The International Law of Environmental Warfare: Active and Passive Damage during Armed Conflict
Eric Talbot Jensen, 𝘛𝘩𝘦 𝘐𝘯𝘵𝘦𝘳𝘯𝘢𝘵𝘪𝘰𝘯𝘢𝘭 𝘓𝘢𝘸 𝘰𝘧 𝘌𝘯𝘷𝘪𝘳𝘰𝘯𝘮𝘦𝘯𝘵𝘢𝘭 𝘞𝘢𝘳𝘧𝘢𝘳𝘦: 𝘈𝘤𝘵𝘪𝘷𝘦 𝘢𝘯𝘥 𝘗𝘢𝘴𝘴𝘪𝘷𝘦 𝘋𝘢𝘮𝘢𝘨𝘦 𝘥𝘶𝘳𝘪𝘯𝘨 𝘈𝘳𝘮𝘦𝘥 𝘊𝘰𝘯𝘧𝘭𝘪𝘤𝘵, 38 Vᴀɴᴅ. J. Tʀᴀɴsɴᴀᴛ'ʟ L. 145 (2005).
One of the constant elements of warfare is its degrading effects on the environment. Many writers blame this destruction of the environment on inadequate standards in the international law of environmental warfare. To remedy this shortfall, the international law of environmental warfare should be categorized as either passive or active environmental warfare. Active environmental warfare requires the intentional use of the environment as a weapon of waging armed conflict. Passive environmental warfare includes acts not specifically designed to use the environment for a particular military purpose but that have a degrading effect on the environment. Passive environmental warfare violates international law only when it produces effects that are widespread, long-term, and severe. Active environmental warfare against the sustainable environment that is not de minimus violates international law per se and should not require environmental damage to reach the standard of widespread, long-tasting, and severe to be considered a violation of international law. A well-recognized differentiation between active and passive environmental warfare will help solidify the standards of state responsibility and provide increased protection for the environment.
38 Vand. J. Transnat'l L. 145
Vanderbilt Journal of Transnational Law