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Prosecuting attacks that destroy the environment: Environmental crimes or humanitarian atrocities?

l. INTRODUCTION

Scorched earths in Norway, defoliated jungles in Vietnam, ignited oil fields in Kuwait, emptied marshes in southern Iraq-the environment is often both a victim and a tool of armed conflict. Despite the long-held knowledge that the environment suffers from warfare, the abundance of research on how to prevent damage, and the numerous conventions and customary laws that aim to prevent environmental harm, the environment continues to be both a casualty and a method of warfare.

Intentional and unintentional environmental destruction are not new problems nor new topics for study. Professors, environmentalists, and lawyers have examined the effects of warfare on the environment and hypothesized about ways to protect the environment during armed conflict and its aftermath. And yet, despite the continuing destruction, no State has ever been held accountable for environmental destruction 1 and no individual has been convicted of environmental war crimes .2 The reasons range from the political problem of holding victors and their vanquished opponents responsible for the same actions to the prosecutorial barriers embedded in environmental war crime statutes, and from the values of the international community to the potential for environmental crimes to be overshadowed by other atrocities.

Given the history of environmental destruction in international conflict and the improbability of prosecution of environmental war crimes as stand-alone violations, the international community should focus on prosecuting environmental destruction when conducted to achieve another atrocity, such as genocide or crimes against humanity. This would set international legal precedent for the prosecution of individuals who have used the environment to achieve genocide or a crime against humanity, but could also serve as an intermediate step toward the ultimate goal of prosecuting individuals for environmental destruction as an independent violation rather than only when committed in conjunction with human rights violations.

This article seeks to explain why no individual has been convicted and how, in the future, individual accountability can be attained through prosecuting attacks on the environment as acts conducted to achieve a further humanitarian atrocity. After a background discussion on the history of the use of environmental destruction in armed conflict and an examination of the landscape of customary and conventional laws that restrict environmental damage in armed conflict, this article will examine the lack of prosecution for environmental destruction in the international tribunals of the 1990s.

In the third section, this article will analyze the possible reasons for this absence of precedent, using the old Iraqi government's environmental tactics during the 1991 Gulf War as a case in point. During the war, the Iraqi military set fire to hundreds of oil installations,3 turning the desert skies black, and yet, despite the glaring use of the environment as a tool of war, no one was held criminally accountable and future prosecution for these acts is unlikely. By way of contrast, in the fourth section, this article will advocate for the prosecution of environmental destruction when used in furtherance of another atrocity, using the draining of the marshes in Iraq as an example.

Finally, this article concludes by analyzing the benefits of this approach as one step toward achieving the ultimate goal of prevention and prosecution of environmental destruction as an independent violation of international law. Continue >

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