Does the laws of armed conflict adequate enough to protect the environment during of the international armed conflict? A legal critique

Author:Zubair Kasem Khan
Position:LL. B(Hons), MCL(Malaysia), LLM(UK). Lecturer of Law, Bangladesh University, Dhaka, Bangladesh. Former Graduate Research Fellow, IIUM, Malaysia, zubair.rumi505@gmail.com.
Pages:174-191
SUMMARY

It is an undeniable fact that, environment annihilation and the armed conflicts are like two sides of the same coin and thus can no way be averted the former effects in case of the existence of later cause. Out of this realisation, a number of International Conventions and International Humanitarian laws have developed over times to protect or reduce environment destructions during warfare. Hence,... (see full summary)

 
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Does the laws of armed conflict adequate enough to protect
the environment during of the international armed conflict?
A legal critique
Md. Zubair Kasem KHAN1
Abstract
It is an undeniable fact that, environment ann ihilation and the a rmed conflicts are
like two sides of the same coin and thus can no way be averted the former effects in case of
the existence of la ter cause. Out of this r ealisation, a number of Interna tional Conventions
and Interna tional Humanitaria n laws have developed over times to protect o r reduce
environment destructions dur ing warfare. Hence, this pa per has penned to weigh up
carping ly the adequa cy and efficacy of the la ws of armed conflicts for safeguarding the
environment from possible a nnihilations tha t occur during war far e of inter national
chara cter. Fur ther to note that, the p resent paper will not focus on pr ovisions perta ining to
environmental protections dur ing war , under internationa l legal instruments that deals with
arms limitation, arms proliferation or a ny other la ws addressing jus ad bellum. In other
words, the curr ent study will restrict itself to examine only the protectio n of environment in
jus in bello of internationa l character .
Keywords: Laws of Armed Conflict (LOAC), Additional Protocol-I, the ENMOD Convention
Environment Protection.
JEL Classification: K32, K33.
1. Introduction
[T]he environment is under daily threat andthat the environment is not
an abstr action but represents the living space, the quality of life and the very health
of human beings, including generations unborn.2
This statement was promulgated by the International Court of Justice
through its advisory opinion published on 8 July of 1996, in relation to the legality
of the threat or use of nuclear weapons and their destructive effects on the humanity
and the environment. Truly speaking, this realization is spot on not only in the case
of using nuclear weapons but also all other chemicals and biological weapons,
including some sophisticated conventional weapons used in the history of warfare in
the globe. In fact, armed conflicts and its consequential harmful effects on the
1 Zubair Kasem Khan LL. B(Hons), MCL(Malaysia), LLM(UK). Lecturer of Law, Bangladesh
University, Dhaka, Bangladesh. Former Graduate Research Fellow, IIUM, Malaysia,
zubair.rumi505@gmail.com.
2 Legality of the Threat or Unse of Nuclear Weapons (Advisory Opinion) ICJ Report 1996
http://www.icj-cij.org/files/case-related/95/095-19960708-ADV-01-00-EN.pdf> accessed 3 January
2018, 241 (para 29).
Juridical Tribune Volume 8, Special Issue, October 2018 175
environment had also been a great concern to the Rio Declaration on Environment
and Development of 1992 and thus adopted principles conferring responsibility to
individual States to be obliged by international laws protecting the environment.3
Frankly speaking, the two different words ‘environment’ and ‘armed
conflict’ are inextricably wired both in subjective and objective angles.4 The
ratiocination behind this statement is also genuine and obvious. On the one hand, the
environment is always being the immediate casualty of every kinds of armed
conflicts, while, on the other hand, decayed environment and ‘unsustainable use of
natural resources’ sometimes play as leavening role in yielding and aggravating
international armed conflict between States.5 A third possible dimensional cause for
constituting relationship between the two is that, environment sometimes become
the motivator or extender for prolonging armed conflicts and this situation becomes
explicit when extortion, extraction and commercialization of natural resources are
the central and conspicuous to the conflicts.6 Be that as it may, regardless of the
purposes for constituting any armed conflict, it always have direct and immediate
vicious impacts on the environment over the targeted or conflicted places, as well as,
indirect long term effects on the global climate system.
Pondering upon the gravity and mass destructions of warfare during the
conflict or aftermath, the means and methods of warfare are being modernized
tremendously with the simultaneous advancement of science and technology
nowadays. In this upshot, unlike the 17th or 18th centuries of conventional warfare
and their aftermaths, the totality of contemporary armed conflicts does not confine
into human miseries only; mass destructions of home, infrastructures and forests are
just some usual and unavoidable ensuing victims of the warfare. Not only that, armed
conflict compels both civilians and combatants to undergo expatriation or
deportation and this has evidenced many a times in the recent history of war.7
Alarming to note that, armed conflicts always have parallel immediate and
in most of the cases, long-term dreadful effects and degradations on environment. In
some recent past cases, the armed conflicts of international character have been
occurred by exercising sophisticated atomic ammunitions and the effects of these
conflicts are so gruesome in the point that, the aftermaths of the attacks stretched out
beyond the territory of the targeted zones and caused sudden annihilation of all the
3 United Nations Conference on Environment and Development, ‘Rio Declaration on Environment and
Development’ UN Doc. A/CONF.151/26 (vol. I); 31 ILM 874 (1992) ((Rio de Janeiro, 3 -14 June
1992), Principle- 24.
4 Michael N. Schmitt, ‘Green War: An Assessment of the Environmental Law of International Armed
Conflict’ (1997) 22(1) Yale Journal of International Law 1.
5 Santosh Upadhyay, ‘Armed Conflict and the Environment’ (2013) 23(1) Yearbook of International
Environmental Law 217-224.
6 Philippe Le Billon, ‘The Political Ecology of War: Natural Resources and Armed Conflicts’ (2001)
20 Political Geography 561-584. See also: Philippe Le Billon, Fuelling War: Natura l Resources and
Armed Conflict (Routledge 2005) 29-50.
7 David Jensen and Silja Halle (ed.) Protecting the Environment During Armed Conflict, An Inventory
and Analysis of International Law (United Nations Environment Programme 2009) 8.

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