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Introduction
Armed conflict is one of the sources of mass destruction of life and property. However, an often overlooked consequence of such conflict is environmental damage. Nagorno-Karabakh has been in the news for the recent climax and subsequent fall in tensions in the century-long ethnic and territorial conflict between Armenia and Azerbaijan. Though once named by Conservation International as one of the world’s 25 most biologically rich global hotspots, an aspect of the conflict that often goes unnoticed considering other acute humanitarian issues is the environmental damage suffered by the territory as backlash from the armed conflict. This article will explore this issue in light of various provisions of international humanitarian law [“IHL”] in order to understand the legality of such environmental fall-out and remedies for the same.
The Legal Framework Governing Environmental Damage Arising from Conflict
The most significant legal regulation in the intersection between the environment and IHL is put forward in Article 55 of the Additional Protocol I to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 8 June 1977 [“AP 1”], which only Armenia has ratified amongst the parties to the conflict. Article 35(3) as well as Article 55 of AP 1 specifically prohibits methods of warfare which are intended, or may be expected to cause “widespread, long-term and severe damage to the natural environment.” In addition, Article 55(2) prohibits attacks against the natural environment by way of reprisals.
Of direct relevance is also the International Law Commission’s [“ILC”] Draft Principles on the Protection of the Environment in Relation to Armed Conflicts [“Draft Principles”], an ongoing preparation provisionally adopted by the ILC which aims at protection of the environment before, during and after an armed conflict. The Draft Principles are not binding in their current form yet given the ILC’s mandate is to further the “progressive development of international law”, they are of importance while considering this issue. It is for the same reason that ILC’s work often reflects a codification of Customary International Law [“CIL”]. Important to note in this regard is that these Draft Principles are based on State practice as noted by the International Committee of the Red Cross [“ICRC”] in its 10 yearlong codification effort, which could indicate their customary nature.
One of the most interesting ideas put forward by this is probably Draft Principle 9, which establishes State responsibility for damage to the environment arising out of an internationally wrongful act in relation to an armed conflict, including environmental damage to the responsible State. In other words, environmental damage done within the responsible State’s territory or outside it would attract State responsibility.
Environmental Damage in the Region
One of the biggest threats to the environment in Nagorno-Karabakh arises from the burning of forest areas for military purposes. A report by the Conflict and Environment Observatory [“COEFS”] put forward data that shows a spike in daily fire count in the region in 2012, and the largest spike in 2020 is between the 26th of October and 4th of November. The fires themselves have a severe immediate impact on local biodiversity due to decrease in green cover. Additionally, this leads to long-term effects such as extinction of local species, the damage of livelihoods of people directly dependent on the forest, soil erosion and landslide risks, all exacerbated with the environmental contamination from toxic remnants of war.
Another prominent environmental aspect of the conflict is the issue on water distribution in the region and water pollution. The Southern Caucus region consisting of Georgia, Azerbaijan and Armenia is watered by the transboundary Kura-Araks river basin, with the majority of the basin located in Azerbaijan. The Transboundary Diagnostic Analysis [“TDA”] of 2007 indicates several transboundary problems concerning the basin, such as freshwater flow modifications, pollution of drinking water, the loss of ecosystems, exploitation of fisheries and fluctuating climate such as droughts and flood. Industrial pollution to the river comes from discharge of heavy metals from mining, metallurgical and chemical industries, which is exacerbated by absence of waste water treatment and poor maintenance of facilities that do exist.
Lack of allotment of manpower and funds to basic human amenities by the respective governments owing to political instability arising from the conflict are probable reasons for such damage. Moreover, the loss suffered in terms of the environment is aggravated by the socio-economic condition of the people, with general poverty and unemployment rampant, leading to irresponsible use of natural resources. Since the region is heavily disputed and occasionally changes hands resulting in fragmented and unstable regimes of control, environmental mechanisms are difficult to put in place and responsibly is difficult to attribute.
Correlating the law and environmental damage: Are there consequences?
IHL prohibits using the natural environment as a weapon. Thus, deliberate attacks against the natural environment are not permissible as per law. One of the most worrying developments in terms of environmental damage in Nagorno-Karabakh has been the reported use of banned white phosphorus munitions by Azerbaijan in the primary forests of Artsakh. The immediate consequence of such use is that several hectares of forest land burnt down owing to the use of such highly flammable munitions. In response, Transparency International Armenia reports that such use of toxic weapons would destroy valuable ecosystems and put threatened species at the risk of extinction, in addition to contaminating water sources for years.
While Azerbaijan denies such use, large areas of forest in Armenian-controlled territory showed extensive fire damage at the same time as the alleged use of white phosphorus munition. Azerbaijan has also reported to have deliberately burn down at least 1815 hectares of Armenian forest land. Unfortunately, AP 1, in addition to being inapplicable to Azerbaijan, imposes a high standard to seek recourse for environmental damage. For instance, Article 35(3) and Article 55 puts forward a “triple test” of widespread, long-term and severe damage, with the term “long-term” referring to a period of at least 10 years. White phosphorus may stay in water and soil for a period ranging from two to thousands of years if oxygen levels in the water and soil are very low. But in general, while the alleged use of white phosphorus does have health effects, its effect on the environment does not seem of the intensity that is required by AP 1.
What this tells us is that the standards required by the mentioned articles of AP 1 are very high in order to establish environmental damage under IHL. In fact, one may even go to the extent of saying that the triple standard now renders permissible what would have been forbidden by general legality requirements of military necessity, proportionality, and prohibition of unnecessary suffering. This high standard for environmental damage to be regarded as actual violation of IHL as opposed to collateral damage sustained owing to military necessity is reflected in Article 23(g) of the Hague Regulations Respecting the Laws and Customs of War on Land, 1907 [“Hague Regulations”]. This article establishes that it is forbidden to destroy enemy property unless such destruction is “imperatively demanded by the necessities of war”. The problem with this provision is two-fold: first, it gives the military forces of States a large amount of discretion in deciding what would be necessary as military strategy. Second, it does very little in providing a solution for States’ own destruction of natural resources.
The other aspect of the Nagorno-Karabakh conflict is the use of common water resources, another consequence of poor cooperation and management arising due to the territorial conflict. Azerbaijan faces acute water supply shortage, which is why so much of the territory they have captured has been a strategic acquisition to provide relief to the drought. Both Azerbaijan and Armenia are signatories (the latter has even ratified the same) to the Protocol on Water and Health to the 1992 Convention on the Protection and Use of Transboundary Watercourses and International Lakes [“Protocol”] which requires cooperation between the European states to protect human health through improving water management. While there are several other conventions in place for transboundary water management, this is the only one signed by both the parties. Article 4 of the Protocol requires parties to take all appropriate measures for the purpose of effectively ensuring that drinking water remains free of pollution. Unfortunately, water management lacks in both the countries at a national level (often deliberately mismanaged as a strategic tool in the conflict), as well as a transnational one, leading to the Protocol being absolutely ignored.
The Way Forward
An overview of the current law indicates the standards to seek respite for environmental damage during an armed conflict to be very high. It puts forward the idea that the environment only assumes a distant second place before military strategic needs. The immediate need is a framework like the Draft Principles which specifically cater to attributing responsibility before, during and after an armed conflict. The idea of a State being held responsible for environmental damage it causes within its own territory during an international or a non-international armed conflict is a novel and much needed step to assure for the environmental protection.
Additionally, there must be a call to action at the European level using the Protocol as a legal standard to compel the countries under question to boost their water management systems in order to ensure cleaner water and better living standards for the regional populations.
One can only hope that the ILC and the General Assembly make haste with the Draft Principles to ensure for a robust legal regime that governs the intersection between IHL and environmental law, keeping in mind the broad goals of universal sustainable development.
This article has been authored by Manasa S. Venkatachalam, a fourth year student of Gujarat National Law University.