Lessons for Jus Post Bellum

It is evident that relevant legal interpretations of ‘environment’ for a jus post bellum regime cannot rely on the scant treaty regime established at the end of the twenti-eth century. As discussed, ENMOD states parties have explicitly agreed to disagree on its key definitions of what constitutes the environment as a weapon and its threshold for the magnitude of damage to trigger the convention’s obligations, and it does not address the scope of the environment as a target.

The existing legal rules do not provide sufficient clarity to satisfy the needs of post- conflict interventions and legal regimes:  accountability, deterrence, reparations, or guidance for progressive legal development. The failure to properly characterize the

‘environment’ erodes the normative influence that law could exert to stigmatize behav-iour. Confusion about what aspects of environment are legally protected and how to characterize them in a legal claim may explain the failure to bring environmental dam-age claims in post- conflict legal proceedings, including the Ethiopia- Eritrea Claims Commission and the UN Register of Damage Caused by the Construction of the Wall in the Occupied Palestinian Territory.150 Drumbl has commented on the failure to use international criminal courts to charge environmental crimes, for similar reasons.151 The military practices of many states do ‘take environmental considerations into account when assessing what is necessary and proportionate in the pursuit of legiti-mate military objectives’ in the words of the ICJ,152 but these measures do not exercise the broader normative and positive effects of law.

These five proposals could help the jus post bellum framework fill these gaps:

1. Define ‘environment’ recognizing the collective interest in its integrity.

Belligerents and peace- time governments alike owe obligations to protect and restore environmental resources in which the international community has an interest. The special interests of local and national communities should also be recognized.

150 UN General Assembly resolution, UN Doc. A/ RES/ ES- 10/ 17, para. 3 (establishing the Register).

The damage categories established by the Register are: ‘A: Agriculture, category B: Commercial, category C: Residential, category D: Employment, category E: Access to Services, and category F: Public Resources and Other. Category F claims may not be submitted by individuals.’ UNRoD Rules and Regulations Governing the Registration of Claims, Art. 11. No Category F (Public Resources and Other) claims— where environmental claims might be expected to be filed— are recorded in the annual progress reports of the UNRoD board to the UN General Assembly, UN Docs. A/ ES- 10/ 498 (2010); A/ ES- 10/ 455 (2011); A/ ES- 10/

598 (2012); A/ ES- 10/ 599 (2013); A/ ES- 10/ 658 (2014); A/ ES- 10/ 683 (2015).

151 Mark A. Drumbl, ‘Waging War Against the World:  The Need to Move from War Crimes to Environmental Crimes’ (1998) 22 Fordham International Law Journal 122, 145– 6.

152 Legality of the Threat or Use of Nuclear Weapons (n 5), para. 30.

2. Define ‘environment’ in context and in light of the best information available.

Post- conflict legal regimes can broaden their scope to recognize all of the elements required for environmental integrity, not just provisioning services. That means that the less glamorous regulating services and supporting services of the environment will be identified, protected during armed conflict, and given priority for restoration post- conflict. Cultural services provided by the environment should be considered important elements in rebuilding post- conflict societies. Multidisciplinary scientific teams can be used for assessment. Reparations programmes would do well to recog-nize all these services as compensable heads of damage.

3. Account for change.

The role of change seems most relevant to future- oriented post- conflict activi-ties, such as remedies for environmental harms, economic development projects, and environmental restoration efforts. The lessons from studies of ecosystem management suggest that change at multiple scales, resulting from both natural and human causes, means that active management of ecosystem characteristics replaces fixed management of a historic condition. This might lead to difficult choices, which will require thoughtful analysis of normative and empirical ques-tions. For example, if sea level rise and storm surge are predicted to inundate a conflict- damaged wetland in the next ten years, how should a legal right to restoration be implemented? How should local community interests in restoring preexisting conditions be weighed in such a scenario? How can the environmen-tal integrity of that area be recovered?

4. Consider how human activities and environment function as an interactive sys-tem and do not focus exclusively on one element.

The implication for judicial processes, civil or criminal, is to take account of the coupled human and natural system. Measures would include: at the outset, when soliciting claims, to inform potential claimants that systemic harmful impacts are compensable; to define liability and causation in terms that account for interac-tions within the system; to obtain expert assistance to evaluate complex claims in light of current scientific knowledge; and to consider the systemic effects of remedies provided.153

For interventions in the immediate post- conflict period, like supplying water and fuel to refugees, information about coupled systems will be limited and cer-tain priorities will predominate. However, best practices can be incorporated to minimize unintended harm.154

For long- term investments by international aid donors, private investors, or governments, safeguards established for similar activities during peacetime may

153 For example, Kuwait sought compensation to excavate and remove the asphalt- like layer of oil residue left on its desert surface from the oil well fires set by retreating Iraqi troops. Scientific experts advised that excavation of the tarcrete layers (although it would have restored the visual appearance of the sites) could reduce the success of revegetation efforts. Report and Recommendations made by the Panel of Commissioners Concerning the Third Instalment of ‘F4’ claims () UN Doc. S/ AC.26/ 2003/ 31, 18 December 2003, 47.

154 Annica Waleij, Timothy Bosetti, Russ Doran, and Birgitta Liljedahl, ‘Environmental Stewardship in Peace Operations: The Role of the Military’ in Carl Bruch, W. Carroll Muffet, and Sandra S. Nichols (eds.), Governance, Natural Resources, and Post- Conflict Peacebuilding (London: Earthscan, 2016).

be used to evaluate and control for collateral damage. For example, environmen-tal impact assessment is a common practice used to discern this kind of informa-tion. It is widespread in domestic legal regimes and the International Court of Justice155 and Law of the Sea Tribunal156 have recognized environmental impact assessment as an international obligation in cases of potential significant trans-boundary harm. However, armed conflict can be used as a pretext to suspend peacetime laws, and urgency to initiate post- conflict projects may encourage accelerated approvals.157 It is important that military forces and investors alike recognize the continuing applicability of environmental safeguards.

Expanding the focus of law from single concerns— gold mining, refugee water supply, a fishery— to complex systems complicates the task of post- conflict activi-ties but is likely to make the result more robust.

5. Recognize that armed conflict constitutes a severe disruption to the environment and that recovery to the conditions before the conflict may not be possible or desirable.

A preferred historical condition may not be recoverable. As jus post bellum rules evolve, new criteria may be used, including:

• system resilience;

• regional, including transboundary, analysis, and potential for collaborative management; and

• biodiversity and evolutionary potential.

The present is a time of development for the norms and practices of protection of the environment in relation to armed conflict. By considering the definition of ‘environ-ment’ in broad terms, based on the best science available at the time of interpretation, it should be possible to understand the legal regimes of IHL and jus post bellum consist-ently with the evolving views of the international community.

155 Pulp Mills on the River Uruguay (Argentina v. Uruguay), Judgment of 20 April 2010, ICJ Reports 113.

156 Seabed Disputes Chamber of the Int’l Trib. for the Law of the Sea, Advisory Opinion on Responsibilities and Obligations of States Sponsoring Persons and Entities with Respect to Activities in the Area, ITLOS Reports, 1 February 2011, paras. 145– 8.

157 Jensen and Lonergan (n 1) 8.