|Protection Of The Environment During Armed Conflicts : A Case Study Of Kosovo
Manoj Kumar Sinha*
The participation by NATO1 in the Kosovo crisis started after the failure of Rambouillet talks on 19 March 19992 and led to an air campaign (Operation Allied Forces) on 24 March 1999 against Serbian targets3 . The aerial bombing campaign had inflicted large scale environmental damage within the territory of the Federal Republic of Yugoslavia (hereinafter referred to as FRY). NATO forces had targeted major oil refineries, pharmaceutical plants, fertilizer production facilities, and petrochemical plants. The environmental damage caused by the attacks on these facilities was significant.
The main thrust of this article is to examine the nature of the environmental harm done by the NATO attacks and also to study the relevant international instruments dealing with this situation. The article will try to find out whether NATO’s actions violated existing international environmental law.
The protection of global environment4 has become a matter of grave international concern and the recent armed conflicts in various parts of the globe have given rise to the realisation that conventional methods of warfare conflicts pose calamitous threats to its protection and preservation. Waging war causes pollution and has, perhaps, the potential to be the most polluting factor of all human activities. State reluctance to sacrifice what they perceive as an essential freedom of action in the military context is reflected in the basic tenets of the laws of war. In this context, it may not be out of place to note that the laws of war is based on the assumption that:
[I]f there are to be wars, and so long as wars go on, it is certainly better for the warring parties, probably better for mankind at large, that the persons fighting should observe some prohibitions and restraints on how they do it; the idea, to put it at its briefest, of humanity in warfare.5
Armed conflicts have always been destructive of the environment 6 and are antithetical to its rational management and use. There has always been a tendency on the part of warring parties to argue that in war, laws are silent; however, in reality it is difficult today to deny the existence of the rules of international law which impose restrictions on combatants as to the way and manner in which armed conflicts are to be conducted, and the nature of weapons to be used in armed conflicts. These rules exist either as rules of customary international law or treaty law. According to the famous “ “Martens Clause”,7 which prescribes that in cases not covered by treaties and traditional customary international law “civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of the Public conscience”.8 Today, the dictates of public conscience certainly include environmental concerns. Environmental laws have witnessed a spectacular development during the last two decades as the urgency of the need for the solution of the environmental problem has become more and more apparent, both at the national and international levels. It is the duty of each state not to allow its territory to be used in such a manner as to injure another and this principle was affirmed in Trail Smelter Arbitration9 . The Trail Smelter Tribunal stated that, under principles of international law, no state has the right to use or permit the use of its territory in such a manner as to cause injury to the territory of another state10 . The awareness of the environmental problem which can be found in the world public opinion is currently reflected in a debate as to whether and to what extent the traditional law of armed conflict needs revision in order to take sufficient account of the need to preserve the environment11.
II. KOSOVO CRISIS
Targeting environment as a means of waging war is not a new development. History is replete with examples of wars in which attempts had been made to annihilate the enemy by assaulting environment.12
Finally, the Security Council Resolution 1244(1999)13 , ended hostilities on 10 June 199914 and placed the UN Secretary-General incharge of creating a civilian administration in Kosovo with the assistance of NATO and Russian troops under the said Resolution.
The Kosovo conflict also had regional impacts, Albania and Macedonia had to receive huge numbers of refugees from Kosovo although they were unprepared for the scale of influx. Other neighbouring countries, namely, Bulgaria and Romania, downstream along the river Danube, feared the effects of trans-boundary pollution from targeted industrial facilities. The fires in the oil refineries and oil storage sometimes lasted for many
days and related clouds of pollution over wide areas15 . The Serbian forces systematically emptied and destroyed many towns and villages of Kosovo.
A. Environmental ‘Hot Spots’
There are four environmental hot spots found by the Balkan Task Force (BTF)16 in the four cities of Pancevo, Kragujevac, Novi Sad and Bor, where urgent action was needed to protect the environment.
Pancevo, a town of about 80,000 inhabitants, is located on the left bank of the Danube river is a major industrial complex, including a petrochemical plant, a fertiliser plant and a major oil refinery, lying on the southern edge of the town17 . The industrial town was heavily targeted during the conflict, with two air strikes on the ‘HIP Petrohemija Pancevo’ petrochemical complex and the ‘HIP Azotara’ fertiliser plant in mid-April, and seven attacks on the ‘NIS’ oil refinery between April and June 1999.
As a result of the air bombardments various hazardous substances were released into the environment, either directly from the damaged storage facilities, or as a result of fires, with the most obvious visual impact being the dense clouds of black smoke which poured from burning installations. As a consequence of the smoke, ‘black rain’ fell on the area around Pancevo, heightening concerns about human health and long-term damage to crops, soil and groundwater. The New York Times18 quoted saying, “ NATO had two types of targets. There were tactical and strategic targets. The oil refinery in Pancevo was considered a strategic target. It was a key installation that provided petrol and other elements to support the Yugoslav army. By cutting off these supplies crucial material to the Serbian forces fighting in Kosovo was denied. While targeting all possible collateral damage is to be taken into account, be it environmental, human or the civilian infrastructure. Pancevo was considered to be a very, very important refinery and strategic target, as important as tactical targets inside Kosovo.”
Kragujevac19 , a central Serbian industrial town of 150,000 inhabitants, is the home of the ‘Zastava’ car factory, previously one of the biggest industrial facilities in the entire Balkan region. The Zastava complex was targeted during the NATO attack, first on 9th April and again on 12th April 1999. Due to these attacks heavy damage was inflicted to the power station, car assembly line, paint shop, computer centre and truck plant. The air strikes reportedly caused extensive environmental pollution, with damage to soil, water and air. The main problems reported were the leaking of several tonnes of Polychlorinated biphenyls (PCBs) contained in transformer oil into the Morava river, and contamination of groundwater by PCBs and heavy metals20 . The Zastava complex remained the most likely source of contamination.
(c) Novi Sad
Novi Sad is the second largest city in the Federal Republic of Yugoslavia, with180,000 inhabitants. This city is located on the Danube river, approximately 70 km north west of Belgrade, in the district of Vojvodina. Novi Sad was heavily targeted at the time of conflict, resulting in destruction of rail and road bridges across the Danube, and also damaged or destroyed industrial and military facilities. One of the principal targets was the Novi Sad oil refinery21 .
More than two-thirds of the 150 tanks 22 were directly hit or seriously damaged by debris during at least twelve NATO air strikes, and many caught fire or leaked oil and oil products. As a result of fires following the air strikes, parts of Novi Sad and the surrounding districts experienced concentrations of sulphur dioxide. However, such concentrations probably did not persist for more than a few hours, since the fires were of relatively short duration, and the direction of the wind was variable. During the conflict period, the health authorities had advised the people of Novi Sad to wash food thoroughly, and not to eat food carrying soot deposits. About 73,000 tonnes of crude oil and oil products are reported to have burnt or leaked. Local experts estimated that 90% were burnt, with the remainder having leaked into the wastewater collection canals or into the ground. Danube was reported to have been heavily contaminated immediately after the air strikes, due to the outflow of crude oil and oil products through the wastewater collection. However, the study conducted by BTF showed low- or very low-level contamination of groundwater by volatile hydrocarbons23 . BTF reached on the conclusion that there was no evidence of significant adverse impacts on the Danube acquatic environment as a result of air strikes on Novi Sad refinery.
The two areas of Bor city visited by BTF were the copper mine and smelting plant outside Bor, and the ‘Jugopetrol’ depot. These facilities were targeted during NATO air attacks. The copper industry in Bor consists of a huge open-cast mine and associated smelting point. During the air strikes, the transformer station providing the site with electricity was damaged. Air strikes on the power plant, and consequent reduction of the electricity supply, had interrupted production of sulphuric acid- a by- product of the copper industry. This had resulted in chronic release of sulphur dioxide gas, normally recovered during the manufacture of sulphuric acid. BTF experts had considered that the emission of sulphur dioxide from the copper mine to be a serious environmental impact. As Bor is close to the border with Bulgaria, these emissions may have trans-boundary effects, according to the wind direction. The ‘Jugopetrol’ oil depot, which mainly served the Bor copper industry, was completely destroyed during air strikes. However, all eight storage tanks were reported to have been emptied shortly before they were hit. Because the oil depot was empty, only minor fires occurred and no oil was spilled.
B. Environmental Impacts of the Conflict on Danube River
One of the principal environmental concerns highlighted by the media and NGOs during and immediately after the conflict was the possible damage to the Danube river. As it is clear from above discussion, most of the key industrial facilities were targeted during the air strikes. All these industrial facilities are located alongside the Danube24 , along major tributaries such as the Sava,25 or on smaller tributaries such as the Lepenica and Morava.26 There were genuine fears that large quantities of hazardous substances could have entered the Danube system, with risk for people in Yugoslavia and, downstream in Bulgaria and Romania, through drinking contaminated water or eating contaminated fish. The Danube is also one of Europe’s most important corridors of biodiversity, meaning that any adverse impact on it would almost certainly be accompanied by serious effects on plants and animals and the habitats on which they survive. The Danube Basin covers 817,000 km of 17 central European countries, and the river therefore receives chronic and acute inputs of nutrients and pollutants from an enormous number of industrial, agricultural and municipal sources27 . The concern over the unfavourable environmental status led to the establishment of the Convention on Cooperation for the Protection and Sustainable Use of the Danube River,1998 ( also known as the Danube River Protection Convention, DRPC)28 .However, there is no evidence yet of an ecological catastrophe for the Danube as a result of the air strikes during the Kosovo conflict.
C. Depleted Uranium Weapons
During and after the Kosovo conflict, there were reports that Depleted Uranium(DU)29 had been used in military operations by NATO. There are concerns amongst the people of Serbia and Kosovo regarding the possible post-conflict risks to human health and the environment. However, it is not known whether U.S. forces fired cruise missile that contained DU. It is also not known whether other NATO forces used DU weapons in the Balkans.
A special committee was established on 14 May 1999 to look into the NATO’s compliance with International Humanitarian Law by the Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia ( hereafter referred to as ICTY), in pursuance of article 18 of the Statute30 .
The Chief Prosecutor of the ICTY had declared that NATO’s use of depleted uranium could be investigated as a possible war crime. ICTY looked into the use of the controversial ammunition during NATO’s 1999 campaign in Kosovo, however, it did not have enough elements to proceed further31 . The use of depleted uranium ammunition may violate provisions pertaining to indiscriminate attacks, it is unlikely that it will be regarded as having reached the threshold set up in Articles 35(3) and 55 of API32 .
While assessing whether the operations led by NATO in Kosovo violated articles 35(3) and 55 of the API pertaining to the protection of the environment, the Committee reached the conclusion that the damage to the natural environment was collateral, unintentional and furthermore proportional to the military purposes.
D. Consequences of the Conflict for Biodiversity
In the European context, the Balkan region has long been recognized as being of exceptional value for the conservation of biological diversity33. The richness of flora and fauna is due to a variety of factors, including the region’s location at the junction of several bio geographical areas; its variety of climate, geology and topography; and the still-widespread practice of traditional, low-intensity land uses. During and immediately after the conflict, it was reported that serious damage was inflicted by air strikes in protected areas.34 As a result of NATO air strikes, more than one hundred craters were left in the National Park, damaging two areas of habitat for orchid species categorised as ‘endangered’ in the Red Data Book of Serbia. Many bird species were said to have been affected adversely35.
III. PROTECTION OF ENVIRONMENT UNDER CUSTOMARY INTERNATIONAL LAW
Though protection of environment is not directly addressed in the customary law of war, but inference can be drawn to the extent that it falls within the general ambit of protecting the civilian population and property. A fundamental customary rule is codified in the 1868 St. Petersburg Declaration on Renouncing the Use in Times of War of Explosives Projectiles under 400 grammes weight.36 A second fundamental principle is that the means and methods of warfare available to belligerents are not unlimited. However, the permissive action demands further clarification, with the result being the delicate balance between the principles of military necessity and humanity37 . Further principles that give effect to this balance are proportionality, discrimination, and unnecessary suffering38 . A final principle that restraints warfare is neutrality. These principles can be summarised succinctly as follows: (1) Weapons and tactics resorted to must be reasonably necessary to achieve a military objective; and (2) Only that amount of force which is necessary to achieve the prompt submission of the enemy may be used39 . In recent times, concern for the environment has emerged to the forefront of global concern, making it possible to assert that its protection has become a major humanitarian priority. The Martens Clause leaves the possibility open that the law of war can evolve and adopt to such new circumstances. Customary law of war creates a legal regime that attempts to balance the interests of the military commanders with those of the non-combatants, with the ‘laws of humanity’ protecting the latter. However, the lack of an institutional framework for the implementation and enforcement of the law of war is a serious lacuna to its development. The outcome of this is a bundle of very general principles, that at best act as guidelines and whose practical effect is to leave states with maximum freedom.
IV. INTERNATIONAL CONVENTIONS FOR THE PROTECTION OF ENVIRONMENT
It is clear from the above discussion that customary law provides only limited protection to the environment, it is relevant here to examine the other relevant international conventions for the protection of environment.
A. The 1907 Hague Convention IV40
There are two provisions of the Hague Regulations that have relevance for the protection of the environment during armed conflicts. These are Article 23(g) and Article 55. Article 23(g) of the 1907 Regulations Respecting the Laws and Customs of War on Land 41 (hereafter referred as to the Hague Regulations). States, “it is especially forbidden to destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war....” The limitation of this article is that while it protects property from destruction, a defence of military necessity is admitted42 . A serious lacuna of these principles is that in practice the commanders in the field are allowed to use a wide margin of discretion in determining the legality of their actions. Article 55 applicable during the context of belligerent occupation, deems occupying States to be administrators and usufructuary of public forests and agricultural sites. The implication of this provision is that the occupier is under an obligation to deal with them in good faith. Clearly, this regime is an inadequate regime to protect the environment. Nonetheless, its contribution should not be underestimated for prohibiting extreme acts of environmental degradation.
B. The 1949 Geneva Convention IV
The four 1949 Geneva Conventions contain only two provisions relevant to environmental protection and both deal exclusively with the context of military occupation. Article 53 of the 1949 Geneva Convention IV further expands the protection of property contained in Article 55 of the Hague Regulations by providing that:
Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or co-operative organisations, is prohibited, except where such destruction is rendered absolutely necessary by military operation.
The significance of this protection is enhanced by Article 147 of the Convention, which declares, ‘unjustified destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly’ to be a grave breach of the Convention with personal responsibility attached to it. Article 53 admits a defence of military necessity. The reference ‘absolutely necessary’ suggests a higher standard than ‘imperatively demanded’ (Article 23(g)) applicable in the context of ongoing hostilities.
The Nuremberg war crimes trials after the end of World War II included what may have been the first recognition of a purely environmental war crime. Nine German civilian officials in occupied Poland were charged with “ruthless exploitation of Polish forestry” including the wholesale cutting of Polish timber to an extent far in excess of what was necessary to preserve the timber resources of the country43 .
C. Additional Protocol I
The most prominent provisions explicitly dealing with environment protection in times of international armed conflicts are found in 1977 Protocol I Additional to the 1949 Geneva Conventions. The specific provisions in Protocol I44 that seek to protect the environment are Articles 35(3) and 55. Article 35(3) stipulates :
It is prohibited to employ methods of warfare which are intended, or may be expected to cause widespread, long-term and severe damage to the natural environment.
Interestingly, the terms “widespread, long-term and severe” have not been defined. At the time of drafting of the Protocol, agreement was appeared to exist merely on a clarification of the term “ long-term”, which is to be understood as referring to a period of at least ten years45 . Since the meaning of the two other terms was not clarified at all, no authoritative answer can be given to the question when and where specific damage inflicted upon the natural environment should be deemed to violate the terms of this provision. Putting together the triple standards set forth under Article 35 as a cumulative one, which results from the use of the word “and”, damage has to be widespread and long-term and severe in order to be prohibited. Basing argument on this line will lead to the conclusion that even the most widespread and long-term which for some reason, would not be considered to be also severe, would not be forbidden. For the cumulative triple standard may now render permissible what would before have been forbidden by reference to general legality requirements like military necessity, proportionality, and prohibition of unnecessary suffering. Indeed, it may nullify the relative impact of such general legality requirements as long as there is no clear evidence that environmental damage is widespread ,long-term and severe. The provision certainly does not purport to prohibit all activities which may be harmful to the environment, only those causes wide spread, long term and severe damages are forbidden.
Another relevant provision of Protocol I is Article 55 which states as follows:
1. Care shall be taken in warfare to protect the natural environment against wide-spread, long- term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.
2. Attacks against the natural environment by way of reprisals are prohibited.
Article 55(1) indicates that the prohibition encompasses only one of a very serious nature. The term “includes” might seem to suggest that this provision would prohibit more than what is explicitly mentioned there. The last phrase of this provision entails an additional limitation to the general applicability of Protocol I : it reflects a crucial disadvantage from the perspective of environment protection because this provision is essentially anthropocentric. In addition, Article 55(1) does not apply to means and methods of warfare affecting non-civilians parts, objects or assets of the environment, even if they would cause triple standards damage to them, since this provision ranks under Part IV, Chapter III, which is entitled “civilian objects”.
Other relevant provisions of Protocol I, Article 55(2), read;
Attacks against the natural environment by way of reprisals are prohibited.
This provision may be useful in itself but it does not cover military reprisals not directed on purpose against environment as the object of the attack, i.e., it does not prohibit environment damage occurring in the case of acts of reprisal directed against other objects.
D. Other Relevant Provisions of Additional Protocol I
Article 54 of the Protocol I prohibits destruction of the objects indispensable to the survival of the civilian population if that destruction is done for the purpose of denying the enemy their sustenance value. This offers some protection to the environment since it specifically encompasses crops, livestock and drinking water installations, but the wording suggests that collateral damage to those objects is admitted. The protection from direct attack is not absolute, Article 54(3) permits a derogation if the objects are used solely to sustain military personnel or are used in ‘direct support of military action’ by the enemy.
Article 56 lists three types of installations containing dangerous forces- namely dams, dykes and nuclear electrical generating stations, shall not be attacked. Article 56(2) (a) provides that immunity from attack, however, can be lost if these works of installations are used in direct support of military operations.
Articles 59 and 68 allow for the creation of specially protected zones which could encompass environmentally sensitive areas.
E. ENMOD Convention
The Convention on the Prohibition of the Use of Environmen-tal Modification Techniques (ENMOD)46 1977, represents a major advance in the law of war, being the first international agreement which directly addresses the use of the environment as a weapon during armed conflicts. The basic obligation of the Convention is set out in Article 1.
Each State Party to this Convention undertakes not to engage in military or any other hostile use of environmental modification techniques having, widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party.
According to Article 2, the term ‘environmental modification techniques’ refers to “any technique for changing through the deliberate manipulation of natural processes - the dynamics, composition or structure of the earth, including its biota, lithosphere, hydrosphere and atmosphere, of outerspace”. In this connection the list of relevant phenomenon includes, earthquakes, tsunamis; an upset in the ecological balance of a region, changes in weather patterns (clouds, precipitation, cyclones of various types, tornadic storms), changes in the climate patterns, changes in ocean currents and changes in the state of the ionosphere.
Article 1 of the ENMOD Convention enjoins states parties not to engage in or encourage others to engage in military or any other hostile use of environmental modification techniques having wide-spread, long lasting, or severe effects on the environment.
The ENMOD Convention is not an environment protection agreement, as it is not intended to per se protect the environment or parts thereof. In fact, it is meant to prevent “destruction, damage or injury to any other State Party”. Since ENMOD was being negotiated at the same time as Additional Protocol I, it is clear that the thresholds in the two instruments, which are framed with similar but not identical wording, are meant to be different. The threshold in ENMOD is defined with disjunctive ‘or’ while in Additional Protocol I the adjective is cumulative ‘and’. It can be inferred that the ENMOD threshold is lower than that of Additional Protocol I.
In addition to this, there have been several attempts to address the problem of environmental protection during armed conflict in the form of ‘soft-law’. To start with, Principle 26 of 1972 UN Conference on the Human Environment47 states that:
Mankind and his environment must be spared the effects of nuclear weapons and all other means of mass destruction. States must strive to reach prompt agreement, in the relevant international organs, on the elimination and complete destruction of such weapons.
The 1982 World Charter for Nature48 states that ‘Nature shall be secured against the degradation caused by warfare or other hostile activities’, and ‘military activities damaging to nature are to be avoided’. However, the legal validity of this General Assembly Resolution is doubtful, because its prohibitions are generally vague and no institutional framework is created to clarify them.
Another significant development took place in this direction at Rio Conference 199249 which was the outcome of a very long and arduous process, all provisions were discussed and it reviewed most of the questions concerning the protection of environment50 . Principle 2451 of the Rio Declaration and Paragraph 39.6(a)52 of Agenda 21 were adopted. These two provisions which were adopted in the Rio Conference , in fact, supplemented the already existing instruments related to protection of environment. Lastly, the work of International Law Commission also suggests that a customary rule now exists which protect the environment from damage which is ‘widespread, long-term and severe’53 .
F. Modes of Enforcement
The Geneva Conventions contemplate three possible modes of enforcement. In the first situation, national courts of states parties may be empowered to try cases of grave breach of the rules54 . Each Party to the Geneva Convention has a duty to track down violators and to try them before its national courts regardless of their nationality. A state party may bring the case before the International Court of Justice55 or enter into bilateral arrangements to redress the breach.
However, only the following relevant grave breach or war crimes of Protocol I concerns the natural environment, viz :
launching an attack against works or installations containing dangerous forces in the knowledge that such attack will cause excessive loss of life, injury to civilians or damage to civilian objects56 ....
The ENMOD Convention empowers an aggrieved party to make a complaint to the Security Council backed up with all relevant information and supporting evidence.57 It may also use appropriate international procedures within the framework of the United Nations such as the services of international organisations or the consultative committee of experts established pursuant to the Convention.58 These procedures depend on co-operation, consultation, investigation, etc., and are bound to be dilatory and subject to the vagaries of international politics.
The condition of our planet today is a cause of great concern. As rightly pointed by Harlem Brudtland, “ We are living in an historic transitional period in which awareness of the conflict between human activities and environmental constraints is literally exploding”59 . Since the 1991 war between Iraq and NATO coalition powers there has been much interest in the question of how to limit the environmental damage of warfare60 . The dangerous effects of remnants of war have long been a cause of concern. The 1991 Gulf War left the land littered with the remnants of war. There were pools of oil near the destroyed oil installations and on the frontier with Saudi Arabia, where they had been prepared by Iraqi forces to frustrate a coalition invasion. The total amount of oil spilled into the Gulf almost constituted the largest oil spill over. During the Gulf War there was damage to coastal marshlands, to wild life, (over 15,000 birds were killed), to coastal flora, to fishing, and to offshore oil operations61 .
The environmental damage caused by the NATO forces in Yugoslavia is being subjected to an unprecedented level of international attention. It is true that the states are likely to violate international law to avoid losing a war, especially in a situation where losing a war will be the end of the state’s existence.
The international community must be ready to take action when urgent humanitarian needs are in question. Nothing prevents NATO members from giving aid to Yugoslovia to restore its environment. An unhealthy and dangerously polluted environment does not provide a sound basis for the well-being of human populations. However, the clean up efforts not only depend on the availability of funds. Political concerns related to the international embargo of Serbia will also have to be taken into account. In the current context, it appears that international assistance for reconstruction will only be available for the Republic of Montenegro and Province of Kosovo. However, the hot spots of special environmental concern identified in Serbia demands immediate action from humanitarian point of view. The distinction should be made between short-term actions aimed at immediate clean-up, and longer-term recommendations required for the strengthening, reconstruction and resumption of industrial activities.
It is clear that despite the development of the law, the current regime is insufficient to protect the environment during armed conflict. The general strategies which have emerged since the 1991 Gulf war to improve the legal protection of the environment. One view supported by the US and ICRC, is that environment would be sufficiently protected if the law of war is universally respected and properly implemented62 . The opposite view is that the law itself is in need of reform by applying environmental values to it. This breaks down into two policy alternatives: supplementing existing laws or adopting new set of rules. The implementation of existing laws would certainly entail wider subscription to the body of existing law as well as increased awareness and compliance with its provisions. Drafting of a new Convention is seen as an opportunity both to clarify and develop existing law. A new Convention could set lower threshold of harm in order to be more effective. It should also define with clarity what is to be protected, define the permissible classes of weapons and other related issues. The events which took place in the end of twentieth century, particularly in the recent past, urge a great need for strengthening the standards of environmental protection.
* Assistant Professor (Research), Indian Society of International Law, Ph.D.(JNU), LL.M. (University of Nottingham,U.K.), My special thanks to Noelle Quenivet for helping me in several ways.
1. The North Atlantic Treaty Organisation was signed in Washington on 4 April 1949, creating an alliance of 12 nations committed to each other’s defence. Four more European nations later acceded to the Treaty between 1952 and 1982. On 12 March 1999, the Czech Republic, Hungary and Poland were joined with the alliance which now numbers 19 member. The following countries are member of NATO; Belgium; Canada; Czech Rep; Denmark; France; Germany; Greece; Hungary; Iceland; Italy; Luxembourg; Netherlands; Norway; Poland; Portugal; Spain; Turkey; United Kingdom; United States. http://www.nato.int/structur/countries.htm
2. Speaking on the evening of 24 March 1999, when the bombing began, President Clinton had this to say : “ President Milosevic, who over the past decade started the terrible wars against Croatia and Bosnia, has again chosen aggression over peace. He has violated the commitments that he, himself, made last fall to stop the brutal repression in Kosovo. He has rejected the balanced and fair peace accords that our allies and partners including Russia, propose last month, a peace agreement that Kosovo’s ethnic Albanians courageously accepted. Instead, his forces have intensified their attacks, burning down Kosova Albanian villages and murdering civilians. As I speak, more Serb forces are moving into Kosovo, and more people are fleeing their homes - 60,000 in just the last five weeks, a quarter of a million altogether. Many have headed toward neighbouring countries. Kosovo’s crisis now is full- blown. And if we do not act, clearly it will get even worse. Only firmness now can prevent great catastrophe later.”
3. The air campaign added upto little as wars go around $ 4 billion. The European Union has estimated that rebuilding Kosovo will cost at least $ 30 billion . In addition, Macedonia and Albania, hard hit by the war and refugees, rightly expect western aid. The NATO bombardment has set Yugoslavia back into an almost pre-industrialised state. A Belgrade research unit estimates that the costs of rebuilding could run from $ 50 billion to $ 150 billion and will take decades. Fareed Zakaria, “ The Costs of Kosovo” Newsweek, 14 June 1999, pp.13-16.
4. Richard G Tarasofsky, “ Legal Protection of the Environment during International Armed Conflict”, Netherlands Yearbook of International Law,vol.24 (1993), pp.17-80; Wil D. Verwey, “Observation on the Legal Protection in Times of Armed Conflict”, Hague Yearbook of International Law, vol.7(1994), pp.35-52; Bola Ajibola, “ Protection of the Environment in Times of Armed Conflict”, in Najeeb Al-Naumi and Messe, ed. International Legal Issues Arising under the UN Decade of International Law (Hague,1998), pp.75-94; E.Lijnzaad and G.J.Tanja, “Protection of the Environment in Times of Armed Conflict : The Iraq - Kuwait War”, Netherlands International Law Review, vol. 24 (1993), pp.169- 187; A. Bouvier, “Protection of the Natural Environment in Time of Armed conflict”, Review of the International Committee of the Red Cross, n.285 (1991), pp.574-582 ; Y. Sandoz, “Damage in Armed Conflicts and Redress under International Humanitarian Law”, Review of the International Committee of the Red Cross, n. 228(1982), pp. 144-155; P.Antoine, “International Humanitarian Law and the Protection of the Environment in Time of Armed Conflict”, Review of the International Committee of the Red Cross, n.291 (1992), pp.517-537; P.Rowe. (ed.), The Gulf War 1990-91 in International and English Law, (Sweet & Maxwell, 1993); C.York, “International Law and the Collateral Effects of War on the Environment : The Persian Gulf”, South African Journal of Human Rights, vol.7(1991), pp.269-290; E.F.J.Yuzon, “ Deliberate Environmental Modification Through the Use of Chemical and Biological Weapons: Greening the International Laws of Armed Conflict to Establish an Environmentally Protective Regime”, American University Journal of International Law and Policy, vol.11(1993), pp.793-846; Reports and Documents : “Follow up to the International Conference of the Protection of War Victims (1993) - Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict” Review of the International Committee of the Red Cross, n.311(1996), pp.230-237.
5. Cited in Tarasofsky, note 4, pp.20-21.
7. This clause was first introduced based on a compromise proposal by the Russian delegate at the 1899 Hague Peace Conference into the preamble of Hague Convention No.II of 1899 and appears now in the preambles of Hague Convention No.IV of 1907 and of the 1980 UN Weapons Convention on Prohibitions or Restrictions on the Use of certain Conventional Weapons and in Articles 63/62/142/158 respectively of the four Geneva Conventions and in Article 1(2) of Protocol I.
Article 1(2) of Additional Protocol states that, “ In cases not covered by this Protocol or by other international agreements, civilians and combatants remain under the protection and authority of the principles of international law derived from established custom, from the principles of humanity and from the dictates of public conscience”. See Marco Sassoli and Antonie A.Bouvier, How Does Law Protect in War? Cases,Documents and Teaching Materials on Contemporary Practice in International Humanitarian Law, (ICRC, Geneva, 1999), p.113.
8. The International Court of Justice in the Corfu Channel case observed that there are certain general and well recognised principles namely elementary consideration of humanity, which are even more exacting in peace than in war. ICJ Reports, 1949, p.22. In another case the Court opined that the principles of humanitarian law are identical with these elementary considerations of humanity. Nicaragua vs. U.S., ICJ Reports, 1986, p.212. In Kosovo case Yugoslavia has contended before the International Court of Justice (ICJ) that the sustained and intensive bombing of the whole of its territory, including the most heavily populated areas, constitutes “ a serious violation of Article II of Genocide Convention”; whereas it argued that “ the pollution of soil, air and water, destroying the economy of the country, contaminating the environment with depleted uranium, inflicts conditions of life on the Yugoslav nation calculated to bring about its physical destruction”, Case Concerning Legality of Use of Force; Yugoslavia vs. Portugal, Request for the indication of Provisional Measures, 2 June 1999, ICJ.
9. Trail Smelter Case (U.S. vs. Can), 3 American Journal of International Law, vol. 35 (1941), pp.684-736.
10. Ibid., p.716.
11. See Trafosky, note 4, p.24, in 1991, the London School of Economics, Greenpeace and the Centre for Defense Studies, London have jointly organised the London Round Table Conference, the purpose of which was to discuss the feasibility and context of the Fifth Geneva Convention on the Protection of the Environment in Times of Armed Conflicts.
12. For example: Use of chemical warfare in WW I : nuclear bombing of Hiroshima and Nagasaki in WW II which caused devastation of innumerable eco-systems; employment of bombing and chemical techniques which resulted in massive disruption of natural and human ecologies. Vietnam war brought a widespread awareness of the danger to the environment from war. United States of America used aircrafts to spray 200 million gallons of the herbicides Agent Orange, Agent White and Agent Blue on Vietnam and Laos. Napalm and conventional bombing also damaged large areas of forest and agricultural land. cited from, R.A.Malviya, “ Laws of Armed Conflict and Environmental Protection : An Analysis”, Paper presented at Indian Society of International Law, a national seminar on International Humanitarian Law (ISIL-ICRC),12-13 November New Delhi.
13. S.C.Res.1244,U.N.SCOR, Sess. 54, Meetg. 4011, U.N.Doc.S/Res/1244 (1999).
14. The Kosovo crisis lasted more than 70 days, with 1,200 aircraft dropping around 20,000 bombs and rockets. By NATO estimates around 5,000 members of the Yugoslav armed forces were killed in the bombardment, together with hundreds of civilians, in both Serbia and Kosova. Around 1.4 million Kosovar Albanians were forced to flee from their homes, of which an estimated 782,100 are now in Macedonia, Albania, Bosnia and the semi detached Yugoslav province of Montenegro. The war was fought to protect the human rights of those Kosovars; it can not be truly said to have ended until they have returned home. McGuire, “Getting the Diplomat’s Table”, Newsweek, 14 June 1999, pp.16-19.
15. Air pollution in Yugoslavia is considerable, mainly confined in urban and industrial areas. The prinicipal air pollution sources include thermal power and heating plants, domestic heatings, motor vehicles and industrial processes. The air quality is measured by monitoring the emissions of sulphur dioxide and nitrogen oxides. Measurements are regularly published for the country as a whole and for urban areas. Water Pollution: The main sources of water pollution are human settlements, industry and agriculture. A significant degree of pollution enters the country through rivers; the FRY thus comprises many geographic macro - regions : Panonian, mountainous and coastal. Environmental protection in Yugoslavia started to be taken seriously in the 1970s, there is an environmental policy statement, constitutional recognition of the right to a healthy environment, framework environmental legislation and environmental impact assessment legislation. Ministries of Environment exist at the federal level in the Serbia and Montenegro.Sectoral legislation on air, water, soil, natural/cultural heritage, spatial / settlement planningand chemicals/waste is in place, comprising a large number of laws (more than 150 ) and other regulations (more than 100) at all levels. See UNEP, The Kosovo Conflict - Consequences for the Environment and Human Settlements ( hereafter referred as to Report) (Switzerland, ,1999).
16. Balkan Task Force was constituted by United Nations Environment Programme (UNEP) and United Nations Centre for Human Settlements ( UNCHS ) in May 1999 to conduct a study to find out the environmental damage caused by NATO air bombardments. Pekka Haavisto, the former Finnish Environment and Development Co-operation Minister has served as BTF chairman.
17. Report, note 15, p.36.
18. C. Hedges, “Serbian Town Bombed by NATO Fears Effects of Toxic Chemicals”, New York Times,14 July 1999.
19. See Report, note 15, p. 38.
20. Three sampling sites were chosen by the BTF Danube mission : ( a ) mouth of Lepenica; (b) upstream of the Lepenica/ Velika Morava confluence; (c) downstream of the Lepenica/ Velika Morava confluence.The results from analysis of the water and sediment samples indicated PCB pollution at the mouth of the Lepenica and in the Velika Morava downstream of the Lepenica confluence. Report, note 15, p.42,
21. The oil refinery at Novi Sad is located on the left bank of the river, 3km for the north of the city cenre and just 2 km upstream of bank filtration wells used for the city’s water supply. The ground water table beneath refinery is located only 1-2 km below the surface, and there is no protective barrier to prevent the possible flow of contaminated groundwater towards the bank filtration wells in the event of an oil spillage or other pollution incident. Report, note 15, p.34.
23. Ibid., p.47.
24. Novi Sad, Pancevo.
27. Report, note 15, p.60
28. The DRPC entered into force in October 1998 and, at present 11 countries are Parties to this instrument. The implementation of the DRPC is assured by the International Commission for the Protection of the Danube River ( ICPDR) and supported by the Environmental Programme for the Danube River Basin (EPDRB). The latter programme was launched in 1991 by the Danubian countries, international organisations, financial institutions and NGOs.
29. Depleted Uranium is a waste product of the process used to enrich natural uranium ore for use in nuclear reactors and nuclear weapons. Compared to natural uranium which has a U-235 isotopic content of U-235 in DU is partially depleted to about a third of its original content. DU is extremely dense and therefore used in the tips of bullets designed to pierce armour plating. It may also be used in cruise missile nose cones and has been used in the armour of tanks. Concerns about the human health implications of exposure to DU are related to both its radiological and chemical properties. Report, note 15, p.61.
31. Noelle Quenivet, “ A Comment on the Report of the Office of the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia concerning NATO bombing campaign against the Former Republic of Yugoslavia” (unpublished paper), pp.14-15.
32. Ibid., p.15.
33. More than a third of all European flowering plants, about half of the fish species, and two-thirds of the bird and mammal fauna have been recorded in the Federal Republic of Yugoslavia. Approximately 5% of Serbia and 8% of Montenegro are included in officially designed protected areas, such as National Parks, Nature Parks, and Nature Reserves. Ibid, note, 15, p.62.
34. Federal Ministry for Development, Science and Environment of Serbia (1999), Natural Heritage Under Bombs , (Belgrade,1999).
35. Report, note 15, p.62.
36. For text see American Journal of International Law, vol.1, 1907 (Supplement) pp.95-96.
37. Ajibola, note, 1, pp.86-87.
39. W. Fenrick, “ The Rule of Proportionality and Protocol I in Conventional Warfare”, Military Law Review, vol.98(1982), p.93.
40. The Hague Convention was convened in 1907 at the end of the Russo-Japanese War, contain the international law which “sets limits to the means and methods of warfare which may legitimately be used in armed conflict”.
41. Annexed to the Convention (IV) Respecting the Laws and Customs of War on Land, 9 UKTS (1910) cd.5030
42. Peter Richard & Michael N.Schmitt, “ Mars Meets Mother Nature: Protecting the Environment During Armed Conflict”, Stetson Law Review, vol.28(1999), pp.1047-1068.
43. Michael N.Schmitt, “Green War: An Assesment of the Environmental Law of International Armed Conflict” Yale Journal of International Law, vol.22(1997), p.64.
44. Protocol Additional I to the Geneva Conventions of 12th August 1949, and Relating to the Protection of Victims of International Armed Conflict, International Legal Materials, vol.16 (1977), pp. 1377-1441.
45. F.Kalshoven, Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts : The Diplomatic Conference”, Geneva, 1974-1977 (PartII), Netherlands Yearbook of International Law, vol.9 (1978), p.130.
46. Convention on the Prohibition of the Use of Environmental Modification Techniques of 18 May 1977, International Legal Materials, vol.16 (1977), pp.88- 94.
47. Final Declaration of the UN Conference on the Human Environment (hereafter, Stockholm Declaration), UN Doc. A/Conf. 48/14, 16 June 1972, ILM, vol.11(1972), pp.1416-1421.
48. Para.5, UN Doc. A/RES/35/7 (28 October 1982), ILM, vol.21(1982), pp.676-678.
49. United Nations Conference on the Environment and Development ( Rio De Janerio, 3-14 June 1992), ILM, vol.31(1992), pp.818-841.
50. Antoine Bouvier, “Recent Studies on the Protection of the Environment in Time of Armed Conflict”, International Review of the Red Cross, n.289, July-August 1992, pp.554-66.
51. Principle 24 of the Rio Declaration stipulates, “ Warfare is internally destructive of sustainable development. States shall therefore respect international law binding protection for the environment in times of armed conflict and co-operate in its further development, or necessary.”
52. Paragraph 39.6(a) of Agenda 21 states, “ In view of the importance of full compliance with relevant rules of international law, all appropriate means should be considered to prevent wilfully caused large-scale destruction of the environment ( in times of war) which can not be justified under international law. The General Assembly and its sixth committee as well as, in particular, the expert meetings of the International Committee of the Red Cross, are appropriate forums to deal with this subject”.
53. Article 22 (3) (d) of the Draft Code of Crimes Against the Peace and Security of Mankind; Report of the ILC on the work of Session, 43, GAOR, Session, 46, Supp. No.10 ( UN Doc. A/46/10)
54. Article 85, Additional Protocol I of 1977.
55. International Court of Justice dealt with the problem in the context of its advisory opinion on the Legality of the Threat or Use of Nuclear Weapons, ( ICJ Reports, 1997, p.226, at p.242, para.30). It had been argued that Nuclear Waepons could not be used if their effect was to violate environmental obligations. The Court had drawn a distinction between general environmental obligations and environmental obligations specifically intended as a condition of total restraint in time of armed conflict.
56. Article 85(3) of Additional Protocol I
57. Article V,Paragraph 3.
58. Article V, paragraphs 1 and 21.
59. cited in, Phillipe Antoine, “International Humanitarian Law and the Protection of the Environment in Time of Armed Conflict”, International Review of the Red Cross, n.291 (1994), pp. 517-537.
60. Adam Roberts, “ Environmental Destruction in the 1991 Gulf War”. International Review of the Red Cross, n.291 (1994), pp.538-553. The 1991 Gulf War was fought ostensibly to protect the principle of State sovereignty. It conveyed the message that, “ States, specifically those which were members of the United Nations, could not be invaded, occupied and annexed by more powerful neighbours”.
61. A Short survey of Ecological Damage in Greenpeace, The Environmental Legacy of the Gulf War, (Amsterdam, 1992).
62. Antoine, note 59, p.517.