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

As will be discussed in detail in the Epilogue to this volume, the 1999 Kosovo conflict showed the inadequacy of existing legal mechanisms for hearing and evaluating allegations of wartime environmental damage. Among other things, Yugoslavia's International Court of Justice lawsuit against the ten NATO countries alleged breaches of “the obligation not to cause considerable environmental damage,” “the obligation not to cause far-reaching health and environmental damage,” and “the obligation not to use prohibited weapons.” Taken purely on their face, these charges-epitomized by the NATO bombing of the Pancevo petrochemical complex and the use of depleted uranium – could plausibly have triggered provisions of the Geneva Conventions, Protocol I, and customary international law, all of which were cited in the petition. Yet they suffered the same fate as Yugoslavia's other assertions of legal violations: the ICJ, limited by its consent-based system of jurisdiction, declined to address the merits of the case.

The question remains how, even in the wake of justifiable outrage about Serbia's own clear violations of law, the consequences of NATO actions also might be examined, judged, and if necessary redressed. At the same time that the International Criminal Tribunal for the Former Yugoslavia handed down its historic indictment of President Slobodan Milos̃ević, a coalition of Greek, Canadian, and US lawyers was petitioning the Tribunal to investigate the legality of NATO's bombing campaign and to indict NATO leaders, including President Bill Clinton and Prime Minister Tony Blair. Once the health and environmental impacts of the Pancevo bombing became known, Serb lawyers considered the possibility of filing civil damage suits against the United States.

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.

Introduction

In view of the heated debate about the status and effectiveness of international law-of-war treaties for protecting the environment during armed conflict, it is prudent also to examine norms, rules, and enforcement mechanisms derived from other legal regimes. The environmental protection systems that have had the luxury of evolving under peacetime conditions generally are more nuanced and tailored to their subject matter than the sporadic attempts to incorporate environmental concerns into the law of war. While they of course do not address the extreme circumstances encountered in full-scale armed conflict, many peacetime environmental treaties and domestic statutes have state-of-the-art provisions for deterring and remedying the same kinds of impacts – for example, catastrophic oil spills or deforestation – commonly found during wartime. Thus, at least where it is possible to consider these impacts in isolation, environmental and other peacetime laws may prove useful for wartime environmental protection, either through their direct application or through analogizing and adapting them into the law-of-war regime.

One large question, alluded to in the previous section, is whether global and international environmental treaties such as the Framework Convention on Climate Change or the Convention on Biological Diversity remain in effect during armed conflict. If it could be shown, for example, that oil well fires had led to excessive emissions of greenhouse gases, that could serve as an additional basis for holding the state that caused the fires responsible and liable.