Humans are said to be beings of peace, not war. However, the earth has seen countless instances when even in peace, humans sought conflict and the consequences were cataclysmic. Armed Conflicts sow seeds for many long-lasting problems, besides the killing and maiming. One of such major problems is environmental degradation, which has come to light more recently than others. In a study, it was found that more than 80 % of the armed conflicts during 1950-2000 have taken place in the most biologically diverse areas. Parties to such conflicts often use weapons against the environment which causes many long-term and severe damages. For example, setting fire to oil fields to gain military advantage results in several greenhouse gases being emitted into the atmosphere and countless livestock and other animals dying due to the free flowing crude oil.
Furthermore, the conflict sustaining activities like poaching also contribute to the destruction of wildlife in the war-ridden areas. During the 15 years of civil war in Mozambique (1977-1992), the Gorongosa National Park recorded more than 90% decline in its animal population. From the Persian Gulf war to the Kosovo conflict, there have been numerous instances of armed conflict causing irreparable damage to the environment. Even though the laws have recognized the issue, identifying and punishing the perpetrators is a tedious task.
International Humanitarian Law
The Geneva Conventions and three Additional Protocols regulate conduct in armed conflicts as the ultimate rulebook. They provide for several comprehensive guidelines concerning the regulations to be followed in war. Although the original Geneva Conventions did not include a provision for protection of the environment, articles 35(3) and 55 of the Additional Protocol I (API) prohibit the methods which are intended or expected to cause “widespread, long term, and severe damage to the natural environment”. The provisions have been criticised time and again for setting too high a standard for falling foul of the prohibition. It has been argued that most military activities, although damaging the environment, would not violate these laws.
Article 1 of the UN Convention on the Prohibition of Military or Any Other Use of Environmental Modification Techniques (ENMOD)[i] also prohibits “use of environmental modification techniques having widespread, long-lasting or severe effects”. It has relatively lesser threshold than API and has been rather successful. Article 2(4) of the CCW (Convention on Certain Conventional Weapons and the Inhumane Weapons Convention) Protocol III on Prohibitions or Restrictions on the Use of Incendiary Weapons also directly addresses environmental protection.
International Criminal Law
However, a major change in dynamics came in 2002, when environmental degradation in the course of armed conflict was declared a war crime in the Rome Statute of the ICC (International Criminal Court).[ii] Article 8 (b) (iv) of the Rome Statute includes “long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated” as a war crime. But, the words “long-term” and “severe” have not been clearly defined and thus leave room for ambiguity. Another drawback of this provision is that it is only applicable on International Armed Conflicts.
Despite boasting of never having instigated war against any country, India has been a conflict-ridden territory for long, internationally as well as internally. Besides the cost of human life and property, these conflicts have resulted in large scale damage to the environment. Considering most of these conflicts have occurred in the biologically diverse areas, the issue becomes much more of a concern. There are 34 major biodiversity hotspots all over the world, Himalayan region being one of them. Evidently, Kashmir and North East India are the two most war-plagued regions of India. The people in these areas have suffered for decades now, and the environment too along with them.
Kashmir has been the ground-zero for violence and conflicts for several decades now. The history of environmental exploitation dates back to 1947, when several rare species of wildlife were killed by militants, initially for food and later for valuable fur and skin. The exploitation continued further when between 1990-2005, many water bodies were filled for buildings and forests cleared for security.
The militants have always used the dense forests for their stealth attacks and the armed forces have been repeatedly accused of clearing forest land in the name of security concerns. This has led to shrinking of forest areas which has left the wild animals to settle near the residential areas. The massive fencing of the borders and land mining has also done the environment poorly. Due to the recurring conflicts and security concerns, a major portion of armed forces has been deployed in Kashmir which results in contamination of water bodies and land pollution. The situation is dire and requires an immediate check.
The North East India has seen separatist movements causing rebellion and violence for a long time now. Although the center of destruction of these conflicts has been human life and property, environment suffered as a silent victim. Several natural resources have suffered devastating changes over the years. Many National Parks have faced immense devastation, due to the loss of wildlife and vegetation alike. In fact, Manas National Park is used as training grounds by the insurgents. Use of the forest areas as cover for their military tactics by the insurgents has also resulted in deforestation and loss of wildlife. Even the Tea gardens, which are one of the major highlights of the north east, were not spared by the insurgency forces.[iii]
Furthermore, the poaching activities also increase to sustain the rebel movements in these areas. Besides these, the militants often use landmines as means to trap and kill the security forces. That too severely affects the surrounding environment leaving the nearby flora and fauna dead and making the land infertile for several years to come.
Evidently, the current legal framework has not yielded the desired results in this issue. The International law must evolve so as to establish a comprehensive and strict set of guidelines to effectively change the situation for the better. More specifically, the position of Article 8 (b) (iv) of the Rome Statute[iv] must be clarified and widened so as to enrich the jurisprudence of war crimes and environmental degradation.
On the national front, we need an even bigger change in the framework. Currently, there are no domestic laws in place to keep check on environmental damage during armed conflicts. And although India has ratified Geneva Conventions and ENMOD, it is still not a state party to the Rome Statute.[v] A set of laws for internal conflicts is necessary at this juncture to regulate the conduct of individuals during conflict. Only by imposing individual liabilities on the perpetrators can the law be seen as an effective deterrent against such activities. It is the eleventh hour to take an effective action in order to protect the precious natural resources and biological diversity.
[i] UN Convention on the Prohibition of Military or Any Other Use of Environmental Modification Techniques (adopted 18 May 1977, entered into force 5 October 1978) 1108 UNTS 151, art 1
[ii] Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3
[iii] KP Prabhakaran Nair, The Agronomy and Economy of Important Tree Crops of the Developing World (1st edn 2010) p 296
[iv] Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3, art 8