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Environmental Protection and Transitions from Conflict to PeaceClarifying Norms, Principles, and Practices$

Carsten Stahn, Jens Iverson, and Jennifer S. Easterday

Print publication date: 2017

Print ISBN-13: 9780198784630

Published to Oxford Scholarship Online: November 2017

DOI: 10.1093/oso/9780198784630.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2022. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use.date: 17 May 2022

Post-Conflict Mine Action

Post-Conflict Mine Action

Environment and Law

Chapter:
(p.396) 16 Post-Conflict Mine Action
Source:
Environmental Protection and Transitions from Conflict to Peace
Author(s):

Ursign Hofmann

Pascal Rapillard

Publisher:
Oxford University Press
DOI:10.1093/oso/9780198784630.003.0017

Abstract and Keywords

Contamination from remnants of conflict is a legacy of many armed conflicts, threatening the environment and human security. Addressing these hazards, reopening access to resources and livelihoods and re-establishing basic security, mine action is a critical activity in the transition from conflict to peace. Yet, clearance of remnants on land may also lead to environmental damage. Furthermore, residual risks remain after clearance and states and mine action organizations may face liability in case of accidents. This chapter examines the negative environmental impact of remnants of conflict and discusses the normative framework and good practice aimed to ensure that clearance does not further harm the environment. It is also demonstrated how mine action illustrates and is relevant to a holistic jus post bellum framework. This chapter finally scrutinizes the different challenges related to addressing liability for environmental degradation and damage to individuals from remnants of conflict and from their removal.

Keywords:   mine clearance, post-conflict, remnant of conflict, peacebuilding, environmental degradation, environmental law, jus post bellum, do no harm, liability, international humanitarian law

If trees could speak, they would cry out

that since they are not the cause of war

it is wrong for them to bear its penalties

Hugo Grotius, De Jure Belli Ac Pacis Libri Tres, 16461

16.1 Introduction: Nexus Between Peacebuilding, Mine Action, and the Environment

In times of armed conflict, the environment might be targeted deliberately to reach military or political goals.2 However, most of the environmental damage resulting directly or indirectly from armed conflict can be understood as collateral damage. The most direct damage to the environment, such as the release of toxic substances during bombardments or the physical destruction of ecosystems, results from hostilities themselves.3 Contamination of land from remnants of conflict, such as mines, cluster munitions, and other explosive remnants of war, is a further direct impact on the environment and a legacy of conflicts even long after they have ended.4 The environment can also be affected indirectly, for instance as a consequence of the loss of basic (p.397) services, displaced populations, and the resulting survival strategies they adopt out of necessity.5

Referring to the case of Cambodia, Shimoyachi-Yuzawa found that in addition to the human toll, contamination from remnants of conflict is considered to be one of the most significant obstacles to post-conflict peacebuilding and development. It leads to human displacement; delays the return and resettlement of refugees and internally displaced persons (‘IDPs’); and blocks access to vital resources and social services, including farmland, water, roads, schools, or hospitals.6 In response, mine action has become increasingly integrated into broader national programmes of reconstruction and development.

Similarly, by denying access to land, water sources, and other natural resources, the presence of remnants of conflict can put increased pressure on the resources that are still available, resulting in unsustainable natural resource management practices by communities.7 Migration of displaced populations to available safe land or already fragile ecosystems may lead to overharvesting and resource degradation.8 Additionally, remnants of conflict may release toxic substances into the soil, leading to further environmental damage.9

There is general recognition that durable peace cannot be achieved if the natural resources sustaining livelihoods and ecosystem services are damaged, degraded, or destroyed. On the contrary, environmental protection and the sustainable management of resources are important pathways to consolidate peace and promote longer-term development.10 Mine action11 is a critical activity in the transition from conflict to peace, since clearance of remnants of conflict may start while conflict is still ongoing and last throughout the post-conflict phase and beyond. However, despite the achievements of mine action during the past decades at political, normative, and operational levels, remnants of conflict still affect more than sixty countries and will do so for many more years. In this regard, mine action can do a lot of ‘good’ to restore livelihoods and contribute to peacebuilding. However, its very nature and some of the methods used by mine action organizations also have the potential to cause unintended negative impacts on the environment. Mine action organizations, like all humanitarian actors, therefore need to consider the possible negative impacts of their operations and ensure they both ‘do no harm’ and do not lead to longer-term vulnerability and threats to livelihoods.

Remnants of conflict and mine action can cause damage to the environment, property, and individuals in the aftermath of armed conflict. Questions of liability for damage arise ineluctably. Interestingly, attention within the mine action sector has thus far focused on liability for injuries or fatalities rather than for environmental degradation. (p.398) One prominent exception relates to the serious environmental damage resulting from Iraq’s invasion and occupation of Kuwait in the early 1990s. As part of the compensation scheme under the United Nations Compensation Commission (‘UNCC’), awards were granted to Kuwait to address the environmental impact of the conflict, including for clearance and survey of unexploded ordnance (‘UXO’) contamination. Given the nature of hazard of remnants of conflict, damage to individuals and property is more visible. Various ways are conceivable at inter-state and domestic levels for states and individual victims to claim for redress from the damage they experienced, including, in theory, by invoking violations of International Humanitarian Law (‘IHL’), International Environmental Law (‘IEL’), human rights law, or by suing manufacturers. The responsibility of armed non-state actors in non-international armed conflict (‘NIAC’) related to mine action poses a distinct challenge.

At the same time, it is acknowledged that residual contamination remains after the end of clearance operations and subsequent handover of land to the beneficiaries or the state. This is due to explosive devices moving onto cleared land, for instance through flooding, or having been missed during operations. Along with the formalization of the land release process in mine action in recent years, more emphasis has been put on determining whether and under which circumstances liability for potential damage to individuals and property lies with the responsible mine action organization and/or the state and at which point in time liability may be transferred. Several modalities are possible, but the normative framework and good practice indicate that, unless negligence by the mine action organization can be proven, strict liability of the state is generally considered to be the easiest and most cost-effective modality.

This chapter will tackle the nexus between mine action and the environment from an operational viewpoint by reviewing policies and good practice for environmental protection in post-conflict mine action and discussing its relationship to jus post bellum. In particular, it will study how legal requirements might be translated operationally into norms and standards and constitute an integral part of the broader ‘do no harm’ approach (Section 16.2). Subsequently, the chapter will examine the negative environmental impact of remnants of conflict on land as well as the potential damage to the environment resulting from mine clearance activities (Sections 16.3 and 16.4). The chapter will also examine how, at an operational level, the normative framework and good practice guide mine action organizations to ensure their operations do not result in further environmental harm (Section 16.5). Finally, Section 16.6 will address the issue of liability for environmental degradation and damage to individuals from remnants of conflict and in particular from their removal. Section 16.7 will summarize major findings.

16.2 Normative Framework

Before analysing what international law provides for post-conflict mine action, it is worth recalling that its general principles require all parties to a conflict to mitigate environmental harm to the widest extent possible. Also, IHL contains a number of provisions addressing the short- and long-term consequences of damage to the environment caused by the legacy of armed conflict.

(p.399) 16.2.1 The protection of the environment during armed conflict

IEL is the branch of international law aimed at protecting and preserving the environment. According to a legal analysis by the United Nations Environment Programme (‘UNEP’), IEL could potentially be applied in times of armed conflicts, alongside IHL. The relationship between the two branches of law is, however, complicated by the fact that IEL is still maturing, at both domestic and international levels.12

An International Committee of the Red Cross (‘ICRC’) study details three rules of customary international law which apply to the protection of the environment in armed conflicts:

  • General principles on the conduct of hostilities apply to the natural environment (rule 43).

  • Due regard to the protection and preservation of the natural environment shall always be a consideration when choosing methods and means of warfare (rule 44).

  • The use of methods and means of warfare that are intended, or may be expected, to cause widespread, long-term, and severe damage to the natural environment is prohibited (rule 45).13

These rules have also been codified in Additional Protocol I to the Geneva Conventions in Articles 35(3) and 55(1). Along these lines, the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects (also referred to as the Convention on Certain Conventional Weapons—‘CCW’) reaffirms rule 45. It can indeed be argued that, due to their destructive impact on the environment, mines and cluster munitions may well go beyond the limits and provisions of Additional Protocol I.14

Various scholars and concerned organizations have reviewed environmental protection under IHL.15 In its study on the protection of the environment during armed conflict, UNEP’s assessment is that ‘a number of significant gaps and difficulties remain to be reconciled if the protection of the environment is to be enhanced within the IHL framework’.16 According to some authors, these difficulties are that: (i) the threshold of harm to the environment established in IHL is almost impossible to reach as it must meet three cumulative conditions (widespread, long-term effects, severe) and be assessed before launching the attack; (ii) no treaty norm explicitly addresses the issue of environmental damage in non-international armed conflicts; and (iii) the proportionality of harm to the environment deemed to be ‘collateral damage’ is difficult to (p.400) determine.17 The legal rules aimed to protect the environment in relation to armed conflict are rather a ‘blunt tool’ with parallel streams and, at times, lacking holistic implementation.18

16.2.2 Jus post bellum, the protection of the environment and mine action

Long-term consequences of mines and other remnants of conflict fall under the scope of the laws applicable in post-conflict settings. Jus post bellum has its most traditional roots in just war theory as a natural corollary of jus ad bellum and jus in bello.19 According to the just war theory, it is not only the decision to resort to war and its very conduct which has to be just, but also the termination of war.20 Beyond this theory, jus post bellum recently gained attention in contexts of peacebuilding, post-conflict reconstruction, or transitional justice.21 The concept can close a normative gap related to the applicable law and the possible interaction between different bodies of law in transition from conflict to peace. A systemic gap might also be filled between the use of force and post-conflict responsibilities.22 The concept has not remained unchallenged though. Some scholars defend that the alleged legal void seems an artificially created lacuna or that linking post-conflict reconstruction to the legality of an intervention may run against current international law.23 The concept might also be prone to politization.24 Others argue that jus post bellum tends to primarily rectify the wrongs of war instead of focusing on peacebuilding.25

While some see jus post bellum as a system or body of law,26 others may rather consider it as a concept. According to latter view, jus post bellum focuses on relevant laws, standards, and good practice applied during the transition from conflict to peace, hence stressing the importance of a holistic approach and the dual role of both hard law and (p.401) soft law provisions.27 This definition constitutes the underlying jus post bellum concept in this chapter and it will be demonstrated why such a holistic approach is indicated for mine action.

There are three international conventions relevant to mine action which apply post bellum: the Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction (also referred to as the Anti-Personnel Mine Ban Convention—‘APMBC’); the Convention on Cluster Munitions (‘CCM’); and the CCW. Interestingly, the APMBC and CCM contain substantive provisions for the post-conflict phase such as the clearance of remnants of conflict or assistance to victims, but, given that they prohibit the use of certain weapon systems, they are equally relevant to jus in bello. Hence, these legal instruments are a magnificent manifestation of the relevance of mine action when examining the transition from conflict to peace. Both of them also contain references to the protection of the environment.

The APMBC and the CCM require that requests for extensions to the deadlines for the clearance of areas contaminated by anti-personnel mines and cluster munitions shall specifically contain information on the environmental implications of that extension.28 Both the APMBC and the CCM further require states parties to furnish reports on transparency measures being taken, which shall include reference to the applicable safety and environmental standards to be observed.29 The CCM has an even stronger reference to environmental protection, contained in Article 3(2) on stockpile destruction, requiring states parties to ensure that destruction methods comply with the applicable international standards for protecting public health and the environment.

Despite the introduction of these limited provisions on environmental considerations, and even the stronger call for environmental protection in the CCM, the meetings of the states parties to both conventions have generally not addressed the issue of protecting the environment. The sole exception was the Cartagena Plan of Action for 2010–14, adopted at the Second Review Conference of the APMBC, where Action 9 on stockpile destruction required states to provide a plan to ensure compliance with their convention obligation in conformity with relevant safety and environmental standards.

Likewise, the environmental impact of clearance activities only temporarily emerged in the discussions under Protocol V to the CCW on explosive remnants of war (‘ERW’) that aims to provide for ‘remedial measures of a generic nature in order to minimise [their] risks and effects’.30 In April 2009, at the Meeting of Experts of the High (p.402) Contracting Parties to Protocol V, the issue of environmental protection was discussed for the first time. During the Third and Fourth Conferences of the High Contracting Parties to Protocol V, in 2009 and 2010, states parties agreed to keep the potential environmental impact of ERW clearance under review.31 However, in subsequent conferences, the issue of environmental protection was removed from the agenda and no longer discussed in this forum.

Obligations under these three conventions form the basis of the draft principle on remnants of war of the Special Rapporteur of the International Law Commission (‘ILC’) on the protection of the environment in relation to armed conflicts.32

16.2.3 The ‘do no harm’ approach and mine action

The few principles established under international law which provide for environmental protection are reflected in the policies and standards which guide the activities of mine action organizations on the ground. The question arises of how these policies and standards interpret the above-mentioned provisions and put into practice the ‘do no harm’ approach. The ‘do no harm’ approach requires that humanitarian actors take steps to ensure that the assistance they provide does not make a situation worse. It has become a cornerstone of humanitarian assistance and development, as well as peacekeeping.33

Peacekeeping missions are often mandated to play a role in mine action activities34 as part of a broader set of actions that peacekeeping troops carry out with a view to supporting long-term recovery or post-conflict peacebuilding. The Department of Peacekeeping Operations (‘DPKO’), in collaboration with UNEP, started to address environmental concerns and developed an environmental policy in 2009—Environmental Policy for UN Field Missions. Accordingly, peacekeeping troops have to abide by a series of minimum operating standards for the protection of the environment, acknowledging the fact that dealing with natural resources as part of post-conflict peacebuilding is of paramount importance. In accordance with this policy, the DPKO is now responsible for ensuring that all missions integrate environmental (p.403) considerations and respect certain minimum standards. As for mine action activities carried out directly by peacekeepers, the policy highlights the challenges related to the disposal of stocks of chemicals, explosives, and ammunition. These have to be addressed in compliance with international legislation, such as the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal. The ‘do no harm’ approach in general finds therefore its concrete application in peacekeeping missions and is also specifically referred to in other policy and good practice handbooks for peacekeepers.35

The normative framework in mine action comprises a series of norms and standards, in particular the International Mine Action Standards (‘IMAS’), which are even enshrined in UN Security Council resolutions mandating peacekeeping missions. The mandate of the United Nations Mission in South Sudan (‘UNMISS’), for example, requires the mission to ‘support the government of South Sudan in conducting de-mining activities in accordance with IMAS’.36

The sector-wide IMAS are not legally binding obligations. However, they do provide guidance for the industry and translate the principles included in IHL treaties, basic human rights, and clearance requirements into practical and detailed norms. IMAS are developed, reviewed, and adopted by a technical committee representing the whole mine action sector. They have become the relevant standards implemented by mine action organizations, and constitute the basis of national mine action standards. IMAS 10.70, the specific standard on environmental protection, acknowledges that

national authorities and demining organizations not only have a responsibility to ensure that demining operations are carried out in a safe, effective and efficient manner, but also in a manner that minimizes the impact on the environment. The aim should be to leave the environment in a state that is similar to, or where possible better than, before demining operations commenced.

The standard thus includes a powerful statement of the ‘do no harm’ approach in relation to environmental considerations.

It requires, for instance, that ‘demining operations should be carried out without damaging property or infrastructure, in a manner that minimizes the impact on the environment’, and that ‘planning for demining operations shall take into account the effects of those operations, and any supporting activities, on the environment, and any possible damage to property or infrastructure, or harm to personnel’. It further details the responsibilities and obligations of national authorities and mine action organizations. Finally, other technical IMAS include references to environmental considerations, such as IMAS 11.10 on the destruction of stockpiled anti-personnel mines and IMAS 11.20 on open burning and open detonation stockpile destruction operations.

In its work, the mine action sector also draws on other relevant norms, such as the International Ammunition Technical Guidelines (‘IATG’) and the standards of the International Organization for Standardization (‘ISO’), a network of national standards bodies. Drafted by a technical panel consisting of experts from the UN, international (p.404) organizations, NGOs, and states, the IATG are used at the logistical level and cover technical requirements for safe, effective, and efficient storage, processing, transport, and disposal of ammunition. IATG 10.10 on Demilitarization and Destruction of Conventional Ammunition, for example, makes reference to IEL and environmental considerations. Finally, ISO standards contain regulations addressing the environment. They are generally adopted by a wide range of countries as part of their own regulatory frameworks. Some of the general requirements relevant to stockpile management and destruction of conventional ammunition have a relevant ISO standard. Furthermore, ISO 14000 series standards, on environmental management, set specific standards and guidelines on the protection of the environment that are an additional reference for mine action organizations.

In summary, it can be observed that jus post bellum contains few provisions addressing the environmental impact of mines and other remnants of conflict and mine action in international treaties. However, this does not imply that regulation of these matters is non-existent, as a more praxis-oriented body of norms and standards is emerging as a response to the evolution of the mine action sector. The ability of soft law to adjust constantly to new practices hence fills the gap which exists in hard law. This allows the practical implementation of the ‘do no harm’ approach, thus ensuring that environmental protection is duly taken into account. Mine action therefore emphasizes the importance of the dual role of hard law and soft law provisions for an adequate holistic jus post bellum framework.

16.3 Environmental Impact of Remnants of Conflict on Land

During armed conflict, belligerents’ rights to choose methods or means of warfare are limited.37 The principles surrounding the proportionality of an attack during hostilities is a related key provision of jus in bello enshrined in the Geneva Conventions.38 However, explosive items such as mines and cluster munitions not only cause unacceptable harm to civilians during armed conflict, but can do so long after the conflict has ended. As a legacy of conflict, lying in the ground, they seriously affect the environment in various ways in post-conflict situations.39 Given that the natural environment constitutes the basis for livelihoods, the damage caused by remnants of conflict hampers sustainable socio-economic development.40

(p.405) The potential impact of remnants of conflict and mine clearance under water as well as the destruction of stockpiles and ammunition has been demonstrated and would warrant consideration. It should indeed be noted that one of the draft principles of the ILC’s Special Rapporteur on the protection of the environment in relation to armed conflicts addresses remnants at sea.41 For the purpose of this chapter, however, emphasis is put on contamination on soil and mine clearance on land due to their particularly significant environmental impact.

16.3.1 Access denial

The main consequence of contamination by remnants of conflict is to deprive local communities of access to land and natural resources. Valuable pasture can become inaccessible. This can, for instance, be illustrated by the impact of the cluster bomb airstrikes in Lebanon in 2006. Yet, these findings are also valid more generally. After the conflict with Israel in 2006, the Food and Agriculture Organization of the UN (‘FAO’) estimated that up to 26 per cent of the cultivated land was contaminated in southern Lebanon.42 This can potentially lead to overgrazing in accessible areas and subsequent habitat degradation. Land scarcity resulting from contamination has the potential to generate new socio-economic dynamics and set new cycles of poverty and environmental degradation in motion. Faced with growing livelihood pressures, local populations are likely to resort to unsustainable practices and intensify exploitation of the diminished areas available in order to meet short-term needs.43

This finding is corroborated by the phenomenon of deforestation, which generally accelerates as an indirect consequence of contamination. Where arable land has been mined, selling forest and fruit trees gives way to immediate pressures to simply survive. Deforestation can, in turn, affect marshlands and water tables, which has an impact on fish and other wildlife. Thus, remnants of conflict can set in motion a chain of events leading to environmental harm in the form of habitat degradation or deforestation, possibly affecting entire species populations and altering food chains.44

16.3.2 Soil degradation and loss of productivity

The terrestrial environment can be seriously affected when remnants of conflict explode. Exploding munitions degrade land by damaging and disrupting the soil structure that, in turn, exacerbates erosion and leads to increased sediment load in the (p.406) drainage system.45 Topsoil damage also has sustained impacts on moisture availability, vulnerability to water flows, erodibility, and productivity.46 Soil productivity dramatically decreases if land is contaminated, as witnessed in Vietnam with a reduction of 50 per cent in rice production per hectare of affected land.47

16.3.3 Chemical contamination

Besides its physical hazard as remnant of conflict, ammunition can cause chemical contamination, both when it functions or if it fails to function. When it explodes ammunition can produce contamination due to gases and ash resulting from the chemical reaction. Chemical contamination of a different kind also occurs when ammunition fails to function as the explosive contents undergo chemical breakdown over time, whether loose due to the impact or still in the ammunition casing, and at a rate influenced by the surrounding conditions. Any ammunition body fragments remaining in the environment for extended periods are subject to corrosion and weathering, subsequently releasing various heavy metals such as chromium, zinc, iron, and copper into the soil. In agricultural regions in particular these heavy metals can easily penetrate the soil, reach the water table, and pass into the human food chain.48

16.4 Environmental Impact of Mine Clearance on Land

Mine action includes activities aimed at reducing the social, economic, and environmental impact of mines, cluster munitions, and other ERW;49 it therefore addresses the different impacts explained above. In this way, mine action does a lot of ‘good’ by restoring livelihoods and contributing to peacebuilding. However, by its very nature, mine action involves direct interaction with the environment, through physical activities such as clearance, and indirect interaction, for instance through the effect it has on land newly released to beneficiaries.

Mine action activities can have an impact on the environment similar to that of other humanitarian operations. The mere presence of demining personnel on the ground and their temporary field camps might lead to over-exploitation of local resources such as water, wood, or food, and produce waste which, if not properly managed, can result in environmental degradation persisting long after the camp has left.

Clearance can be undertaken using a variety of methods and tools, each of which has its own characteristics and advantages. Many factors influence the choice of method in a given working environment. Whereas the choice of the correct methodology and (p.407) technical tool is often guided by cost-efficiency considerations, the potential impact on the environment needs to be taken into consideration as well. The so-called mine action ‘toolbox’ to clear land is made of three different assets: animal detection systems (‘ADS’), manual clearance, and mechanical systems. These assets can be used in conjunction with one another depending on the specific requirements of a task.

Dogs and rats are the most commonly used mine detection animals because of their ability to detect specific vapours associated with the explosive or other components of mines and munitions. ADS cannot replace deminers, but they are powerful tools when used in combination with manual and mechanical systems. Once an explosive item has been detected, it has to be removed manually or mechanically. The use of animals, therefore, does not avoid per se the potential environmental impact of other clearance tools.

When demining manually, only locations where the metal detector has indicated metal contamination will be subject to manual digging. Fertile topsoil has to be removed, soil and root systems are likely to be disturbed and lower vegetation may have to be cut in order to get access to a suspected or confirmed contaminated area. Erosion can result from this process. Manual clearance remains the preferred tool, especially in areas with dense vegetation where a primary environmental concern is to conserve as much vegetation as possible. Nonetheless, it is time-consuming and strenuous; consequently, mechanical systems can be used to speed up this process.

Whereas machines have considerable potential for increasing efficiency, they can have a greater impact on the soil and the ecosystem. A variety of mechanical systems is used (tiller systems, flails, or converted plant machinery) to process soil in the search for remnants of conflict. Inevitably, this disturbs and causes possible damage to soil conditions. Soil might often be moved to another location where it will be checked for explosive items or evidence of such. When using flails and tillers, the soil passes through those systems, even though it will remain in the same location after being processed. The consequences of such practice could take the form of various types of erosion, deforestation, changes to soil composition, and reduced soil fertility.

Mechanical systems remove or destroy vegetative cover which in turn can lead to increased water runoff and wind erosion. Tillage increases wind erosion rates by dehydrating the soil and breaking it up into smaller particles that can be picked up by the wind. Deforestation is closely linked to erosion. Trees may need to be taken out, causing the removal of litter that plays a crucial role in infiltration and protects soil from erosion and raindrop impacts. Litter also provides organic matter that is important to the stability of the soil structure.50 Less fertile soils are naturally associated with losses in agricultural production.

Soil degradation occurs when its quality decreases due to changes in its depth, or in its physical or chemical properties. During mechanical clearance, the organic layer is generally processed as well as surface soil, and the physical or chemical properties of the soil might be changed or damaged. This can again affect soil fertility, rooting potential, and water-holding capacity.51 Not only can mechanical mine clearance result in (p.408) soil erosion and lead to other environmental damage, but there is also a risk of chemical pollution to soil and water. Contamination might be caused by detonations or destruction of explosive items in the ground or by leaking hydraulic fluids and fuel which can occur when refuelling demining machines.

16.5 Measures to Ensure Mine Clearance on Land Does No Harm to the Environment

In order not to undermine the positive contribution of mine action to people, livelihoods, and peacebuilding initiatives, and so as to address the potential impact of clearance operations such as those outlined above, mine action organizations, much like other humanitarian stakeholders, must ensure they ‘do no harm’ to the environment or livelihoods, and avoid increasing the long-term vulnerability of affected communities. At an operational level, measures can be taken to avoid or mitigate the potentially negative impact of mine clearance on the environment. On the basis of international legal obligations, IMAS complement the normative framework relevant to the mine action sector. Finally, the sector has also developed a set of operational good practice.

The first way of mitigating the environmental impact of clearance is to limit the use of machines to a strict minimum. Backed by IMAS 07.11, the mine action sector has developed the so-called ‘land release’ approach. This consists of a process of survey and clearance activities aimed at providing effective, efficient, and reliable information about which land requires attention, which does not, and how best to deploy precious technical assets. Land release promotes a system of escalating survey activities and only resorts to full clearance as a last option. With the land release approach, clearance thus only takes place where there is confirmed contamination. Even though the IMAS on land release does not particularly refer to environmental considerations, it constitutes an effective measure to avoid the potential negative consequences of clearance activities.

Based on the ISO 14000 standards, the mine action sector has developed specific standards for environmental protection. These do not only address air, water, and soil pollution or land use, but also tackle the reduction and disposal of waste and the reduction of energy consumption.52 The sector as a whole has complemented the normative framework through good practice at the operational level, and the Geneva International Centre for Humanitarian Demining’s (‘GICHD’) Handbook of Mechanical Demining is a reference tool in this regard.

One measure that can be taken to reduce the harm and negative impacts from clearance operations is to reseed and replant areas with indigenous grasses immediately after operations. Another is to return processed soil layers to affected sites in the correct order so that the fertile top soil is once again the top layer. In the same vein, clearance should be scheduled so that the site can be cultivated as soon as possible after operations to ensure regrowth of a root system, which will, at least in part, (p.409) prevent erosion.53 In general, the planning of a mechanical clearance operation should include a comprehensive environmental assessment as well as an environmental management process with a view to discussing the risks and control measures with the local communities.54

IMAS also provide guidance on precautions to be taken with regards to possible chemical pollution. Organizations should take all reasonable care when selecting refuelling sites, for example, so as to ensure that diesel spillage cannot contaminate water sources. Furthermore, they should have clear regulations for the replacement of fuel and lubricants, and the measures to be taken with waste products.55

16.6 Challenges and Ways to Address Liability for Environmental Degradation and Damage to Individuals from Remnants of Conflict and their Removal

During conflict, but especially in its aftermath, contamination from remnants of conflict can cause damage to the environment, individuals, and property as outlined in depth above. Thus, liability for such damage is very relevant as is the right for compensation for damaged parties and victims. Post-war justice is indeed one of the major principles advanced in jus post bellum.56 Likewise, with the formalization of the land release process, liability has become increasingly important during the removal of remnants of conflict. The risk that even in a cleared area an explosive item could have been missed during clearance operations raises the question of who is liable for the damage such an item could or does cause.57 This section will review liability issues in connection with damage to the environment, but more importantly to individuals, borne by states, mine action organizations, and producers of explosive items. It will analyse general liability regimes and explore to which extent they apply, by extension, to liability for contamination and mine clearance operations. Special focus will be dedicated to ways to engage responsibility of armed non-state actors in NIAC due to their unique role in such conflicts and the relevance of mine action in these contexts.

16.6.1 Liability for post-conflict contamination

Liability for contamination by remnants of conflict is a complex issue. Examples show that it has been a recurring and topical aspect of post-conflict recovery. In the case of contamination from unexploded ordnance resulting from training exercises by the British Army in Kenya, a number of Kenyan victims, for instance, filed suit with the High Court in London in 2002. In an out-of-court settlement, they received (p.410) a compensation payment of GBP 4.5 million, even though the British government did not accept full liability.58

As noted in the study on the rights for mine victims by Handicap International, when establishing a right to reparation or compensation, this requires a breach of existing law. In all legal systems, actors agree multiple obligations consisting either of actions or omissions. If such obligations are not acted upon, the actor’s responsibility or liability may be engaged. States can have differentiated kinds of responsibility or liability: fault-based liability where a fault is engaged, and strict liability without a need to prove fault. Claims against states for using mines and cluster munitions could be based on the responsibility of states for wrongful acts.59 As defined by the non-binding Draft Articles on Responsibility of States for Internationally Wrongful Acts, ‘an internationally wrongful act of a State [is] when conduct consisting of an action or omission (a) is attributable to the State under international law; and (b) constitutes a breach of an international obligation of the State.’60 As a result, non-compliance with an international obligation prohibiting the use of mines or cluster munitions entails the responsibility of the state. In the case of the general prohibition of anti-personnel mines and cluster munitions, only states, but not individuals, can claim a wrongful act committed by another state. Such mechanism was built in the APMBC and CCM through which states parties can lodge a complaint for violation of the convention by a state party.61 However, this procedure has never been activated thus far.

In relation to the environment in times of armed conflict, Additional Protocol I to the Geneva Conventions is applicable when it comes to consider responsibility for and redress from damage to the environment posed by remnants of conflict. Indeed, if mines and cluster munitions create ‘widespread, long-term and severe damage to the natural environment’ (Art. 35(3)) and even more so ‘are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population’ (Art. 55(1)), then it might be argued that such means of warfare go beyond the tolerable limits established by IHL. In its study, Handicap International concludes that, having a substantive destructive impact on the environment, mines may well exceed these limits and provisions contained in Additional Protocol I could prohibit the use of mines, and arguably by extension cluster munitions, because of their damage to the environment.62

The APMBC and CCM do not address the issue of liability and compensation, neither for environmental damage nor for damage to property and individuals. What both conventions stipulate, however, is the responsibility of the state, among others, (i) to clear all anti-personnel mines and cluster munitions respectively on the territory under its jurisdiction or control within a given period of time63 and (ii) to provide assistance (p.411) to victims.64 Both conventions therefore rely on the duty of care by the state for its citizens rather than on liability and right for victims to claim for redress from damage from the state.65 Interestingly, some scholars argue that jus post bellum should increasingly consider a duty of care.66 This new normative grounding will be elaborated more in depth below.

From a jus post bellum perspective, it is warranted to note that the affected state bears the responsibility for its contamination (of mines which it may not have emplaced or cluster munitions which it may not have used). Thus, the international community has, stricto sensu, no duty to rebuild or to address damages in post-conflict setting: ‘You broke it, you own it’ does not apply.67 Should decision-makers have to think about post bellum responsibilities, this may impact jus ad bellum considerations.68 This situation is not met by the APMBC and CCM. Curiously though, both conventions still take into account a certain degree of international duty to rebuild by encouraging states in a position to do so to assist affected states. However, as mentioned earlier, these instruments of international law remain silent in relation to the environmental impact of contamination and do not address related questions of liability for such damage.

Breaches to IEL can also be a source for determining liability for damage to the environment from contamination from remnants of conflict. In general terms, ‘the breach of an obligation of environmental protection established under international law engages responsibility of the State [including strict responsibility of the State … in case of ultra-hazardous activities], entailing as a consequence the obligation to reestablish the original position [e.g. through mine clearance] or to pay compensation’.69 More specifically, international environmental law creates obligations for states parties to relevant IEL conventions, including on the responsibility for damages caused to the environment. Consequently, if a link can be established between the damage to the environment caused by remnants of conflict and the effects of other hazardous and noxious substances regulated in IEL conventions, the latter could be applied by extension to the use of mines and cluster munitions and thus, establish responsibility for and redress from environmental damage. Since remnants of conflict have noxious effects on the environment, victims could therefore invoke breaches by states to their obligations under IEL they are bound by and claim reparations on this ground.70

A third line of argumentation dealing with determining liability of damage caused by contamination regards the violation of fundamental human rights. Indeed, it is (p.412) recognized that mines or cluster munitions laid in or around populated areas and agricultural land pose a substantial risk to the health of the affected population and can very directly affect the exercise of a number of political, economic, social, civil, and cultural rights. These rights are protected by the Universal Declaration of Human Rights and/or the First Optional Protocol to the International Covenant on Civil and Political Rights (‘ICCPR’). As a result, victims, including those people whose land has become unusable due to contamination, can invoke, in principle, the violation of fundamental rights and claim for compensation for the harm they have experienced.

Fourthly, liability of producers of mines or cluster munitions may also be invoked in a claim for compensation, although rather for harm to individuals than for damage to the environment. Assuming that manufacturers produce such devices for profit, they are in no way different from producers of other articles. According to product liability theories in US law, it could be argued that producers were negligent and breached their duty of care, if they failed to reduce the risk of injury to civilians by not adapting the device’s design to include available safety features (e.g. self-destruction or self-neutralization mechanisms). Such argument would obviously be morally problematic ‘justifying’ the potential use of so-called smart mines. It seems, however, that these safety mechanisms have existed since the 1960s. Therefore, producers could be held liable for injuries from mines produced thereafter. However, such liability implies that the victim must have proof of both general and specific causation which might be particularly challenging. Because the mine causing the injury generally explodes into pieces, it becomes nearly impossible for the plaintiff to determine the particular producer of the device.71

Also strict liability of the producer, might, in theory, be considered. Both defective product liability and liability for abnormally dangerous activity apply. Public policy interests necessary to determine defective product liability (such as the costs of injury to the victim in comparison to the ability to insure the risk of such injury by the producer) are applicable to mines and cluster munitions. Similarly, the production of such devices might be defined as an abnormally dangerous activity in which case the producer would be liable for all injuries resulting therefrom. The producers of mines and cluster munitions have indeed created an enormous risk of civilian injury or even death, while profiting from creating such risk. With regards to invoking strict liability, the challenge arises that many manufacturers only produce component parts of the device. This makes the establishment of liability difficult. More generally, mine and cluster munitions are produced for the military purpose of injuring people, or threatening to do so. Producers may act as the government contract defence with sovereign immunity potentially being extended to them.72 As a consequence of the above and due to further jurisdictional, procedural, and practical difficulties, there does not seem to be any indication that a lawsuit invoking the liability of a producer has yet been filed.

(p.413) 16.6.2 Responsibilities of armed non-state actors in non-international conflicts

In the following section, we will explore how responsibility of armed non-state actors could be engaged in general. The distinction between international armed conflict and NIAC has blurred over time. Nowadays, not only states, but also armed groups are considered to be holders of rights and obligations in internal conflict situations.73 In fact, it has now become uncontroversial that armed groups are bound by customary IHL.74 In addition, some treaties such as the CCW have been amended to also regulate NIAC.75

Common Article 3 to the four Geneva Conventions, whose rules are part of customary IHL, for instance, prohibits ‘violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture’ with respect to persons taking no active part in the hostilities. It can be argued that the use of explosive devices such as mines is a form of violence to the life of a person. In addition to this provision, the rules regulating the conduct of hostilities such as the principles of distinction and proportionality are also part of customary IHL applicable to NIAC and hence to armed groups.76 A major drawback is, however, that IHL can only apply if the threshold conditions (protracted armed conflict and certain organizational capacity of the armed group) are fulfilled.77

In addition to IHL, the question arises whether human rights law may apply. Although it is difficult to establish direct legal human rights obligations of such groups in principle—with an exception in instances where they exercise elements of government functions with de facto authority over a population—there seems to be a growing tendency to hold those groups accountable for human rights violations committed in the course of armed conflicts, in particular in relation to jus cogens.78

Consequently, by using mines or cluster munitions, armed groups are likely to violate customary IHL principles such as distinction and proportionality, or the prohibition of violence to life and person. Armed groups also seem to be bound by the relevant provisions regarding the protection of the environment including rule 45 prohibiting the use of methods or means of warfare that are intended or expected to cause widespread, long-term, and severe damage to the environment.79 Analysis was offered above on the extent to which this environmental provision could apply to the use of mines.

Jus post bellum might provide an interesting ethics of care approach to responsibility, particularly relevant in the context of non-state actors. Traditionally, the ethics-based approach has mainly focused on the wrongdoing of the agent in relation to (p.414) responsibility such as in the context of sovereignty as responsibility. The shortcomings of such an agent-focused approach might be overcome by the concept of ethics of care. It indeed shifts emphasis from the agent to the ‘other’, those impacted by the intervention, while looking at empathy and concern.80

Indeed, the notion of care underpins existing humanitarian norms such as the precautionary principle. The regime governing the protection of the environment, for instance, comprises a duty or, for some scholars, strict liability to remedy environmental damage independently from respect of jus ad bellum and jus in bello.81 Also many peacebuilding activities rely on the notion of care. Mine action is a case in point in this jus post bellum attempt to invoke an ethics of care to armed groups. Through a deed of commitment, the NGO Geneva Call allows them to abide by IHL norms to ban anti-personnel mines and to remove the mines they have emplaced. Such regulatory instruments can be an important contribution to framing the conduct of armed groups in terms of responsibility through ethics of care. Even more critical scholars recognize that care ethics can offer guidelines for ethical forms of relations among individuals, groups, and nations.82

Explicit recognition of specific obligations by such groups as in the case of Geneva Calls’ Deed of Commitment may change the debate about the groups’ responsibility under international law.83 Some scholars also highlight the potential advantages of engaging non-states actors in law-making. This would increase the sense of a norm’s ownership by non-state actors. The Deed of Commitment in mine action has reportedly changed groups’ behaviour with spillover effects on other groups, but also created the conditions for states to sign the APMBC, for instance in Sudan.84 What remains to be scrutinized in further research is the question to which extent non-state actors can be held liable and how this liability may be enforced. Scholars examining individual liability for international crimes offer some inspiring views on the broader issue of non-state actors in NIAC.85

16.6.3 Enforcing state liability for incidents due to contamination

After having reviewed the various ways to establish liability stemming from post-conflict contamination, this following section will scrutinize how such liability can be enforced at international and domestic levels.

The only case of inter-state claims for compensation on the ground of environmental damage due to contamination from remnants of conflict recorded thus far are the compensations for the environmental impact from the invasion and occupation of Iraq granted to Kuwait and Kuwaiti individuals by the UNCC. Indeed, Security Council (p.415) resolution 687 states that ‘Iraq … is liable under international law for any direct loss, damage, including environmental damage and the depletion of natural resources, or injury to foreign Governments, nationals and corporations, as a result of Iraq’s unlawful invasion and occupation of Kuwait.’86 Therefore, and bearing in mind the unprecedented damage to the environment, it was possible to address environmental claims. The UNCC87 received in total 2.69 million claims over approximately US$ 352.5 billion of which 1.5 million were awarded with a total of US$ 52.4 billion. About US$ 5.2 billion were awarded to F4 claims for damage to the environment.88

In recognition of the need for large-scale environmental remediation and restoration, the UNCC awarded about US$ 3 billion to the State of Kuwait for six claims for this purpose. Four claims included UXO clearance and survey activities. Nonetheless, compensation for environmental damage under the mandate of the UNCC has a particular legal background, given that it is linked directly to a Security Council resolution. No liability for environmental damage was to be proven.89 Iraq violating the jus ad bellum, a breach to the jus in bello was generally not seen as required to claim for redress.90 To date, the UNCC’s compensations are a rather standalone case in which liability for damage to the environment due to remnants of conflict, especially UXO, has been established and compensated.

Physical damage to persons and property is the most visible and frequent impact of contamination from remnants of conflict and the evidence base for liability, and the inter-state redress resulting from it, has been more considered and documented than liability for environmental damage. In fact, the UNCC did not only file claims for the latter, but, under D claims (claims for damages above US$ 100,000), also for damage to individuals caused by mines and ERW. Being an inter-state redress mechanism, the claims by individuals were submitted by their governments. As mentioned above, it is important to bear in mind that compensation is not awarded because of the use of mines, but more generally on the basis of the act of aggression by Iraq.

The International Court of Justice (‘ICJ’) provides another means for enforcing liability for and redress from damage to individuals and property at inter-state level. Although it lacks power of compulsion, its rulings may be considered as a source of law. Whereas there has not been any ruling yet on the liability for damage caused by landmines, the Court pronounced itself on at least two cases involving naval mines.91 In the first case, the ICJ ruled that Albania was responsible, under international law, for the damage of two British warships and the killing of staff. Indeed, Albania omitted to inform the crew about the existence of unanchored automatic submarine mines (although considered to be aware thereof), therefore violating ‘elementary considerations of humanity, the principle of the freedom of maritime communication, and every State’s obligation not to allow knowingly its territory to be used for acts contrary to the rights of other States’.92 In the second case, the ICJ ruled that the United States, when (p.416) laying mines in Nicaraguan ports in 1984 without any public and official warning to international shipping, breached ‘its obligations under international customary law not to use force against another State, not to intervene in its affairs, not to violate its sovereignty and not to interrupt peaceful maritime commerce’.93

Potentially, there are also means for international direct redress. Liability for damage caused by remnants of conflict can be established and compensation paid to victims specifically when referring to a violation of human rights. For instance, should some rights have been violated, human rights courts such as the Inter-American Court of Human Rights or the European Court of Human Rights can hold states under their jurisdiction liable and rule the payment of reparation. Similarly, nationals of signatories to the ICCPR have the possibility to address claims to the Human Rights Committee for breach by their state to respect, for instance, their right to life, although successful claims would not be binding to the state. However, it does not seem that violation of fundamental human rights from contamination from mines or cluster munitions has been invoked yet to claim for redress.94

Under national law, the issue of liability and compensation involves reasons for action by states rather than obligations per se. For instance, obligations of states who agreed to be bound by the APMBC are obligations to other states parties and not necessarily to their nationals. Redress from a state’s failure to discharge its convention obligations must therefore be sought rather through inter-state mechanisms (see above). Nonetheless, a state’s constitution is likely to guarantee certain rights such as the state’s responsibility to protect the welfare of its citizens. Furthermore, domestic tort law can establish liability for the state as occupier of land for incidents occurring thereon. Likewise, land owners or occupiers of land may have rights against the state for incidents happening on land sold or leased by the state. Of course, states may eventually enjoy state immunity from suit or execution.95

16.6.4 Liability during and after removal of remnants of conflict

During and after clearance operations, liability for direct environmental damage has not yet been invoked in lawsuits and neither studied in mine action. The consequence of such damage, however, often affects the physical integrity of people. As a matter of fact, liability for injuries of individuals during and especially post-clearance has been more considered.

During clearance operations, liability for accidents due to negligence, for instance a lack of adequate precautionary measures, or strict liability for performing dangerous activities even without negligence, normally falls on the mine action organization undertaking the task. It is required to use accredited assets and follow approved Standard Operating Procedures which are based on national standards. During clearance activities, the organizations are therefore liable. However, the state might sometimes also be (p.417) held liable for accidents due to negligence, for instance in the form of a lack of requirements for safety measures to be taken by the mine action organization.96

Whereas during mine clearance and survey activities, liability is less contested, this issue becomes even more relevant in the post-clearance phase when clearance has terminated and the cleared areas have been handed over to the beneficiary, normally the state. Who is liable if there is an accident on supposedly cleared land? It is recognized that even after completion of clearance, residual risk and contamination remain. Residual risk can be defined as ‘the risk remaining following the application of all reasonable effort to identify, define, and remove all presence and suspicion of mines/ERW’.97 This may result from explosive devices being moved onto the cleared land, for instance through flooding, because they were initially located underneath the required depth for clearance or simply because they have been missed by the mine action organization. States parties to the APMBC expressly acknowledge this fact when submitting their voluntary declaration of completion of their clearance obligations under Article 5. In the past, uncertainties relating to liability for residual risk may have delayed states from efficiently meeting their international clearance obligations and led to substantive quality control and ‘over-clearance’ resulting in further—and eventually avoidable—environmental degradation.98 This is one of the driving factors for the development and outreach of good practice in this regard.

Following soft law in the form of IMAS and good practice, mine action organizations that strictly adhere to detailed national standards and have a well implemented tasking system in place should not be liable once the land has been officially handed over. The normative framework is unambiguous, since ‘for humanitarian operations no residual risk should lay with the demining organisation after the National Mine Action Authority (‘NMAA’) has formally accepted the cleared land. The handover of the cleared land shall be the mitigation of liability point for the demining organisation’.99 National standards, as outlined in Section 16.2.3, should be based on IMAS.

Therefore, NMAAs are strongly recommended to clarify liability issues, stipulating that mine and ERW contamination is ultimately the responsibility of the state, including general responsibility to accept accountability towards, and liability and compensation for victims, for areas which have been cleared and handed over to the national authority or local population. Authorities are also advised to clarify that a mine action organization should not bear liability for missed mines or accidents if it appears that it has followed the relevant land release standards and, thus, made all reasonable efforts to ensure that the released area was safe.100 This follows the assumption that the state ultimately bears a duty of care of its citizens after clearance in the same way as it does for pre-clearance contamination.101

(p.418) After handover, the easiest and most cost-effective way of dealing with liability issues is when the state assumes responsibility for the released land, including for dealing with residual risk and compensation claims by victims. Strict liability of the state avoids the often complex assessment of whether the mine action organization acted with negligence. If this occurs, it would be much easier for the state to sue the organization than if victims need to do so by themselves. Other ways of dealing with residual liability would be shared liability between states and organizations or time-limited liability of the latter alone, but they have important disadvantages, especially considering insurance. Insurance for shared liability or liability for a given period of time after clearance is likely to be expensive and may discourage organizations from carrying out activities.102

On the other hand, the normative framework in mine action also stipulates that an organization is generally liable for damages, if the accidents stemming from missed mines or ERW were caused by wilful or criminal misconduct, gross negligence, reckless misconduct, a conscious, flagrant indifference to the rights or safety of the harmed individual, or if the organization grossly deviated from an agreed land release approach.103 The role of the organization in such scenarios is exemplified by an accident in the then Southern Sudan in which a UN employee was harmed. Following the accident and UN investigation, the victim sued the contracted mine action organization which carried out clearance and declared the area safe. The plaintiff’s main claims included, among others, negligence, professional negligence, and negligence per se. This case was settled and the UN employee compensated before the responsible court could make a judgment.104

In summary, it has been demonstrated that liability for environmental damage from both contamination and clearance has not yet been considered as substantively as liability for damage to individuals and property. With regards to liability for residual contamination, the importance of the dual role of hard and soft law for a holistic jus post bellum framework can once more be emphasized. In fact, the mine action sector has tried to regulate itself through an industry-wide normative framework. Based on established good practice and considering the various ways of dealing with residual risk liability, strict liability of the state is generally considered to be the easiest and most cost-effective pathway.105

16.7 Conclusion

Mine action provides an early entry point for positive interventions in the transition from conflict to peace. For instance, mine action, particularly clearance, fosters peacebuilding efforts by contributing to the social reintegration of former combatants (being employed as deminers) or the repatriation of refugees and IDPs, and offers opportunities for promoting cooperation and dialogue and building confidence.106 More (p.419) importantly in this context is the fact that by reopening access to resources and livelihoods, mine action contributes significantly both to basic safety and security and to economic revitalization—two core elements of any peacebuilding process.

Mine action can do a lot of ‘good’, but by its very nature, it involves direct and indirect interaction with the environment and thus can potentially have a negative impact on it. Clearance of remnants of conflict can affect ecosystems and can negatively impact vegetation or the composition and fertility of soil. In the past, the mine action sector’s primary focus lay particularly on developing methods and tools to conduct operations safely, efficiently, and effectively. Over more than two decades, as the sector has matured and acquired significant expertise and experience, the environmental concerns linked to mine clearance operations have received increasing attention. This is also related to the recognition in peacebuilding and mine action that environmental protection, alongside sustainable management of resources, is an important pathway to promote durable peace and longer-term development. Today, more than ever, mine action organizations are aware of the imperative to ensure that they ‘do no harm’ through their activities. However, further mainstreaming of environmental considerations, including their liability ramifications, and a more systematic monitoring of their application are critical. To do this, it is important to gather more evidence and develop good practice.107

This greater focus on the environment in mine action is reflected in discussions at policy and normative levels. Jus post bellum only provides limited hard law provisions with regards to post-conflict mine action. Indeed, mine action could be used as a case study to reinforce the growing recognition that environmental considerations in jus post bellum deserve a stronger legal focus. However, practice in mine action also demonstrates that the importance of the dual role of hard and soft law and the particular relevance of standards and good practice for an adequate holistic jus post bellum framework cannot be underestimated. The growing area of scholarship on jus post bellum increases the understanding and practical resolution of the immense challenges faced by societies at the end of war.108 Mine action has some interesting and practical insights to provide to this debate.

Notes:

(*) Ursign Hofmann is a Policy Advisor at the Geneva International Centre for Humanitarian Demining. Pascal Rapillard is Head of External Relations and Policy Division at the Geneva International Centre for Humanitarian Demining.

(1) Cited in Johan A. Cohan, ‘Modes of Warfare and Evolving Standards of Environmental Protection under the International Law of War’ (2003) 15 Florida Journal of International Law 481, 500.

(2) The author would like to thank Dominic Eggel, Mohamed Ghalaieny, François Grünewald, and Adam Koniuszewski for their insightful comments on previous versions of this chapter. Special thanks also go to Christine Spring and Elisa Volpi Spagnolini for their contribution. Responsibility for any errors in the text lies entirely with the authors.

(3) UNEP, From Conflict to Peacebuilding: The Role of Natural Resources and the Environment (UNEP, 2009), 15.

(4) Ken Conca and Jennifer Wallace, ‘Environment and Peacebuilding in War-Torn Societies: Lessons from the UN Environment Programme’s Experience with Post-Conflict Assessment’ in David Jensen and Steve Lonergan (eds.), Assessing and Restoring Natural Resources in Post-Conflict Peacebuilding (Milton Park, Abingdon, Oxon; New York: Earthscan, 2012), 70; Environment Law Institute and UNEP, Assessing and Restoring Natural Resources in Post-Conflict Peacebuilding, Policy Brief no 2 (ELI and UNEP, 2013), 2.

(5) UNEP (n 3) 15. In addition to a direct and indirect pathway, UNEP also identified the institutional impact of conflict on the environment such as the disruption of state institutions.

(6) Nao Shimoyachi-Yuzawa, ‘Linking Demining to Post-Conflict Peacebuilding: A Case Study of Cambodia’ in Jensen and Lonergan (n 4) 181.

(7) UNEP, Lebanon. Post-Conflict Environmental Assessment (UNEP, 2007), 155; Shawn Roberts and Jody Williams, After the Guns Fall Silent: The Enduring Legacy of Landmines (Washington, DC: VVAF, 1995), 11.

(8) Conca and Wallace (n 4) 63, 70–1.

(9) ibid. 70.

(10) UNEP (n 3) 5, 19.

(11) Mine action comprises five complementary groups of activities: Mine Risk Education; Land Release/Mine Clearance; Victim Assistance; Stockpile Destruction; and Advocacy. In this chapter, we will only focus on mine clearance on land.

(12) UNEP, Protecting the Environment During Armed Conflict. An Inventory and Analysis of International Law (UNEP, 2009), 34.

(13) ICRC, ‘Customary IHL Database’, at <http://www.icrc.org/customary-ihl/eng/docs/v1_rul> accessed 28 August 2015.

(14) Handicap International, What Rights for Mine Victims? Reparation, Compensation: From Legal Analysis to Political Perspectives (Lyon: Handicap International, 2005), 20.

(15) Michael Bothe, ‘The Protection Of The Environment In Times Of Armed Conflict’ (1991) 34 German Yearbook of International Law 54; Jay E. Austin and Carl E. Bruch (eds.), The Environmental Consequences of War: Legal, Economic, and Scientific Perspectives (Cambridge: Cambridge University Press, 2000).

(16) UNEP (n 12) 28.

(17) Michael Bothe, Carl E. Bruch, Jordan Diamond, and David Jensen, ‘International Law Protecting the Environment During Armed Conflict: Gaps and Opportunities’ (2010) 92 International Review of the Red Cross 569, 578–9.

(18) ILC, Third Report on the Protection of the Environment in Relation to Armed Conflict, UN Doc. A/CN.4/700, 3 June 2016, para. 266.

(19) On an overview of the just war tradition from a historical perspective, see David D. Corey and J. Daryl Charles, The Just War Tradition (Wilmington, DE: ISI Books, 2012).

(20) Brian Orend, ‘Jus Post Bellum’ (2000) 31 Journal of Social Philosophy 117, 117–18.

(21) Jennifer S. Easterday, Jens Iverson, and Carsten Stahn, ‘Exploring the Normative Foundations of Jus Post Bellum: An Introduction’ in Carsten Stahn, Jennifer S. Easterday, and Jens Iverson (eds), Jus Post Bellum – Mapping the Normative Foundations (Oxford: Oxford University Press, 2014), 1–2.

(22) Carsten Stahn, ‘Jus Post Bellum: Mapping the Discipline(s)’ in Carsten Stahn and Jann K. Kleffner (eds.), Jus Post Bellum. Towards a Law of Transition From Conflict to Peace (The Hague: TMC Asser Press, 2008), 101–2.

(23) Eric De Brabandere, ‘The Responsibility for Post-Conflict Reforms: A Critical Assessment of Just Post Bellum as a Legal Concept’ (2010) 43 Vanderbilt Journal of Transnational Law 119, 149.

(24) Roxana Vatanparast, ‘Waging Peace: Ambiguities, Contradictions, and Problems of a Jus Post Bellum Legal Framework’ in Stahn, Easterday, and Iverson (n 21) 155–7.

(25) Seth Lazar, ‘Skepticism about Jus Post Bellum’ in Larry Marry and Andrew T. Forcehimes (eds.), Morality, Jus Post Bellum, and International Law (New York: Cambridge University Press, 2012), 218–22.

(26) Carsten Stahn, ‘ “ Jus Ad Bellum”, “Jus in BelloJus Post Bellum”?—Rethinking the Conception of the Law of Armed Conflict’ (2006) 17 European Journal of International Law 921, 942.

(27) Jennifer S. Easterday, ‘Peace Agreements as a Framework for Jus Post Bellum’ in Stahn, Easterday, and Iverson (n 21) 382.

(28) Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction, adopted 18 September 1997, entered into force 1 March 1999, 2056 UNTS 211 Art. 5(4)(c); The Convention on Cluster Munitions, adopted 30 May 2008, entered into force 1 August 2010, 2688 UNTS 39 Art. 4(6)(h). The initial deadline for a state party to the APMBC to destroy or ensure the destruction of all known anti-personnel mines in mined areas under its jurisdiction or control is ten years after entry into force of the convention for that state party. A state party to the CCM also has a maximum of ten years after entry into force of the convention for that state party to clear and destroy cluster munition remnants located in cluster munition contaminated areas under its jurisdiction or control.

(29) APMBC (n 28) Art. 7(1)(f); CCM (n 28) Art. 7(1)(f).

(30) Protocol on Explosive Remnants of War to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons which may be deemed to be Excessively Injurious or to have Indiscriminate Effects, adopted 28 November 2003, entered into force 12 November 2006, 2399 UNTS 100, preambular paragraph 2.

(31) Third Conference of the High Contracting Parties to Protocol V on Explosive Remnants of War to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, Final Document, UN Doc. CCW/P.V/CONF/2009/9, 23 November 2009, para. 36; Fourth Conference of the High Contracting Parties to Protocol V on Explosive Remnants of War to the Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have Indiscriminate Effects, Final Document, UN Doc. CCW/P.V/CONF/2010/11, 14 February 2011, para. 31.

(32) Draft principle as proposed by the Special Rapporteur reads as follows: ‘1. Without delay after the cessation of active hostilities, all minefields, mined areas, mines, booby-traps, explosive ordnance and other devices shall be cleared, removed, destroyed or maintained in accordance with obligations under international law; 2. At all times necessary, the parties shall endeavour to reach agreement, both among themselves and, where appropriate, with other States and with international organizations, on the provision of technical and material assistance, including, in appropriate circumstances, the undertaking of joint operations necessary to fulfil such responsibilities.’ ILC, Report of the International Law Commission, Sixty-eighth Session (2 May–10 June and 4 July–12 August 2016), UN Doc. A/71/10, footnote 1306.

(33) Mary B. Anderson, Do No Harm: How Aid Can Support Peace—or War (Boulder, CO: Lynne Rienner Publishers, 1999).

(34) UN Security Council Resolution 1925, UN Doc. S/RES/1925, 28 May 2010, para. 12s.

(35) UN DPKO and UN DFS, Civil Affairs Handbook (United Nations, 2012), 70–1.

(36) UN Security Council Resolution 1996, UN Doc. S/RES/1996, 8 July 2011, para. 3c.

(37) Protocol additional to the Geneva Conventions of 12 August 1949, adopted 8 June 1977, entered into force 7 December 1978, 1125 UNTS 3 Art. 35.

(38) ibid. Art. 51.

(39) For the positive impact of contamination on the environment, see Asmeret A. Berhe, ‘The Contribution Of Landmines To Land Degradation’ (2007) 18 Land Degradation & Development 1, 7; Roberts and Williams (n 7) 93.

(40) Richard Matthew, Mark Halle, and Jason Switzer (eds.), Conserving The Peace: Resources, Livelihoods And Security (Winnipeg, Man.: International Institute for Sustainable Development, 2002), 16; Bruce Gray, ‘Landmines: The Most Toxic and Widespread Pollution Facing Mankind’ (Colloquium–Towards Ottawa and beyond: de-mining the region, University of Sydney, 14–17 July 1997), at <http://www.ecn.ab.ca/~puppydog/bgray.htm> accessed 28 August 2015; Carl E. Bruch, David Jensen, Mikiyasu Nakayama, Jon Unruh, Rebecca Gruby, and Ross Wolfarth, ‘Post-Conflict Peace Building And Natural Resources’ (2008) 19 Yearbook of International Environmental Law 58; GICHD and UNDP, Leaving No One Behind. Mine Action and the Sustainable Development Goals (Geneva: GICHD, 2017).

(41) Draft principle as proposed by the Special Rapporteur reads as follows: ‘1. States and international organizations shall cooperate to ensure that remnants of war do not constitute a danger to the environment, public health or the safety of seafarers; 2. To this end States and organizations shall endeavour to survey maritime areas and make the information freely available.’ ILC (n 32) footnote 1306.

(42) FAO, Lebanon: Damage and Early Recovery Needs Assessment of Agriculture, Fisheries and Forestry (FAO, 2006), 10.

(43) UNEP (n 7) 155; Roberts and Williams (n 7) 11.

(44) Claudio Torres-Nachón, ‘The Environmental Impacts of Landmines’ in Kenneth Rutherfordet al. (eds), Landmines and Human Security. International Politics and War’s Hidden Legacy (Albany, NY: State University of New York Press, 2004), 197; Berhe (n 39) 12–13; Roberts and Williams (n 7) 11, 93, 197, 247.

(45) Jim Monan, Landmines and Underdevelopment: A Case Study of Quang Tri Province, Central Vietnam (Kowloon, Hong Kong: Oxfam Hong Kong, 1995), 13; Gray (n 40) 5.

(46) Berhe (n 39) 8; UNEP, A Rapid Assessment of the Impacts of the Iraq-Kuwait Conflict on Terrestrial Ecosystems. Part II: Kuwait (UNEP, 1991); Rafaat Misak and Samira Omar, ‘Environmental Damages from Minefields’ (2008) 11(2) Journal of Mine Action 40, 40.

(47) Monan (n 45) 13.

(48) Volodymyr Kuznyetsow, ‘Some Aspects of Environmental Interactions Related to UXO’ (Unexploded Ordnance Detection and Mitigation Conference, II Ciocco, 20 July–2 August 2008).

(49) UNMAS, IMAS 04.10. Glossary of Mine Action Terms, Definitions and Abbreviations (UNMAS, 2nd edn, 2003), Art. 3.176.

(50) Berhe (n 39) 8.

(51) GICHD, A Handbook of Mechanical Demining (Geneva: GICHD, 2009), 133; Berhe (n 39) 8.

(52) UNMAS, IMAS 10.70. Safety & Occupational Health—Protection of the Environment (UNMAS, 2007).

(53) ibid. Art. 6.1; GICHD (n 51) 97, 129.

(54) Ursign Hofmann and Pascal Rapillard, ‘ “Do no harm” in Mine Action: Why the Environment Matters’ (2015) 19(1) The Journal of ERW and Mine Action 1, 7.

(55) UNMAS, IMAS 09.50. Mechanical Demining (UNMAS, 2006), Art 10.1; UNMAS (n 52).

(56) Brian Orend, ‘Jus Post Bellum: A Just War Theory Perspective’ in Stahn and Kleffner (n 22) 31–52.

(57) GICHD, A Guide to Liability and Insurance in Mine Action (Geneva: GICHD, 2011), 8–9.

(58) ‘Maasai and Samburu Win Compensation from Britain for Landmine Victims’ (Cultural Survival, July 2008), at <https://www.culturalsurvival.org/news/maasai-and-samburu-win-compensation-britain-landmine-victims> accessed 28 August 2015.

(59) Handicap International (n 14) 13–14.

(60) ILC, Report of the International Law Commission, Fifty-third Session (23 April–1 June and 2 July–10 August 2001), UN Doc. A/56/10.

(61) APMBC (n 28) Art. 8; CCM (n 28) Art. 8.

(62) Handicap International (n 14) 20.

(63) APMBC (n 28) Art. 5; CCM (n 28) Art. 4.

(64) APMBC (n 28) Art. 6; CCM (n 28) Arts. 5–6.

(65) Michael Polkinghorne and James Cockayne, ‘Dealing with the Risks and Responsibilities of Landmines and their Clearance’ (2001) 25 Fordham International Law Journal 1187, 1194–5.

(66) Carsten Stahn, ‘Jus Post Bellum Symposium: Jus Post Bellum and the Ethics of Care’ (Opinio Juris, 9 May 2014), at <http://opiniojuris.org/2014/05/09/jus-post-bellum-symposium-jus-post-bellum-ethics-care> accessed 28 August 2015.

(67) On different approaches to the responsibility to rebuild in jus post bellum see for instance Garry J. Bass, ‘Jus Post Bellum’ (2004) 32 Philosophy & Public Affairs 384–412; James Pattison, ‘Jus Post Bellum and the Responsibility to Rebuild’ (2013) 45 British Journal of Political Science 635–61.

(68) Larry Mary, After War Ends. A Philosophical Perspective (Cambridge: Cambridge University Press, 2012), 168–9.

(69) International Law Institute, Responsibility and Liability under International Law for Environmental Damage (1997), Arts. 1 and 4.

(70) Handicap International (n 14) 18–20.

(71) Elke Schwager, Ius Bello Durante et Bello Confecto. Darstellung am Beispiel von Entschädigungsansprüchen der Opfer von Antipersonenminen (Berlin: Duncker & Humblot, 2008), 254; Richard R. Murray and Kelley L. Fabian, ‘Compensating the World’s Landmine Victims: Legal Liability and Anti-Personnel Landmine Producers’ (2003) 33 Seton Hall Law Review 303, 336–40.

(72) Murray and Fabian (n 71) 342–3, 367.

(73) Kristen Boon, ‘The Application of Jus Post Bellum in Non-International Armed Conflict’ in Stahn, Easterday, and Iverson (n 21) 263–4.

(74) Annyssa Bellal, Gilles Giacca, and Stuart Casey-Maslen, ‘International Law And Armed Non-State Actors in Afghanistan’ (2011) 93 International Review of the Red Cross 47, 56.

(75) Andrew Clapham, The Rights and Responsibilities of Armed Non-State Actors: The Legal Landscape & Issues Surrounding Engagement, at <http://ssrn.com/abstract=1569636> accessed 28 August 2015.

(76) Bellal, Giacca, and Casey-Maslen (n 74) 62.

(77) William A. Schabas, ‘Punishment of Non-State Actors in Non-International Armed Conflict’ (2002) 26 Fordham International Law Journal 907, 915.

(78) Bellal, Giacca, and Casey-Maslen (n 74) 67–73.

(79) Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Humanitarian Law. Volume I: Rules (Cambridge; New York: Cambridge University Press, 2005), 151.

(80) Stahn (n 66).

(81) Douglas Lackey, ‘Postwar Environmental Damage: A Study in Jus Post Bellum’ in Larry Mary and Zachary Hoskins (eds.), International Criminal Law and Philosophy (New York: Cambridge University Press, 2010), 144.

(82) Sigal Ben-Porath, ‘Care Ethics and Dependence—Rethinking Jus Post Bellum’ (2008) 23 Hypatia 61, 65.

(83) Clapham (n 75) 34.

(84) Anthea Roberts and Sandesh Sivakumaran, ‘Lawmaking by Nonstate Actors: Engaging Armed Groups in the Creation of International Law’ (2012) 37 Yale Journal of International Law 107, 126–31.

(85) Schabas (n 77) 907–33.

(86) UN Security Council Resolution 687, UN Doc. S/RES/687, 8 April 1991, para. 16.

(87) See chapter 14 in this volume.

(88) UNCC, ‘Reports and Recommendations of the Panels of Commissioners’, at <http://www.uncc.ch/reports-and-recommendations-panels-commissioners> accessed 28 August 2015.

(89) Handicap International (n 14) 25.

(90) Schwager (n 71) 115.

(91) Handicap International (n 14) 22–3.

(92) Corfu Channel Case (UK v. Albania) (Merits), Judgment of 9 April 1949, ICJ Reports 1949, 22.

(93) Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits), Judgment of 27 June 1986, ICJ Reports 1986, 147.

(94) Handicap International (n 14) 27; Polkinghorne and Cockayne (n 65) 1197–8.

(95) Schwager (n 71) 188; Polkinghorne and Cockayne (n 65) 1194–5.

(96) GICHD (n 57) 37; Polkinghorne and Cockayne (n 65) 1201; Pehr Lodhammar, ‘Legal Aspects of the Land Release Process’ (2013) 17(1) The Journal of ERW and Mine Action 20, 20.

(97) UNMAS (n 49) Art. 3.249.

(98) Lodhammar (n 96) 20.

(99) UNMAS, IMAS 08.30. Post-clearance Documentation (UNMAS 2nd edn, 2003), Art. 4.4; UNMAS, IMAS 07.11. Land Release (UNMAS, 2013), Art. 11.

(100) UNMAS, IMAS 07.11. Land Release (n 99) Art. 11; GICHD (n 57) 9–10; Lodhammar (n 96) 21.

(101) Sean Moorehouse, ‘Land Release Liability’ (2014) 18(2) The Journal of ERW and Mine Action 4, 6.

(102) Pehr Lodhammar (n 96) 21–2.

(103) UNMAS, IMAS 07.11. Land Release (n 99) Art. 11.

(104) Fantham v. RONCO (2011) 1:2011cv00762.

(105) Lodhammar (n 96) 22.

(106) Kristian Berg Harpviken and Rebecca Roberts, ‘Conclusions’ in Kristian Berg Harpviken and Rebecca Roberts (eds.), Preparing the Ground for Peace. Mine Action in Support of Peacebuilding (Oslo: PRIO, 2004), 55.

(107) Angela de Santis and Ursin Hofmann, ‘Environmental Risks of Remnants of Conflict: How to “do no harm” in Mine Action’ in Marc Stalet al. (eds.), IDRC 2014. Extended Abstracts, Oral Presentations, Special Panels, Sessions and Workshops, 24–28 August 2014, Davos, Switzerland (Global Risk Forum, 2014), 334.

(108) Andrew T. Forcehimes and Larry Marry, ‘Conclusion’ in Marry and Forcehimes (n 25) 256.