'Law of War' and Ecology-A Proposal for a Workable Approach to Protecting the Environment Through the Law of War

• Author: Michael Diedertch, Jr.
• Pages: 05

1. Introduction

   International law imposes constraints upon the manner by which nations wage war. The intent of this body of law-in particular, the law of war-is to minimize some of the human suffering occasioned during wartime by restricting damaging hostile activities to those required by "military necessity." Ac-cordingly, weapons that inflict unnecessary pain upon enemy soldiers, or that indiscriminately injure or kill civilians, are outlawed under various provisions of international law.

   The discoveries revealed by the evolution of environmental law and science demonstrate that the destruction of the earth's environment and ecosystems not only is a loss in and of itself, but also has the potential of imposing present and future human pain and suffering comparable to war itself.' Today's weapons have the potential to create a nuclear holocaustz, and to deposit chemical or biological residues that silently could kill and maim well into the future.

   Unfortunately, war persist^.^ With modern weapons, the

   'Afromey 81 Law Stan? Pdnf, Seu, Yark. Csptaln. USAR Pace Cnlver~lty School af Law. LL kl 1982 (environmental law), J D Smthwesfern School al Law of Lewls and Clark College, 1980. B S , Univer~ifg af Vermont 1878 (anvlronmanrsl selenee) Abriifmt Srsff Judge Advocate, lit Armored Dinsmn, Bawria, Germany 1884.81

   ' For example Ikm cancer dearha caused by ozone deBlefian 01 deaths cauaed by draught or more mtensne f r o ~ d rtormi ~n the wake af global wa~mmg. conceivably could exceed cambar IOIQ~Jm a future war*Sea, 0 g . TWCO Toon 4ekerman Pollack & Sagen .Yuuolsar W

   22 Sa 1283 (1883)1 Despite the end of the Cold Wir, warfare remain3 B plague that ha8 cauaed roughly two milllan deaths lo hundreds of small mnfllcti and 30 moderately-shed wars 181t year--an* million in Ethiopia alone The difficulty of oegatiarmni betneen the parties IS exemphiled by the dliiiculnes ~n ~eriuadingthe Arab nauoni and Israel 10 engage In meaningful negorlarlons See Owood Ftla htan'isw vifh Raiidsnf Carter (CBS menial profemon negoliafiona under hostile h I S another reasan for esfabhlhmg P'ObPeC- 137

   five 1~10s

   ~n the law Of way

   world's population risks serious damage to vital eco~y~tems.~ Therefore, governments and commanders should consider the potential environmental ramifications of combat actions. Con. straints must be imposed-constraints that balance military objectives against the overall cost of the military action, in-cluding the environmental cosls To ignore the potential for environmental damage is to ignore the risk that this damage could threaten not only various plant and animal species with extinction, but also mankind itself

   This article discusses the existing law af war as It concerns the environment, changes in international law to protect the environment further. and proposes reasoning by which commanders can balance environmental consequences against perceived military necessity

   I1 Overview of Legal Constraints on the Conduct of War

   1. Conduct of War Generally

      War is synonymous with human suffering and has been marked throughout history by periods of unrestrained barbarity. Although humanitanan conduct has been attempted by belligerents In warfare, it often is rejected. Intentional barbarism sometimes has been accompanied by a self-righteous fanaticism More often, the worst barbarism accompanied an "inter-specific" view of the adversary-that is, a view that the opponent actually 1s another species Any moral con-

      Chrisf1an.i seemed to have no greater 3cru~lei about galng to war. 07 about the merhodr of uaging If than pagans or adherents af other fallhp Indeed lhli was ramsrhing uhlch %reaafli rhoeked IHugol Grorivs Ibhe father of modern lnlema tional la* Throughour the Chrlstlsn world I observed a lark of ieirraln~ In ml~flon to UBI I observed lhar men rush to elmi for alight CPY~C 01 nocause 81 all, and !hat uhen once i i m ~ have been taken YD there 10 no longer any~ D I P D C ~ for IPW If IS as if ~n accordance rlrh P general decree frenzy had openl) been let looie for the rommirfing of 111 climes '

      -ROBERT L oca\\in or *R"i ,\" Mi\ A XIIT"?" OF IViP ii ii?"ll i \ c *GBREBIIO\

      uniform Mongol disregard of any rhared hu-

      BAILEY,

      %'AR A\D Ca\~ancr

      I\ THE \~criin AOE 36-37 (1988: (quonng H Groriurl 124, 190 (19801 An example UBJ themanity between rhemselio. and those the> arfacked id 81 100

      straints would apply only between kindred peoples or like civilizations.8

      Even kindred people, however, might face slaughter. For example, the American Civil War often was "total war'' in which no quarter was given (no prisoners taken alive), and by which war was waged successfully "by drastic measures justified with claims of righteousness."n The view of Union General Sherman was that all the destruction would force Southerners to reconsider secession. Southern General Stonewall Jackson held the reciprocal view.I0 To the Civil War generals, total war was Justifiable. To General Philip H. Sheridan, war was more than simply a duel

      in which one combatant seeks the other's life; war means much more, and 1s far worse than this . . . . Death is popularly considered the maximum punishment in war, but it is not; reduction to poverty brings prayers for peace more surely and more quickly than does the destruction of human life, as the selfishness of man has demonstrated in more than one great conflict

      The barbarism of the Amencan Civil War portended some of the more horrific episodes of the First and Second World Wars. Moreover, had those combatants possessed today's weapons of destruction, contemplating the specter of environmental calamity would be quite easy.'?

      War, therefore, rigorously tests the rationality of mankind. To the extent possible, the law of war sets forth rules that must appear rational during the heat of battle, lest the law be ignored. To add an "environmentall' factor into such a life-and-death struggle is a necessary challenge.

   2. Tne Law of War

      Despite a demonstrated capacity for inh~manity,'~ warfare

      also has spawned its own rules of conduct. In 1626, Hugo Grotius published his work defining an international law of war." Naturally, enunciating the law did not prevent the great human suffering of the Thirty Years' War of 1618.1648. or the Napoleonic Wars of 1796-1815.'j Whatever the other values of these warring societies, concern for individual welfare was not one.

      This changed with time, however, and with it came the mod-ern development of the law of war. The American Civil War saw the Lieber Code, prepared by Francis Lieber and addressing-among other things-the treatment of ciwlians and prisoners of war.lB A convention was concluded in Geneva in 1864 regarding the wounded of war" and. in 1868, certain explosive projectiles that "uselessly aggravate the suffering of disabled men, or render their death inevitable . . , contrary to the laws of humanity" were banned.18

      The Hague Conventions of 1899 and 1907 followed and substantially increased the body of the law of war by including

      ...

      leneia Conrention 22 Sfaf 840 (Senate aecesdon Mar 16 1882) repnnfrd

      provisions concerning asphyxiating gases,ln expanding ("dumdum") neutral powers and persons,z1 and the laws and customs of war on land.22 The laws and customs of war on land included the definition of belligerents entitled to protection under the treaty, defined the rights of prisoners of war, and placed limitations on the means of warfare. In particular, the "Hague law" emphasized that "[tjhe right of belligerents to adopt means of injuring the enemy is not ~nlimited."~~

      Limitations were established, including prohibitions against treachery, improper use of a flag of truce, iduring prisoners, declaring that no quarter will be given, and pillaging." Also prohibited were employing poison or poisoned weapons; using arms, projectiles or material calculated to cause "unnecessary suffering"; and destroying or seizing the enemy's property unless such destruction or seizure was imperative to the necessities of war.lb The bombardment of undefended towns, villages, dw.eiiings, or buildings was prohibited by the Hague Deciaration.i6 During sieges and bombardments, the enemy had to spare, as far as possible, buildings dedicated to religion, art, science, or charitable purposes; historic monuments; and hospital~.~'

      The 1907 Hague Convention IV was aiso important for its inclusion of the so-called "Martens Clause," which provided that "the inhabitants and the belligerents remain under the protection and the rule of the principles of the law of nations, as they result from the usages established among civilized peoples, from the laws of humanity, and the dictates of the public conscience."28

      I" 1888 Hague Declaration (11) Cancemmg hs~hyxlarlng

      Garer See Doc~unD, mpra

      "Ore 1s at 36

      *' 1888 Hague Declaration (111) Concerning ExDanding Bullet6 Sea DocUVENT9, dvpra "Ore 1s. at 38

      1807 Hague Declaration 0')

      R e b m ~ l r g

      the Rights and Duties of Seufral Powers and Persons ~n Case af War on Land See DOCLII~IS. supra note 18, ar 61

      "1807 Hague Declarafian (IY) Rea~ecllng the Laws and Cualoma of WBI DO Land Ssr Docuvnhrr, swra nore 18, ar 44

      '"id art 22 annex, IPC 11, ch I,'id art 23"Id These provloons all0 gravide same Incidental enulronmental proreellon Sea infm nates 42-80 and Bccompmylng text

      1807 Hague Declaraflon :IV) Respecllng the Law6 and Customs of War on Land, art 26

      >-Id art 27 ThlP TOIIIICflm applied on13 to bulldlngr rhaf ~clually *ere not bang used for military P U ~ D O S P ~

      Consider whether a ' historic manurnem can be a naruml

      manumenr

      "id Preamble This dame w88 named after the Rulslan delegate, DeMarrenr Sss KILIXOIEI. iuma note I8 at 14

      As to the sick and wounded, the Hague Conference of 1807 referred to, and adopted the provisions of, the Geneva Convention of 1806.2g This "Geneva law" was developed further in 1926, and again in 1948 with that year's four significant Geneva conventions pertaining to the sick and wounded combatants, Prisoners of war. and...