The Prohibition of Environmental Damage during the Conduct of Hostilities in Non-International Armed Conflict

Abstract

This thesis examines the adequacy of the laws of armed conflict to prohibit environmental damage in non-international armed conflict. The overall conclusions is that the laws of armed conflict are not adequate in this regard because they do not apply in equal measure to state and non-state actors and they only provide piecemeal indirect environmental protection, which conforms to the requirements of the principle of legality and the rule of international law in only very specific circumstances. The thesis begins by tracing the historical development of the environmental dimension of the laws of armed conflict, to explain the absence of direct environmental protection provisions and to contextualise the discussion the subsequent chapters. It also briefly outlines the nature of the environmental damage caused by state and non-state actors in non-international armed conflict. Subsequently, the treaty-based and customary laws of armed conflict that have the potential to indirectly protect the environment in non-international armed conflict are identified and discussed. In this regard, Common Article 3, provisions of Additional Protocol II, some regulations on the methods and means of warfare, the Martens Clause, the principles of distinction, humanity, military necessity, proportionality and precautions in attack are interrogated, in addition to customary rules identified by the ICRC in their Customary Law Study.This examination of the laws of armed conflict is supplemented by analysis of the extent to which the proscriptive gaps in the laws of armed conflict can be filled by other branches of international law and mechanisms of international accountability. In particular, international human rights law, international environmental law, international criminal law, international civil compensation mechanisms and environmental ¿safe zones¿ are explored in Chapters 6 and 7. The conclusion summarises the main findings in the thesis, proves the research statement in answer to the research question, identifies limitations to the study and implications for future research.