AN APPRAISAL OF THE LEGAL FRAMEWORK FOR INTERNATIONAL ENVIRONMENTAL PROTECTION UNDER

Chapter Two

Nature and Scope of Environmental Degradation during Armed Conflict

2.1       Introduction

Since the early 1970, the steady deterioration of the environment has given rise to widespread awareness of man’s destructive impact on the environment. One of the most environmentally damaging human activities is armed conflict. Armed conflict has always left its mark, sometimes long lasting, on the environment. It is on record that as at today, some battle fields of the World War I and World War II are unfit for cultivation or dangerous to the population because of the unexploded land mines.[1]  This Chapter examines with examples, the nature of damage inflicted on the environment as a result of war. But before that, the chapter identifies and defines some key concepts on this discourse.

2.2        Definition and Clarification of Some Key Concepts and Terms

Although definition is generally subjective, it however enhances a better understanding of the terms and concept as used in a particular context. In this regard, we will attempt to define some concepts like, “environment”, “armed conflict”, “international armed conflict” and non international armed conflict. This is to facilitate a better understanding of the subsequent discussions.

2.2.1    Meaning of Environment

Environment includes the physical, chemical and biological conditions that make possible and are proportions to the life of living creatures such as human, animal and plant[2]. Environment has also been defined to include the three environmental media (land, air and water) and the flora and fauna which inhabit them. These two definitions appear to lay emphasis only on the natural environment. This is rather narrow.

A wider definition of environment is provided in the International Convention on Civil liability for damage resulting from activities dangerous to the environment to  include the natural resources both biotic and abiotic, thus covering not only the natural environment but also the manmade landscapes, buildings and objects which form part of man’s cultural heritage.[3]This definition is not only holistic, it also recognizes the important relationship that exists between the natural and man- made environment.

It is clear from this definition that environment is very important to man and his development. The environment is the source of the materials which mankind transforms into goods and services. It also acts as a vast link for the wastes and polluting substances he generates. It provides a number of basic conditions needed for a stable climate.

2.2.2    Armed Conflict

Traditionally armed conflict (war) commenced formally with previous and explicit warning namely declaration of war or similar or ultimatum with conditional declaration of war. In modern times, armed conflict commences informally with the existence of a situation of confrontation rendering the law of armed conflict applicable[4].

2.2.2.1             Non-International Armed Conflict (NIAC)

Non-International Armed Conflict (NIAC) arises where there is armed conflict occurring in the territory of a state between the armed forces of a state and dissident or rebel forces. Traditionally, the law applicable in such conflicts was considered as internal matter for the states. Though Article 3 common to the fourth Geneva Convention of 1949, set out basic principles to be respected in such conflicts, it did not define NIAC. Article 1 of Protocol II of 1977 defines NIAC as a conflict which takes place in the territory of a state between its armed forces and dissident armed forces or other organized armed group which under responsible command, exercise such control over part of the territory as to enable them to carry out sustained and concerted military operations and to implement the provisions of International Humanitarian Law (IHL).[5]

Situation of internal disturbance and tension such as riots, isolated and sporadic acts of violence and other acts of a similar nature are not considered as armed conflicts. However, NIAC may become internationalized if (a) a state victim of an insurrection recognize the insurgents as belligerents ;(b) one or more foreign states came to the aid of one of the parties with their own armed forces; and, (c) two foreign states intervene with the respective armed forces, each in aid of a different party.

2.2.2.2             International Armed Conflict (IAC)

To constitute IAC, no minimum of intensity of violence or fighting, no minimum of military organization and no minimum of control of territory is required. There can be low level combat actions or even no combat action, small-scale in incursion into enemy territory, declaration of war or similar actions. Under the Geneva Conventions, IAC is the type of conflict in which the armed forces of two or more states oppose each other even though one of them may not admit to the existence of a state of war. Also according to Article 1(4) of protocol in additional to the Geneva Convention, struggle and liberation movement may be considered as an IAC. The Article also defines IAC as armed conflict in which people are fighting against colonial domination and alien occupation as well as against racist regimes in the exercise of their self-determination. Once the liberation movement has made the necessary declaration, all the provisions of the Four Geneva Conventions are applicable.

The distinction between AIC and NIAC armed conflicts is very significant to this research. Infact, most of the rules of armed conflict regulate entirely IAC. The Four Geneva Conventions of 1949 and the Additional Protocols of 1977 only made oblique reference to NIAC. Unfortunately, most of the armed conflicts today with devastating consequences on the environment are NIAC. This means that NIAC with its attendant damage to the environment as can be seen in illegal exploitation of natural resources, as well as induce human migration common in most civil wars around the world is largely unregulated by IHL. The significance of this distinction between IAC and

NIAC vibrate throughout this research.



[1] Bouvier, A. Protection of the Natural Environment in Time of Armed Conflict. International Review of the Red Cross no. 285, 1991, p.1

[2] Verri, P. Dictionary of the International Law of Armed Conflict, International Committee of Red Cross ICRC Geneva 1992 p. 27.

[3] Thornton, J & Beckwith, S. Environmental Law Sweet and Maxwell, Sydney, 1997, p. 3

[4] See Article 1 Additional Protocol II 1972 to the Geneva Convention

[5] The Nigerian Civil War also known as the “Biafran War” 1967-1970 is a good example of NIAC

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