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Toxic Harm: Humanitarian and Environmental Concerns from Military-origin Contamination


July 23, 2017
Dr. Mohamed Ghalaieny / The Toxic Remnants of War Project

Exposure to dioxin has been implicated as a cause of birth defects documented in Vietnamese civilians, yet the problem is only now being acknowledged and is still far from resolved -- more than 40 years after the initial contamination. In light of the inherent uncertainty in studying the origins of disease, a key question involves the need for the precautionary principle, which necessitates preventative action in the face of uncertainty and forms the basis of many peacetime health protection norms.

http://www.toxicremnantsofwar.info/wp-content/uploads/2013/03/Toxic_Harm_TRWProject.pdf

Toxic Harm: Humanitarian and
Environmental Concerns from Military-origin Contamination

Dr. Mohamed Ghalaieny / The Toxic Remnants of War Project

Executive Summary

Introduction

This paper introduces concerns over civilian and environmental harm stemming from the release of toxic substances during military activities, and discusses the need for action based on an assessment of the current legal and practical measures in place for environmental protection during and after conflict.

In doing so it presents an argument in favour of a humanitarian-centered approach to reducing harm from Toxic remnants of War (TRW) based on peacetime norms, and presents a framework methodology for the scientific study of military-origin contamination.

Background and Rationale
The TRW project focuses on weapons and military practices that release materials with incidental or unintentional toxicity. a framework to identify TRW has been developed as part of the project (outlined in appendix 5). TRW are defined as: 'Any toxic or radiological substance resulting from military activities that forms a hazard to humans and ecosystems'.

Dioxin contamination from Agent Orange (AO) spraying in Vietnam is a key example of the need for a formalised mechanism to deal with conflict-related pollution. US authorities were aware that the AO was contaminated with dioxin at the time but continued to use it on the basis of the military advantage they felt that defoliation offered.

Exposure to dioxin has subsequently been implicated as a cause of the birth defects documented in Vietnamese civilians, yet the problem is only now being acknowledged and is still far from resolved, more than 40 years after the initial contamination.

In light of the inherent uncertainty in studying the environmental origins of disease, a key question throughout this work is the need for an approach based on the precautionary principle, which necessitates preventative action in the face of uncertainty and forms the basis of many peacetime health protection norms.

Humanitarian and Public Health Concerns
Contemporary examples of conflict-related public health concerns with environmental associations highlight the difficulty in mapping harm and attributing causality.

Reported increases in cancers and birth defects in both Iraq, and the town of Quirra (near the Polygone Interforze Salto di Quirra military facility) in southern Sardinia, were difficult to conclusively corroborate through epidemiological studies.

Speculation over similar cases of conflict-related public health problems exists elsewhere, for example in Palau, but data constraints are likely to parallel those in Iraq and Quirra. However, it remains necessary to determine the sources of such problems in order to guide both health assistance and appropriate actions to avoid future harm.

Harm, Uncertainties and the Role of Precaution'
Epidemiological studies, environmental assessment and evidence of exposure can all assist in resolving controversies regarding the environmental origins of disease. unsurprisingly, any association with vested interests such as industrial or military activities can trigger controversy.

However, epidemiology can struggle to establish harm if the population studied is a small one; this necessitates different approaches. Limitations in determining the risks associated with exposure to chemical substances of military origin stem from a variety of factors, including, but not limited to: the complexity of assessing the toxicity of mixed exposures; the lack of complete toxicological information for many substances; and the lack of reliable exposure models for civilian populations; in addition to complications arising from chemical and physical transformations occurring to substances after their release into the environment.

In the face of uncertainty and incomplete evidence, there is scope for applying the precautionary principle, and using it to inform primary, secondary or tertiary harm prevention measures. However this does not negate the need to adequately study the health and environmental effects of contaminants.

A Humanitarian Centered Approach to Military-origin Contamination
There are significant disparities between the protection from toxic chemicals afforded to residents and consumers in belligerent states, and the protection of civilians from chemical exposures during or after conflict.

A humanitarian-centered approach, underpinned by the precautionary principle could ensure that civilian and environmental health during con ict is better protected through four measures: improved testing of weapon components for toxicity; clearer state responsibility for measures to reduce the generation of TRW; constraints on the use of certain weapons in particular settings and more clearly defined obligations for post-conflict assistance.

The adoption of such measures could help ensure that the basic human right to health is safeguarded, in a parallel to peacetime health and environmental protection standards, such as the European Union's REACH legislation and domestic regulations for the management of contaminated land.

Existing Environmental Protection Legal Aspects
There is consensus amongst experts, including the ICRC, that legal protection for the environment during war is inadequate and needs further development. A major limitation of treaty-based international Humanitarian Law (IHL) is the high threshold of damage required for it to take effect and the fact that obligations for remediation are not covered. Customary international law is thought to have good potential to address these deficiencies.

Work remains to be done to increase our knowledge of the risks and negative environmental effects of substances in order to better inform any legal process, but many dual use substances are already defined as hazardous and controlled under peacetime regulatory frameworks.

Practical Efforts and Measures
As with legal protection, there are deficiencies in the practical responses following conflicts, for example in the fields of environmental protection, assessment and remediation.

Where practical measures exist, they are often limited by state capacity and donor interest or the logistical difficulties posed by post-conflict environments; as such they are often conducted on an ad hoc basis. Research into the environmental and toxic effects of weapons rarely includes an analysis of potential civilian harm; while state obligations for remediation after conflict are unclear or wholly absent.

Conclusion
The TRW project was launched over concerns about risks to civilian and environmental health from substances used in weapons and military practices that may generate significant environmental contamination. History has demonstrated that particular materials or compounds may be deployed on the basis of perceived military need, with little knowledge of their potential impact.

Even for relatively well-known substances, our understanding of the risks they pose is limited. These uncertainties should be of concern to military planners, policy makers and civil society alike. Scrutiny over the acquisition, assessment and use of particular substances is also limited, and militaries often remain outside regulatory frameworks.

State practice demonstrates that legal restrictions on the targeting of industrial facilities are insufficiently robust, similarly, military environmental compliance overseas is poorly regulated, which allows the prevalence of harmful practices.

Identifying harm following the use of particular substances is fraught with difficulties and this has delayed victim assistance and remediation; even in benign settings, establishing causality is a complex task. Factors common to many post-conflict environments pose challenges to assessment and research methodologies, there is therefore a key role for precautionary thinking and values.

There is consensus that the legal standards for the protection of the environment during conflict need strengthening, this could be informed by principles found in customary IHL, environmental and human rights law. Given the broad scope of the problems, no single solution is likely, instead thought should be given to pragmatic and effective preventative and restorative measures. In a 2011 review, the ICRC proposed possible solutions for dealing with toxic materials and for clarifying state obligations for assistance.

To help resolve some of these problems, the TRW project proposes a humanitarian-centered framing, which safeguards environmental quality and by extension civilian health. We believe that peacetime norms and values could make an important contribution to environmental justice and civilian protection in post-conflict settings.

While it may pose political and technical challenges, we believe that the developing TRW framing could offer the opportunity to resolve some of the current inadequacies in civilian protection from conflict toxics, help provide the political impetus for action and create a welcome opportunity to unite environmental protection with the emergent field of humanitarian disarmament.

Recommendations
1. Build an Evidence Base of Problematic Substances and Practices:

A framework for the further study of TRW is presented in section 5: appendix of this paper. The framework considers practices and activities that may result in the release of substances of concern, it then proceeds to classify these substances based on their environmental and toxicological properties. such an evidence base would help inform further study or, where necessary, stricter regulation.

2. Build Capacity for the Assessment of TRW:
Civilian epidemiological research could be improved through the increased characterisation of environmental contamination in conflict zones, which in turn requires increased support for affected states, international organisations and civil society to undertake monitoring and assessment.

3. Develop Novel and Rigorous Conflict Epidemiology:
There is a need for more novel and rigorous environmental epidemiological studies of conflict-related public health problems, in order to establish the extent of their link to military-origin contamination.

4. Apply a Humanitarian-centered Approach to TRW:
Precautionary measures form the basis of the proposed humanitarian-centered approach to TRW, which is in turn rooted in peacetime health and environmental protection standards.

Primary preventative measures to reduce harm from TRW could seek to standardise assessment and encourage replacement of the most problematic substances; secondary measures could ensure the early detection and monitoring of health and environmental problems; and tertiary measures would support environmental remediation and assistance to affected communities.

5. Use TRW to Improve Legal Protection for the Environment:
Efforts to enhance legal protection for the environment through IHL are inextricably linked to protecting its civilian inhabitants. Thus a humanitarian-centered TRW framing, which synthesises elements of IHL, environmental law and human rights law, could help catalyse efforts to improve protection for the environment during and after conflict.

Any such efforts should take place alongside the consideration of practical measures, such as mechanisms to fund post-conflict assessment and remediation, and a clarification of state obligations for assistance.

Posted in accordance with Title 17, Section 107, US Code, for noncommercial, educational purposes.

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