Toxic remnants of war and their legacy of civilian harm is seriously under-explored as an area of conflict. There is a growing consensus that the current legal framework governing conflict and the environment is not fit for purpose – so how could new international norms that merge environmental protection with civilian protection come into effect?
In his message on the occasion of the United Nations day on conflict and the environment last month, Ban Ki-moon repeated the disappointingly persistent observation that “the environment has long been a silent casualty of war and armed conflict”. While verging on cliché, the statement speaks to a wider problem about how the environmental impact of conflict is currently recorded, assessed and responded to. Inadequate data collection on the humanitarian and environmental impact of particular weapons or military practices makes determining their acceptability difficult, empowers polluters and acts a barrier to effective post-conflict assistance.
The toxic legacy of conflict
The health and environmental impact of pollutants is widely recognised in peacetime but this aspect of the public health legacy of conflict is often sidelined in the face of urgent post-conflict response. Pollution sources in conflict can range from munitions constituents to substances released through the destruction, or loss of control, of industrial installations or oil or power infrastructure, from the ubiquitous building rubble to the waste disposal practices and footprint of military installations. As pollutants are released, wartime disruption invariably sees institutional capacity for environmental governance, such as the provision of environmental services and regulatory control, diminished.
The net result is increased pollution and less capacity to assess and manage it. These toxic remnants of war may leave civilian populations facing acute risks from dangerous industrial compounds, or chronic exposure to pollutants in air, water or food. Some may be highly visible, such as the black plumes of oil fires or military burn pits; others may be invisible but incredibly persistent, such as the dioxins from Agent Orange.
At a time where toxics in consumer products and emissions from industry, transport and agriculture are increasingly scrutinised and regulated, the lack of attention on the humanitarian impact of conflict pollution seems like a curious omission. Even more so given that the experiences of Agent Orange, Gulf War Syndrome, depleted uranium and more recently burn pits and metal-laden dusts, has placed protection from conflict pollutants firmly on the military’s agenda; as demonstrated by the US’s system of deployment health surveillance which merges environmental data on potential exposures with troop health records.
Modifying the legal environment
The norms and standards governing environmental, and by extension, public health protection in peacetime have left the laws of war far behind. Legal provisions for the protection of the environment during war and armed conflict date back to the 1970s, when international disgust at the conduct of the Vietnam War, in particular the use of the defoliant Agent Orange and Cold War fears over the use of environmental modification techniques, resulted in the codification of new international law.
The 1977 Environmental Modification (ENMOD) Convention and Articles 35 and 55 of Additional Protocol I to the Geneva Conventions did serve to anchor the environment within International Humanitarian Law but it has become increasingly clear that the thresholds for unlawful damage are set too high and are poorly defined. In 2009, the UN Environment Programme (UNEP) joined a long list of legal scholars calling for more progress in the field. They were followed by the International Committee of the Red Cross (ICRC) in 2011. Making the link between environmental protection and the protection of civilians, and noting the need for post-conflict environmental cooperation and assistance, they suggested that: “A new system could be introduced that is based on similar rules recently created for dealing with the legacy of landmines and other explosive remnants of war.”
While some member states at the ICRC’s 2011 conference did not respond enthusiastically to its proposals, the Nordic governments did take up the gauntlet, pledging to work on the issue of conflict and the environment and report back in late 2015. Following up on one of UNEP’s 2009 recommendations, the International Law Commission, which provides advice to the United Nations General Assembly, has also adopted the issue, initiating a three year legal review that will conclude in 2016. This renewed interest in the environmental and civilian impact of conflict and military activities is welcome, providing as it does a backdrop for engagement and debate, and with a consensus view emerging that the current legal framework is unfit for purpose, the search is now on for practical solutions.
How do you solve a problem like toxic remnants of war?
The scope of ‘conflict and the environment’ is vast, covering everything from climate change, to impacts on biodiversity, to natural resources and environmental sustainability as human security, and much else besides. Clearly, then, there is no one size fits all solution. The situation is complicated further by the low operational importance that militaries currently attach to environmental protection, in comparison to mission success and the survival of their personnel. Other nagging problems are the role of non-state actors and, surprisingly, how to define “the environment”, which as a complex system and one that has often been influenced by humanity is a more difficult question than first appears.
The reality is that conflict will always be environmentally damaging. Much of this damage will be subtle and cumulative – only a minority of incidents, like oil well fires, are photogenic enough to grab the headlines. This seems to suggest that pragmatic measures to minimise, assess and remedy harm are desirable. Happily, when it comes to conflict pollution, a constellation of peacetime environmental norms and standards are available as guidance. As the majority were established to ensure the protection of public and environmental health, the principles they contain are of direct relevance to efforts to increase the protection of civilians. Domestic and International Environmental Law are now being further reinforced by Human Rights Law, which is increasingly establishing links to the environment. Most notably, these principles are being forged in the field of participatory rights – through the right to know about contamination that may impact your rights to health, life or livelihood and to take part in decisions on its management.
The most cost effective way to reduce pollution is to manage it at source. In the context of toxic remnants of war, the diversity of sources involved requires that a number of parallel approaches be considered. This could entail stricter controls on the deliberate targeting of industrial infrastructure, perhaps by extending existing prohibitions on the targeting of sites that can release ‘dangerous forces’ and placing a greater onus on environmental considerations when determining the military necessity of strikes. Minimisation could also be achieved through greater environmental preparedness before conflict, something that Kuwait implemented prior to the 2003 Iraq War. Other measures could include more stringent controls on emissions and discharges from military bases, or improvements in the screening of weapons constituents.
Post-conflict environmental assessments are currently undertaken by UNEP. While robust, they often take place many years after conflicts and are dependent on the political interest and generosity of member states. To properly examine the environmental and civilian impact from conflict pollution, it is imperative that more environmental data be recorded. This will require that the number of actors recording data be increased, which in turn will require that the costs of data collection and analysis be reduced. Improvements to how it is then integrated into public health registries will also be required in order to establish harm and target assistance. New technologies are beginning to make this a realistic prospect and, coupled with mapping systems, would help challenge the cliché of the “silent victim”.
The final pillar of an approach that merges environmental protection with civilian protection is assistance and remediation. In this the ICRC’s 2011 study provides a useful starting point for discussion. Alongside monitoring and an obligation to assess damage and provide reparations, it also proposed new norms on international assistance and cooperation. ICRC’s proposal of a system akin to those applied to mines and explosive remnants of war is interesting and has parallels in the peacetime response to pollution incidents.
The Toxic Remnants of War Project is currently examining the possible structure of such a mechanism, based on the views of practitioners, civil norms and on historical responses to wartime environmental damage. The establishment this year of a new governing body for UNEP with universal membership – the UN Environment Assembly – perhaps provides a forum where a mechanism could be discussed in detail. Civil society also has an important role to play in efforts to reduce harm from toxic remnants of war. In 2015, a new NGO network will be launched, which seeks to ensure that the toxic legacy of conflict and military activities are minimised, assessed and properly addressed.
Doug Weir manages the Toxic Remnants of War Project (@detoxconflict) which explores state responsibility for the toxic legacy of military activities and the environmental and humanitarian impact of conflict.
Featured image: An Agent Orange spray run by U.S. Air Force during the Vietnam War. Source: Wikimedia