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

Article excerpt

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. …