The Environment in Armed Conflict: Military or Civilian Asset?

Program on Humanitarian Policy and Conflict Research (HPCR) Harvard University
The Environment in Armed Conflict: Military or Civilian Asset?
July 15, 2010

The Environment in Armed Conflict:
Military or Civilian Asset?
Live WebseminarJuly 15, 2010
Mrs. Naz Modirzadeh
Associate Director
Program on Humanitarian Policy and Conflict Research at Harvard University
Ms. Angharad Laing
Program Associate
Program on Humanitarian Policy and Conflict Research at Harvard University

The Live Seminar will examine the legal instruments and policy tools available to protect the environment in situations of armed conflict. Against the backdrop of the release of a United Nations Environment Programme report, the Seminar will address the following questions:
How are notions such as “widespread,” “long-term,” and “severe” damage to the environment defined in international humanitarian law and international criminal law?
Which mechanisms could best monitor legal infringements pertaining to, and address claims for, environmental damage sustained during armed conflict?
In what ways, if any, do international and domestic environmental law interact with international humanitarian law during armed conflict?
These questions will be examined by looking at the level and types of legal protection afforded to the environment in both international and non-international armed conflicts.

Panelists
Dr. Karen Hulme
University of Essex, UK
Tara Smith
Irish Centre for Human Rights
Professor Eric Talbot Jensen
Fordham Law School

Dr. Karen Hulmeis a senior lecturer in the School of Law at the University of Essex, England. Karen was awarded a PhD in 2002. And her book entitled, War Torn
Environment: Interpreting the Legal Threshold (2004) published by MartinusNijhoff, won the Lieber Society’s ASIL prize for 2004. Karen has also written articles on the legality of depleted uranium ammunition and cluster weapons, and authored a chapter analysing the environmental provisions of the ICRC Study in the BIICL/Chatham House book, Perspectives on the ICRC Study on Customary International Humanitarian Law (2007).

Environment in armed conflict
IEL and IHL
Military or civilian?
IHL protections
WLS threshold of harm
Precautions and Rule 44
Outline

To what extent does IEL continue to apply in armed conflict?
Check out the ILC topic on the Continuation of Treaties in Armed Conflict
Compatibility

Environment: Military or Civilian?
‘military objective’ (Art.52(2) API)
Attacks shall be limited strictly to military objectives. In so far as objects are concerned, military objectives are limited to those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.

Environment protected at all times by:
Art. 35(3) API
‘It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.’
CIHLS Rule 45
The use of methods or means of warfare that are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment is prohibited.

Widespread, long-term AND severe (WLS)
API Travauxpréparatoires
Long-term = decades
Severe = some human harm
Widespread??
2004 Operational Law Handbook for JAGs: ‘credible’ interpretations:
Widespread = several hundred square kms
Severe = any act that prejudices the health or survival of the population

Taking care of the environment
Art. 55(1) API
Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage…
ART.57 API
1. In the conduct of military operations, constantcare shall be taken to spare the civilian population, civilians and civilian objects.
2. With respect to attacks, the following precautions shall be taken:
(ii) take all feasible precautions in the choice of means and methods of attack with a view to avoiding, and in any event to minimizing, incidental loss or civilian life, injury to civilians and damage to civilian objects
CIHLS Rule 44
Methods and means of warfare must be employed with dueregard to the protection and preservation of the natural environment. In the conduct of military operations, all feasible precautions must be taken to avoid, and in any event to minimise, incidental damage to the environment. Lack of scientific certainty as to the effects on the environment of certain military operations does not absolve a party to the conflict from taking such precautions.

Environment and Armed Conflict
Issues:
Climate change and conflict
Conflict resource exploitation
Weapons – e.g., Depleted uranium
Clean-up/restoration
War crimes prosecution
Compensation for environmental damage

Tara Smith is an Attorney-at-Law in New York and the Connect Doctoral Research Fellow at the Irish Centre for Human Rights. She holds a Bachelor of Civil Law from University College Dublin and a Master of Laws in International Human Rights Law
from the National University of Ireland, Galway. Tara Smith is currently completing her doctoral thesis on the protection of the environment in non-international armed conflict. She is also a member of the Consortium for Comparative Research on Regional Integration and Social Cohesion’s environmental working group. Previously, she has worked as a Research Fellow on the post-conflict justice themed-project ‘Fighting Impunity and Promoting International Justice’ at the International Institute for Higher Studies in Criminal Sciences (ISISC), in Siracusa, Italy. Her research interests include international criminal law, domestic criminal law, the laws of armed conflict, environmental law, public international law and post-conflict justice.

Accountability for Breaches of Environmental International Humanitarian Law
ENFORCEMENT
Contextualising Enforcement Issues
Enforcement of Relevant IHL Provisions
International Armed Conflict
Non-International Armed Conflict
Enforcement Criminal Accountability Civil Liability Conclusion

CRIMINAL ACCOUNTABILITY
Elements of an environmental war crimes prosecution
Appropriateness of available sanctions
Advantages and disadvantages to criminal prosecution

CIVIL LIABILITY
Overview of United Nations Compensation Commission
(UNCC)
Advantages and disadvantages to civil liability
Adapting the UNCC model for the future

CONCLUSION
Criminal
Accountability
vs.
Civil
Liability

Professor Eric Talbot Jensen is a Visiting Assistant Professor at Fordham Law School in New York City, where he teaches Public International Law, US National Security Law, International Criminal Procedure, and the Law of Armed Conflict. Prior to his current position, he spent 20 years in the US Army, serving in various positions including as the Chief of the Army’s
International Law Branch; Deputy Legal Advisor for Task Force Baghdad; Professor of International and Operational Law at The Judge Advocate General’s Legal Center and School; legal advisor to the US contingent of UN Forces deployed to Skopje, Macedonia as part of UNPREDEP; and legal advisor in Bosnia in support of Operation Joint Endeavor/Guard. Professor Jensen is a graduate of Brigham Young University (B.A., International Relations), University of Notre Dame Law School (J.D.), The Judge Advocate General’s Legal Center and School (LL.M.) and Yale Law School (LL.M.).

Professor Jensen’s scholarship focuses on international law, national security law and international criminal law. His recent publications in the area of targeting and environment warfare include Cyberwarfare and Precautions Against the Effects of Attacks, 88 Texas Law Review (forthcoming, 2010); The International Law of Environmental Warfare: Active and Passive Damage During Times of Armed Conflict, 38 Vanderbilt Journal of Transnational Law 145 (2005); Prosecuting Members of the U.S. Military for Wartime Environmental Crimes, 17 Georgetown International Environmental Law Review 651 (2005) (with James Teixeira).

Outline
Military Targeting Process
Principle of Proportionality
Environment as a “Civilian Object”
Military Enforcement Mechanisms
Active and Passive Environmental Damage

Military Targeting Process
Necessity
Distinction
Civilian Objects and Military Objectives
Nature, Location, Purpose, Use
Proportionality

Principle of Proportionality
“may be expected”
Rendulic Rule
“incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof”
“excessive in relation to the concrete and direct military advantage anticipated”

Environment as a “Civilian Object”
“Civilian object” or something different
Non-parties to API
Letter of Transmittal
Environment is protected as a civilian object
NWP 1-14M

Military Enforcement Mechanisms
International Tribunals
National Courts
Courts-Martial
Law of War violation
Enumerated Crimes
Military Offenses
Incorporation

Active and Passive Damage
Active Environmental Warfare
“Using” the environment as a weapon of war
Passive Environmental Warfare
Actions that have a degrading effect on the environment

Questions and comments

Panelists
Dr. Karen Hulme
University of Essex, UK
Tara Smith
Irish Centre for Human Rights
Professor Eric Talbot Jensen
Fordham Law School

HostNaz ModirzadehProducerAngharad LaingTechnical DirectorJames BrockmanProduction TeamChristina Blunt, Dustin Lewis, Anaïde Nahikian & Catherine Sola

The Live Seminars on Humanitarian Law and Policy are produced by:
Program on Humanitarian Policy and Conflict Research (HPCR) Harvard University
Sponsored by:
For more information on the Humanitarian Law and Policy Forum, please visit:
http://ihlforum.ning.com
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http://twitter.com/hpcr
or contact:
ihlforum@hpcr.org

The Environment in Armed Conflict: Military or Civilian Asset?

by Program on Humanitarian Policy and Conflict Research at Harvard University on Jul 15, 2010

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The Environment in Armed Conflict: Military or Civilian Asset? — Presentation Transcript