Are we at War with the Environment?

[Ananya Bhargava is an undergraduate law student at Jindal Global Law School with research interests in feminist critiques of law and exploring international law through a critical and socio-political lens]

On the opening day of COP 29 Summit, a group of climate justice NGOs staged a protest to demand the world to persuade Israel to end all atrocities in Gaza. The activists remarked that the “the cycle of war is undeniably increasing global emissions and removing our ability to actively and decisively respond against the climate crisis.” What followed was a lukewarm response from state representatives coupled with blatant inaction and evasion of responsibilities. The issue of war and military emissions was starkly absent from COP 29 discussions. This leaves us with barely any meaningful action or commitment to address the environmental devastation caused by armed conflict in the future. 

Environmental destruction during wartime has been subject to much research and debate, yet their real implications remain underwhelming. The point of international environment law being largely anthropocentric is echoed repeatedly by many international scholars. Ecofeminism’s critique of international environment law today is centered around its anthropocentricism. What is prominent in this critique is the realization that the international law corpus operates within a dominant State-centric structure, where sovereign states are the primary actors in the international legal order. Thus, anthropocentricity in this framework does not mean catering to human interest only, rather it means catering to the interests of sovereign states. 

Logically, the result of such state-centric “anthropocentricism” is an inadequate and largely flimsy set of laws that justify sustained environmental exploitation through patterns of inter-species discrimination and oppression entrenched in hierarchies within international law. Thus, international environmental law today reproduces structural hierarchies within international law where state sovereignty is seen as the pinnacle of international authority and legitimacy, leaving little room for eco-centric considerations. Through this piece, I argue that the hierarchization of the international law corpus has resulted in an uncomfortable binary between state interest and the protection of the environment, where the destruction of the latter is justified for the “interest” of the former. This binary is particularly stark during wartime. 

I do this by positioning environmental destruction during wartime within the current international environmental law framework and highlighting the sheer absence of eco-centric provisions in this regard. As a concluding remark, I suggest that a radical shifting in the current international environmental law policy making structure is required to dismantle its anthropocentric foundations, prioritize eco-centric approaches, and redefine the environment as an entity deserving protection beyond state interests or utility to humans.

An Anthropocentric Framework on Wartime Environmental Protection

Nearly all of the international agreements that regulate environmental damage during wartime today are exclusively anthropocentric, only prohibiting attacks on the non-human environment to the extent that it harms the state population or (interest). Although eco-centric considerations did gain international traction in the aftermath of massive defoliation and brazen environmental damage during the Vietnam war, these discussions could only materialize in superficially protectionist agreements. The common element in all these international agreements is the over-emphasis on the “proportionality” standard that is heavily weighted against finding an armed attack or conflict disproportionate to the environmental harm caused.

For instance, the Environmental Modification Convention (ENMOD) asserts that military or other hostile uses of environmental modification techniques having widespread, long-term, or severe effects is an impermissible means of warfare. Similarly the 1977 Additional Protocol I to the Geneva Conventions (Protocol I) prohibits means of warfare which are intended to cause widespread, long-term and severe damage to the non-human environment under Article 35(3)  and requires countries to protect the non-human environment in Article 55 that emphasizes that destructive means and methods of warfare must be prohibited because damage to the non-human environment will prejudice the health or survival of the population. More prominently, Article 57(3) specifically privileges the human over the non-human, providing a choice to obtain military advantage through an attack that may be “expected” to cause the least danger to civilian lives.

A teleological interpretation of these agreements reveals their anthropocentric nature wherein the only purpose to protect the non-human environment is to protect the State party. ENMOD, for instance,  is only secondarily concerned with protecting the non-human environment; its main concern is to prohibit State Parties from using destructive environmental modification techniques that may harm other State Parties. Further, the threshold of “widespread, long-term and severe effects”  adds an ambiguous proportionality standard coupled with a very high threshold to hold an attack as impermissible. First, these terms are not defined appropriately making the provisions susceptible to be misused by powerful states. The attacking state can justify almost any environmental harm as long as it does not have a “widespread, long-term or severe” effect.

This framework fails to account for the incremental and cumulative environmental damage caused by conflict, which, though not immediately catastrophic, can lead to long-term ecological devastation. Thus a clear binary is created here, where the proportionality standard is blatantly in favour of the attacking party. 

Is Ecocide Truly Non-anthropocentric?

A more glaring manifestation of anthropocentricism is in Article 8(2)(b)(iv) of the Rome statute famously referred to as the provision on “ecocide”. Despite being celebrated as the first “non-anthropocentric” international wrong, Article 8(2)(b)(iv) explicitly allows damage to the non-human environment as long as it is not “clearly excessive” in relation to the anticipated “concrete and direct overall military advantage”. This language embeds a troubling utilitarian calculus into the legal framework where military advantage is weighed against and prioritised over environmental protection. 

Article 8(2)(b)(iv) states:

Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated

Although the Article decouples environmental protection from the additional caveat of human injury, it further weakens an already inadequate framework on wartime environmental protection by adding an additional threshold of an attack being “clearly excessive” in relation to the “overall” military advantage. This is completely counter-intuitive to the purpose of Article 8(2)(b)(iv), which was initially labelled as a pioneering “eco-centric provision.” This higher threshold of  a crime being “clearly excessive” further tilts the proportionality standard in favour of states. The word “clearly,” as Rober Cryer points out, obscures the crime further, raising the threshold for accountability of the perpetrators.  Thus, Article 8(2)(b)(iv), despite being a welcome addition to the current environment law corpus, reflects the same reluctance that has long plagued efforts to give the environment its rightful place in the global legal order.

New Hopes in the 2022 UN Draft Principles or the Same Old Mistakes?

Recent legal developments, especially the 2022 UN Draft principles on the protection of the environment in relation to armed conflict does represent renewed yet inadequate effort to remedy the complete failure of the existing legal framework on wartime environmental protection. While there are certain promising additions to the existing legal apparatus, the draft principles mostly reproduce pre-existing anthropocentric provisions.

For the first time, the principle employs a temporal approach to comprehensively protect the environment across all three phases of armed conflict; that is  before, during and after the hostilities. This distinction marks a significant departure from existing frameworks, which predominantly limit environmental protections to the period of active conflict.

More prominently, Draft principle 12 extends the Martens Clause to the protection of the environment. This is significant, since it conflates binaries of humanity and the environment. As Germany noted in its written observations, Draft principle 12 merges the dual ideas of anthropocentricism and eco-centrism and extends a similar humanitarian protection to the environment. Further, Draft principle 14 adds another layer of eco-centrism. The draft clearly provides that the

the law of armed conflict, including the principles and rules on distinction, proportionality and precautions shall be applied to the environment, with a view to its protection.

Further, in what may be referred to as a pioneering move, the Draft principles also address environmental protection in Non-International Armed Conflicts (NIAC), something that suffered from a perpetual dearth of legal attention in the past.  The principles create a single basic framework for both international and non-international conflict. These challenges have not yet been addressed by the International Law Commission (ILC). Still, the inclusion of NIACs does reflect a determination to rectify past mistakes and to expand the protective scope for the environment in armed conflicts.

That said, there are some obvious anthropocentric undertones. The ILC deliberately excluded the previous reference to “military necessity” from the text of draft principle 14 arguing that it lacked the same level of generality as the other principles. While it may appear insignificant on a surface-level reading,  yet the omission of military necessity from the text of draft principle 14 subtly suggests that environmental protection may not take precedence in conflict scenarios especially when there is a “military necessity”. Thus, ultimately “military necessity” remains a dominant consideration even in the new Draft Principles. 

Concluding Remarks and a Call for (Environmental Policy Making) Revolution

Although there are differing obligations in all these agreements, this post was an attempt to analyze the existing laws on wartime environmental protection and to urge the reader to recalibrate piecemeal environmental policy making. While there have been incremental improvements leading up to the 2022 UN Draft principles, the world today needs a revolutionary change in the current environment law corpus. 

To state the obvious, war will inevitably cause widespread damage to the environment, and the current frameworks for wartime protection can only mitigate this harm to a certain extent, since their main purpose is to balance environmental destruction, not to eliminate it entirely, as military necessity will always be the dominant priority. To truly protect the environment, the entire framework of wartime environmental protection law needs a fundamental overhaul. The entrenched anthropocentricism that manifests the engrained hierarchies in international law must be dismantled. 

The reality that wars leave an enduring impact on the environment and can devastate ecosystems cannot be ignored. Israel’s war on Gaza has rendered in uninhabitable for generations to come. The current provisions are not equipped to deal with such mammoth situations where modern warfare techniques have dramatically increased humankinds ability to damage the non-human environments. 

This necessitates a radical shift in the current international environmental law regime. Preventive laws or a balanced approach will not suffice to protect the environment. What we need is a new system, rooted in equality; where the hierarchy within international law is obliterated.  More stakeholders must be involved, and the state must be decentred from its position as the primary actor in international law. Most importantly, the binary between state and non-state needs to be destabilized.

It is time to move beyond this outdated binary between state and non-state, and to recognize the environment, and the people most affected by its destruction, as critical actors in the international legal system. We cannot afford to continue treating the environment as a mere backdrop to human activity or reducing those affected by environmental harm to an afterthought. It is thus crucial to reconceive international environmental law through an eco-centric lens, and to reshape the current framework that thrives on anthropocentricism. To end this piece, I leave the readers with David Boyd’s zealous remarks, on the state of current legal system

Today’s dominant culture and the legal system that supports it are self-destructive. We need a new approach rooted in ecology and ethics […] We are part of nature: not independent, but interdependent.