top of page

Napalm Forests II: Protection of Environment During Armed Conflicts in the Future

-Kartikey Baid & Dhruv Garcha


Proposed Reforms

In this part, we will be looking at some proposed reforms which will first, will strengthen the current legal framework. Second, and more importantly, ensure effective implementation of these norms in accordance with principles of proportionality, distinction, and necessity. We shall be discussing four possible reforms to the existing system and analyze their efficacy and shortcomings.


Sensitisation of Armed Forces

The primary focus should be on the armed forces as they are the oldest and undisputably, the most effective tool of foreign policy. It is crucial that they demonstrate greater sensitivity towards the environment and integrate environmental considerations into their strategic, operational, and tactical preparations for armed conflict. In situations of armed conflict, armed troops are best suited and positioned to promptly address environmental degradation, particularly since there is frequently a lack of civic authority in these locations. Diplomatic and legal remedies, although effective in managing environmental issues post-war, are not immediate solutions.

To address this, it is imperative to have military troops who are fully trained in environmental management procedures during armed conflict. Military manuals may have the added benefit of standardizing state practices, which is a significant component of the legal process. Due to the lax enforcement of international law, it is essential for states to conform to expected behavior to facilitate the codification process for customary international law. Guidelines could prove useful in shaping state practices, ultimately contributing to the establishment of customary law.

One possible flaw in the argument presented in the above text is that it assumes that the armed forces are the most suitable and effective institution for addressing environmental degradation during armed conflict. While it may be true that the military is often the only institution capable of filling the void of civic authority in combat zones, it is not clear that they are the best-equipped to address environmental issues.

In fact, their primary mandate is to engage in armed conflict, which may sometimes conflict with environmental concerns. Another potential flaw in the argument is that it assumes that military manuals can adequately standardize state practices and contribute to the codification process for customary international law. While guidelines can be useful in shaping state practice, there are many factors that can influence how states behave in armed conflict situations, and it may be difficult to ensure that military manuals are consistently followed by all actors. Addressing environmental issues in conflict zones may require a more holistic approach that takes into account the broader social, economic, and political context in which armed conflict occurs.


Codification

In order to effectively address the issue of environmental damage during armed conflicts, it is imperative that binding rules be codified under a specific treaty. A legal system can only be effective if it is enforceable and currently, the system in place lacks enforceability. Therefore, a treaty that recognizes the issue and subsequently creates binding laws is necessary to effectively address this problem. The United Nations should convene conferences and conventions, similar to those on issues such as Global Warming, refugee rights, and Law of War, to create such a treaty.

The treaty should contain precise definitions and norms applicable to all states, eliminating any ambiguity while providing flexibility to states within the parameters of the treaty. It is essential to codify the principles of Proportionality, Necessity, and Distinction into international law, and the transfer from customary to codified law will pave the way for the strict implementation of these principles during armed conflict. The treaty should provide for both domestic and international armed conflicts, as a significant amount of environmental damage caused during armed conflict is of a domestic nature. Overall, the codification of binding rules in a treaty aimed at tackling the issue of environmental damage during armed conflicts is necessary to streamline the international legal position on this matter and ensure its strict implementation.

The argument assumes that the lack of enforceability is the only issue with the current legal system for environmental damage during armed conflicts. However, there may be other challenges, such as the difficulty of determining responsibility for environmental damage, especially in cases where multiple parties are involved.

It further assumes that a treaty would be effective in addressing the issue of environmental damage during armed conflicts. However, the effectiveness of a treaty depends on the willingness of states to comply with its provisions. Some states may be hesitant to agree to such a treaty if it limits their military activities or imposes additional obligations on them. Another assumption the argument makes is that a codified law will lead to strict implementation of the principles of Proportionality, Necessity, and Distinction during armed activity. However, the effectiveness of a law also depends on the ability of states to implement and enforce it.


Creating an international watchdog

It is proposed that an international agency similar to the International Atomic Energy Agency be established to oversee and investigate cases of environmental damage during armed conflicts. This agency could operate under the auspices of the United Nations or in close coordination with it, serving as an effective platform for information processing and advocacy. However, the creation of such an agency would require the ratification of a treaty establishing its mandate, which in turn would necessitate the consensus of a majority, if not all, of the major world powers. It is worth noting that such proposals have failed to gain traction in the past.


Creation of a new body of law

there is a debate among jurists on the need for a new body of laws or the enhancement of existing treaties to protect the environment during armed conflict. Advocates for an altogether new body of laws argue that the current laws are insufficient to address the environmental damage caused by warfare. They argue that the laws of war, which are primarily focused on the protection of civilians and property, do not adequately address the protection of the environment. A new set of laws would specifically address the environmental damage caused by military activities and would provide guidelines for the responsible conduct of military operations.

The 5th Geneva Convention was proposed as a potential solution to address environmental degradation caused by warfare and armed conflict. The proposed convention aimed to provide greater protection for the natural environment during times of armed conflict. However, the convention was never raised up the ground, and the debate surrounding its necessity continues.

On the other hand, some scholars argue that there are already over 900 treaties providing some form of environmental protection. These scholars suggest that the issue is not the lack of laws but rather the implementation and enforcement of existing treaties. They argue that the proliferation of treaties has led to "treaty congestion" and that the focus should now shift to the development of methods for effective implementation and enforcement of existing laws.


Conclusion

The proposed reforms present a crucial roadmap for protecting the environment during armed conflicts. By prioritizing these measures, we can pave the way for a more conscientious and sustainable approach to warfare, preserving our planet's ecological integrity even amidst the chaos of conflict.

The sensitization of armed forces to environmental concerns will empower them to proactively address degradation during conflicts, recognizing their role as a vital tool of foreign policy. Concurrently, codifying binding rules within a dedicated treaty will establish a clear and enforceable framework, ensuring adherence to the principles of necessity, distinction, and proportionality. Moreover, the establishment of an international watchdog will hold parties accountable for their actions, investigating cases of environmental damage and promoting responsible conduct. Balancing the need for new laws while enhancing existing treaties will foster a comprehensive approach to addressing the complexities of environmental protection during armed conflicts.

In this journey toward a sustainable future, international cooperation and collaborative efforts among states are imperative. Only through united commitment can we effectively protect the environment, safeguarding it for the well-being of current and future generations. Let us embrace these reforms and collectively ensure that the preservation of our planet remains a paramount priority during times of conflict.