International Review of the Red Cross

Environment

International law protecting the environment during armed conflict: gaps and opportunities

Michael Bothe, Carl Bruch, Jordan Diamond and David Jensen

Abstract

There are three key deficiencies in the existing body of international humanitarian law (IHL) relating to protection of the environment during armed conflict. First, the definition of impermissible environmental damage is both too restrictive and unclear; second, there are legal uncertainties regarding the protection of elements of the environment as civilian objects; and third, the application of the principle of proportionality where harm to the environment constitutes ‘collateral damage’ is also problematic. These gaps present specific opportunities for clarifying and developing the existing framework. One approach to addressing some of the inadequacies of IHL could be application of international environmental law during armed conflict. The detailed norms, standards, approaches, and mechanisms found in international environmental law might also help to clarify and extend basic principles of IHL to prevent, address, or assess liability for environmental damage incurred during armed conflict.

(Online publication December 10 2010)

Michael Bothe is Professor emeritus of public and international law, J.W. Goethe University, Frankfurt-am-Main; President of the International Humanitarian Fact-Finding Commission; and Chair, German Red Cross Commission on International Humanitarian Law.

Carl Bruch is a Senior Attorney at the Environmental Law Institute, where he co-directs the International Programs. He is also Co-Chair of the Specialist Group on Armed Conflict and the Environment of the IUCN Commission on Environmental Law.

Jordan Diamond is a Staff Attorney at the Environmental Law Institute, where she is the Assistant Director of the Ocean Program.

David Jensen heads the Policy and Planning Team of UNEP's Post-Conflict and Disaster Management Branch in Geneva.