An overview of area-based environmental protection in relation to armed conflicts.
For decades, biodiversity hotspots have borne the brunt of armed conflicts, degrading habitats and decimating species. And for decades, it has been proposed that such sites be given additional legal protection, based on agreements between conflict parties. In this blog, Stavros Pantazopoulos examines the history and potential future of area-based protection in areas affected by conflict.
The relationship between war and biodiversity loss is now well established. Armed conflicts have been found to lead to both species and habitat loss, and accelerate the depletion of forest cover. In addition, conflicts are linked to the illegal exploitation of natural resources, and help to facilitate poaching and the illegal wildlife trade due to the presence of so many weapons. The collapse of biodiversity research and management in areas affected by armed conflicts only serves to aggravate these conditions, further complicating conservation efforts.
Unfortunately, biodiversity hotspots do not have special legal protection beyond that accorded to civilian objects during armed conflicts. Even worse, parts of the environment can be directly targeted on the basis of their location or use. So place-based protection (designated protected zones that benefit from increased protection, if not immunity, from targeting) could be an important tool to protect important ecosystems from the harmful effects of armed conflict.
The early attempts
The idea of establishing demarcated, place-based zones to protect ecosystems in times of armed conflict is not entirely new. During the Diplomatic Conference of Geneva of 1974–77 that led to the adoption of Additional Protocols I and II, it was proposed that nature reserves would be protected and respected. In 1995, a Draft Convention on the Prohibition of Hostile Military Activities in Protected Areas was drafted by the International Council of Environmental Law (ICEL) and the Commission on Environmental Law of the International Union for the Conservation of Nature (IUCN). Unfortunately, both of these failed to be approved.
Turning to pertinent, non-binding legal instruments, it is worth noting that the notion of protected zones found its way into two influential documents. First, the San Remo Manual on naval warfare states that ‘the parties to the conflict are encouraged to agree that no hostile actions will be conducted in marine areas containing: (a) rare or fragile ecosystems; or (b) the habitat of depleted, threatened or endangered species or other forms of marine life’. On a similar note, the Draft International Covenant on Environment and Development refers extensively to the designation of natural and cultural sites for enhanced protection:
Parties shall take the necessary measures to protect natural and cultural sites and objects of special interest, in particular sites designated for protection under applicable national laws and international treaties, as well as potentially dangerous installations, from being subject to attack as a result of armed conflict, insurgency, terrorism, or sabotage. Military personnel shall be instructed as to the existence and location of such sites and installations.
Interestingly, the commentary to this article refers back to Additional Protocol I’s ‘demilitarized zones and non-defended localities’ as having the potential to furnish protection to natural and cultural sites. A demilitarized zone is defined as an area, agreed upon between the parties to the conflict, which cannot be occupied or used for military purposes, while a non-defended locality is any inhabited place near or in a zone where armed forces are in contact that can be occupied by an adverse party. Neither of these types of area-based protection has yet been operationalised to give environmental protection.
Multilateral (environmental) agreements
The concept of in situ protection is already found in the 1992 Convention on Biological Diversity (CBD). However, whether multilateral environmental agreements continue to apply in times of armed conflict is a controversial issue. For our purposes it is enough to mention that ‘area-based’ protection regimes, as established in the CBD, the 1972 UNESCO World Heritage Convention and other related treaties, require the ‘continuation in conflict of a “protected area” regime … alongside IHL rules’ and the potential ‘acceptance of a new IHL provision on this issue’. International Humanitarian Law (IHL), also called ‘the law of armed conflict’ or ‘the laws of war’, is the legal framework for situations of armed conflict and occupation.)
The CBD and the World Heritage Convention hint at a prohibition on the use of specifically designated ecologically sensitive areas to further the military effort and, importantly, to the emergence of a prohibition on undertaking hostile acts against such areas. Assuming that the World Heritage Convention continues to apply during armed conflicts, it could be used to set up systems of international cooperation and assistance to protect natural heritage areas, because of their importance for the international community as a whole.
Draft principles on protected zones
Quite recently, the UN International Law Commission (ILC) adopted, on first reading, two draft principles (DPs) on protected zones. They read as follows:
Draft principle 4: Designation of protected zones: States should designate, by agreement or otherwise, areas of major environmental and cultural importance as protected zones.
Draft principle 17: Protected zones: An area of major environmental and cultural importance designated by agreement as a protected zone shall be protected against any attack, as long as it does not contain a military objective.
Given the prevalence of non-international armed conflicts in contemporary times, it is worth noting that both are intended to apply to either an international or a non-international armed conflict. DP 4 is also applicable after armed conflicts, and thus could form the legal basis of contemporary best-practice tools, such as the creation of peace parks. These are ‘transboundary protected areas that are formally dedicated to the protection and maintenance of biological diversity, and of natural and associated cultural resources, and to the promotion of peace and co-operation’.
Another element that stands out is the explicit linkage between areas of environmental importance and areas of cultural importance, which illustrates their significance for indigenous peoples and enables a stronger case to be made for the cultural value of biodiversity. In this regard, the ILC commentary explains that such protected zones ‘would nevertheless include … ancestral lands of indigenous peoples, who depend on the environment for their sustenance and livelihood’. Along the same lines, the very first paragraph of the CBD foregrounds the cultural value of biodiversity by acknowledging ‘the intrinsic value of biological diversity and of the ecological, genetic, social, economic, scientific, educational, cultural, recreational and aesthetic values of biological diversity and its components’. In addition, DP 8 on ‘human displacement’, which concerns the ‘environmental degradation in areas where persons displaced by armed conflict are located’, showcases how conflicts can indirectly harm the environment, even in areas removed from the fighting. Displaced populations may inadvertently harm sensitive areas through coping strategies, such as the overharvesting of firewood.
All in all, DPs 4 and 17 provide for area-defined protection and could be interpreted to afford special environmental protection to ecologically sensitive areas. Notwithstanding the fact that the potential that this specific type of protection holds has not yet been explored in practice, it could be considered for the way forward for biodiversity protection in relation to armed conflicts. DP 25, which applies post-conflict, could complement in biodiversity conservation, as it encourages ‘relevant actors, including international organizations, to cooperate in conducting post-armed conflict environmental assessments and adopting remedial measures’.
The misuse of environmental protection
However, those advocating for area-based protection in areas affected by armed conflicts should be aware of its potential dark sides. To begin with, there could be increasingly forceful responses that deploy militarised techniques to ensure that protected areas and their resources are not used to further the military effort. This militarisation may, in turn, compound the uncontrolled circulation of arms in areas that are sensitive, both from a conservationist and a security perspective. The recently reported incident of armed ecoguards, tasked with protecting wildlife in the Democratic Republic of the Congo, beating up and intimidating hundreds of Baka people living deep in the rainforest attests to the dangers of increased militarisation.
The final outcome might be a model of militarised conservation, which has been characterised as fundamentally unjust because it covers specifically chosen areas and/or species and is not at all concerned with addressing the root causes of poaching and trafficking. In other words, it treats area-based protection and conservation as the panacea that tackles the symptoms, namely poaching and trafficking, but fails to engage with the ‘much deeper and complex structural contexts’ underlying these practices.
This model of conservation has been highlighted as leaning towards ‘war by conservation’, a move away from the previous model of war for conservation, which approach was driven by the idea that wildlife is under threat and therefore using force was justified. In contrast, in the current war by conservation model, environmental protection and conservation objectives become increasingly securitised, as they intermingle with global security concerns to such an extent that it becomes increasingly difficult to distinguish between them.
Moreover, the designation of protected sites, zones or ‘areas of major environmental importance’ (the term used by the ILC in its DPs) can also be abused when used to exclude the local community, especially following a ‘fortress conservation’ model of exclusion, as has been recently reported with respect to Israel’s announcement of seven nature reserves in the West Bank. Given that more than a third of the proposed location of these nature reserves reportedly lie on private land owned by Palestinians, the proposed designations may restrict Palestinians’ access to their own property.
Proceeding with caution
Area-defined environmental protection carries great potential. Even though the ILC DPs do not form part of existing international law at the moment – they will be finalised in the summer of 2021 – emerging trends are pointing to the recognition of an IHL rule affording special protection to ‘areas of major environmental importance’. In any event, place-based environmental protection could already be undertaken using multilateral (environmental) agreements, on the understanding that their applicability does not cease during armed conflicts. Nevertheless, the promise of protected zones carries with it some perils, namely the establishment of fortress conservation and increased militarisation. For all these reasons, the international community should proceed with caution in this domain.
Stavros Pantazopoulos is CEOBS’ Legal and Policy Analyst. The blog was first published by the Institution of Environmental Sciences.