The international law of environmental warfare: active and passive damage during armed conflict.

• Author: Jensen, Eric Talbot

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)

1. 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.

2. 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.

3. 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...