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ABSTRACT
The effect of war has far gone beyond
human suffering. Armed conflict has devastating effect on the
environment. It is on record that some battlefields of the World War I
and II are still unfit for human habitation and cultivation.
Consequently, environmental law of war exists to provide protection to
the environment during armed conflicts. This thesis examines the
adequacy or otherwise of the legal framework for the protection of the
environment during war time. It equally investigates the mechanisms for
the enforcement of the legal regime on the protection of the
environment.
The main objectives of this thesis are to identify the legal framework
on environmental protection during armed conflict; to examine problems
if any in the enforcement of environmental law of war and to enhance
access to information on the consequences of armed conflict on the
environment.
The thesis observes that some treaty provisions that afford protection
to the environment during armed conflict are vague and imprecise. It
also found that majority of the international legal framework protecting
the environment during
armed conflict were basically designed for international armed conflict
and do not apply to non international armed conflict. Consequently, the
thesis recommends, amongst other things, the establishment of new legal
regime specifically for the protection of the environment during armed
conflict. Similarly, countries must develop the necessary political
commitment and popular support to implement fully laws and policies that
enhance environment protection during wartime.
Chapter One:
General Introduction
1.1 Historical Background
In modern times, the legal framework for environmental protection during
armed conflict i.e. environmental law of warfare, is broadly divided
into Principles of Customary International Humanitarian Law of warfare
and the treaty provisions of international humanitarian law. The
evolution of environmental law of war dates back to period when some
basic principles of international humanitarian law were developed. Some
of these international humanitarian law principles are that the right of
states to use method and means of warfare is not unlimited, the
principle of humanity and public conscience popularly known as the
Martens Clause, principle of distinction, military necessity and
proportionality. The relevance of the principles customary international
humanitarian law (IHL) lies in the fact that it binds all states as a
general principle accepted as binding, by all nations. Thus, customary
IHL is very
effective as it does not depend on the consent of state before it become
operative. Despite this advantage, it could not prevent the horror and
massive destruction of lives and property experienced during armed World
War II. The experiences acquired from successive armed conflicts
brought to light the inadequacy of the principles of International
Humanitarian Law and the need for a more comprehensive legal regime to
protect the environment during armed conflict. This brought out the
establishment of various Conventions such as the 1899 Hague and 1907
Hague Conventions, the Four Geneva Conventions of 1945 and the Two
Additional Protocols to the Geneva Convention of 1977, just to mention
but a few.
However, it must be pointed out at this junction that it was not until
1977 through the Additional Protocol I and II that the environment was
specifically made an object of protection during armed conflict. In
fact, all provisions effort at regulating means and methods of warfare
are targeted at protecting the civilian and to reduce human suffering.
Thus, effort at protecting the environment during armed conflict through
the instrumentality of the international humanitarian law was rather
indirect or collateral.
Yet the existence of environmental law of war could not prevent massive
destruction of vegetation by the U.S. army during the Vietnam War, could
not prevent the attempt by the U.S. to modify the environment to gain
military advantage.
The consequences of armed conflict today have gone far beyond human
suffering, displacement and damage to infrastructure and homes. Armed
conflicts also cause environmental destruction and degradation.
Environmental destruction or degradation or both during wartime whether
deliberately or inadvertently done, have been part of war since ancient
times. As early as 146 BC, Roman troops razed the city of Coutlage and
salted the surrounding earth to sterilize soil.1 Thus environmental
damage in wartime has for decades been recognized as one of the most
immediate threats to human existence. This is because the destruction
associated with armed conflict spills over to the natural resources such
as water, agricultural land, trees and wildlife. The destruction during
armed conflict can undermine human survival, act as a driver of poverty
and forced migration.
Due to technological advancement, nations have the capability and
potential to destroy large areas in a matter of seconds, and such
destruction to the environment could be irreversible and for others, it
could take many decades to recover. Few examples will suffice. Today,
some battlefields of the World War I and World War II remain unfit for
cultivation or dangerous to the population because of the unexploded
mines and projectile still embedded in the soil.2 During the Vietnam
War, the United States instituted operation Ranch Hand for the purpose
of destroying vegetation used by the enemy as cover and as a source of
sustenance. It has been estimated that the chemical based incendiary
weapons, such as Agent Orange, have caused destruction of eight percent
of the regions crop lands, fourteen percent of its forests, and half of
its swamp areas.
During the Persian Gulf War, it was reported that the Iraq Forces set
fire in more than 160 oil installations. One report suggested that the
fires released numerous toxins, including the emission of sulphur
dioxide and hydrogen sulphide from the burning oil field. The ensuing
oil slick devastated the coral reef communities disrupting the sensitive
ecological system.
More recently, in 1999 dozens of industrial sites were bombed during the
Kosovo conflict, leading to toxic chemical contamination at several
hotspots. In another example, an estimated 12,000 to 15,000 tons of fuel
oil were released into the Mediterranean Sea following the bombing of
the Jiyeh power station during the conflict between Israel and Lebanon
in 2006.
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