Syria Conflict and its Impact

A Legal and Environmental Perspective

In: Journal of International Humanitarian Legal Studies
Mais Qandeel Assistant Professor of International Law, School of Law, Psychology and Social Work, Örebro University, Örebro, Sweden

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Jamie Sommer Assistant Professor, Department of Sociology, University of South Florida, Tampa, FL, USA

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The Syrian war has caused catastrophic damage to the lives and livelihoods of millions of people. Chemical attacks in particular have been tremendously devastating to both humans and wildlife ecosystems. Building on previous research in international humanitarian law (ihl) and the protection of the environment, this article identifies the immediate and long-term impact that the use and storage of chemical weapons has on the environment as against the shortcomings in legal coverage for the same. This article further argues that existing ihl provisions addressing the consequences of environmental warfare are fragmented at best, even when applied to a current case that most would consider to be highly applicable to ihl.

1 Introduction

The Syrian war is one of the most devastating conflicts in recent times. Since its breakout in March 2011, the war has not only caused the death of over 400,000 people and forced more than 13.5 million people to seek refuge around the world,1 it has also damaged the natural environment. Chemical weapons, including sarin, mustard gas and chlorine, have been used by the Syrian government, and several US-led attacks have destroyed Syria’s chemical weapons facilities.2 The effects of the use of chemical weapons, and the (eventual) destruction of chemical weapon sites, are severe.3

The prohibition of chemical weapons is well established in international law. Customary rules also prohibit weapons that cause superfluous injury or unnecessary suffering.4 While previous international humanitarian lew (ihl) research on chemical attacks in Syria has focused on harm to humans, less attention has been devoted to the impacts of chemical weapons on the natural environment.5 This is surprising, as ihl provisions can be applicable to environmental damage from chemical attacks in Syria. The present article focuses on the applicability of ihl to chemical attacks in Syria in an attempt to improve the effectiveness of these international legal tools in building a case against chemical attacks as damaging to the natural environment.

This article begins by reviewing the history of the conflict and discussing the use of specific chemical weapons in Syria. The article further discusses research documenting the potential impacts of commonly used chemical weapons on plant and wildlife ecosystems, focusing specifically on water. Building upon previous research concerning the protection of the environment against chemical warfare, this article reviews the issue from an ihl perspective using the case of Syria. The article concludes that applying existing ihl principles to protect the environment in times of conflict is ineffective in the case of Syria, especially in the absence of a specialized instrument to protect the environment in situations of armed conflicts. This paper makes the case that the most effective solution would be to couple ihl with both international environmental law (iel) as well as the general principles of international law.

2 The Historical Background of the Conflict

The current conflict in Syria is considered an offshoot of the Arab Spring uprisings in 2011.6 While it began as an act of protest and organized resistance, it has devolved into a fight among different factions, including political groups, rebels, ethnic groups, extreme religious groups, and international forces.7 Specifically, the spark of this conflict was the protest and the subsequent torture of young boys opposing the government. This, combined with the growing discontent with the Syrian government, led to people protesting for Assad’s removal from power, which was violently suppressed.8 Some of the specific parties involved include the Syrian army and its international allies, opposing rebel groups like the Free Syrian Army, Salafi jihadist groups, including al-Nusra Front, Kurdish-Arab Syrian Democratic forces, the Islamic State of Iraq and the Levant, with other influences from Iran, Russia, Turkey, and the United States among others. Almost 7 million people have been displaced, many of whom are children.9 This displacement from attacks has resulted in widespread social and economic issues, but has also put pressure on the environment, leading to vegetation loss, soil erosion, degradation, and deforestation, among others.10

The conflict was escalated by socioeconomic issues, drought, and advanced weapons.11 The use of weapons resulted in severe losses of life, injuries, infrastructure damage, but also wildlife deaths and damage to the natural environment. Chemical attacks, the focus of this paper, are one major facet of the Syrian War that has clear implications for both humanity and the natural ecosystem.12

3 The Use of Chemical Weapons

In Syria, the most commonly used agents in chemical attacks are sarin, mustard gas, and chlorine.13 After the 2013 Ghouta attacks (sarin gas), there was an international reaction, which led to the destruction of many of Syria’s chemical weapons. Due to recommendations from the US and Russia, Syria agreed to relinquish its chemical weapon stockpiles.14 Soon after, Syria entered into several international agreements to destroy their stockpiles of chemical weapons. They also agreed to become party to the Chemical Weapons Convention (cwc). Following Security Council Resolution 2118, non-compliance would allow the United Nations (UN) and the Organisation for the Prohibition of Chemical Weapons (opcw) forces to find and destroy all chemical weapons to follow Chapter viii of UN Charter.15 Despite Syrian and international cooperation, for the most part, there have been several alleged violations of these agreements.16 These violations include a failure to declare all sites and/or inaccurately or falsely declare amounts or types of substances (such as ricin). For instance, there was an attack on 4 April 2017 involving sarin, which both the Syrian and Russian governments denied. As a result, the US forces conducted strikes against a Syrian airbase. Another chemical attack took place in Douma on 7 April 2018. There are also several important gaps in the relevant frameworks and agreements.17 For instance, chlorine was not included in the agreement though it is listed in the cwc, and it was used for at least three attacks in 2016.

4 Environmental Impacts of Chemical Attacks

Chemicals in general are known to contaminate the environment and wildlife.18 Chemical warfare agents can be toxic to various species, specifically vertebrates and aquatic organisms – if the dose can harm humans, it can also negatively impact herbivories through consumption.19 Specific environmental impacts of the use of chemical weapons are still evolving, but it is clear they pose great hazards to plant and wildlife ecosystems.20 Water pollution, degraded landscapes, and harm to wildlife are the most common direct environmental impacts of chemical weapons.21 Though the chemical weapons most commonly used in attacks in Syria are not herbicides (infamous for causing environmental damage in the Vietnam War), these agents still impact plant and animal life.22

Aside from the damage of chemical attacks immediately on the natural environment, there can also be lasting harm from improper disposal of chemical agent stockpiles.23 Researchers have conducted studies to determine the environmental fate of these chemicals in the environment to come up with solutions for decontamination and disposal.24 For example, chemicals are often dumped in waterways or in the ground, polluting water and soil.25 The presence of chemicals in waterways and soil varies by type but, depending on dose, can be considered harmful to flora and fauna. Though long-term damage is not entirely predictable, the improper disposal of chemicals may result in environmental harm. For instance, after World War ii, mustard gas and other agents were put in barrels and thrown into the ocean.26 Even the barrels that contain the chemicals can have long term negative impacts on ocean life.27 The below section provides a brief summary of the three chemical agents that are discussed in this paper.

4.1 Sarin

Sarin is a nerve agent which, when inhaled, interferes with the nervous system of wildlife.28 Sarin can contaminate food and water, potentially endangering terrestrial and marine species as well as flora and fauna.29 Hydrolysis rates for sarin depend on temperature, pH and water quality, but in ambient conditions it has a half-life of several days.30 Yet, sarin should not persist past 4 to 8 days in the environment at which point impacted areas may recover.19 In particular, experimental evidence reveals that sarin causes neurotoxicity in animals resulting in decreased activity, prostration, salivation, depression, and the engorgement of meningeal vessels and excess fluid in cerebral ventricles (effects which vary depending on the species).31

4.2 Mustard Gas

The impact of mustard gas on wildlife varies by species, exposure and dose.19 Such attacks can endanger wildlife ecosystems depending on the level and degree of persistence in the environment and are particularly damaging to the respiratory system and can result in reocurring effects.41 In contrast to sarin, mustard gas is not water soluble, and therefore can remain toxic in water for several years depending on temperature.32 As a blister agent,33 it can also cause immunoresponsiveness in animals, reducing their defense mechanisms, making them more vulnerable to sickness.34 This agent has similar effects on an animal’s hematological system, for example bone marrow changes.35 Moreover, evidence suggests animals experience gastrointestinal deterioration from exposure.36

4.3 Chlorine

Chlorine is a choking agent, which causes respiratory issues in animals, including shortness of breath, nose, throat and eye irritation at low levels of exposure, and lung swelling, respiratory issues, and death at high levels of exposure.37 Experimental evidence also suggests that animals experience severe gross and microscopic change in their respiratory airways.38 Depending on the amount, chlorine dissolves in water, but can be considered toxic if it combines with other substances such as copper, and can contaminate fish, animals, and humans.39 Such chemicals have the capacity to harm entire ecosystems of wildlife species, which may suffer long term damage.

5 Previous Research on the Protection of the Environment Under International Law

Since the adoption the cwc in 1993, scholars have aimed to understand its wording, principles and scope.40 The Oxford Commentary on the cwc has provided a historical account and basic explanation of the Convention.41 Most notably, the cwc includes some provisions to prevent and manage the consequences of an attack or chemical terrorism in the context of counterterrorism.42 However, in the Syrian context, the cwc was examined with human-centered and health-concerned approaches, where the natural environment was not brought into the discussion.43

Previous case studies have argued that several conventions and legal frameworks concerning chemical attacks should focus more on environmental harms. For example, Böhringer and Marauhn argue that the cwc and relevant bilateral agreements should incorporate iel insofar as they address post conflict disarmament, the aftermath of environmental implications, the destruction of weapons and the conversion of harmful materials.44 They use Syria as a case in point to recommend following the ‘no harm’ principle for early warning and environmental assessments, though they are sceptical of the practical application of this solution, given the complexity of destroying chemical weapons while conflicts and violence persists.

More broadly, the International Committee of the Red Cross (icrc) asserts that the sanctity of the environment is an evolving and contemporary issue in ihl.45 They use the example of Syria to describe how chemical attacks have caused severe environmental damage, degradation, and have led to the death of thousands of animals. They discuss the ihl framework in relation to banning chemical weapons and their impacts on humans and the environment. Chakrabarty and Simha use Syria as a case to describe how chemical weapons pose a global threat to the natural environment, both in terms of attacks and chemical disposals.13 They review the international response to such incidents (cwc, the 1925 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, and the opcw), and discuss their limitations. Building on this previous work, we consider the applicability for the use of ihl for environmental damage resulting from chemical attacks in Syria.

6 Environmental Protection in Times of Armed Conflicts

Conventional and customary ihl provisions and norms regulate the conduct of hostilities and protect persons who are hors de combat (those who do not or are no longer taking part of hostilities), especially civilians.46 ihl rules mainly intend to limit the effects of armed conflicts and restrict the choice of methods and means of warfare. Thus, the environment, in itself, is not a particular concern for ihl. ihl protects the environment simply because the consequences of environmental damage severely affect populations, their wellbeing, health and survival. icrc views ihl as lex specialis,47 ‘governing the assessment of the lawfulness of the use of force against lawful targets’.48 Although lex specialis is commonly used when discussing the protection of human rights in armed conflict, the environment must not be the exception. In the conduct of war, the environment predominantly becomes the most vulnerable and needs protection. Put differently, armed conflicts cause extensive damage and suffering to the environment. By restricting the means and methods of warfare, ihl plays a crucial role in protecting not only populations but also the natural environment. Thus, it is of significance to examine the protection of the environment under ihl, its efficiency in practice, and to identify associated shortcomings.

The protection of the natural environment is found in some provisions of ihl, where it prohibits widespread, long-term and severe damage to natural environment during the conduct of hostilities.49 The section discusses the applicable and relevant provisions of international law concerning the protection of the environment.

7 International Humanitarian Law Conventions and their Applicability to Syria

The protection of the natural environment is found in the provisions of Protocol Additional I to the Geneva Conventions and relating to the Protection of Victims of International Armed Conflicts (Additional Protocol i or ap i) and the United Nations Convention on the Prohibition of Military or any Other Hostile Use of Environmental Modification Techniques (enmod). In the next section we examine these provisions are and apply them to the Syrian conflict.

7.1 Additional Protocol i

Two provisions concerning the natural environment are stated in the ap i, and thus are relevant to Syria as a State Party. Article 35 prohibits the employment of methods which are intended or expected to cause ‘widespread, long-term and severe damages to the natural environment.’50 Article 55 emphasizes the protection of ‘the natural environment against widespread, long-term and severe damage.’51 The provisions of these two articles can been seen as complementary: the first lays down the prohibition and the second confirms the environment’s protection. For the environment to be protected under these provisions, the damage has to be, as the use of ‘and’ in the article indicates: (a) widespread, (b) long-term and (c) severe. More on each element below. Further, these three elements must be presented together.52 Within such a high threshold, these provisions are ‘excessively restrictive, making the prohibition much too narrow … [and] the exact scope of this prohibition remains uncertain, and thus difficult to implement or enforce’.53 Nevertheless, such a threshold may be reached in chemical warfare only if it causes widespread, long-term and severe damage to the environment. In understanding of the meaning of this threshold, the Committee on Disarmament states that the terms shall be interpreted as:

(a) ‘widespread’: encompassing an area on the scale of several hundred square kilometres; (b) ‘long-lasting’: lasting for a period of months, or approximately a season; (c) ‘severe’: involving serious or significant disruption or harm to human life, natural and economic resources or other assets.54

Although the Committee provides an initial understanding, the threshold of these cumulative elements remains strict and problematic. In other words, the occurrence of these three accumulative conditions might be hard to reach in one event in Syria. The legal dilemma of protecting the environment against harm, damage and destruction remains incomprehensible. Most importantly, this environmental protection is essential for the survival of the civilian population, which is one of the cornerstones of ihl. As the provisions regarding the environment in ap i are reflective of customary ihl, the latter are momentarily examined in this paper (see section 6.2).

In the Syrian case at hand, the question remains whether ap i is applicable to the chemical attacks in Syria. Legal experts were of the opinion that the armed conflict remained non-international in character,55 until the use of force by the US forces against isis in Syria without the consent of the Syrian government, which upgraded the conflict to an international armed conflict.56 Further, the application of the ap i per se does not only depend of the Syria’s ratification to the Protocol, it also depends on examining the critical date on which classification of the conflict upgraded to an international armed conflict. This means that the provisions of the ap I apply to the Syrian conflict from the date of the US attacks (the critical date).57 Until the date of the attack, it could be assumed that Additional Protocol ii (ap ii) applies. However, this assumption is not correct as Syria has not ratified ap ii, and thus, is not a State Party.58 And, in any case, ap ii to the Geneva Conventions is silent on the protection of the environment, so even if it were applicable, it would not offer the environment any legal protection in this instance.

On one view, the above rules could be considered to hold customary status, both in international or non-international armed conflicts, and are therefore applicable to the situation in Syria. For example, in the Nuclear Weapons case, some States considered the rules in Articles 35(3) and 55(1) of ap i to be customary.59 On another view, the Court did not explicitly consider the rules to be customary as it only referred to the applicability of the provision to “States having subscribed to these provisions”.60 If this is the case, this undercuts the argument that the situation in Syria falls under the protections provided in the Additional Protocols’.

For norms to be identified as customary international law, the existence of two constituent elements – a general practice and acceptance of that practice as law (opinio juris) – must be established.61 Neither of these elements are yet established within the meaning of ap i. Nevertheless, the protection of the environment against severe, wide-spread and long-term damage has already been established in customary ihl. Hence, it is not very central to insist on whether Articles 35(3) and 55(1) of ap i are considered as customary norms or not, because these Articles are essentially derived from customary rules of ihl. The provisions of ap i, in principle, echo the customary rules of ihl on the natural environment (Rules 43–45), where an equivalent threshold applies.62 The most relevant customary rules are discussed in detail in Section 6.2. Thus, it is safe to assert that the meaning of those articles of ap i align with the customary rules on the protection of the environment, which provide for the same level of protection and could be applicable to the situation in Syria.

7.2 United Nations Convention on the Prohibition of Military or any Other Hostile Use of Environmental Modification Techniques (enmod)

Article I of the enmod, which Syria signed on 4 August 1977, but has not yet ratified,63 prohibits State parties to use environmental modification techniques as a means of destruction that inflicts widespread, long-term or severe damage.64 Unlike the ap i, the convention has looser conditions which must be satisfied for international protection to apply to the natural environment. Thus, while this convention is not yet ratified by Syria, it does provide for a clear-cut provision and more adaptable conditions for what is considered environmental damage. The types of damage envisaged by enmod likely capture chemical attacks since they inherently upsets the ecological balance, and cause environmental destruction. Even so, this is unlikely to have any practical implications to the situation in Syria. Syria is unlikely to ratify the enmod. And, this would be ever more unlikely, if it were found that chemical attacks are captured by enmod. In short, the status quo remains the same: a lacuna exists, despite existing international Conventions.

7.3 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (cwc)

Syria was not a State Party to the cwc until 14 September 2013.65 The main purpose of this Convention is to outlaw the development, production, stockpiling, and use of chemical weapons, as the name suggests. The obligation on member States is to put this prohibition into effect and ensure compliance. As to the protection of the environment, the cwc only refers in some of its articles that ‘[e]ach State Party… shall assign the highest priority to ensuring the safety of people and to protecting the environment.’66 Nothing in the Convention expresses how to guarantee the protection and safety of the natural environment. The years of discussions and negotiations on the cwc were concluded on 3 September 1992, where a number of issues were not solved and others were considered too technical to be included.67 Put simply, the focus of the Convention is to protect mankind. This is made apparent in the Preamble.68 Further, during the United Nations General Assembly’s First Special Session on Disarmament it was emphasized that ‘the principal goals of disarmament are to ensure the survival of mankind.’69 In fact, the history behind the exclusion of anti-plant chemical weapons is said to have:

reflected a political compromise that may have to do with several former large-scale uses of defoliants and herbicides in war…. [I]t is an indication that their inclusion in the verification system would have created significant implementation and verification problems given their scale of production and widespread use.70

Further, there is nothing in this text that relates to the preservation and protection of the environment during disarmament processes.

Shortly after the accession of Syria to the Convention, the Director General of the Organization for the Prohibition of Chemical Weapons (opcw) announced the creation of a fact-finding mission to investigate the allegation of the use of toxic chemical in Syria.71 The UN Mission was mandated to investigate allegations of the use of chemical weapons in the Syrian Arab Republic on the alleged use of chemical weapons in the Ghouta area. Since its establishment, the UN Mission has regularly released reports on the progress of the elimination of the Syrian Chemical Weapons Programme.72 The report on the same was released on 16 September 2013.73 After collecting environmental, chemical and medical evidence, the Mission concluded that chemical weapons have been used in the Syrian conflict on a big scale.74 Ten days later, and in response, the UN Security Council adopted Resolution 2118 (2013) calling for disarmament.75 The Resolution also endorsed the decision of the Executive Council of the Organization for the Prohibition of Chemical Weapons (opcw) of 27 September 2013 to establish a procedure for the destruction of chemical weapons in Syria.76 On 30 September 2014, the opcw-UN Joint Mission on the elimination of Syrian chemical weapons closed its mandate, announcing that it completed the elimination of the declared chemical weapons programme.77 The opcw, nevertheless, continues with the destruction of chemical weapons production facilities in Syria.78

On 24 September 2019, a progress report, ec-92/dg.22, was released. In the report, the Secretariat verified the destruction of the 27 announced chemical weapons production facilities in Syria.79 Axiomatically, the destruction of chemical weapons production facilities itself further puts the environment at risk.80 Regrettably, this was overlooked by the opcw Executive Council, which did not put any environmental protections in place when it decided that the chemical weapons in Syria be destroyed.81 The Council recognized that ‘the activities necessary for the destruction of the Syrian chemical weapons programme start immediately pending the formal entry into force of the Convention with respect to the Syrian Arab Republic, and are conducted in the most rapid and safe manner’.82 No reference to the environment was made. Further, this was endorsed by the UN Security Council, in its Resolution 2118.83 The Security Council decided to:

‘authorize Member States to acquire, control, transport, transfer and destroy chemical weapons identified by the Director-General of the opcw, consistent with the objective of the Chemical Weapons Convention, to ensure the elimination of the Syrian Arab Republic’s chemical weapons program in the soonest and safest manner’.84

The opcw Council and the UN Security Council used the same language, focusing on the destruction of the Syrian chemical weapons without regard to the environment. The use of a ‘safe manner’ is vague, unclear and potentially undermines the environment as the entire operation was directed to occur urgently. Leaks and the accidental release of the materials and agents into the natural environment are inevitable, and harmful to the environment.85

In an attempt to assist efforts to eliminate Syria’s chemical weapon stockpile, the United States of America developed the Field Deployable Hydrolysis System (fdhs). The fdhs was installed on a ship, with the purpose of neutralising approximately 700 metric tons of mustard gas and Sarin.86 This process will undoubtedly have implications for ocean plant and animal life. According to its report in February 2020, the opcw – Director General stated that all chemicals were removed from Syria and destroyed by the hosting State parties.87

7.4 Customary International Law

The principles of customary international law are legally binding and do apply to all States (including Syria). It is critical, therefore, that customary rules prohibit weapons that cause superfluous injury or unnecessary suffering,88 as well as prohibit the environment being used as a weapon of war.89 The customary rules of ihl include three main environmental Rules: 43, 44, and 45.90 The importance of each Rule shall be considered below.

Rule 43 includes the natural environment within the application of general principles on the conduct of hostilities.91 The principles of distinction, proportionality and necessity must all be respected in the conduct of hostilities to minimize the impact on the environment.92 This rule as a norm of customary international law is applicable to both international and non-international armed conflicts. In other words, despite the categorization or classification of the conflict, the rule remains applicable.

Rule 43 provides a strict obligation on all parties to an armed conflict to take precautionary measures and have due regard for the natural environment in a military operation. Rule 44 states that:

[m]ethods and means of warfare must be employed with due regard to the protection and preservation of the natural environment. In the conduct of military operations, all feasible precautions must be taken to avoid, and in any event to minimize, incidental damage to the environment. Lack of scientific certainty as to the effects on the environment of certain military operations does not absolve a party to the conflict from taking such precautions.93

The Rule articulates first the obligation to take all feasible precautions to avoid or minimize damage to the environment. It also reflects the precautionary approach that must be considered to spare civilian objects, which equally applies to the environment.94

Rule 45 states that ‘[t]he use of methods or means of warfare that are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment is prohibited. Destruction of the natural environment may not be used as a weapon’.95 Rule 45 is seen as the origin of articles 35 and 55 the ap i. In other words, irrespective of discussions on whether ap i is applicable to the chemical attacks in Syria, as a starting point, there are similar provisions of ihl law which have obtained customary status, and apply. Within the Syrian context, as established previously, it is possible to prove that the chemical attacks and their impact of the natural environment fall under the threshold of Rule 45, as it is widespread, long-lasting and severe. Nevertheless, it might be challenging to demonstrate that these three components are cumulatively present in one event or occasion. The application, hence, might be considered when including all events that took a place during the conflict and chemical attacks in Syria.

7.5 Gaps and Prospects

Existing ihl provisions that protect the environment in times of conflicts are weak and insufficient. As discussed, the three components that lead to the impermissibility of environmental damage are strict, and unclear.96 Although it could be argued that the chemical attacks in Syria could cause wide-spread, long-term and severe damage to the environment, at present there are no specific or indeed bespoke instruments that provide for clear provisions to protect the environment in Syria in a comprehensive manner. To properly protect the environment against the damaged caused by conflicts, especially the use of chemical weapons, the provisions of iel must be applied as elementary lex specialis to provide additional protection to the natural environment.

iel is also a conjoint tool to ihl, neither complementary nor exclusive. However, there is a lack of international consensus on whether iel continues to apply during armed conflicts. Going back to the Nuclear Weapons case for comparison, the icj stated that:

“while the existing international law relating to the protection and safeguarding of the environment does not specifically prohibit the use of nuclear weapons, it indicates important environmental factors that are properly to be taken into account in the context of the implementation of the principles and rules of the law applicable in armed conflict.”97

Although a few States responded in divergent ways, it is understood from the court’s language that the iel provisions should be taken into account.

Notably, the Draft Articles on the Effects of Armed Conflicts on Treaties state that ‘[t]he existence of an armed conflict does not ipso facto terminate or suspend the operation of treaties’.98 The peremptory norms and the general principles of international law in relation to the environment may constitute an important element. In addition, the general principles of distinction and proportionality must be applied when launching an attack. Although an examination of these principles requires separate study, it is important to note that even the general principles of ihl may not suffice as an appropriate protection to the environment during war and armed conflict.99

The International Law Commission (ilc) has done extensive work on the protection of the environment in relation to armed conflict, including appointing Special Rapporteurs to assist the Working Group to successfully complete its work on the topic.100 The UN Special Rapporteur Marja Lehto, in her second report of March 2019, provided the draft principles on the protection of the environment in relation to armed conflicts, which included protection of natural resources in armed conflict and responsibility and liability of State and non-State actors. The ilc, in its meeting on 8 July 2019, adopted the draft.101 While it is not within the scope of this article to assess and analysis the work of the ilc and the ongoing work on the development of these principles, it could be stated that when approved, the principles might be a cornerstone to understand the necessity of environmental protection in armed conflict. The provisions provide for a basis to regulate the conservation and preservation of the environment during armed conflicts. Despite these efforts, several aspects of the ilc’s work has been heavily criticized. The ilc has been accused of wasting opportunities to advance the law in the field of environmental protection in armed conflicts.102 Indeed, at present the ilc has not introduced any amendments to existing laws. Regulation remains in the theoretical.

A more optimistic approach is proffered by Lehto who proffers that the general character of the provisions are derived from the term ‘in relation to’, which suggests that the topic is not limited to ‘situations of armed conflict but seeks to enhance the protection of the environment throughout the conflict cycle: before, during and after armed conflicts’.103 Accepting this reading, the utility of ilc’s draft principles can be revisited. They are aimed to enhance environmental protection through preventive and remedial measures; however, some key aspects are not found. The use of poison/poisoned weapons, biological weapons, chemical weapons, and herbicides as a method of warfare are completely neglected.104 While these aspects are addressed in the cwc, 1925 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, and the opcw, there is a plain argument that the ilc’s Draft Principles would have been the perfect occasion to provide clarity on this point. As it stands, the ilc’s Draft Principles would be meaningless in the context of Syria, where the use of chemical weapons and agents have dominated the scene.

Therefore, provisions of iel, for now, could provide comprehensive protection, including the application of the preventive measures. These provisions could, for instance, include the Principles of the Rio Declaration on Environment and Development of 1992 (the Rio Declaration),105 the Convention on Biological Diversity of 1992 (Biodiversity Convention),106 and the United Nations Conference on the Environment of 1972 (Stockholm Declaration).107 In the case of Syria, in times of conflict, the environmental implications and destruction caused by the use of nuclear weapons have tested the friability of ihl. Indeed, the consequences of the Syrian conflict have potentially exceeded the horrific environmental destruction from the Vietnam and Gulf war. Therefore, there is a necessity to apply another branch of international law, iel, to appropriately deal with the destruction. The deployment of the general principles, such as a jus cogens (peremptory norm),108 might be advantageous for the protection of the environment. These general principles can be utilized to ultimately protect the environment, where no exception may be permitted.

8 Conclusion

Beyond the destruction of human lives, chemical attacks in Syria have harmed the natural environment. The severe and evolving detrimental impact of chemical attacks in Syria on plant and wildlife ecosystems, and years of research on exposing these connections and building cases for its acknowledgement, have resulted in few publications aiming to identify how international law responds to this conflict. This research tends to focus more on the human-environment relationship, rather than the environment as an entity in itself. Yet, there is no justification as to why the environment is excluded from proper protection. Importantly, the protection of the environment is a vital component for the protection of civilians. As this paper has demonstrated, one cannot assume the applicability of ihl to the case of chemical attacks in Syria.

To build on previous work, we have shown how the existing ihl coverage of the consequences of environmental warfare are fragmented at best. In this article, we have shown how ihl sets a steep definition for what can be considered environmental damage, which would rarely be met in any case given the difficulty and danger of conducting sufficient investigations on the ground to determine compliance with the threshold test, namely whether there was ‘widespread, long-term and severe damage to the natural environment’. This issue is compounded in light of the dedicated UN mission concluding that chemical weapons have been used in the Syrian conflict on a large scale, and that empirical evidence has shown that safely and securely destroying chemical weapons is extremely difficult.

Given the language of the ihl and the international events discussed above, it is clear that the international humanitarian approach, including its customary provisions, to protect the environment in times of conflict is ineffective. It is crucial that the provisions iel and the general principles of international law are applied. We recommend that the protection of the environment against destruction and harm might be considered as a peremptory norm, where no degradation, whatsoever, is permitted.


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opcw, ‘Note by the Technical Secretariat: Third Report of opcw Fact-Finding Mission in Syria’ (18 December 2014) <>.


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‘Syria Rebels Say Assad Using “Mass-killing Weapons” in Aleppo’ (Ynetnews, 20 June 1995) <,7340,L-4266902,00.html>.


Peter H Gleick, ‘Water, Drought, Climate Change, and Conflict in Syria’ (2014) 6(3) Weather, Climate, and Society 331–340; Chakrabarty and Simha (n 5).


Jose M Rodriguez-Llanes et al, ‘Epidemiological Findings of Major Chemical Attacks in the Syrian War are Consistent with Civilian Targeting: A Short Report’ (2018) 12(1) Conflict and Health 16; Omar Hakeem and Sawsan Jabri, ‘Adverse Birth Outcomes in Women Exposed to Syrian Chemical Attack’ (2015) 3(4) The Lancet Global Health 196; United Nations Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic, ‘Final Report’ (13 December 2013) UN Doc A/68/663-S/2013/735.


Joint National Paper by the Russian Federation and the United States of America: Framework for Elimination of Syrian Chemical Weapons (opcw, 17 September 2013) Doc ec-m-33/nat.1 <>.


opcw Executive Council Decision, Destruction of Syrian Chemical Weapons (27 September 2013) Doc ec-m33/dec.1 <>.


Syrian American Medical Society, ‘A New Normal: Ongoing Chemical Attacks in Syria’ (February 2016) <> accessed 13 January 2022.


Phuong Pham and Patrick Vinck, ‘Technology Fusion and Their Implications for Conflict Early Warning Systems, Public Health, and Human rights’ (2012) 14(2) Health and Human Rights 106–117.


David Doxford and Alan Judd, ‘Army Training: The Environmental Gains Resulting From the Adoption of Alternatives to Traditional Training Methods’ (2002) 45(2) Journal of Environmental Planning and Management 245–265.


Robert Coppock and Margitta Dziwenka, ‘Threats to Wildlife by Chemical Warfare Agents’ in Ramesh Gupta (ed), Handbook of Toxicology of Chemical Warfare Agents (3rd edn, Academic Press 2020) 1077–1084; K Ganesan, SK Raza and R Vijayaraghavan, ‘Chemical Warfare Agents’ (2010) 2(3) Journal of Pharmacy and Bioallied Sciences 166–178.


Wim Zwijnenburg and Kristine te Pas, ‘Amidst the Debris: A Desktop Study on the Environmental and Public Health Impact of Syria’s Conflict’ (October 2015) <> accessed 13 February 2019; Michael J Lawrence et al, ‘The Effects of Modern War and Military Activities on Biodiversity and the Environment’ (2015) 23(4) Environmental Reviews 443–460.


Zwijnenburg and te Pas (n 25) 22–57.


Arthur H Westing, Warfare in a Fragile World: Military Impact on the Human Environment (Taylor & Francis 1980); see also Jeanne Mager Stellman et al, ‘The Extent and Patterns of Usage of Agent Orange and Other Herbicides in Vietnam’ (2003) 422(6933) Nature 681–687.


Matousek (n 3) 75–83.


Shannon Bartelt-Hunt, Detlef RU Knappe and Morton Barlaz, ‘A Review of Chemical Warfare Agent Simulants for the Study of Environmental Behavior’ (2008) 38(2) Critical Reviews in Environmental Science and Technology 112–136.


Lawrence et al (n 25) 443–460.


Susan Smith, ‘Toxic Legacy: Mustard Gas in the Sea Around Us’ (2011) 39(1) The Journal of Law, Medicine & Ethics 34–40.


Terrance Long, ‘A Global Prospective on Underwater Munitions’ (2009) 43(4) Marine Technology Society Journal 5–10; see also Hans Sanderson et al, ‘Environmental Hazards of Sea-dumped Chemical Weapons’(2010) 44(12) Environmental Science and Technology 4389–4394; Seth Schonwald, ‘Mustard Gas’ (1992) 2 PSR Quarterly 92–97.


Dana Shea, ‘Chemical Weapons: A Summary Report of Characteristics and Effects’ (Congressional Research Service, Library of Congress, 13 September 2013) <>.


Charles Weiss and James Botts, ‘The Response of Some Freshwater Fish to Isopropyl Methylphosphonofluoridate (Sarin) in Water’ (1957) 2(4) Limnology and Oceanography 363–370.


Nancy Munro et al, ‘The Sources, Fate, and Toxicity of Chemical Warfare Agent Degradation Products’ (2000) 107(12) Environmental Health Perspectives 933–974; see also Stanisław Popiel and Monika Sankowska, ‘Determination of Chemical Warfare Agents and Related Compounds in Environmental Samples by Solid-phase Microextraction with Gas Chromatography’ (2001) 1218(47) Journal of Chromatography 8457–8479.


Munro et al (n 35) 962.


Sylvia Smith Talmage et al, ‘Chemical Warfare Agent Degradation and Decontamination’ (2007) 11(3) Current Organic Chemistry 285–298.


David P Rall and Constance M Pechura (eds), Veterans at Risk: The Health Effects of Mustard Gas and Lewisite (National Academies Press 1993).


Barbara Kaplan et al, ‘Toxic Responses of the Immune System’ in Curtis D. Klaassen (ed) Casarett and Doull’s Toxicology: The Basic Science of Poisons (9th edn, McGraw Hill 2019); J-P Coutelier et la, ‘Effect of Sulfur Mustard on Murine Lymphocytes’ (1991) 58(2) Toxicology Letters 143–148; James Blank et al, ‘Comparative Immunotoxicity of 2,2ʹ-dichlorodiethyl Sulfide and Cyclophosphamide: Evaluation of L1210 Tumor Cell Resistance, Cell-mediated Immunity, and Humoral Immunity’ (1991) 13(2–3) International Journal of Immunopharmacology 251–257.


Bruno Papirmeister et al, Medical Defense Against Mustard Gas: Toxic Mechanisms and Pharmacological Implications (crc Press 1991).


Seth Schonwald, ‘Mustard Gas’ (1992) 2 PSR Quarterly 92–97.


AW Abu-Qare and MB Abou-Donia, ‘Sarin: Health Effects, Metabolism, and Methods of Analysis’ (2002) 40(10) Food and Chemical Toxicology 1327–1333; Rupali Das and Paul D Blanc, ‘Chlorine Gas Exposure and the Lung: A Review’ (1993) 9(3) Toxicology and Industrial Health 439–455.


Carl White and James Martin, ‘Chlorine Gas Inhalation: Human Clinical Evidence of Toxicity and Experience in Animal Models’ (2010) 7(4) Proceedings of the American Thoracic Society 257–263.


SJ Traub, RS Hoffman and LS Nelson, ‘Case Report and Literature Review of Chlorine Gas Toxicity’ (2002) 44(4) Veterinary and Human Toxicology 235–239; see also Joh Zillich, ‘Toxicity of Combined Chlorine Residuals to Freshwater Fish’ (1972) 44(2) Water Pollution Control Federation 212–220.


Walter Krutzsch, Eric Myjer and Ralf Trapp (eds), The Chemical Weapons Convention: A Commentary (Oxford University Press 2014).




Jonathan Tucker, ‘The Role of the Chemical Weapons Convention in Countering Chemical Terrorism’ (2012) 24(1) Terrorism and Political Violence 105–119.


John Hart and Ralf Trapp, ‘Collateral Damage? The Chemical Weapons Convention in the Wake of the Syrian Civil War’ (2018) 48(3) Arms Control Today 6–13.


Carsten Stahn, Jennifer Easterday and Jens Iverson (eds), Environmental Protection and Transitions from Conflict to Peace (Oxford University Press 2017).


International Committee of the Red Cross, ‘International Humanitarian Law and the Challenges of Contemporary Armed Conflicts – Recommitting to Protection in Armed Conflict on the 70th Anniversary of The Geneva Conventions’ (October 2019) <>.


Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts (Protocol I) (adopted 8 June 1977, entered into force 7 December 1978) 1125 unts 3.


This Latin term refers to the assumption that more specific rules prevail over more general rules. In situations of armed conflicts, ihl rules prevail.


International Committee of the Red Cross, ‘Lex Specialis’ <> accessed 20 December 2021.


Additional Protocol I (n 68) arts 35(3) and 55; see also the Convention on the Prohibition of Military or any Other Hostile Use of Environmental Modification Techniques (adopted 10 December 1976, entered into force 5 October 1978) unga Res 31/72 (10 December 1976) (1976).


Additional Protocol I (n 68) art 35.


Additional Protocol I (n 68) art 55.


Michael Bothe et al, ‘International Law Protecting the Environment During Armed Conflict: Gaps and Opportunities’ (2010) 92 (879) International Review of the Red Cross 569- 592.


Ibid 576.


‘Report of the Conference of the Committee on Disarmament’, unga 31st session (29 November 1976) UN Doc A/31/27.


Christopher Phillips, ‘Syria’ in Louise Arimatsu and Mohbuba Choudhury (eds), The Legal Classification of the Armed Conflicts in Syria, Yemen and Libya (Chatham House 2014) 7.


Tom Gal, ‘Legal Classification of the Conflict(s) in Syria’ in Hilly Khen, Nir Boms and Sareta Ashraph (eds), The Syrian War Between Justice and Political Reality (Cambridge University Press, 2019).


International Committee of the Red Cross, ‘State Parties to Protocol Additional I to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I)’ <> accessed 14 January 2022.




Henckaerts and Doswald-Beck (n 4) 152, citing “the oral pleadings and written statements in the Nuclear Weapons case of New Zealand (ibid., § 251), Solomon Islands (ibid., § 257), Sweden (ibid., § 259) and Zimbabwe (ibid., § 272) and the written statements, comments or counter memorial in the Nuclear Weapons (who) case of India (ibid., § 232), Lesotho (ibid., § 247), Marshall Islands (ibid., § 248), Nauru (ibid., § 249) and Samoa (ibid., § 254))”.


Legality of the Threat or Use of Nuclear Weapons (Advisory Opinion) [1996] icj Rep 242 [31].


ilc, ‘Draft Conclusions on Identification of Customary International Law, with Commentaries 2018’ (2018) UN Doc A/73/10, 124.


Henckaerts and Doswald-Beck (n 4) 143–158.


enmod Convention (n 71).


ibid art I.


Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (adopted 3 September 1992, entered into force 29 April 1997) 32 ilm 800.


Ibid arts V (11) and vii (3).


Daniel Feakes, ‘Introduction and General Issues: The Adoption of the Convention and the Work of the Preparatory Commission’ in Walter Krutzsch, Eric Myjer and Ralf Trapp (eds), The Chemical Weapons Convention: A Commentary (Oxford University Press 2014) 17–25.


cwc (n 87) preamble.


Feakes (n 89) 50–59.


ibid 56.


opcw, ‘Fact-Finding Mission’<> accessed 14 January 2022.


opcw, ‘Syria Documents: Progress Reports’ < > accessed 14 January 2022.


United Nations Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic, ‘Report on the Alleged Use of Chemical Weapons in the Ghouta Area of Damascus on 21 August 2013’ (13 September 2013) <>.


‘Report of the United Nations Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic on the alleged use of chemical weapons in the Ghouta area of Damascus on 21 August 2013’ UN gaor 67th Session (16 September 2013) UN Doc A/67/997–S/2013/553, 8.


unsc Res 2118 (28 September 2013) UN Doc s/res/2118.




opcw, ‘Closure of opcw – UN Joint Mission’ (2 October 2014) <>.




opcw, ‘Progress in the Elimination of the Syrian Chemical Weapons Programme’ (24 September 2019) para 6 <>.


Matousek (n 3) 75–83.


opcw Executive Council Decision, Destruction of Syrian Chemical Weapons (27 September 2013) Doc ec-m-33/dec.1, para 2.


ibid para 2.


unsc Res 2118 (n 97), para 10.


ibid para 10.


Ralf Trapp, ‘The Use of Chemical Weapons in Syria: Implications and Consequences’ in Bretislav Friedrich et al (eds), One Hundred Years of Chemical Warfare: Research, Deployment, Consequences (Springer 2017) 317.


‘System Customized for Off-Shore Syrian Chemical Weapons Elimination’ (28 April 2014) <>.


‘Report by the Director-General: Progress in the Elimination of the Syrian Chemical Weapons Programme’ (24 February 2020) opcw Doc ec-93/dg.12 <>.


Henckaerts and Doswald-Beck (n 4).


ibid 151.


ibid 152.


ibid 143.




ibid 147 (emphasis added).


ibid 143.


Henckaerts and Doswald-Beck (n 4) 151.


Bothe et al (n 74) 569–592.


Legality of the Threat or Use of Nuclear Weapons (n 82) para 33.


ilc, ‘Draft Articles on the Effects of Armed Conflicts on Treaties’, 63rd Session (2011) UN Doc A/66/10, para 100, art 3.


Yoram Dintein, ‘Protection of the Environment in International Armed Conflict’ (2001) 5 Max Planck Yearbook of United Nations Law 523–549.


ilc, ‘Summaries of the Work of the International Law Commission on Protection of the Environment in Relation to Armed Conflicts’ (11 December 2019) <> accessed 2 January 2021.


ilc, ‘Annual Report of the International Law Commission on the work of its 71st Session’ (29 April–7 June and 8 July–9 August 2019) UN Doc A/74/10’, paras 58–71.


Daniella Dam-de Jong and Britta Sjostedt, ‘Enhancing Environmental Protection in Relation at Armed Conflict: An Assessment of the ilc Draft Principles’ (2021) 44 Loyola of Los Angeles International and Comparative Law Review 129.


Marja Lehto, ‘Armed Conflicts and the Environment: The International Law Commission’s New Draft Principles’ (2020) 29 (68) Review of European, Comparative and International Environmental Law 67–75.


ilc, ‘Protection of the Environment in Relation to Armed Conflicts’, 71st Session (29 April-7 June and 8 July–9 August 2019) UN Doc a/cn.4/L.937.


Rio Declaration on Environment and Development (vol I) (adopted 14 June 1992) UN Doc a/conf.151/26, 31 ilm 874, principle 2 emphasizes that States’ responsibility to ‘ensure that activities within their jurisdiction or control do not cause damage to the environment of other States or of areas beyond the limits of national jurisdiction.’ Principle 24 states that ‘[w]arfare is inherently destructive of sustainable development. States shall therefore respect international law providing protection for the environment in times of armed conflict and cooperate in its further development, as necessary.


Convention on Biological Diversity (adopted 5 June 1992, entered into force 29 December 1993) unts 1760 (Biodiversity Convention) art 2 states that ‘[t]he objectives of this Convention, to be pursued in accordance with its relevant provisions, are the conservation of biological diversity, the sustainable use of its components and the fair and equitable sharing of the benefits arising out of the utilization of genetic resources, including by appropriate access to genetic resources and by appropriate transfer of relevant technologies, taking into account all rights over those resources and to technologies, and by appropriate funding’.


Declaration of the United Nations Conference on the Human Environment (adopted 16 June 1972) UN Doc a/conf.48/14/Rev.1, principle 2: ‘The natural resources of the earth, including the air, water, land, flora and fauna and especially representative samples of natural ecosystems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate’.


United Nations Environment Programme, ‘Protecting the Environment During Armed Conflict: An Inventory and Analysis’ (2009) 46–47.

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