Michael Bothe

International law protecting the environment during armed conflict: gaps and opportunities

There are three key deficiencies in the existing body of international humanitarian law (IHL) relating to protection of the environment during armed conflict. First, the definition of impermissible environmental damage is both too restrictive and unclear; second, there are legal uncertainties regarding the protection of elements of the environment as civilian objects; and third, the application of the principle of proportionality where harm to the environment constitutes ‘collateral damage’ is also problematic. These gaps present specific opportunities for clarifying and developing the existing framework. One approach to addressing some of the inadequacies of IHL could be application of international environmental law during armed conflict. The detailed norms, standards, approaches, and mechanisms found in international environmental law might also help to clarify and extend basic principles of IHL to prevent, address, or assess liability for environmental damage incurred during armed conflict.

Measures to Fight Climate Change – A Role for the Law of the Sea?

The excessive man-made greenhouse effect that is generally supposed to bring about climate change in the form of global warming has a number of different reasons. There is a balance sheet of greenhouse gas emissions and of the sequestration of these gases by sinks. The Kyoto Protocol deals with this problem by selecting, in order to reduce the greenhouse gas concentration in the global atmosphere, a particular part of the problem, namely emissions of greenhouse gases from the territory of the developed industrial States listed in Annex I to the UNFCCC and sinks which function due to measures taken by these States. These emissions and activities are a significant contribution to the problem of climate change, but not the only one.

Doha and Warsaw

This article addresses the legal instruments of international climate change policy as they have been reshaped by the Doha conference in 2012, thereafter modestly developed by the Warsaw conference in 2013, trying to prepare a new generation of legal instruments to govern the fight against climate change in the future.

Is the law of occupation applicable to the invasion phase

The ‘debate’ section of the Review aims at contributing to the reflection on current ethical, legal, or practical controversies around humanitarian issues. The definition of occupation under international humanitarian law (IHL) is rather vague, and IHL instruments provide no clear standard for determining the beginning of occupation. Derived from the wording of Article 42 of the 1907 Hague Regulations, occupation may be defined as the effective control of a foreign territory by hostile armed forces. It is not always easy to determine when an invasion has become an occupation. This raises the question whether or not the law of occupation could already be applied during the invasion phase. In this regard, two main positions are usually put forward in legal literature. Generally it is held that the provisions of occupation law only apply once the elements underpinning the definition set out in Article 42 of the 1907 Hague Regulations are met. However, the so-called ‘Pictet theory’, as formulated by Jean S. Pictet in the ICRC’s Commentary on the Geneva Conventions, proposes that no intermediate phase between invasion and occupation exists and that certain provisions of occupation law already apply during an invasion. The collapse of essential public facilities such as hospitals and water-supply installations, partly due to the large-scale looting and violence that came along with the progress of the coalition forces, in Iraq in 2003 demonstrates that this discussion is not simply a theoretical one. Invading armed forces need clarity as to what rules they need to apply. Three experts in the field of occupation law –Marten Zwanenburg, Michael Bothe, and Marco Sassoli – have agreed to participate in this debate and to defend three approaches. Marten Zwanenburg maintains that for determining when an invasion turns into an occupation the only test is the one set out in Article 42 of the DEBATE Volume 94 Number 885 Spring 2012

Fact-finding as a means of ensuring respect for international humanitarian law

The ways and means to ensure respect of international humanitarian law are diverse. Various actors play various roles on this scene. There are various actors representing the “public” interest, the international community. First, there is the ICRC, impartial, experienced, of high moral standing, mostly using a diplomatic approach. There are public prosecutors, albeit not in all cases, depending on details of the rules concerning jurisdiction. There is the Security Council, powerful, sometimes high-handed, and sometimes inefficient. There are the victims, having more and more access to remedies. However, a decentralised procedure being to a larger extent in the hands of the States directly concerned has a necessary function in this complex mix of procedures. This, it is submitted, is provided by the International Humanitarian Fact-finding Commission.

Das völkerrechtliche Gewaltverbot und die Eindämmung des Krieges – eine unmögliche Aufgabe?

Das Thema scheint das volkerrechtliche Gewaltverbot in Frage zu stellen. Gilt es oder gilt es nicht? Die Antwort ist offenbar ein klares „vielleicht“. Man kann die Frage formulieren, ob eine auf ein unmogliches Ergebnis gerichtete Norm auch nichtig ist. Weil sie diese Frage angesichts der allenthalben ausgeubten militarischen Gewalt bejahten, haben auch prominente Volkerrechtler das Gewaltverbot immer mal tot gesagt. Aber Totgesagte leben bekanntlich langer.