Victims of Environmental Harm During Conflict

Abstract

This chapter considers the interaction of some of the applicable norms related to liability and reparation for environmental damage in a post-conflict setting, including human rights and humanitarian law norms (including precedents) and their interaction with each other, with a focus on the potential consequences for victims. Using displacement as a specific case study, the discussion regarding potential consequences is supported by the learning that may be drawn from precedent reparations schemes, including those implemented in a ‘transitional justice’ framework as part of an attempt to afford ‘justice’ for breaches of human rights and humanitarian law (whether related to the environment or otherwise). The chapter considers some of the potential challenges of this interaction, particularly for justice initiatives, and particularly reparations schemes, experienced in the aftermath of conflict, such as constructing a coherent post-conflict narrative, restitution (or ‘truth’), awarding reparation (including ‘restitution’), and reconciliation as part of ‘peacebuilding’.

Environmental Protection and Transitions from Conflict to Peace

“…159 In contrast, proponents of the principle note that the more general nature of the principle is essential because in order 'to be effective it must be general in character but capable of devolving to the particular' . 160 In practice, the principle has demonstrated this capacity through its application to both specific areas of IEL, such as ozone depletion, as well as to more general concepts, as in the case of environmental protection and development.161 Furthermore, they note that it is 'characteristic of general principles with a wide scope of application [ . .…”

“…In Rwanda and Mali, as McCoy explains, 'horizontal inequalities' were major causal factors of conflict, particularly group inequalities in land ownership and access to resources.157 Using transitional justice mechanisms, the Truth Commission in Kenya, for example, found that 'historical grievances over land' constituted the 'single most important driver of conflicts and ethnic tension in Kenya' ,158 while 'close to 50 percent of statements and memorandum received by the Commission related to or touched on claims over land' .159 UN Secretary-General Kofi Annan has also recognized transboundary water resources, food insecurity, land concentration, and access to landbased resources as root causes of conflict, which are often coupled with poverty and social inequality, particularly, he says, in African and Latin American countries. 160 And, of course, due to future climate change impacts on natural resources it is likely that we will see greater land inequalities, water disputes, food insecurity, and resourcedependent livelihoods lost across the globe and so the resource-competition/ conflict nexus is only going to increase in importance.…”

“…It also limits the possibility to enjoy features that can cross sectarian divides, such as rivers, rare or emblematic species of flora and fauna, and nature recreation areas.159 Reflecting the significance of environmental protection and rehabilitation in the wake of armed conflict, peace agreements between warring parties in NIACs have sometimes explicitly reflected the need to preserve the environment. 160 Dieter Fleck advocates the prioritization of peacebuilding over retribution in a postconflict setting.161 It should be noted that international criminal justice is not focused on pure retribution, but also seeks to encourage accountability, truth-telling, reconciliation, and deterrence of atrocity crimes. In light of these broader goals, the oftdecried tension between peacebuilding and criminal justice is to a certain degree a false dichotomy.…”

“…text accompanying footnote, 17 (discussing danger of environmental harm for the viability of a sustainable peace process and for the rejuvenation of the economy). 160 See, for example, El Salvador Peace Agreement (Chapultepec)-1992, The Government of El Salvador and the Frente Farabundo Martí para la Liberación Nacional (FMLN), Arts. 13 and 17 (12) rather than criminal accountability.…”

“…Fact-finding or truth commissions (as well as some reparations schemes) can, depending upon how they are implemented, provide a degree of satisfaction as victims' stories are told, recognized, and memorialized. 160 Although there is still much work to done in relation to environmental victims in particular, the suggestion is that facilitating participation and institutionalizing a way to listen to victims' suggestions and needs therefore plays a role in determining the degree of reparation, regardless of resources available. What is notable is that this extends beyond institutional design to the sensitivity of the day-to-day execution of the strategy.…”