Abstract
The law of war, or jus in bello, may be either of greatest importance to humanity in its aim to regulate and restrict the horrors of war, or of the greatest nullity in that inevitably war crimes will occur, and it is quixotic to believe otherwise. Regardless of how true the latter may be, it is undeniable that jus in bello does regulate some behaviour in armed conflict and further that it is enforced after the fact to bring about justice for victims of such crimes. For example, jus in bello dictates how parties to a conflict must treat civilians and prisoners of war, and distinguish between military and civilian objects. More recently, the law has developed to afford protection to the environment, which has historically suffered greatly as a result of armed conflicts. The creation of the Rome Statute, and with it the permanent International Criminal Court, has formalised enforcement of jus in bello against individuals who are found guilty of war crimes. However, state responsibility for jus in bello is harder to identify, being located throughout multiple instruments and in customary international law (CIL). It is this last source of law which this dissertation will focus on. CIL remains an unruly beast of international law, difficult to tame or pin down. However, as will be shown, it also offers great possibility in the development of international law and holding states to account for wrongful actions.
This dissertation will examine and map the customary law of environmental protection during international armed conflict as it applies to state responsibility. This will allow for a consideration of where we presently are on the pathway to crystallisation, if it has occurred or, if not, whether any new customary principles of international law are taking shape on the horizon.