2 - The law of war and environmental damage

Summary

The central question addressed here is simple. Are international legal provisions that could restrict environmental damage from military operations adequate? The focus is mainly on the law of war, otherwise known as “international humanitarian law” - a body of law that is applicable in the first place to international wars between states. However, the chapter also touches briefly on: (1) international legal restraints on environmental damage in other situations, including civil wars and UN-authorized operations; and (2) some other international legal restraints on environmental damage in war, especially those embodied in arms control agreements.

This chapter argues that existing legal restraints affecting the impact of war on the environment are far more extensive than may at first appear. They encompass many provisions that – while having as their primary purpose safeguarding people from injury and property from wanton destruction – do in fact also provide a basis for preserving the environment. Extensive as such legal restraints are, there is no claim that they are complete.

In particular, this chapter is a plea to abandon the assumption, made by some lawyers and others, that those very few provisions in the law of war that actually use the word “environment” can be viewed as the centerpiece of legal protection of the environment in war. As will become apparent, such an approach is deficient, because the provisions in question only apply in very exceptional circumstances, and in any case they are in treaties by which fewer states are bound than are bound by certain other relevant treaties, especially the 1949 Geneva Conventions.

Every cause needs to be protected against its own zealots.