If we want to strengthen the protection of the environment in relation to armed conflicts, we need to define what we mean by “the environment” – is it a natural thing, a human thing, a cultural thing or is it all these things and more? Laurence Menhinick considers how different entities and legal regimes tackle this question, and what we should take into account when trying to define what it is we want to protect.
The 1982 World Charter for Nature states that: “Nature shall be secured against degradation caused by warfare or other hostile activities”. But although the protection of the environment is commonly only considered to be concerned with the natural environment, it is also intrinsically linked to human well-being. Something which has been addressed recently by the Independent Expert to the UN Human Rights Council John Knox, who has documented the rights and obligations on States relating to the rights of humans to enjoy a safe, clean, healthy and sustainable environment.
Whether in peacetime or conflict, and whether driven by the need to protect the natural environment or the humans who depend on it, there is a general expectation that the lawyers have a common understanding of what “the environment” actually is. The logical place to look for it is the numerous multilateral agreements, treaties, conventions and protocols that make up international environmental law (IEL). And yet IEL fails to provide a clear and commonly accepted definition – and if IEL doesn’t have one, what hope is there for other branches of law? This absence of a clear definition has surfaced during the UN Sixth Committee debates on the International Law Commission’s (ILC) study on the protection of the environment in relation to armed conflicts, which saw some States highlighting this gap and commenting on the need to develop a definition.
There are many reasons why clarifying the definition in relation to protection in times of armed conflict is essential. Two important ones are that it could allow the law to be applied consistently before, during and after conflict, and in particular during the planning of military operations (for example by providing guidance on preliminary impact assessments), and it could help to frame the extent of post-conflict remediation. In this respect, a clearer definition could therefore help minimise damage and clarify accountability for harm.
What do you think about when you hear the word environment?
Considering the broad range of concepts that the term “environment” encompasses, initial definitions can sometimes appear restricted or subjective: from the vision of “the natural world” complete with rocks, flora, fauna and rivers, to the ideal of the pristine uninhabited wilderness. But of course a range of environmental media and their attributes also need to be considered, such as the atmosphere, environmental services, natural resources and even man-made environments, as does the interconnectivity and dependency between these systems. Oh and of course the environment is not static but is instead subject to endless change across short and geological timescales.
It is also the case that the concept of “the environment” is fluid, evolving in line with the development of our scientific understanding of what it constitutes. And just as the meaning of the word has evolved over time, so has its relative public importance. With the 1972 Stockholm and 1992 Rio Conferences, and the subsequent development of peacetime environmental law, environmental assessments have become the norm, treaties have made States liable to others for transboundary environmental damage and pollution. And, as public awareness has grown, un-remediated environmental damage has become less and less acceptable. But in spite of all this, there still remains: “no commonly agreed definition in international law of concepts of “environment”“, either in IEL or international humanitarian law (IHL).
“The environment” under IHL
IHL typically qualifies the environment as being “natural”, rather than providing a broader definition of the word. Prohibited acts in conflict in this context are defined as those causing “widespread, long-term and severe damage to the natural environment”. In the absence of a clear definition of what the environment actually includes, this cumulative troika is open to interpretation, and can therefore be geographically challenged (how wide an area is widespread), temporally challenged (ranging from a season to several decades) and without reference to baseline conditions, assessing what constitutes severe damage is nearly impossible. It is also worth noting however that existing IHL rules for the protection of the environment do not aim to completely prevent damage but instead merely to reduce harm.
The 1977 International Committee of the Red Cross (ICRC) commentary to the Additional Geneva Protocols did seek to qualify the definition of the “natural environment”: “[t]he concept of the natural environment should be understood in the widest sense to cover the biological environment in which a population is living. It does not consist merely of the objects indispensable to survival (…) but also includes forests and other vegetation (…), as well as fauna, flora and other biological or climatic elements”. The “natural environment” therefore benefits from some degree of protection directly from existing laws, although this protection is weak because of the thresholds mentioned above.
Protection by proxy
The environment as a whole can also benefit from the protection afforded to other interests when it is implicitly included in their definition. For instance, the Regulations of the Fourth Hague Convention, today considered as customary IHL, state that: “the means of injuring the enemy is not unlimited” (Art.22) and “[an] occupying State shall only be regarded as administrator and usufructuary of the public buildings, real property, forests, and agricultural works”, (Art.55). Some elements of the natural environment are therefore included in these administered areas. Likewise, in the Fourth Geneva Convention of 1949 the protection of personal property could also include environmental property: “…extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” (Art.147).
Similarly, the environment is protected from being used as a weapon of war by the ENMOD Convention, which restricts: “the hostile use of environmental modification techniques having widespread, long-lasting or severe effects”, although as this dates back to the 1970s, the environment as defined here is again limited to what we can broadly describe as “nature”.
Yet what of environmental considerations beyond those found in IHL? Human rights law (HRL) and IEL offer other definitions currently in use in multilateral agreements, treaties and humanitarian practice, which could be used as starting points. Obligations under both regimes are not terminated by the outbreak of hostilities, so the definitions examined below – which are by no means exhaustive – could provide valuable reference points for the debate.
A geographical dimension
A definition used by the UN Environment Programme (UNEP) includes a mix of media and geographies, and the interactions between natural systems, but leaves out the man-made environment: “The environment is the sum of all external conditions affecting the life, development and survival of an organism. Environment refers to the physical conditions that affect natural resources (climate, geology, hazards) and the ecosystem services that sustain them (e.g. carbon, nutrient and hydrological cycles)”.
On the other hand, the 1990 UK Environment Protection Act considers what would cause harm but also gives a broader definition of what constitutes the environment: “[T]he “environment” consists of all, or any, of the following media, namely, the air, water and land; and the medium of air includes the air within buildings and the air within other natural or man-made structures above or below ground.” Under the UK definition, pollution occurs when substances “…capable of causing harm to man or any other living organisms supported by the environment” are released. In so doing it links environmental degradation with direct impacts on human health.
A socio-economic dimension
In the later 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes, more layers are added to the definition, taking in the concept of the “cultural environment” and judgements on the “economic value” of the environment: “[…] effects on the environment include effects on human health and safety, flora, fauna, soil, air, water, climate, landscape and historical monuments or other physical structures or the interaction among these factors; they also include effects on the cultural heritage or socio-economic conditions resulting from alterations to those factors”.
With environmental damage affecting the human and “natural world”, the inclusion of environmental systems with socio-economic value could help measure damage as monetary loss. This has the advantage of helping to place a financial value on the environment (although such approaches are not without controversy). These have already been used as a basis for compensation purposes in peacetime and post-conflict settings. A temporal element is also added when dealing with the scope of damage to land (agricultural or not), ecosystems, forests and waterways used for human consumption and life: allowing for a long-term view of what the environment provides and ought to be preserved.
A cultural dimension
There are a number of differing perspectives on the cultural value of the environment, which may link ongoing human interests and historical artefacts. Looking at built artefacts for instance, the environment can be added to the list of what are considered “civilian objects”. These are usually defined under IHL as “all objects that are not military objectives” – including “buildings dedicated to religion, art, science, education or charitable purposes and historic monument” and buildings of cultural importance. As man-made objects, these are already protected by rules relating to cultural property under IHL and customary law during conflict, yet some States, such as Australia, have also included the natural environment as a civilian object in their military manuals.
Australia’s decision may have been influenced by the relationship its own indigenous communities have with traditional lands and sacred sites. More broadly, indigenous groups are increasingly vocal stakeholders in environmental preservation. In doing so they are helping to widen the definition of environmental protection to include areas of intrinsic value and human interest, without any direct link to either material or financial benefits.
The state of the environment
Determining the necessary extent of environmental remediation requires an understanding of the baseline environmental conditions of the location in question. In the vast majority of cases, increasingly well documented human interactions with ecosystems have rendered the definition of the environment as pristine and natural – as once seen in deep ecology – largely obsolete, and of little relevance in most contemporary conflicts.
A few isolated nature reserve islands, the deep ocean and Antarctica may be considered as the last geographical areas corresponding to this definition, yet in an era of global marine and atmospheric pollution, even they cannot be described as being devoid of any human interaction. The Protocol on Environmental Protection of the 1991 Antarctic Treaty includes: “…dependent and associated ecosystems” in its environment, and the “…intrinsic value of Antarctica, including its wilderness and aesthetic values”. It strictly regulates activities, with rules on environmental assessments, preventative measures, liability and remediation. Yet assessing what is to be considered as an “original” or “acceptable” level of remediation in most contexts may be subjective unless clearly defined.
A working example of considerations for post-conflict remediation comes from the aftermath of the 1991 Gulf War. When it came to administer reparation claims, the UN Compensation Commission (UNCC) made provision for non-commercial environmental claims under “Category F”, for which UNEP’s Working Group of Experts opted for a new definition of the environment as: “includ[ing] abiotic and biotic components, including air, water, soil, flora, fauna and the ecosystem formed by their interaction”.
Although the number of claims awarded was low in comparison to other categories, they allowed for compensation for the costs of remediation, for the monitoring and clean-up of oil spills, for coastal damage, soil and groundwater contamination, loss of ecosystems, the loss of fauna and flora, and for the pollution from particulates from oil well fires. Defining what constituted damage was crucial to judging claims and remediation efforts. The UNCC opted to remediate back to pre-conflict conditions, yet doing so requires an understanding of the original condition of the area, clear substance guidelines and consideration of the technical and financial limitations of remediation efforts.
As demonstrated by the limited selection of definitions and interpretations discussed above, the notion of “the environment” is multi-layered, and has evolved over time to what European Commission directives currently call “the environment as a whole” – an umbrella term for what could be broadly considered as the natural, urban and cultural environments. This holistic view is even alluded to by NATO. In its report on the Environmental Aspects of Military Compounds, it defines “the environment” as: “…the surroundings in which NATO operates”.
The necessity of protecting the environment from the impact of human activities has been established by international treaties and domestic laws, and in peacetime we have now come to expect pollution and damage to be measured, limited and remediated. Nevertheless, when establishing rules for its protection, a clear internationally agreed definition of what “the environment” actually covers remains conspicuous by its absence. Perhaps by necessity these different legal structures take different approaches to defining it, and so it may prove for protection in relation to armed conflict.
Environmental destruction during armed conflict has far-reaching consequences for civilian protection, post-conflict reconstruction and effective peacebuilding. Because of the diversity of impacts associated with armed conflict, protecting the environment in relation to it has to consider a range of definitions if it is to act as a commonly agreed reference point to frame behaviour in conflict, to determine accountability for harm and to inform a consistent set of post-conflict standards for restoration and remediation.
Many questions remain to be answered. How should the environment be qualified as well as defined, how can you integrate different value systems, be they natural, cultural, civilian, economic or intrinsic? How could these definitions be used to frame or constrain military behaviours before, during and after conflicts? How do you balance natural and anthropocentric perspectives in determining baselines for restoration and remediation? These are complex questions but all stem from a more fundamental one that must be addressed by the international community – how can we minimise the impact of armed conflict on the environment and upon those who depend on it without first agreeing what it is we are protecting?
Mrs Laurence Menhinick is a research assistant with the Toxic Remnants of War Project.
 Conclusions by the Working Group of Experts on Liability and Compensation for Environmental Damage Arising from Military Activities, in Liability and Compensation for Environmental Damage, Compilation of Documents para 30 (Alexandre Timoshenko, ed., Nairobi: United Nations Environmental Programme 1998) quoted in Payne, C. and Sand, P. (ed.) (2011) Gulf War Reparations and the UN Compensation Commission: Environmental Liability, Oxford University Press.
 Article 35(3) of Additional Protocol I
 ICRC (1977) Pilloud C., Sandoz Y., Swinarski C., Zimmermann, B. (eds.) (1987) Commentary on the Additional Protocols: of 8 June 1977 to the Geneva Conventions of 12 August 1949, commentary 2622, p662 Martinus Nijhoff Publishers.
 Hulme, K. (2004) War Torn Environment: Interpreting The Legal Threshold, p.13, Martinus Nijhoff Publishers, Leiden/Boston.
 DuBarry Huston, M. (2003) Wartime Environmental Damages: Financing the Cleanup, 23 U. PA. J. INT’L L. 899. 2014 version also available online at: http://scholarship.law.upenn.edu/jil/vol23/iss4/6 [accessed 21 January 2016]