Protecting vulnerable environments in armed conflict: deficiencies in international humanitarian law.

• Author: Halpern, Michaela

1. INTRODUCTION: THE UNEASY RELATIONSHIP BETWEEN INTERNATIONAL HUMANITARIAN LAW AND THE PROTECTION OF THE ENVIRONMENT II. VULNERABLE ENVIRONMENTS A. "Environment" as Defined by International Law B. What is a "Vulnerable" Environment and Why Does it Need Special Protection 1. Fragility and Biomagnification 2. An Example: the Arctic III. CURRENT STATE OF THE INTERNATIONAL HUMANITARIAN LAW PROTECTING THE ENVIRONMENT A. Additional Protocol I to the Geneva Conventions and ENMOD 1. AP-I 2. ENMOD 3. Customary Status? B. Other Direct Protections 1. International Instruments 2. Protected Areas and Demilitarized Zones C. Indirect Protections IV. IS IHL FLEXIBLE ENOUGH TO PROTECT VULNERABLE ENVIRONMENTS DURING ARMED CONFLICT? A QUALIFIED "NO." A. Widespread, Long-Term, And Severe Threshold B. Military Necessity and Proportionality 1. Necessity 2. Proportionality C. Anthropocentric Or Ecocentric? D. Solution: Enact New Law Or Better Define, Implement, And Enforce Existing Law? V. CONCLUSION I. Introduction: The Uneasy Relationship Between International Humanitarian Law and the Protection of the Environment

   International Humanitarian Law ("IHL") sets limits on the rights of belligerents, within the course of hostilities, to "cause suffering and injury to people and to wreak destruction on objects, including the natural environment." (1) While the main focus of IHL has always been humanitarian concerns, the public conscience currently recognizes a need for IHL to encompass environmental considerations. Unfortunately, the law is slow to adapt and does not currently reflect these changing values. The current protection the law affords to environments from the devastation of hostilities is ambiguous, limited, and unenforceable; moreover, the law does not account adequately for the special needs of certain environments, which are referred to here as "vulnerable environments." The existing literature overgeneralizes the multifaceted nature of environments and elides the highly specific issues that must be considered.

   Vulnerable environments are those in which even slight changes in the biosphere can exponentially increase harm, potentially resulting in wide-scale, if not worldwide, repercussions. It is not that vulnerable environments constitute a class of their own with distinct rules; rather, the distinction lies in how the general rules protecting the environment are to be applied. The rules of IHL should require a context-sensitive interpretation, which allows the general features of IHL to be applied appropriately to the peculiarities of vulnerable environments. The Arctic region, which appears to be under growing military threat, (2) is just one such example.

   In today's interconnected world, serious issues are not confined to national borders. The issues each country faces, whether related to politics, security, or the environment, are inextricably linked and resonate within the international community.

   Few threats to peace and survival of the human community are greater than those posed by the prospects of cumulative and irreversible degradation of the biosphere on which human life depends. True security cannot be achieved by mounting buildup of weapons, but [o]ur survival depends not only on military balance, but on global cooperation to ensure a sustainable environment. (3) As "security anywhere depends on sustainable development everywhere," (4) there is a growing unmet need for an international legal framework that adequately reflects this interconnectivity. The degradation of the environment is a critical, global concern with severe consequences beyond strictly environmental concerns. Environmental degradation, in the context of conflict, could even affect the political stability of a country. (5)

   Until the 1970s, the term "environment" did not appear in any IHL instruments, although some indirect protections for the environment are found. While the environment is not explicitly mentioned, it is arguable that some of the terminology used in these texts can be interpreted to provide direct protection. Although not generally considered rules of IHL, treaties of International Environmental Law can also afford protection to the environment during armed conflict. The most direct sources of environmental protection within IHL are the 1977 Additional Protocol I to the Geneva Conventions of 1949" (AP-I) and the 1976 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD). Certainly, these are innovative instruments to link environmental protection and IHL, but the question remains, are they actually effective?

   Beyond pure treaty law, the environment could perhaps receive protection from customary principles of IHL. The customary principles of proportionality and military necessity could play a significant role in protecting vulnerable environments if there were a way to establish an objective valuation of these elements. Such an objective valuation could be achieved by adopting an anthropocentric approach to environmental protection. The problem is, if the environment is protected solely as a human asset, vulnerable environments may be left unprotected. For example, only a small portion of the Arctic is inhabited by humans. It is arguable that disturbances in vulnerable environments such as the Arctic have significant effects on the rest of the world and it is therefore in the interest of humankind to protect these areas notwithstanding the small human population. However, as global effects can take years to manifest, it is extremely difficult to determine future impacts on human populations. Therefore, avoiding an anthropocentric threshold, and instead focusing on protecting the environment in and of itself is more effective. But is pure ecocentrism politically realistic?

   This Article examines the various protections IHL currently provides for the environment and demonstrates that the current state of the law is manifestly inadequate to protect vulnerable environments. The current legal framework does have the potential to provide sufficient protection, but the law is rife with ambiguities, inconsistencies, and ineffective enforcement mechanisms, leaving vulnerable environments dangerously exposed to the devastation of warfare. Although a new comprehensive treaty or convention could be an important step forward, any new instrument would likely contain the same uncertainties; realistically, the tradeoffs in drafting may leave environmental protection at the "lowest common denominator." (8) Rather than a new treaty, the international community must focus on clarifying and interpreting existing law in a manner that gives adequate consideration to vulnerable environments.

2. Vulnerable Environments

   1. "Environment " as Defined by International Law

      Before determining to what extent IHL protects vulnerable environments, the meaning of "environment," as defined by international law, must be established. Unfortunately, there is no concrete or universally agreed upon definition of the "environment." Guidance can be obtained from the International Committee of the Red Cross (ICRC") Commentary on Additional Protocol I (AP-I), which suggests that the environment "should be understood in the widest sense to cover the biological environment in which a population is living." (9) This includes the fauna and flora as well as "climatic elements." (10) The environment in this context encompasses the entire complex of factors (living and non-living) that influence an organism's form and survival. (11)

      Further complicating the definition of "environment" is the tendency of some international instruments, including AP-I, to refer to a "natural" environment as opposed simply to the "environment." (12) Does reference to a natural environment mean that there is a separate concept for a "human environment"? Thus the anthropocentric-ecocentric debate in approaches to environmental protection is an important and complex issue discussed further in Part IV. Hulme noted during negotiations for AP-I that if there were such a distinction, a human environment would refer only to "immediate surroundings in which the civilian population lives." (13) Hulme believes that the drafters of AP-I envisioned three distinct categories of environment: 1) immediate human surroundings; 2) cultivated environment; and 3) natural environment. (14) Accepting this distinction would result in a further restriction in AP-I's ability to protect the multifaceted nature of environments because of the sole reference to natural environments.

      As a result, it could be argued that artificially created environments would not be protected by AP-1, as evidenced by the fact that there are separate articles in AP-I that deal with works and installations, such as Article 56. (15) In contrast, the literature (16) offers recommendations for the natural environment to be interpreted as broadly as possible. However, one cannot separate a human environment from its natural features and therefore, for the purposes of this article, the broader interpretation of environment is adopted.

   2. What is a "Vulnerable " Environment and Why Does it Need Special Protection

      1. Fragility and Biomagnification

         All military activity inevitably results in some degree of environmental destruction. Missiles, gunfire, mines, and the setting up of military camps disrupt the surrounding environment. However, the same military activities will have different environmental consequences depending upon the environment in which they occur. A mine exploding in the desert will not have the same environmental implications as a mine exploding in the Arctic. While serious damage to the environment from military activity generally must be prohibited, it must be recognized that there are certain areas that require additional protection because they are particularly vulnerable. These are areas more sensitive to change, where restoration after disturbance is...