The International Law of Environmental Warfare: Active and Passive Damage during Armed Conflict

Jensen, Eric Talbot, Vanderbilt Journal of Transnational Law

ABSTRACT

One of the constant elements of warfare is its degrading effects on the environment. Many writers blame this destruction of the environment on inadequate standards in the international law of environmental warfare. To remedy this shortfall, the international law of environmental warfare should be categorized as either passive or active environmental warfare. Active environmental warfare requires the intentional "use" of the environment as a weapon of waging armed conflict. Passive environmental warfare includes acts not specifically designed to "use" the environment for a particular military purpose but that have a degrading effect on the environment. Passive environmental warfare violates international law only when it produces effects that are widespread, long-term, and severe. Active environmental warfare against the sustainable environment that is not de minimus violates international law per se and should not require environmental damage to reach the standard of widespread, long-tasting, and severe to be considered a violation of international law. A well-recognized differentiation between active and passive environmental warfare will help solidify the standards of state responsibility and provide increased protection for the environment.

TABLE OF CONTENTS

  I. INTRODUCTION
 II. THE ENVIRONMENT
III. PASSIVE AND ACTIVE ENVIRONMENTAL WARFARE
 IV. INTERNATIONAL LAW OF ENVIRONMENTAL WARFARE
     A. Passive Environmental Warfare: The
        Environment as Victim
        1. Limitation of the Right to Injure
           the Enemy
        2. The "No Harm" Principle
        3. Specific Protections for the
           Environment as a Victim
        4. Conclusion
     B. Active Environmental Warfare:
        Environment as Weapon
        1. International Law and Active
           Environmental Warfare
        2. Military Necessity
        3. Conclusion
  V. THE NEED FOR A CHANGE
 VI. A PROPOSED SOLUTION
     A. Convention on the Protection of the
        Environment During Armed Conflict
     B. Textual Analysis
VII. CONCLUSION

And it came to pass, as they fled from before Israel, and were in the going down to Bethhoron, that the LORD cast down great stones from heaven upon them unto Azekah, and they died: they were more which died with hailstones than they whom the children of Israel slew with the sword.

And the sun stood still, and the moon stayed, until the people had avenged themselves upon their enemies. (1)

I. INTRODUCTION

From the beginning of recorded history, war has played a major role in shaping the course of events. Though geography changes, nations come and go, vanquished turn into conquerors, and victors become victims, one of the constant elements of warfare is its degrading effects on the environment. (2) Concurrent with war's deleterious effects on the environment, man has from time to time attempted to harness the overwhelming powers inherent in the environment and unleash them on his enemies. (3)

This was graphically demonstrated as recently as the 1991 Gulf War. The environmental destruction that occurred in that short war appalled the world (4) and set new levels in man's willingness to destroy his surroundings while waging hostilities. (5) Many observers expected similar environmental warfare during the 2003 Gulf War, (6) and there is clear evidence that there were plans to do so that were never executed. (7)

Many writers blame this intended destruction of the environment on inadequate standards in the international law of environmental warfare. (8) After the first Gulf War, there was a flurry of comment on the status of the law. A host of writers urged the international community to adopt either a new convention to protect the environment during times of armed conflict, (9) create a "Green Cross" counterpart to the Red Cross, (10) convene an International Environmental Court, (11) or to enforce more strictly existing standards of international law. (12) Others argued that the current law was sufficiently clear and the standards easily applied. (13) Making the discussion even more difficult is a debate as to whether the damage done during the first Gulf War violated the current international standard. (14)

The resilience of the environment over time ought not to excuse from international accountability military leaders who intentionally target the environment as a method of warfare. Rather, treatment of the environment during international armed conflict should be classified as either active, meaning using the environment as a weapon, or passive, meaning acts that do not "use" the environment but have deleterious effects on the environment. Active environmental warfare that damages the sustainable environment should be viewed as a violation of both international law and the law of war, and it should not require evidence of widespread, long-term, and severe damage.

This Article will initially discuss the definition of "environment," and then divide wartime treatment of the environment into two categories, active and passive. The international law of environmental warfare, including man's attempts to protect the environment during times of hostilities as well as exclude the environment as a means of warfare, will be analyzed, and these protections will be categorized as regulating either passive or active environmental warfare. The Article will then argue that the current effects-based analysis, which is described below, is effective only against passive environmental warfare. Active environmental warfare against the sustainable environment that is not de minimus violates international law per se and should not require environmental damage to reach the standard of widespread, long-lasting, and severe to be considered a violation of international law. In addition, the paper will discuss the justification of military necessity and analyze why such a justification can apply only to passive and not to active environmental warfare. Finally, a Convention on the Protection of the Environment During Armed Conflict will be proposed and explained as a method to proscribe active environmental warfare. This convention will codify the active and passive environmental warfare distinction and clarify international responsibility for violations of international environmental law.

II. THE ENVIRONMENT

Arriving at an acceptable definition of "environment" presents an initial difficulty in trying to analyze the current state of international law in the area of environmental warfare. Many international treaties and conventions have endeavored to define environment in this context, most with only limited success, (15) and others have avoided the problem by not offering a definition at all. (16) Scholars have also made attempts in this area with similarly limited success. (17)

One of the most descriptive definitions of environment is found in the 1977 United Nations Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD). (18) The ENMOD Convention defines environment as "the Earth, including its biota, lithosphere, hydrosphere and atmosphere, or ... outer space." (19) Although descriptive, this definition provides little clarity. Based on this definition, it is difficult to imagine any form of warfare that would not have serious environmental effects, making it equally hard to provide adequate protections for the environment. (20)

One scholar has proposed defining environment as "anything that is not man-made." (21) There may be real utility in this broad definition in that it may remove the importance of defining the environment at all. He argues "[t]he only reason for defining [environment and environmental damage] more explicitly would be to attempt to place an absolute limit on environmental damage that cannot be exceeded by a military commander," (22) an unnecessary limitation in his view.

These broadly inclusive definitions, and similar definitions in other multinational documents and writings, reflect the increasing desire of the international community to broaden environmental protections in all situations, especially those that are known to be potentially the most dangerous to the environment.

Compounding the difficulty of applying international legal regulation to the environment are competing views as to why the environment merits protection. One view, known as the anthropocentric or utilitarian view, is that the environment is worth protecting only insofar as it provides some benefit to humans. (23) The opposing view is the intrinsic value view, which holds that the environment is worth protecting as an end in itself, regardless of potential utility to humans. (24) This intrinsic value view of the environment, while not generally accepted by nations, would almost certainly provide greater protections for the environment over time (25) and may be gaining favor. (26)

Despite the inability of the international legal community to agree on a useful definition of environment, it is clear that the trend in the international community is to view the environment as a very broad and inclusive entity. In fact, the lack of definitional precision seems to be a result of not wanting to narrow the scope of legal coverage for the environment. (27) Therefore, although a specific definition may be useful in a general sense, the lack of clarity and broader coverage of environmental protections it will provide may prove more valuable over time.

III. PASSIVE AND ACTIVE ENVIRONMENTAL WARFARE

Adopting a broad definition of environment allows extensive inclusion of wartime acts and their effects on the environment in analyzing what wartime acts are illegal. Because the environment is so expansive, virtually all wartime acts will have some effect on the environment. (28) The difficulty then becomes differentiating the severity of specific acts and determining which are violations of international law or the law of war. This is a vital inquiry because unless an act has repercussions under international law or the law of war, wartime leaders, such as Saddam Hussein in Gulf Wars I and II, have little incentive to abide by environmental preservation requirements.

Under the current application of the law of war, the inquiry is completely an effects-based inquiry. As will be discussed in detail below, (29) unless it can be determined that a specific wartime act will result in "widespread, long-lasting, and severe" damage to the environment, neither international law nor the law of war is effective in deterring or sanctioning military leaders who inflict grievous damage to the environment, regardless of their intentions. This current state of the law is unacceptable. Not only is it unlikely that the international community will be able to make such a determination without the benefit of the passage of time--making a timely sanction impossible (30)--but the standard relies completely on the effects of the act on the environment and takes no account for the intention of the actor. (31)

The best way to clarify existing international law and provide greater legal protection to the environment would be to classify environmental damage as either passive or active. This classification would allow for differentiating the severity of international law violations based on the target of the attack rather than on waiting to see the effects of the attack and, therefore, provide the international community the opportunity to determine the intent of the actor and seek more appropriate remedies for such violations.

Passive environmental warfare includes acts not specifically designed to "use" the environment for a particular military purpose but rather that have a degrading effect on the environment. These wartime acts may be completely unrelated to the environment in terms of the intent of the parties, yet they still have consequences that directly affect the surrounding environment.

An example of passive environmental warfare is the use of artillery. While artillery bombardment is not a "use" of the environment, it has secondary environmental effects on as destruction of plant life, disruption of natural animal habitats, etc. Another example is the disruption of the natural environment caused by the mass movement of large military armored vehicles. (32) It is most likely not the intent of the belligerents to cause environmental damage in this way. They are not moving their vehicles in order to damage the environment, but it occurs as a secondary effect of waging war.

In contrast to passive environmental warfare, active environmental warfare requires the intentional "use" of the environment as a weapon of waging armed conflict. Employing the environment as an "instrument of warfare" has been defined as "the use of the environment that might cause damage to the enemy or interference with an enemy military or combat activity." (33) This can occur through the operation of any conceivable instrument, such as conventional or unconventional weapons, natural forces, or resources.

Excluded from this definition is military action in connection with existing environmental conditions. For example, launching a military satellite to track weather information and to advise military units so they can avoid possible damage does not rise to the level of "use" in the foregoing definition. (34)

Active environmental warfare includes inducing earthquakes or other natural disasters, weather manipulation, and climate modification, (35) where these activities are intentionally conducted to disrupt enemy movements or to destroy enemy forces. Other examples include redirecting waterways or releasing stored water to flood trafficable areas, (36) seeding clouds to produce rain, setting forest fires to direct military forces, and fouling internal waters to prevent movement of forces. (37) In short, active environmental warfare involves the deliberate harnessing of the environment as an instrument for conducting hostilities. In this sense the environment is not just the field upon which war takes place, but instead it is an actively used tool of war.

Therefore, in active environmental warfare the environment is the weapon, whereas, in passive environmental warfare the environment is merely the victim of wartime acts. The differentiation between active and passive environmental warfare becomes significant when analyzing the standards under which a nation violates international law. The determination of whether a nation's breach is one of active use or passive result is pivotal in deciding liability and potential consequences of such a breach. It is unlikely that warfare can ever be cleansed of its passive effects on the environment. But to protect the environment from the most serious dangers, it is essential to eliminate the intentional use of the environment as a weapon during armed conflict.

This is a key distinction given the events of the past few decades, including the Persian Gulf Wars. Had the active and passive differentiation been in place before the environmental destruction of the 1991 Gulf War, it may have been easier for the international community to have exacted reparations in line with Security Council Resolution 687. (38) A clear understanding and concrete application of this differentiation will increase the international community's ability to hold a nation, and its leaders, responsible for specific damage done to the environment during armed conflict.

IV. INTERNATIONAL LAW OF ENVIRONMENTAL WARFARE

It has become commonplace in the last decade to say that "the importance of protecting the environment has become increasingly obvious." (39) The events of the Persian Gulf Wars have only served to accelerate that trend. (40) While there are more than 900 treaties that have provisions dealing with environmental protection, (41) none attempts to create an integrated approach to environmental warfare regulation. The following is a brief analysis of the most significant international law documents that directly or indirectly provide protections for the environment during war. This analysis will be divided into two areas: protection of the environment from passive wartime effects (when the environment is the victim of hostilities), and prevention of and limitations on active environmental warfare (when the environment is the weapon in hostilities). (42)

A. Passive Environmental Warfare: The Environment as Victim

Attempts to protect the environment from the ravages of war began much sooner than attempts to limit man's ability to use the environment as a weapon. Consensus that the natural environment was a victim of warfare began to solidify in the 1800s, and it started with the growing commitment that warfare was limited, that combatants were constrained in their means and methods of conducting hostilities, and that their right to injure the enemy was not unlimited. Growing concurrently with that principle was the "no harm" principle, the idea that one state cannot use or permit the use of its territory to harm another state. The establishment of these general principles led to the development of a number of specific provisions more focused on the environment and its protections.

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Publication information: Article title: The International Law of Environmental Warfare: Active and Passive Damage during Armed Conflict. Contributors: Jensen, Eric Talbot - Author. Journal title: Vanderbilt Journal of Transnational Law. Volume: 38. Issue: 1 Publication date: January 2005. Page number: 145+. © 1999 Vanderbilt University, School of Law. COPYRIGHT 2005 Gale Group.

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