For centuries, military commanders have deliberately targeted the environment, seeking to obtain any possible advantage over their adversaries. In the Third Punic War, Roman legions salted the ground around Carthage to prevent the Carthaginians from recovering and challenging Rome; in the US Civil War, General Sherman cut a wide swath of destruction across the South in an attempt to break the morale of the Confederacy; in World War I, the British set afire Romanian oilfields to prevent the Central Powers from capturing them; in World War II, Germany and the Soviet Union engaged in “scorched earth” tactics; and in the Korean War, the United States bombed North Korean dams.

The Vietnam War showcased the increasingly devastating environmental effects of modern military technology, with entire ecosystems targeted. The United States engaged in a massive defoliation campaign to preclude the growth of groundcover, and even attempted to change weather patterns via cloud seeding over North Vietnam to hamper enemy troop movements and provide protection for US bombing missions. Since then, the public health implications of environmental warfare in Vietnam - primarily birth defects, diseases, and premature death associated with exposure to Agent Orange - have become apparent. The scale, severity, and longevity of these environmental impacts sparked the first international legal provisions specifically prohibiting environmental warfare: the 1976 Environmental Modification Convention (ENMOD) and the 1977 Additional Protocol I to the 1949 Geneva Conventions (Protocol I). Notwithstanding international condemnation of such tactics, Central American internal conflicts of the 1980s saw further use of defoliation campaigns, albeit to a lesser degree than in the Vietnam War.

Introduction

The body of treaties, customs, and practices governing the environmental consequences of armed conflict is a dynamic and rapidly growing area of international law. Until relatively recently, relevant legal provisions were vague, not directly mentioning the environment. In response to US actions in the Vietnam War, however, the international community adopted the 1976 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD) and the 1977 Additional Protocols I and II to the Geneva Conventions of 1949.

In addition to the environment-specific provisions of these treaties, authors in this section highlight legal constraints found in a variety of other treaties and international custom protecting property, civilian objects, and cultural heritage, which can provide protection without even mentioning the word “environment.” The different provisions can be divided generally into those that govern targeting choices and those that govern weapons choices; both kinds of regimes can be useful for addressing different aspects of wartime environmental protection. In addition, human rights treaties, arms control agreements, customary international law, and domestic and international peacetime environmental norms also prove useful when considering how to prevent and redress wartime environmental harm.

While this section emphasizes those norms applicable to international armed conflict, there also is a need to consider military operations other than war, which include peacetime training operations, as well as police actions or other activities that do not rise to the level of formally declared war.

This volume has highlighted ways in which the community of nations has sought to limit and redress wartime environmental damage. Over the past few decades, great strides have been made in developing the relevant legal norms, as well as the necessary scientific and economic tools; and international institutions capable of investigating and enforcing these provisions are emerging. The history of the law of war thus far has been a matter of incremental development in response to the horrors of previous conflicts. This patchwork quilt of legal prescriptions and institutions suffers from a wide variety of unresolved issues related to preventing, assessing, remediating, and determining responsibility and liability for environmental damage from armed conflict. The controversy over the 1999 Kosovo conflict, including the decision of the International Court of Justice, highlights many of these gaps and presents a number of challenges for the international community. Further, it raises questions of how well the existing legal framework and institutions can adapt to new advances in high-technology warfare.

The Kosovo situation implicates the most serious crimes against humanity: genocide and ethnic cleansing. This Epilogue focuses on a small subset of issues, specifically the environmental consequences of the conflict. It does not attempt to weigh these environmental consequences against the humanitarian imperatives motivating the NATO action. At the same time, even if the reasons for going to war are just and legal, the law of war requires separate consideration of the conduct of the war.

For as long as war has devastated the environment, moral and religious codes have sought to prevent or minimize the environmental impacts of wartime actions. Even in biblical times, Deuteronomy commanded:

Although this is an anthropocentric perspective, applying only to the extent that environmental damage clearly harms society, it has been the basis for much of the Judeo-Christian scholarship in the area, including the development of the principle of bal tashchit, a rabbinical interpretation enjoining environmental waste and destruction.

Similarly, the Qur'an enjoins Muslims from harming trees in a jihad, a Muslim holy war. In fact, some Muslim armies included an officer who had the specific duty to ensure that “trees are not burnt, nor unjustifiably pulled out and that women, children, the elderly and unoffending priests or monks should not be harmed. He also ascertains that water and medicine are given to the prisoners of war.”