Carl Bruch*
1.2 Jus Post Bellum and Environmental Peacebuilding
This chapter seeks to place the environmental provisions of jus post bellum in the broader context of environmental peacebuilding. In considering the efforts to articu-late a new body of jus post bellum, particularly as it rearticu-lates to natural resources and the environment, it presents three key observations. In the process, I pose two questions that may inform the further development of jus post bellum.
The first observation is that there is a large and diverse body of experience related to environmental peacebuilding that can inform the development and framing of jus
5 See Matti Lehtonen, ‘Peacebuilding through Natural Resource Management: The UN Peacebuilding Commission’s First Five Years’ in Bruch, Muffett, and Nichols (n 2).
6 Carl Bruch, Carroll Muffett, and Sandra S. Nichols, ‘Natural Resources and Post- Conflict Governance: Building a Sustainable Peace’ in Bruch, Muffett, and Nichols (n 2).
7 ibid.
8 These include, for example, efforts to share benefits from natural resources in a transparent and equi-table manner, bringing people together to address shared environmental threats, and developing natural resources in a conflict- sensitive manner. See, for example, Carl Bruch, David Jensen, and Amanda Kron,
‘Environmental Peacebuilding’ in Understand to Prevent: Guidance on the Military Contribution to the Prevention of Violent Conflict (Multinational Capability Development Campaign) (2016).
9 See, for example, Carsten Stahn, Jennifer S. Easterday, and Jens Iverson (eds.), Jus Post Bellum: Mapping the Normative Foundations (Oxford: Oxford University Press, 2014).
post bellum, including through state practice and customary international law. Natural resources underpin or affect practically every peacebuilding activity.10 Most post- conflict economies depend on natural resources to rebuild and to provide government revenues. For example, in Sierra Leone, 72 per cent of the growth in the country’s gross domestic product (‘GDP’) came from two new (post- war) iron ore mines.11 Typically 50– 80 per cent of a post- conflict country’s exports come from natural resources,12 and oil revenues represent 98 per cent of South Sudan’s government budget.13 The mag-nitude of oil revenues in particular can overwhelm other sources of revenue. For example, in 2010, Nigerian oil revenue was US$ 59 billion;14 that same year bilateral official development assistance (‘ODA’) to Africa was US$ 29 billion.15 In other words, Nigerian oil revenues were more than twice all bilateral ODA to Africa. Capturing nat-ural resource revenues is both critically important to long- term development and sta-bility, and it is a challenge. The Africa Progress Panel estimates that the Democratic Republic of the Congo (‘DRC’) lost US$ 1.355 billion in five major cut- rate mining concessions since 2010.16
Disarmament, demobilization, and reintegration (‘DDR’) of former combatants is one of the most important factors influencing whether a conflict will recur.17 In most post- conflict countries, though, 60– 80 per cent of livelihoods are agrarian.18 In these situations, typically 50– 80 per cent of ex- combatants elect to return to agriculture- based livelihoods, but often there is insufficient arable land available; and in arid and semi- arid countries, land may be available, but not the water rights to successfully farm the land.19 Other resource- dependent activities include addressing return of internally displaced persons (‘IDPs’) and refugees, providing basic services, restoring local live-lihoods, and addressing corruption.20 This leads to my first key question: what is the appropriate scope of environmental issues that should be considered when discussing jus post bellum?
There is the classic issue of remediating and seeking penalties for widespread and severe environmental damage resulting from deliberate targeting of the environ-ment. However, this is relatively rare: for example, in the Vietnam War and the 1990– 1
10 Carl Bruch, David Jensen, Mikiyasu Nakayama, and Jon Unruh, Post- Conflict Peacebuilding and Natural Resources: The Promise and the Peril (Washington, DC: ELI Press, forthcoming 2018).
11 Umaru Fofana, ‘Mining Spurs Sierra Leone to 20 pct GDP Growth in 2013— IMF’ Reuters, 3 April 2014, at <http:// www.reuters.com/ article/ 2014/ 04/ 03/ leone- imf- gdp- idUSL5N0MV37J20140403> accessed 7 June 2017.
12 Bruch, Jensen, Nakayama, and Unruh (n 10).
13 Alex de Waal, ‘Sizzling South Sudan: Why Oil Is Not the Whole Story’ Foreign Affairs, 7 February 2013.
14 Elisha Bala- Gbogbo, ‘Nigeria’s Oil Revenue Rose 46% to $59 Billion in 2010’ Bloomberg, 14 April 2011.
15 OECD, ‘Development Aid Reaches an Historic High in 2010’, at <http:// www.oecd.org/ dac/ stats/ devel-opmentaidreachesanhistorichighin2010.htm> accessed 7 June 2017.
16 Africa Progress Panel, Equity in Extractives: Stewarding Africa’s Natural Resources for All (2013), 101.
17 Mats Berdal and David H. Ucko (eds.), Reintegrating Armed Groups after Conflict: Politics, Violence and Transition (Abingdon, Oxon: Routledge, 2009). For a review of the literature on DDR and conflict recur-rence, see Jonah Schulhofer- Wohl and Nicholas Sambanis, Disarmament, Demobilization, and Reintegration Programs: An Assessment (Stockholm: Folke Bernadotte Academy, 2010) at <https:// fba.se/ contentassets/
7da0c74e1d22462db487955f2e373567/ ddr_ programs_ - an- assessment.pdf.> accessed 7 June 2017.
18 Bruch, Jensen, Nakayama, and Unruh (n 10). 19 ibid. 20 ibid.
Gulf War. More often, the environmental harm from conflicts is either more local-ized in environmental hot spots (as in the 1999 Kosovo Conflict21) or less acute (most conflicts).
Based on 150 case studies and analyses in a series of six books on post- conflict peacebuilding and natural resource management22— as well as the broader literature—
environmental considerations after conflict most often relate to one of five key areas:
(1) Regaining control of illicit and illegal exploitation of natural resources. This is especially the case for conflict resources— natural resources that can finance rebel groups or peace spoilers. For example, since 1990, at least thirty- five con-flicts have been financed in part by natural resources ranging from diamonds and gold to coffee and bananas.23 Some of these resources— such as narcotics—
are illegal or illicit, and generally outside the realm of taxation.
(2) Using natural resources (and particularly high- value natural resources) to jump- start the economy.24 Economic dimensions of post- conflict environ-mental recovery include transparency of natural resource contracts, payments, expenditures of resource revenues, and social and environmental impacts; shar-ing of benefits, includshar-ing through natural resource trust funds; and smoothshar-ing the national budget in light of volatile commodity prices, for example through stabilization funds.
(3) Supporting livelihoods and food security, especially through agriculture.25 Often, addressing land tenure issues is a central governance consideration, including for returning refugees and internally displaced persons (with rights of return and restitution), addressing underlying causes of conflict, and ensur-ing recognition of land held under customary tenure even in light of priorities to develop (and addressing challenges associated with large- scale land acquisi-tions).26 Another key dimension is restoring the productive capacity of natural resources degraded by conflict, refugees and IDPs, and neglect.27 This includes measures such as replanting orchards, rebuilding irrigation infrastructure, and
21 UNEP and UN Centre for Human Settlements, The Kosovo Conflict: Consequences for the Environment and Human Settlements (1999), at <http:// postconflict.unep.ch/ publications/ finalreport.pdf>
accessed 7 June 2017.
22 Paivi Lujala and Siri Aas Rustad (eds.), High- Value Natural Resources and Post- Conflict Peacebuilding (London: Routledge, 2012); David Jensen and Steve Lonergan (eds.), Assessing and Restoring Natural Resources in Post- Conflict Peacebuilding (London: Routledge, 2012); Jon Unruh and Rhodri C. Williams (eds.), Land and Post- Conflict Peacebuilding (London: Routledge, 2013); Erika Weinthal, Jessica Troell, and Mikiyasu Nakayama (eds.), Water and Post- Conflict Peacebuilding (London: Routledge, 2014);
Helen Young and Lisa Goldman (eds.), Livelihoods, Natural Resources, and Post- Conflict Peacebuilding (London: Routledge, 2015); Bruch, Muffett, and Nichols (n 2).
23 Bruch, Jensen, Nakayama, and Unruh (n 10).
24 World Bank, World Development Report 2011: Conflict, Security, and Development (2011).
25 Young and Goldman (n 22).
26 Jon Unruh and Rhodri C. Williams, ‘Lesson Learned in Land Tenure and Natural Resource Management in Post- Conflict Societies’ in Unruh and Williams (n 22); Peter Van der Auweraert, ‘Institutional Aspects of Resolving Land Disputes in Post- Conflict Societies’ in Unruh and Williams (n 22).
27 David Jensen and Steve Lonergan, ‘Natural Resources and Post- Conflict Assessment, Remediation, Restoration, and Reconstruction: Lessons and Emerging Issues’ in Jensen and Lonergan (n 22).
removing land mines, unexploded ordnance, and in a few instances depleted uranium.
(4) Providing basic services, including access to water and sanitation.28 Priorities in addressing this need include mobilizing finance and engaging the informal sector.
(5) Using natural resources and the environment to facilitate cooperation, dialogue, and reconciliation.29
The tension between the historic focus on environmental damage arising from armed conflict and the broader range of environmental priorities actually faced by post- conflict countries raises an important consideration for defining the scope of envi-ronmental inquiry related to jus post bellum. We can focus narrowly on intentional targeting of the environment and ask how jus post bellum can address the wrongful targeting of the environment during armed conflict. This is a worthwhile endeavour.
However, based on the breadth of needs in post- conflict natural resource management, jus post bellum can have a much broader and much more significant role in laying the normative, institutional, and procedural foundations for a lasting transition to peace.
To do that, though, it is necessary to take a broad view of the environment in jus post bellum.
The second observation is that notwithstanding the importance of the environment to post- conflict peacebuilding, most programming in conflict- affected countries pays little thought to law— and even less to international law. To the extent that people are think-ing about the law, it is usually domestic legislation. There are frequently efforts to reform a country’s Land Law, the Mining Law, the Forestry Law, and other sectoral legislation.30 International treaty law rarely influences these reforms. There is consideration of interna-tional processes and soft- law principles, such as the Extractive Industries Transparency Initiative, the Pinheiro Principles, the Sphere Principles, and the Non- Binding Forest Principles.31 The Peacebuilding and State building Goals (PSGs) of the Busan New Deal32
28 Jessica Troell and Erika Weinthal, ‘Harnessing Water Management for More Effective Peacebuilding: Lessons Learned,’ in Weinthal, Troell, and Nakayama (n 22).
29 Bruch, Jensen, Nakayama, and Unruh (n 10); Munqeth Mehyar, Nader Al Khateeb, Gidon Bromberg, and Elizabeth Koch- Ya’ari, ‘Transboundary Cooperation in the Lower Jordan River Basin’in Weinthal, Troell, and Nakayama (n 22); Todd Walters, ‘A Peace Park in the Balkans: Cross- Border Cooperation and Livelihood Creation through Coordinated Environmental Conservation’ in Young and Goldman (n 22);
Matthew Wilburn King, Marco Antonio González Pastora, Mauricio Castro Salazar, and Carlos Manuel Rodriguez, ‘Environmental Governance and Peacebuilding in Post- Conflict Central America: Lessons from the Central American Commission for Environment and Development’ in Bruch, Muffett, and Nichols (n 2).
30 Sandra S. Nichols and Mishkat Al Moumin, ‘The Role of Environmental Law in Post- Conflict Peacebuilding’ in Bruch, Muffett, and Nichols (n 2).
31 See, for example, Jill Shankleman, ‘Mitigating Risks and Realizing Opportunities: Environmental and Social Standards for Foreign Direct Investment in High- Value Natural Resources’ in Lujala and Aas Rustad (n 22); Eddie Rich and T. Negbalee Warner, ‘Addressing the Roots of Liberia‘s Conflict through the Extractive Industries Transparency Initiative’ in Lujala and Rustad (n 22); Barbara McCallin, ‘The Role of Restitution in Post- Conflict Situations’ in Unruh and Williams (n 22).
32 International Dialogue for Peacebuilding and Statebuilding, A New Deal for Engagement in Fragile States (2011).
increasingly guide post- conflict interventions; and while none of the PSGs relate specifi-cally to natural resources, natural resources underpin them.
To the extent that international law is considered, it tends to be around human rights, especially related to gender and indigenous rights.33 Commentators have also called for recognition of the right to a healthy environment and to the right to water.34 This is not to say that international environmental law is irrelevant. Multilateral environmen-tal agreements (‘MEAs’) are often invoked in efforts to develop or revise framework environmental laws and environmental ministries. Moreover, the UN Department of Peacekeeping Operations (‘DPKO’) / United Nations Department of Field Support (‘DFS’) Environmental Policy explicitly applies MEA norms and approaches to UN peacekeeping operations.35 In practice, though, there is too little coordination and cross- talk between the environmental ministries and the sectoral ministries.
International law plays a critical role in shaping the peacebuilding landscape of a post- conflict country, but it is not the international treaties, protocols, and case law that international lawyers so often focus on. The key corpus of international law is the body of relevant UN Security Council resolutions.36 Security Council resolutions are bind-ing on member states and international organizations alike. They have three key func-tions. They establish and empower Groups of Experts to investigate the role of natural resources in conflict (as in Liberia, DRC, and elsewhere).37 They impose sanctions on targeted conflict resources (e.g. diamonds from Sierra Leone and diamonds and timber from Liberia).38 And they provide mandates to peacekeeping forces to address conflict resources (e.g. in DRC, Sierra Leone, and Liberia), protect critical infrastructure (e.g.
oil infrastructure in the Abyei area), and consider their own environmental bootprint (e.g. in Mali).39
For specific conflict- affected countries, there often are a series of UN Security Council resolutions, as the Security Council reviews the status of security and the effectiveness of actions to date. Moreover, there often are a series of resolutions on particular issues (such as sanctions to curb specific instances of conflict resources). However, despite the efforts of Global Witness and other advocates to adopt more universal approaches
33 See, for example, UNEP, UN Entity for Gender Equality and the Empowerment of Women, UN Peacebuilding Support Office and United Nations Development Programme, Women and Natural Resources: Unlocking the Peacebuilding Potential (6 November 2013).
34 See, for example, Mara Tignino, ‘The Right to Water and Sanitation in Post- Conflict Legal Mechanisms: An Emerging Regime?’ in Weinthal, Troell, and Nakayama (n 22); Michael Painter, ‘Rights- Based Conservation and the Quality of Life of Indigenous People in the Bolivian Chaco’ in Jessica Campese, Terry Sunderland, Thomas Greiber, and Gonzalo Oviedo (eds.), Rights- Based Approaches: Exploring Issues and Opportunities for Conservation (Bogor Barat, Indonesia: Centre for International Forestry Research/
International Union for Conservation of Nature, 2009).
35 UN Department of Peacekeeping Operations and UN Department of Field Support, Environmental Policy for UN Field Missions (31 May 2009); Sophie Ravier, Anne- Cecile Vialle, Russ Doran, and John Stokes, ‘Environmental Experiences and Developments in United Nations Peacekeeping Operations’ in Bruch, Muffett, and Nichols (n 2).
36 Peter Aldinger, Carl Bruch, and Sofia Yazykova, ‘Revisiting Securitization: An Empirical Analysis of Environment and Natural Resource Provisions in UN Security Council Resolutions, 1946– 2016’
in Ashok Swain and Joakim Öjendal (eds.), Handbook of Environmental Conflict and Peacebuilding (London: Routledge, forthcoming 2017).
37 Mark B. Taylor and Mike Davis, ‘Taking the Gun out of Extraction: UN Responses to the Role of Natural Resources in Conflicts’ in Bruch, Muffett, and Nichols (n 2).
38 ibid. 39 ibid.
(such as a clear definition of what constitutes a conflict resource and what actions fol-low), the Security Council has yet to adopt a consistent definition or approach to these various issues.40
This has yielded a patchwork of more than 200 ad hoc Security Council resolutions addressing different linkages between the environment and security.41 This patchwork is reinforced by the patchwork of administrative instruments governing the United Nations Environment Programme (‘UNEP’), the Food and Agriculture Organizations of the United Nations (‘FAO’), the United Nations Development Programme (‘UNDP’), and other UN agencies. These instruments include UN Environment Assembly deci-sions (and before those, UNEP Governing Council decideci-sions), UN General Assembly resolutions, UN policies,42 and institutional guidance. In short, there is an overwhelm-ing body of ad hoc and targeted institutional decisions (which is essentially interna-tional administrative law) and— as yet— little codified hard law.
The ongoing effort to articulate and elaborate jus post bellum is essential to codify-ing practice and collectcodify-ing the disparate legal norms, principles, mandates, and pro-cedures to provide more clear direction for post- conflict peacebuilding. Towards this end, I offer a challenge and my second key question: to the extent that we are able to articulate a body of norms, principles, and practices related to the environment and jus post bellum, what effect will this have on the ground in conflict- affected countries?
A couple years ago, I had the pleasure of working on an article with Professor Michael Bothe— who co- chairs the Specialist Group on Armed Conflict and the Environment with me.43 We discussed at length whether and under what circumstances peacetime international environmental law continued to apply during armed conflict. We ulti-mately agreed that it did, to the extent that it did not contradict any specific provisions of international humanitarian law— a position consistent with the approach adopted by the International Law Commission on the effect of armed conflict on treaties.44 Then, Michael asked ‘So, what provisions might apply?’ Even if we agreed in principle that the full body of international environmental law continued to apply during armed conflict, relatively little was sufficiently specific or relevant to preventing the sort of wartime environmental harms that we were considering.
In that vein, it is essential that articulation of the scope of jus post bellum bears in mind the practical question: ‘So what?’ How and to what extent would the provisions of jus post bellum actually influence, constrain, or guide someone working in a post- conflict country?
To be clear, the effort to articulate and elaborate jus post bellum is valuable and nec-essary. It is still early in the process. There is such a large body of practice— state prac-tice and otherwise— that there are underlying provisions of international law from a wide range of fields: international criminal law, international humanitarian law, inter-national human rights law, interinter-national environmental law, and public interinter-national
40 ibid. 41 Aldinger, Bruch, and Yazykova (n 36).
42 In this context, the UN- wide guidance on natural resources on post- conflict peacebuilding (endorsed by thirty- eight UN entities) is particularly relevant.
43 Bothe, Bruch, Diamond, and Jensen (n 1).
44 See ILC, Draft Articles on the Effects of Armed Conflicts on Treaties with Commentaries (2011), at
<http:// legal.un.org/ ilc/ texts/ instruments/ english/ commentaries/ 1_ 10_ 2011.pdf> accessed 7 June 2017.
law broadly. In many cases, this international law is still emerging; in others, provisions may be said to be established.
As a brief aside, it is worth mentioning one area that is intriguing, controversial, and important: shared sovereignty. This may be a controversial topic, but the fact remains that many conflict- affected countries are not able to maintain peace and security, control the illicit and illegal flow of conflict resources, or govern. Under these circumstances, the UN Security Council has time and again adopted resolutions that intrude— temporarily— on national sovereignty through sanctions on trade in natural resources, by mandating groups of experts to investigate trade in conflict resources, and by empowering peacekeeping mis-sions to help governments in addressing conflict resources and other natural resources. In an extreme example, the Liberia Governance and Economic Management Assistance Program (‘GEMAP’) provided that for every government expenditure and contract (including those related to natural resources), two signatures were necessary: one by the relevant govern-ment official, and one by a World Bank staff person.45 Gradually the various governgovern-ment agencies ‘graduated’ and regained independent budgetary and procurement authority, but for an extended period the Government of Liberia shared one of the most basic responsi-bilities that a sovereign country has with an international organization.
It is essential to use practice as a touchstone. To what extent does a particular provi-sion reflect state practice in post- conflict countries? To what extent will the proviprovi-sion affect practice?
The third observation is that the space for political dialogue on environmental peace-building has expanded dramatically. When the Environmental Law Institute (ELI), UNEP, the University of Tokyo, and McGill University started examining the role of natural resources and the environment in post- conflict peacebuilding, we faced both indifference and hostility. Aside from like- minded individuals, most funders and agen-cies thought that this was not a priority. The project was viewed as an ‘environmental’
effort, and not particularly relevant to peacebuilding. A number of states were openly
effort, and not particularly relevant to peacebuilding. A number of states were openly