When the fighting is over, who will take accountability for the environmental damage caused? – The effectiveness of establishing environmental post-conflict liability

Next to human suffering and damaged infrastructure, armed conflict always harms the natural environment in and around conflict areas. The harm is mainly rooted in collateral damage, but can also be a result of a direct attack or of environmental modification techniques. While the main focus of the public, media and court cases revolves mainly around the humanitarian impact, the environmental damage can last for several years, decades or even forever. Consequently, the issue of liability for these damages is raised, some of which need long-term reparation. Following this question, this thesis examines the level of effectiveness in the establishment of post-conflict liability for environmental damage. After a quick introduction to the humanitarian, environmental and legal realities of armed conflict, the thesis focuses on specific legal sources that entail environmental protection in armed conflict. It aims to assess the completeness of these legal sources by using the so-called PERAC Principles as a basis for identifying gaps in the existing provisions. While the PERAC Principles generally aim for a higher protection than the existing laws, the gaps are found with regards to non-international armed conflicts, responsibility of non-State actors and the post-conflict phase. However, the general provisions on international responsibility are applicable, which can be used to establish liability, leading to a full compensation for the damages. Next, past conflicts that were mostly addressed by the UN Security Council (UNSC) are examined to outline the application of the legal sources. The thesis pinpoints the Vietnam War as initiating the discourse on environmental protection in armed conflict and highlights the aftermath of the Gulf War positively as it resulted in full compensation. However, this approach was not followed in subsequent conflicts, despite one of the rare cases before the International Court of Justice (ICJ) approving how the UNSC addressed the Gulf War. The thesis proceeds to assess the level of effectiveness in the current state of play. It points out that this assessment is reliant on the perspective taken when looking at international law and introduces four schools of thought from international relations theory, namely the realist, liberal, institutionalist and constructivist theory. After describing their contents, they are used to highlight flaws that lie in the legal sources as well as in their practical application. The main flaws thereby can be seen in the practical application which suffers from the UNSC’s permanent members veto power and the hard to establish jurisdiction of the ICJ among others. The thesis proceeds to propose several solutions that would almost all need to be accepted by the permanent members of the UNSC, before it concludes that the current system of post-conflict liability for environmental damage is mostly ineffective.