Michael N. Schmitt
war crime, environmental damage, environmental degradation, international humanitarian law, environmental consequences of warfare, International Criminal Court, military operations, environmental safeguarding, weapons, treaty law
When the Rome Conference adopted the Statue of the International Criminal Court (ICC) in July 1998, it included as a war crime the causation of “widespread, long term and severe damage to the natural environment.” Such “greening” of international humanitarian law promises heightened sensitivity to the environmental consequences of warfare as we enter the new millennium. The ICC Statue provision, however, is but the most recent example of a growing environmental consciousness vis-a-vis military operations that first began to surface over two decades ago.
This article catalogues those aspects of international humanitarian law that safeguard the environment during armed conflict: it is intended primarily as a primer for those new to the subject. As will become apparent, humanitarian law has focused scant attention directly on the environment. Instead, it relies on conventional and customary humanitarian law that has only recent been recognized as having environmental consequence for the bulk of its environmental play. Following a brief review of the historical context from which the law emerged, discussion turns to four types of relevant norms: 1) specific environmental provisions in humanitarian law; 2) limits on the use of particular weapons capable of causing environmental damage; 3) non-environment specific treaty law which may safeguard the environment in certain circumstances; and 4) customary humanitarian law offering environmental protection. Although the article’s tenor is primarily descriptive, in order to stimulate further reflection, the final section provides an abridged assessment of the applicable normative environment; it suggests that while the environment component of international law governing warfare is not vacuous, there is certainly room for improvement.” (265-6)
(2000) 28 Denver Journal of International Law and Policy 3 pp. 265-323
Humanitarian Law and the Environment
Jean Pascal Zanders
CBW, unnecessary suffering, international norms, security
Chemical and biological weapons (CBW) bear a moral opprobrium as they are widely viewed as indiscriminate agents of unnecessary suffering. This immorality is often presented as an article of faith. However, the belief system cannot be the sole legal, political and social reality, as otherwise CBW should logically have been banished a long time ago. While there is a long history of legal and social constraints against these weapons, such constraints are never absolute. Three aspects that have affected the application of the norm are: the lack of perceived equality between warring parties, competing legal doctrines, and the impact of technological innovation on norms. Since the social context in which the norms are developed and applied changes continually, it becomes clear that these norms must be continuously redefined in order to remain relevant. The historical analysis also shows that existing international norms have never placed the professional scientists engaging in CBW-related activities in either a moral or an ethical vacuum. Indeed, activities permitted to states under international law and custom have provided ample justification for scientists to work on CBW in support of national security. Until today, national security considerations place a great strain on the global disarmament treaties governing the development, possession and use of CBW.
(2003) 8 Journal of Conflict & Security Law 391
International Norms Against Chemical and Biological Warfare: An Ambiguous Legacy
Jay E. Austin Carl E. Bruch
International environmental law; international law of war; warfare; military activities; protected areas; tropical forests
The tactics of war have profound impacts on tropical forest ecosystems, and modern weapons technologies have greatly increased their destructive potential. Some legal protection is afforded by customary international law, and the international community responded to the Vietnam War by adopting, inter alia, the 1977 Additional Protocol I to the Geneva Conventions and the 1976 Environmental Modification Convention, which prohibit “long-term” (or “long-lasting”), “widespread,” and “severe” environmental damage. Nevertheless, many regard these and other existing conventions as inadequate, especially as applied to internal conflicts. More recently, the International Union for the Conservation of Nature-World Conservation Union (IUCN) put forth a Draft Convention on the Prohibition of Hostile Military Activities in Internationally Protected Areas. This paper analyzes the IUCN Draft Convention-particularly issues of prior designation of protected areas, waiver of protection, and monitoring and enforcement-and compares it to other relevant area-based treaties, such as the 1954 Hague Convention for the Protection of Cultural Property and the 1972 World Heritage Convention. The paper also highlights other recent legal developments that may help prevent, remediate, or punish wartime damage to tropical forests, such as the nascent International Criminal Court; liability mechanisms for providing compensation for wartime damage; environmental guidelines for military, peacekeeping and humanitarian operations; import bans and trade embargoes; and a proposed no-fault remediation fund.
(2003) 16 Journal of Sustainable Forestry 161-192
Legal Mechanisms for Addressing Wartime Damage to Tropical Forests