Common use of Development of International Criminal Law addressing Environmental Harm Clause in Contracts

Development of International Criminal Law addressing Environmental Harm. There is a long history of environmental damage during armed conflict, both as a deliberate tactic of war and as an off-shoot of lawful military operations, as well as during times of social upheaval.259 According to the Book of Kings in the Old Testament of the Bible, during the Ninth Century Before Xxxxxx, the Israelites engaged in tactics of altering the local environment in an attack against the Moabites.260 Likewise, the prohibition of environmental damage has a long pedigree. Restrictions on harming the natural environment were set out in the Old Testament.261 Similarly, Xxxxxxxx’s companion, the first Caliph Xxx Xxxx, is said to have instructed his Muslim army to avoid burning or harming trees in the Seventh Century Anno Domini.262 Despite these early developments and examples of environmental harm being used as a tactic of war, international laws concerning environmental damage have been slow to develop. It was not until war broke out in Vietnam in the 1960s, that a greater awareness of the need to collectively take measures to protect the environment emerged, particular during times of armed conflict.263 This fed the impetus for the development of treaties specifically protecting the environment, particularly under the rubric of international humanitarian law, and included calls for the fifth Geneva Convention on the protection of the environment. The term ecocide was first widely used by a plant biologist, Xxxxxx Xxxxxxx, to encapsulate what he described as ‘willful, permanent destruction of environments in which people can live 258 Peacetime environmental law remains effective during times of armed conflict to extent that it is compatible with international humanitarian law; International Law Commission, Draft Articles on the Effects of Armed Conflicts on Treaties (2011), Annex - Indicative list of treaties referred to in article 7. See also Xxxxxx Xxxxxxx Xxxx “Le droit international humanitaire et l’avis consultatif de la Cour internationale de Justice sur la licéité de la menace ou de l’emploi x’xxxxx nucléaires” (1997) 823 RICR 37; cited in Xxxxxxx (1997), p.32, 37. 259 Xxxxxxxxx (2005), p.700. 260 See Bible: Revised Standard Version, 2 Kings 3:24-25. 261 Bible: Revised Standard Version, Deuteronomy 20:19 (“[i]f you besiege a town for a long time, making war against it in order to take it, you must not destroy its trees by wielding an axe against them. Although you may take food from them, you must not cut them down. Are trees in the field human beings that they should come under siege from you?”). See also Xxxxx (2002), p.500. 262 See Aboul-Xxxxx, X. Yousuf and Zuhur, Sherifa, Islamic Rulings on Warfare, Strategic Studies Institute, US Army War College (Xxxxx Publishing Co.: Darby Pennsylvania, 2004), p.22 (“Stop, O people, that I may give you ten rules for your guidance in the battlefield. Do not commit treachery or deviate from the right path. You must not mutilate dead bodies. Neither kill a child, nor a woman, nor an aged man. Bring no harm to the trees, nor burn them with fire, especially those which are fruitful. Slay not any of the enemy's flock, save for your food. You are likely to pass by people who have devoted their lives to monastic services; leave them alone.”) 263 Xxxxxxxxx (2011), para.6. in a manner of their choosing’.264 Xxxxxxx and others condemned the American operations in Vietnam, particularly Operation Ranch Hand, and sought to enshrine a prohibition against serious harm to the environment in the same way that genocide was prohibited by Convention after World War Two.265 In 1973, Xxxxxxx Xxxx sought the enactment of an International Convention on the Crime of Ecocide and a Draft Protocol on Environmental Warfare.266 He defined ecocide as ‘acts committed with intent to destroy, in whole or in part, a human ecosystem’, committed in peacetime or wartime,267 and suggested that conducting warfare in an environmentally deleterious way, such as through the use of chemicals, bulldozers, bombs, be prohibited in the Draft Protocol on Environmental Warfare. Partly as a result of the events in Vietnam, the abstract ideals concerning environmental protection set forth in the Stockholm Declaration from 1972 were thereafter codified into specific prohibitions of international humanitarian law, which hitherto had featured prohibitions on certain means and methods of war in The Hague Regulations, but no prohibitions specifically protecting the environment. Most prominent were articles 35(3) and 55(1) of the 1977 Additional Protocols to the Geneva Conventions and the Convention on the Prohibition of Military or Any Hostile Use of Environmental Modification Techniques (ENMOD).268 These prohibitions would provide the basis for the subsequent introduction of provisions of international criminal law penalising destruction of the environment.269 The issue of environmental destruction and the need to protect the environment during armed conflict was brought to the forefront of international consciousness in 1990-1991, when Xxxxxx Xxxxxxx set fire to Kuwaiti oil xxxxx.270 The UN Secretary-General issued reports on the protection of the environment in times of armed conflict in 1992 and 1993,271 and the ICRC issued a report on the same subject in 1994.272 264 Xxxxx Xxxxxxx, Invention of Ecocide: Agent Orange, Vietnam, and the Scientists Who Changed the Way We Think About the Environment (University of Georgia Press 2011), at 15. 265 Xxxxxxx Xxxxxx, ‘Scorched Earth: Environmental War Crimes and International Justice’, 12(4) Perspectives on Politics (2014) 770, at 777.

Development of International Criminal Law addressing Environmental Harm. There is a long history of environmental damage during armed conflict, both as a deliberate tactic of war and as an off-shoot of lawful military operations, as well as during times of social upheaval.259 According to the Book of Kings in the Old Testament of the Bible, during the Ninth Century Before Xxxxxx, the Israelites engaged in tactics of altering the local environment in an attack against the Moabites.260 Likewise, the prohibition of environmental damage has a long pedigree. Restrictions on harming the natural environment were set out in the Old Testament.261 Similarly, Xxxxxxxx’s companion, the first Caliph Xxx Xxxx, is said to have instructed his Muslim army to avoid burning or harming trees in the Seventh Century Anno Domini.262 Despite these early developments and examples of environmental harm being used as a tactic of war, international laws concerning environmental damage have been slow to develop. It was not until war broke out in Vietnam in the 1960s, that a greater awareness of the need to collectively take measures to protect the environment emerged, particular during times of armed conflict.263 This fed the impetus for the development of treaties specifically protecting the environment, particularly under the rubric of international humanitarian law, and included calls for the fifth Geneva Convention on the protection of the environment. The term ecocide was first widely used by a plant biologist, Xxxxxx Xxxxxxx, to encapsulate what he described as ‘willful, permanent destruction of environments in which people can live 258 Peacetime environmental law remains effective during times of armed conflict to extent that it is compatible with international humanitarian law; International Law Commission, Draft Articles on the Effects of Armed Conflicts on Treaties (2011), Annex - Indicative list of treaties referred to in article 7. See also Xxxxxx Xxxxxxx Xxxx “Le droit international humanitaire et l’avis consultatif de la Cour internationale de Justice sur la licéité de la menace ou de l’emploi x’xxxxx nucléaires” (1997) 823 RICR 37; cited in Xxxxxxx (1997), p.32, 37. 259 Xxxxxxxxx (2005), p.700. 260 See Bible: Revised Standard Version, 2 Kings 3:24-25. 261 Bible: Revised Standard Version, Deuteronomy 20:19 (“[i]f you besiege a town for a long time, making war against it in order to take it, you must not destroy its trees by wielding an axe against them. Although you may take food from them, you must not cut them down. Are trees in the field human beings that they should come under siege from you?”). See also Xxxxx (2002), p.500. 262 See AboulXxxxx-Xxxxx, X. Yousuf and Zuhur, Sherifa, Islamic Rulings on Warfare, Strategic Studies Institute, US Army War College (Xxxxx Publishing Co.: Darby Pennsylvania, 2004), p.22 (“Stop, O people, that I may give you ten rules for your guidance in the battlefield. Do not commit treachery or deviate from the right path. You must not mutilate dead bodies. Neither kill a child, nor a woman, nor an aged man. Bring no harm to the trees, nor burn them with fire, especially those which are fruitful. Slay not any of the enemy's flock, save for your food. You are likely to pass by people who have devoted their lives to monastic services; leave them alone.”) 263 Xxxxxxxxx (2011), para.6. in a manner of their choosing’.264 Xxxxxxx and others condemned the American operations in Vietnam, particularly Operation Ranch Hand, and sought to enshrine a prohibition against serious harm to the environment in the same way that genocide was prohibited by Convention after World War Two.265 In 1973, Xxxxxxx Xxxx sought the enactment of an International Convention on the Crime of Ecocide and a Draft Protocol on Environmental Warfare.266 He defined ecocide as ‘acts committed with intent to destroy, in whole or in part, a human ecosystem’, committed in peacetime or wartime,267 and suggested that conducting warfare in an environmentally deleterious way, such as through the use of chemicals, bulldozers, bombs, be prohibited in the Draft Protocol on Environmental Warfare. Partly as a result of the events in Vietnam, the abstract ideals concerning environmental protection set forth in the Stockholm Declaration from 1972 were thereafter codified into specific prohibitions of international humanitarian law, which hitherto had featured prohibitions on certain means and methods of war in The Hague Regulations, but no prohibitions specifically protecting the environment. Most prominent were articles 35(3) and 55(1) of the 1977 Additional Protocols to the Geneva Conventions and the Convention on the Prohibition of Military or Any Hostile Use of Environmental Modification Techniques (ENMOD).268 These prohibitions would provide the basis for the subsequent introduction of provisions of international criminal law penalising destruction of the environment.269 The issue of environmental destruction and the need to protect the environment during armed conflict was brought to the forefront of international consciousness in 1990-1991, when Xxxxxx Xxxxxxx set fire to Kuwaiti oil xxxxx.270 The UN Secretary-General issued reports on the protection of the environment in times of armed conflict in 1992 and 1993,271 and the ICRC issued a report on the same subject in 1994.272 264 Xxxxx Xxxxxxx, Invention of Ecocide: Agent Orange, Vietnam, and the Scientists Who Changed the Way We Think About the Environment (University of Georgia Press 2011), at 15. 265 Xxxxxxx Xxxxxx, ‘Scorched Earth: Environmental War Crimes and International Justice’, 12(4) Perspectives on Politics (2014) 770, at 777.1994.272

Development of International Criminal Law addressing Environmental Harm. There is a long history of environmental damage during armed conflict, both as a deliberate tactic of war and as an off-shoot of lawful military operations, as well as during times of social upheaval.259 According to the Book of Kings in the Old Testament of the Bible, during the Ninth Century Before Xxxxxx, the Israelites engaged in tactics of altering the local environment in an attack against the Moabites.260 Likewise, the prohibition of environmental damage has a long pedigree. Restrictions on harming the natural environment were set out in the Old Testament.261 Similarly, Xxxxxxxx’s companion, the first Caliph Xxx Xxxx, is said to have instructed his Muslim army to avoid burning or harming trees in the Seventh Century Anno Domini.262 Despite these early developments and examples of environmental harm being used as a tactic of war, international laws concerning environmental damage have been slow to develop. It was not until war broke out in Vietnam in the 1960s, that a greater awareness of the need to collectively take measures to protect the environment emerged, particular during times of armed conflict.263 This fed the impetus for the development of treaties specifically protecting the environment, particularly under the rubric of international humanitarian law, and included calls for the fifth Geneva Convention on the protection of the environment. The term ecocide was first widely used by a plant biologist, Xxxxxx Xxxxxxx, to encapsulate what he described as ‘willful, permanent destruction of environments in which people can live 258 Peacetime environmental law remains effective during times of armed conflict to extent that it is compatible with international humanitarian law; International Law Commission, Draft Articles on the Effects of Armed Conflicts on Treaties (2011), Annex - Indicative list of treaties referred to in article 7. See also Xxxxxx Xxxxxxx Xxxx “Le droit international humanitaire et l’avis consultatif de la Cour internationale de Justice sur la licéité de la menace ou de l’emploi x’xxxxx nucléaires” (1997) 823 RICR 37; cited in Xxxxxxx (1997), p.32, 37. 259 Xxxxxxxxx (2005), p.700. 260 See Bible: Revised Standard Version, 2 Kings 3:24-25. 261 Bible: Revised Standard Version, Deuteronomy 20:19 (“[i]f you besiege a town for a long time, making war against it in order to take it, you must not destroy its trees by wielding an axe against them. Although you may take food from them, you must not cut them down. Are trees in the field human beings that they should come under siege from you?”). See also Xxxxx (2002), p.500. 262 See Aboul-Xxxxx, X. Yousuf and Zuhur, Sherifa, Islamic Rulings on Warfare, Strategic Studies Institute, US Army War College (Xxxxx Publishing Co.: Darby Pennsylvania, 2004), p.22 (“Stop, O people, that I may give you ten rules for your guidance in the battlefield. Do not commit treachery or deviate from the right path. You must not mutilate dead bodies. Neither kill a child, nor a woman, nor an aged man. Bring no harm to the trees, nor burn them with fire, especially those which are fruitful. Slay not any of the enemy's flock, save for your food. You are likely to pass by people who have devoted their lives to monastic services; leave them alone.”) 263 Xxxxxxxxx (2011), para.6. in a manner of their choosing’.264 Xxxxxxx and others condemned the American operations in Vietnam, particularly Operation Ranch Hand, and sought to enshrine a prohibition against serious harm to the environment in the same way that genocide was prohibited by Convention after World War Two.265 In 1973, Xxxxxxx Xxxx sought the enactment of an International Convention on the Crime of Ecocide and a Draft Protocol on Environmental Warfare.266 He defined ecocide as ‘acts committed with intent to destroy, in whole or in part, a human ecosystem’, committed in peacetime or wartime,267 and suggested that conducting warfare in an environmentally deleterious way, such as through the use of chemicals, bulldozers, bombs, be prohibited in the Draft Protocol on Environmental Warfare. Partly as a result of the events in Vietnam, the abstract ideals concerning environmental protection set forth in the Stockholm Declaration from 1972 were thereafter codified into specific prohibitions of international humanitarian law, which hitherto had featured prohibitions on certain means and methods of war in The Hague Regulations, but no prohibitions specifically protecting the environment. Most prominent were articles 35(3) and 55(1) of the 1977 Additional Protocols to the Geneva Conventions and the Convention on the Prohibition of Military or Any Hostile Use of Environmental Modification Techniques (ENMOD).268 These prohibitions would provide the basis for the subsequent introduction of provisions of international criminal law penalising destruction of the environment.269 The issue of environmental destruction and the need to protect the environment during armed conflict was brought to the forefront of international consciousness in 1990-1991, when Xxxxxx Xxxxxxx set fire to Kuwaiti oil xxxxx.270 The UN Secretary-General issued reports on the protection of the environment in times of armed conflict in 1992 and 1993,271 and the ICRC issued a report on the same subject in 1994.272 264 Xxxxx Xxxxxxx, Invention of Ecocide: Agent Orange, Vietnam, and the Scientists Who Changed the Way We Think About the Environment (University of Georgia Press 2011), at 15. 265 Xxxxxxx Xxxxxx, ‘Scorched Earth: Environmental War Crimes and International Justice’, 12(4) Perspectives on Politics (2014) 770, at 777.1994.272