Humanitarian law and the environment.

• Author: Schmitt, Michael N.
• Position: Statute of the International Criminal Court; environmental damage caused by war

When the Rome Conference adopted the Statute 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."(1) Such "greening" of international humanitarian law promises heightened sensitivity to the environmental consequences of warfare as we enter the new millennium. The ICC Statute 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.(2) 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 recently 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) nonenvironment 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 environmental component of international law governing warfare is not vacuous, there is certainly room for improvement.

THE ADVENT OF CONCERN OVER THE ENVIRONMENTAL IMPACT OF ARMED CONFLICT

Recognition that armed conflict encroaches on the environment hardly represents an historiographic epiphany,(3) Thucydidies, for instance, recounts the laying to waste of Athenian fields by the Spartans during the annual sieges of Attica in the Peloponnesian Wars.(4) In 1672, the Dutch opened their dikes in order to stem the tide of the advancing French forces in the Third Anglo-Dutch War.(5) During the Boer War, the British Commander, Horatio Kitchener, engaged in a ruthless scorched earth campaign in which farms were burned to deny Boer forces the sustenance on which they relied.(6) In the next century, the rich Romanian oilfields were attacked by British Colonel Norton Griffiths in order to preclude them from falling into the hands of the invading Central Powers of the First World War.(7) Romanian oil was again targeted during the Second World War, particularly through the famous 1943 air raids against Ploesti.(8) Of course, the two incidents which caused the greatest environmental calamity in the history of armed conflict were the atomic bomb attacks on the Japanese cities of Hiroshima and Nagasaki in August of 1945. An eyewitness vividly captured the tragic extent of the destruction better than sterile statistics ever could.

Within a few seconds the thousands of people in the streets and the gardens in the center of the town were scorched by a wave of searing heat. Many were killed instantly, others lay writhing on the ground, screaming in agony from the intolerable pain of their burns. Everything standing upright in the way of the blast, walls, houses, factories, and other buildings, was annihilated.... Horses, dogs and cattle suffered the same fate as human beings. Every living thing was petrified in an attitude of indescribable suffering. Even the vegetation did not escape. Trees went up in flames, the rice plants lost their greenness, the grass burned on the ground....(9)

These and countless other environmentally destructive operations did not occur in a complete normative vacuum. On the contrary, the historical record recounts multiple efforts to set standards limiting destruction of the environment during armed conflict. In Deuteronomy, as an example, Moses instructs the people of Israel on methods of siege warfare.

When you lay siege to a city for many days, making war against it to capture it, you shall not destroy its surrounding fruit trees by cutting them with an axe; you may eat their fruit, but you must not cut them down. Are the trees of the field people, defenders of the city, that you should lay siege to them? Those trees, however, that you know are not fruit trees you may cut down and use to build siege works against the city that is warring against you, until it falls.(10)

Prohibitions on laying waste to civilian food sources were also articulated by the Diaspora scholar Maimonides and the Rabbi Ishmael,(11) and Hugo Grotius, in De Jure Belli ac Pacis, cites to ancient authorities such as Philo and Livy, who urged limits on the despoliation of "inanimate things."(12) Nevertheless, despite significant humanitarian law codification during the 19th and 20th centuries, it was only in the aftermath of the Vietnam conflict that serious attempts were mounted to impose conventional law limits on the environmental damage resulting from hostilities.

The Vietnam War represented a watershed in the symbiotic relationship between warfare and the global citizenry. This was very much the case with respect to warfare's environmental consequences. A major causative factor in this shift was direct targeting, and manipulation, of the environment by US forces to achieve tactical and operational objectives. For instance, to counter North Vietnamese and Viet Cong use of forests and dense vegetation as cover for attacks and sanctuaries to melt into, the United States cleared nearly three-quarters of a million acres of land using the Rome Plow, a heavy tractor with large blades attached. It also dropped herbicides over huge expanses of South Vietnam. Similarly, in a futile attempt to arrest the flow of supplies southward along the Ho Chi Minh trail, the US military seeded clouds, hoping that the ensuing rain would render the track impassable.(13)

Such operations would not alone have riveted international attention on the subject of environmental destruction during combat; history had witnessed far more devastating operations in past conflicts without noticeable distraction. However, the targeting of the environment and its use as a means of warfare was taking place in the first widely televised armed conflict. Suddenly, the civilian population watched the war nightly with great interest and horror. This fact coincided with a growing antiwar sentiment, both in the United States and abroad. It also occurred contemporaneously with the rise of environmental consciousness more generally; recall that the first "Earth Day" was celebrated in 1970. Thus, with Vietnam, the environment was visibly being placed at risk for an unpopular cause during a period in which sensitivity about the environment was at a new high.

The first environmental legal standards for armed conflict resulted. In 1977 Additional Protocol I to the Geneva Conventions of 1949 was adopted by the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflict.(14) It contained two provisions, discussed infra, addressing damage to the environment during armed conflict.(15) For a variety of reasons, the United States has elected not to ratify Additional Protocol I, although it does recognize much of it as reflective of customary international law.(16) As the protocol was being negotiated, a second effort was underway to limit use of environmental modification as a weapon. The consummation of this labor was the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD).(17) Whereas Additional Protocol I addressed damage to the environment caused by military operations, such as that caused in Vietnam by the Rome Plow and the use of herbicides, ENMOD was designed to foreclose attempts to employ the environment as a means of warfare, as in the cloud seeding program.

Little else of relevance to the topic occurred until the 1990-91 Gulf War. The environmental destruction of that conflict quickly refocused the attention of the international community on warfare's environmental aspect. In the days preceding commencement of the Coalition air campaign, Saddam Hussein and other Iraqi officials threatened Kuwaiti oil fields if Coalition forces attacked.(18) When the Coalition did attack on January 17, 1991, the Iraqis made good on their promise. By the end of the conflict, they had deliberately spilled between seven and nine million barrels of oil into the Persian Gulf and set 508 oil well heads ablaze, 82 of which were damaged in a manner that caused oil to freely flow from them.(19) Although the Iraqi rationale for these actions remains uncertain, most commentators, as discussed, characterize them as violations of international humanitarian law.(20)

The academic and policy communities reacted quickly to the events they witnessed. The first serious exploration of the topic came in June 1991 with a conference co-sponsored by the London School of Economics and the British Center for Defense Studies, at which Professor Glen Plant offered a notional fifth Geneva Convention on the Environment for consideration(21) Subsequent conferences were sponsored by the Canadian Ministry of External Affairs (Ottawa),(22) the International Council of Environmental Law and the Commission on Environmental Law of the International Union for the Conservation of Nature and Natural Resources (Munich),(23) the Office of the Secretary of Defense and the Naval War College (Newport),(24) and the Smithsonian Institution, Environmental Law Institute, and the Kuwait Foundation for the Advancement of Sciences (Washington).(25) The United Nations also addressed the matter. In Resolution 687, the Security Council held...