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Refereed articles

In our common interest: Liability and redress for damage caused to the natural environment during armed conflict - p 90

Although not generally accorded primary consideration during armed conflict, a vast number of provisions aimed at protecting the natural environment in times of war exist under international law. This article critically and comprehensively examines the challenges presented in terms of liability and redress for damage caused to the natural environment during armed conflict.

In particular, the effectiveness of the various principles and rules that grant general, specific and indirect protection to the natural environment during warfare, coupled with the liability regimes established under the applicable international instruments, are scrutinised critically.

The article argues that most international instruments dealing specifically with the means and methods of warfare, reveal serious inadequacies, and that some establish no liability regime whatsoever. Those instruments that do, however, contain a liability regime, reveal serious flaws to the degree that not all categories of armed conflict are attended to and only criminal sanctions (with no civil liability) are envisaged, coupled with the significant failure to extend liability to States Parties. Some international instruments fail to provide adequate mechanisms for legal redress or in instances where redress is provided, the mechanisms are flawed. The problem is exacerbated by the fact that customary international law has not yet developed to the degree that both adequate and comprehensive protection is available to protect the natural environment during armed conflict, irrespective of the nature of the conflict.

This article therefore considers critically the adoption of an entirely new convention expressly intended to address all instances of environmental damage during (or as a consequence of) armed conflict, and concludes that such a step is preferred to the mere amendment of existing provisions or possibly even the drafting of yet another protocol to the four Geneva Conventions.

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