Protecting the Environment During Wartime

Thanks to Peggy for her introduction.  It’s a great pleasure to have the opportunity to guest blog on Opinio Juris, which I think has become essential reading for international lawyers.  Just recently I heard an ICC prosecutor remark how much his office had been influenced by Kevin Heller’s post criticizing the Pre-Trial Chamber’s decision on the genocide charges in the Bashir case – a remark confirmed by the Prosecutor’s application for leave to file an appeal, which cites Kevin’s post.

A few weeks ago I had the opportunity to participate in an ‘experts meeting’ on protecting the environment during wartime.  (I put the phrase in quotes since I”m not sure that I qualify.) The implicit assumption at expert meetings like the one I attended is that the solution to problems such as the environmental effects of war generally involves more law. But is protecting the environment during wartime primarily a legal problem?  Of course, in some cases, the answer is yes. The intentional burning of Kuwaiti oil wells by Saddam Hussein at the end of the 1991 Gulf War is the type of environmental harm susceptible to legal responses through rules proscribing the wanton infliction of environmental damage together with the imposition of criminal and/or civil liability.  But events such as this are comparatively rare.  And even the Kuwaiti oil fires, terrible though they were, had more transitory and less severe effects on the environment than originally expected.

My sense is that much (perhaps most) of the environmental damage that results from armed conflict is a byproduct rather than a direct impact of warfare.  It results from factors such as the general breakdown of governmental authority, the displacement of people from their homes, and the desperation of people trying to survive in a war-torn region — problems that are not best addressed through more environmental rules, but rather through more general efforts to prevent conflicts from occurring and to rebuild war-torn societies.

Indeed, even when the conduct responsible for environmental damage is susceptible to legal regulation, it does not necessarily follow that this is the best response.  How should international law, for example, address the environmental damage resulting from the targeting of chemical facilities, such as the bombing of the Pancevo plant during the NATO bombardment of Yugoslavia?  One potential response would be to adopt a new legal rule prohibiting the targeting of chemical facilities, because of the environmental harms likely to result.  But I wonder whether such a rule would prove workable, given the complex tradeoffs involved in targeting decisions. A very different approach would be to rely on the existing principle of proportionality, and instead work to inculcate environmental values in military decision-makers, so that they factor the environment into their proportionality analysis.

Whichever way we come down on this question, the problem illustrates an important point: we need to diagnosis the causes of a problem first, before we can assess the role (if any) that law could and should play in our response.  As Brierly noted long ago, people too often veer between seeing international law as a panacea or a sham.  But usually its role lies somewhere in between. It represents what might be called a 30% solution (the number is, of course, arbitrary; you can pick your own), relevant to some problems more than others, but usually representing part – but only part – of the solution.