in general the environmental legacy of conventional weapons receives less attention.
Conventional weapon stockpiles can be vast and disposing of large volumes of explosives or propellants can mean major financial liabilities, which can increase the pressure to cut costs. In 2012, following an accident at Camp Minden in Louisiana, plans were put in place for the open burning of 6,800 tonnes of M6 propellant and 145 tonnes of clean burning igniter. The open burning of surplus energetic materials has been undertaken for many years in the US, in spite of the hazardous emissions the process produces. Local communities took exception to the plans, leading to a showdown with the Environmental Protection Agency and the US Army. The communities won and disposal will now be carried out within a contained system.
The need to dispose of conventional munitions within domestic environmental protection frameworks has helped increase scrutiny of the potential risks to human health and the environment from different disposal techniques, such as open burning. But although high volume stockpile destruction in stable settings makes it economically viable to use cleaner industrial processes, these are generally not options in conflict or post-conflict settings. As such, reducing the environmental footprint of munitions disposal in the field needs to be more fully addressed than it is at present, where security considerations and the immediate safety of clearance personnel generally take priority. Thought also needs to be given to minimise environmental disruption during clearance operations, for example damage to soils from mechanical demining.
Weapon testing on domestic ranges faces similar regulatory challenges to disposal. In turn these have stimulated long overdue work to determine the levels of residues testing produces and their health and environmental risks. Overall, risks to the public have often been found to be low, but that often relates more to the question of land use and exposure pathways than to the nature of the contamination itself. Similarly, for a number of military use substances, insufficient research is available on their health risks and environmental behaviour to establish robust exposure standards. Domestic environmental regulations and regional chemical regulations have also helped stimulate work to test new munitions materials for health and environmental safety, as we have previously reported on this blog. However the vast majority of munitions constituents in use now, and for the foreseeable future, will not have had the benefit of these screening processes.
During operation Protective Edge in Gaza in 2014, it was estimated that around 20,000 tons of ordnance were expended by Israel – in the form of air, ground and sea launched weapons. As with other high intensity conflicts in populated areas, such as in Syria, at present it is impossible to judge whether the residues from conventional weapons – energetic materials and metals – pose a threat to public health or the environment. It is an issue that has received scant attention but one where perhaps some effort should be made to quantify the risk.
Another largely unresolved problem is that of sea-dumped and abandoned ordnance, both chemical and conventional. They are a global problem, with significant dumpsites to be found along the Atlantic coast of the US and the Baltic. At times they may only become visible when munitions are brought ashore by trawlers, during the construction of marine energy infrastructure or washed up in storms. But for communities living in proximity to the sea, and dependent on it for livelihoods, they can present a more persistent and serious threat. For example the Solomon Islands which, as with many other Pacific island states, are still struggling with the WWII legacy of abandoned chemical agents and explosives dumped or remaining in wrecked or scuttled ships. Besides the obvious threats these pose – which are worsened by informal collection for blast fishing – is the risk of soil and water contamination as the munitions degrade.
Time to review how we address the environmental impacts of weapons?
The examples above offer a glimpse of a few of the diverse environmental impacts associated with the lifecycles of conventional weapons and WMD. Their diversity seems to suggest that IHL alone is a poor tool through which to understand and to tackle these problems, many of which occur well before and well after conflicts end. Nevertheless, the approach being taken to the use of explosive weapons in populated areas is instructive, in so far as it encourages states to focus on the humanitarian consequences of the where and how of weapons use, and not just on particular types weapons.
This diversity of impacts also suggests that expecting or seeking a single solution to the environmental impact of weapons is folly, particularly as many of these problems are being addressed under different treaty regimes and under different domestic regulatory frameworks. Yet perhaps a stock take or review of these problems is in order, because doubtless there is best practice to be shared and gaps in responses to be identified and addressed. Doing so could help us clarify what we mean by the environmental impact of weapons and, by increasing awareness of these problems, perhaps also help to lessen the environmental and public health risks that they pose.
Doug Weir manages the Toxic Remnants of War Project