Gerald Carter, LLB student
Firstly, why do Articles 35 & 55 of Additional Protocol I to the 1949 Geneva Convention[1] exist? Art. 35 & 55 were created in response to the toxic herbicide known as Agent Orange. Used during the Vietnam War as a means to flush out the enemy, it consequently led to ‘massive deforestation and chemical contamination’[2] of the natural environment. The primary purpose of said Articles was to prevent such a catastrophe from occurring again or at least limit the possible damage needed to oblige the aggressor state to ameliorate the environmental damage caused, however, it is important to note that the protection is not unlimited. Initially praised by academics for being the first set of legal provisions to protect the environment without the need for human detriment,[3] it has since attracted a less favourable reputation. Over the years it has grown increasingly obvious that no State wishes, let alone can, use said Articles; this is partially due to its precise nature and the incredibly high threshold that has been set. In an attempt to create legislation to prevent environmental damage during armed conflict, the drafters have subsequently limited the range and scope of the Articles to that of a way of limiting the use of herbicides, or as one author put it:
It seems primarily directed to high-level policy decisionmakers and would affect such unconventional means of warfare as the massive use of herbicides or chemical agents which could produce widespread, long-term and severe damage to the natural environment.[4]
Essentially, unless the damage caused is of a liking to the herbicides used during the Vietnam War; ‘Widespread, long-term, and severe damage’[5], it will more than likely not be categorised within the niche criteria of Articles 35 & 55. This brings us to our next hurdle – to understand what is ‘widespread’, ‘long-term’, and ‘severe damage’ to the natural environment.[6]
‘Widespread’ correlates to the geographical scope of the damage, however, there is little agreement on how far the said scope must measure. Where some authors believe it needs to spread over several thousand kilometres, others believe under several hundred sq. km could suffice.[7] The first obvious problem is that, if even the academics differ on the meaning, how is one to enforce the policy accurately? Moreover, if one is to accept that the damage needed must spread over several thousand kilometres, then how is this provision meant to be applied in situations of conflict-related environmental damage less than several thousand kilometres? In practice, such a criterion would be inapplicable to most environmental damage caused by armed conflict.
For ‘long-term’, the drafters of Protocol I referred to a ‘scale of decades, twenty or thirty years as being a minimum’[8]. However, one author suggests that damage spanning a length of longer than two years could, in selected cases, qualify as ‘long-term’.[9] Either way, the method for calculating the ‘long-term’ damage is often faced with scientific difficulty as, at present, there is no accurate way of determining whether the damage was a direct consequence of the conflict or by way of a novus actus interveniens, an intervening act.[10]
Lastly, ‘severe damage’ relates to the degree of actual damage caused, yet, like ‘long-term’ it is often faced with scientific difficulty, for how does one judge if the environmental damage caused is a result of the armed conflict? Furthermore, once confirmed that the environmental damage was a result of the armed conflict, the damage must then be seen as severe. A prerequisite that has proven to have forged a near-unreachable threshold, further decreasing the effectiveness of the Articles.
However, it is the view of Hulme[11] that problems persisting past the initial human victim could fulfil the requirements of severe damage. Such instances are, but not limited to, congenital, mutagenic, teratogenic, or carcinogenic defects.[12] This, in theory, could allow for inheritable diseases to be classified as ‘severe damage’. The reasoning behind such a claim comes from the prevalent ailments symptomatic of the herbicide, known as Agent Orange, used during the Vietnam War,[13] the main drive for the creation of Art. 35 and 55. Essentially, as the Articles were created largely in response to Agent Orange, and all its horrors, it is Hulme’s opinion that this therefore creates a precedent for future cases concerning inheritable diseases,[14] allowing for the scope of ‘severe’ to, in fact, broaden.
Nevertheless, the threshold for all three requirements is often seen as too high and since Art. 35 & 55 require a triple cumulative standard, no State involved in armed conflict, as of writing, has successfully fulfilled the legal parameters to enforce the said Articles.
This is why many authors believe that Art. 35 & 55 require reform. Simonds suggests changing ‘and’ to ‘or’ eliminating the triple cumulative standard and in turn lowering the threshold.[15] Whereas, others recommend the creation of a permanent UN monitoring body to address violations and award compensation, with a summary report made on the environmental impacts of armed conflicts, presented on an annual basis to the UN General Assembly.[16]
In conclusion, Art. 35 & 55 are impressive, revolutionary provisions allowing for the protection of the natural environment in times of war without the need for human detriment. However, due to the nature of their creation, they are eternally bound to environmental disasters that take a similar look to that of the Vietnam War. This fundamental flaw allows for little deviation in the scope and way in which other types of conflict-related environmental damages are caused. On the one hand, the use of herbicides during armed conflict, in theory, is well protected. Yet, if it does not match up to the scale of its predecessor or the damage caused is by another means of warfare, the environment is unlikely to receive legal protection in the form of Art. 35 & 55. Hence, many authors claim that the current state of said Articles does not effectively protect the environment during armed conflict and therefore, requires an urgent reform.[17]
[1] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, (Additional Protocol I), Articles 35 and 55.
[2] David Jensen and Silja Halle (eds), Protecting the Environment During Armed Conflict, An Inventory and Analysis of International Law (UNEP 2009).
[3] K. Hulme, War Torn Environment: Interpreting the Legal Threshold (Volume 7 of International Humanitarian Law Series, BRILL, Leiden, Netherlands, 2004) 96 & 98; Ines Peterson,
‘The natural environment in times of armed conflict: a concern for international war crimes law?’, L.J.I.L. 2009, 22(2), 325-343, 325.
[4] M. Bothe, K. Partsch & W. Solf, New rules for victims of armed conflict: Commentary on the two 1977 protocols additional to the Geneva Conventions of 1949, (1982), 10-11.
[5] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, (Additional Protocol I), Articles 35 and 55.
[6] Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, (Additional Protocol I), Articles 35 and 55.
[7] P. Antoine, ‘International Humanitarian Law and the Protection of the Environment in Time of Armed Conflict’, (1992) 32 International Review of the Red Cross 517, 526. And Y. Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (2004), 191. And Y. Dinstein, “Protection of the Environment in International Armed Conflict’, (2001) 5 Max Planck Yearbook of United Nations Law 524, 542.
[8] K. Hulme, War Torn Environment: Interpreting the Legal Threshold (Volume 7 of International Humanitarian Law Series, BRILL, Leiden, Netherlands, 2004), 94.
[9] S. Witteler, Die Regelungen der neuen Verträge des humanitären Völkerrechts und des Rechts der Rüstungsbegrenzung mit direktem Umweltbezug. Waffenwirkung und Umwelt II (1993), 389-95.
[10] Ibid., 391-2.
[11] K. Hulme, War Torn Environment: Interpreting the Legal Threshold (Volume 7 of International Humanitarian Law Series, BRILL, Leiden, Netherlands, 2004).
[12] Ibid… 96 & 98.
[13] Ibid.
[14] Ibid.
[15] Stephanie N. Simonds, ‘Conventional Warfare and Environmental Protection: A Proposal for International Legal Reform’, [1992] 29 Stan. J. Int’l L, 165, 211.
[16] David Jensen and Silja Halle (eds), Protecting the Environment During Armed Conflict, An Inventory and Analysis of International Law (United Nations Environment Programme, 2009).
[17] Stephanie N. Simonds, ‘Conventional Warfare and Environmental Protection: A Proposal for International Legal Reform’, [1992] 29 Stan. J. Int’l L, 165. Protecting the Environment During Armed Conflict, An Inventory and Analysis of International Law, United Nations Environment Programme, 2009, Series editors: David Jensen and Silja Halle. K. Hulme, War Torn Environment: Interpreting the Legal Threshold (Volume 7 of International Humanitarian Law Series, BRILL, Leiden, Netherlands, 2004).