ABSTRACT
The purpose of this chapter is to examine a gap in current war crimes law in relation to environmental crime. The laws of war, and in particular those laws that describe war crimes, fail to adequately protect the environment from the sort of pillaging that has become a central component of recent warfare. In this chapter, I will argue that many, indeed, perhaps most wars, can be characterised as resource wars – as wars where a group of states or rebels are intent upon securing control over a country’s natural resources – and that the exploitation of natural resources is intimately bound up with the conduct of the war itself. Despite the prevalence of resource wars over at least the last two centuries, however, the systematic exploitation of natural resources during the course of conflict or conquest is not adequately conceived as a war crime under modern international humanitarian law. This gap leaves much of the globe’s natural resources vulnerable to the vagaries of war and provides few significant legal protections for them. I argue that this lacuna makes international war crimes law particularly ill-suited for the realities of modern war, and I suggest that this should be remedied by revising the laws of war in particular ways, including the creation of a new international crime of war that I will refer to as the criminal exploitation of natural resources in wartime (Brisman and Nigel 2013; Hulme 2004, 2010). Such a category of criminality would both protect nature in times of armed conflict as well as potentially reduce the length of conflicts by limiting access to resources that could prolong conflict. In addition, I will argue that the concept of joint criminal enterprise (JCE) can be deployed to further protect the environment from profiteers in the private sector.
