Ecocide and Article 2(4): Envisioning Environmental Aggression as “Use of Force”

[Ananya Bhargava (she/her) is a law student at Jindal Global Law School]

Introduction

Historically in situations of war, international law has maintained fidelity to a strictly parochial understanding of what constitutes “use of force.”  This understanding adheres to the normative belief that “use of force” solely includes armed force. Any deviation from this belief would invariably lead to the unsettling of definite principles of jus ad bellum or laws of war. Although a contextual reading of “use of force” to only include grave violations is imperative, confining it to “armed violence” exceptionalises the application of Article 2(4), inevitably excluding other severe forms of non-armed violence that might be more catastrophic. One such form of non-armed violence is the long term and irreparable impacts of war on the environment, which can be categorized as “ecocide”. While conversations around it and its consequent criminalization has predominantly emphasised on acts committed during “wartime”, it is ironic how the most fundamental laws on war have failed to recognize it as a “use of force” which forms the foundational principle of jus ad bellum.

Long term ecological repercussions of war have been the subject of various academic research, but it has failed to elicit a strong international consensus on its prohibition. The debates around criminalising ecocide has excluded from its purview the idea of  “state committed ecocide”, where states during war have completely destroyed the ecology of another state. Israel’s carnage in Gaza and Russia’s assault on Ukraine has been termed by many scholars as an “act of ecocide”, yet, this has minimal implications on the legal consequences faced by state perpetrators, since international criminal law only establishes criminal liability on individual wrongdoers. Further, despite its relevance during wartime, the characterization of ecocide as only a criminal offence and not  “use of force” under international law,  misunderstands the most rudimentary concept of war, that is, that the most severe wars in global history have been fought between nations where one state has inflicted irreparable environmental damage on the other. Providing impunity to states against the war crime of ecocide is one of the biggest failures of the public international law apparatus. It proves that the international legal order has been complicit in legitimising the destruction of the environment as a weapon of war.

This piece attempts to interpret “ecocide” as “use of force” under Article 2(4) of the UN Charter. It provides a locational framework that attempts to displace the traditional “instrumental” understanding of “use of force” with a consequence-based understanding, which emphasises on the impact of use of force on the territorial integrity of a state rather than the instrument used to inflict the same. In doing so, this piece first  contextualises the issue of ecocide in wartime particularly keeping in hindsight Israel’s war on Gaza and the Russia-Ukraine war. Second, it establishes how pertinent legal provisions with regard to ecocide during wartime are insufficient. And consequently, this argues how there is a need to broaden the interpretation of “use of force” to include “ecocide”. 

The Issue of Ecocide During War and State Impunity

The term “ecocide” does not find a definite space in the black letter of international law. While there has been growing international outcry for its inclusion under the Rome Statute, ecocide remains inconsistently defined. Ironically, the term “ecocide” was first coined by Professor Arthur W. Galston during the Vietnam War, who defined it as “the wilful and permanent destruction of an environment in which people can live in a manner of their own choosing”.

Thus, a nexus between ecocide and war is not new to the international legal order, in fact, the genesis of the crime lies in wartime environmental devastation.  More prominently, the Rome Statute criminalises “ecological crimes during wartime” under Article 8 which prohibits the launching of an attack in the knowledge it will cause “widespread, long-term and severe damage to the natural environment”. Thus, although there is an international understanding that ecocide is a consequence of war, it still lacks recognition as a standalone “act of force” under the jus ad bellum. Ecocide has generally been understood as a “result” of armed conflict or the consequence of use of force. This contingency requirement of “armed conflict” attached to ecocide ignores the gravity of  its threat.  Further, it also legitimises an erroneous understanding of “ecocide” as merely a consequence of an act of aggression and not an act of aggression in itself. 

The deployment of ecocidal tactics as instruments of war has long served as a calculated means of asserting military, political, and economic dominance. Historically, scorched earth policies, marked by the deliberate destruction of crops, infrastructure, and vital ecosystems, have been employed  to advantage over the rival nation.  A recent gruesome manifestation of this is Israel’s campaign of scorched earth to destroy the fabric of life in Gaza. At this very moment, as I sit here writing this piece, the Palestinian territory has been ruined beyond repair. Israel’s deliberate attempt to obliterate any semblance of habitability, through the targeting of water systems, agricultural land, hospitals, and civilian infrastructure, reveals how environmental destruction becomes a mode of warfare, not just against land, but against life itself. In Gaza, farms have been reduced to packed earth; soil and groundwater have been contaminated by munitions and toxins; the sea is choked with sewage and waste; the air polluted by smoke and particulate matter. This is a lot more than “collateral damage”, it is a systematic tool of erasure,  a deliberate act to completely destroy Palestine’s habitability in the hopes of large-scale emigration.

Therefore, characterising these acts of “environmental aggression” as an inevitable result of  the armed conflict would pose the risk of reducing large scare environmental destruction to something as  insignificant as “collateral damage” that does not need urgent attention from the international legal community. This is completely antithetical to recent developments in international environmental law that has consistently emphasised on the precarity of the current environment and has resultantly called for collective state action with regards to the same. Ironically, although most states have become cognizant of climate change, with the recent net-zero commitments under the Paris Agreement, the absolute silence on state impunity with regard to Ecocide in Gaza is perplexing. 

The Existing Provisions on Protection of Environment During War

Before analysing the jurisprudence of Article 2(4) of the UN Charter and its interpretation by the courts and scholars, it is imperative to look into the existing provisions for environmental protection during war.  Article 35 of Additional Protocol I to the 1949 Geneva Convention, restricts the employment of methods and means of warfare, Article 35.3 states that, it is prohibited to employ methods or means of warfare which are intended to cause widespread, long-term and severe damage to the natural environment. 

Further, Article 55 talks about “Protection of the natural environment” which states that, “care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage.” This is also mentioned in Rule 45 of the International Committee of the Red Cross (ICRC) Customary Law Study, which provides, the use of methods or means of warfare that are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment is prohibited. Destruction of the natural environment may not be used as a weapon.  Although these rules might be considered as customary international law due to established state practice and opinion juris, they are still not enough to impose liability on the perpetrator state due to the lack of significant legal consequences. Further, the pre-condition of being a party to the Protocol is not fulfilled in the case of Israel and many other states thus this inevitably inhibits significant international pressure. Furthermore, although many countries and the Rome Statute under Article 8 has criminalised ecocide during wartime, individual criminal liability is not enough to implicate states that have been complicit in the crime of ecocide during wartime. Thus, a state liability based legal framework is imperative. 

Thus, although the current international law regime does regulate environmental destruction during armed conflict, it is not sufficient to address the gravity of the ensuing havoc, especially when the impacts are at par with or even more severe than impacts of “armed violence”. As a result a more robust and peremptory framework is needed to address the impact of war on the environment. In this regard, Article 2(4) of the UN Charter becomes pertinent, since it establishes a non-derogable duty on states to refrain from the “use of force” against the territorial integrity and political independence of any state.  Therefore, if characterised as “use of force”, environmental destruction as a result of war would be recognized as violation of a “peremptory norm or jus cogens”, which would  elicit stronger compliance by States due to the existence of an international lex superior.  This becomes important, especially in the present context where global cooperative approaches to combat climate change have perpetually failed, and the Russia-Ukraine war and Israel’s war on Gaza has only exacerbated the climate crisis. Therefore, it is crucial for international law to accommodate a more coercive approach towards “ecocide” during wartime rather than depending on individual liability. 

The Traditional Understanding Of Use Of Force

Article 2(4) of the UN Charter provides that,” all members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations”.  Although the term “use of force” has not been defined further, it has largely been interpreted to include “armed violence”  keeping in hindsight the context in which the UN Charter was drafted, when the reverberations of World War II were still palpable in the memory of the international community. Moreover, Article 51 which has been understood as an exception to Article 2(4) includes the phrase “nothing in the Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations. Article 2(4) read with Article 51, has generally been understood by the scholars and ICJ to only include “armed violence” in line with what the two-fold criteria of Article 2(4) read with Article 51 envisages. In the case of Nicaragua v USA, the ICJ took a very restrictive interpretation of “use of force”. In the controversial finding, the court classified “use of force” into two categories, (i) most grave forms of the use of force” (i.e. those that constitute an armed attack); and (ii) “other less grave forms” of the use of force (i.e. organizing, instigating, assisting, or participating in acts of civil strife and terrorist acts in another state: when the acts referred to involve a threat or use of force, but not amounting to an armed attack). Thus, although “use of force” was not understood as being limited to armed attack, its meaning was restricted to something that comes closer to an “armed attack” like a civil strife or terrorist attack. Further, subsequent jurisprudence on “use of force” by ICJ in Corfu Channel, Oil Platforms and DRC v Uganda , has severely restricted the meaning “use of force” to armed attacks where now the ICJ cannot even envisage a situation where “use of force” could include something other than “armed violence”.

Further, the 1970 Friendly Relations Declaration elaborated on the meaning of use of force under Article 2(4) which only included instances of “physical force”. Further, the 1974 Definition of Aggression by the UNGA defined it as a “use of armed force” against the sovereignty, territorial integrity and political independence of state. Thus, when read with Article 2(4), this also alludes to a severely restrictive definition of “use of force”. Further, the travaux préparatoires of the UN that the intention of the UN Charter drafting committee was to refer to “use of force” as armed attack, and not economic coercion. Thus, the dominant scholarship around “use of force” actively rejects the broadening of its definition.  Although there have been attempts made in the recent past to broaden the definition of “use of force”, the same was received with hostility by the international community. The Brazilian delegation to the drafting committee proposed an amendment to include “economic measures” as a category of “force,” but the amendment was “explicitly rejected.

This is the “instrument-based” approach to understand use of force where the instrument used for infliction of force is the sole determinant of whether an action is “use of force”. Rather than this approach, a “consequence-based” understanding of use of force is important to contextualise Article 2(4) as per the evolving needs of the international community. Further, many scholars and states have increasingly abandoned the instrument-based approach in favour of an alternative framework: violations of Article 2(4) should be determined based on the “scale and effects” of a state action, rather than on the instrument used. As has been argued above, the climate exigencies of the current world order necessitate the inclusion of crime of ecocide as use of force. This is in line with the needs of the international community. Craig Martin has predicted that climate change-induced suffering will in fact “exert pressure for changes” to the jus ad bellum regime in a similar way that the international inaction in Rwanda and Bosnia, and the  subsequent forceful interventions in Kosovo pushed R2P in mainstream discourse. The catastrophic impact of Ecocide on a state has been dealt with in detail above, thus, this calls for a need to formulate a potent framework against ecocide which can only be done when it is included as a “use of force” under Article 2(4). 

An Alternate Understanding of “Use of Force”

Importantly, recent developments in the international legal order open space for incorporating an alternate, non-traditional understanding of use of force. The ICJ’s Advisory Opinion in  Legality of the Threat or Use of Nuclear Weapons, said that Article 2(4) will apply to any use of force regardless of the weapons employed. Consequently, the International Group of Experts unanimously agreed that this statement is an apposite reflection of customary law. This understanding has been foregrounded to interpret cyber-attacks as “use of force.” In this context, the consequence of the attack becomes centred to determine use of force and not the weapon/instrument used.  The Tallin Manual delineates certain high threshold criteria to facilitate the classification of cyber-attacks as use of force. Prominently, it is the “scales and effects” test where the severity, immediacy, directness,  invasiveness, and measurability of effects are used as thresholds to determine whether cyber-attack meet the “scale and effect” of use of force under the Charter. Thus, the idea of a broader interpretation of “use of force” is not unknown to the international legal order.  

The rigidity of traditional international law to confine use of force solely to armed attack reveals its deeply anthropocentric commitments, where harm is calibrated through human casualties and kinetic violence, sidelining large-scale environmental destruction. This framework not only ignores the catastrophic force states can exert on ecosystems, but also naturalizes a hierarchy of violence wherein only certain forms of harm, those legible within a narrow, statist calculus of proportionality, are rendered visible, while slower, ecocidal forms of aggression remain juridically insignificant.

Further, under the permissive interpretation of Article 2(4), which emphasises a literal and textual reading, “use of force” can encompass any act that threatens the territorial integrity or political independence of a state, or is inconsistent with the Purposes of the United Nations. As previously discussed, ecocide constitutes a direct assault on a state’s territorial integrity and independence. Moreover, the United Nations has a long-standing engagement with environmental protection, even in times of armed conflict, dating back to as early as 1949 with the Additional Protocols to the Geneva Conventions. The widespread ratification of climate change treaties and the consistent global trend toward environmental protection can reasonably establish opinio juris and state practice, to present this as customary law. Environmental protection is therefore inherent to the purposes of the United Nations, and any grave violation, particularly one that undermines a state’s territorial integrity, must be understood as a “use of force” under Article 2(4).

Conclusion

To conclude, this paper has attempted to provide a comprehensive analysis of “use of force” under Article 2(4) of the UN Charter and the need to interpret it in tandem with recent ecological violations.  Although, there is a dearth of scholarship arguing on similar lines, the imminency of the issue cannot be over-emphasised. The need for a robust framework including state liability in cases of ecocide is imperative, otherwise the biggest perpetrators of ecological destruction i.e. nation states will go unpunished.  As the climate crisis deepens and states continue to deploy environmental destruction as a weapon of war, the existing legal architecture, rooted in anthropocentric hierarchies of violence has proved to be increasingly inadequate. It is no longer tenable to treat ecocide as a peripheral wartime consequence or to rely solely on individual criminal liability. The law must confront the reality that sovereign acts of environmental annihilation, whether in Gaza, Ukraine, or elsewhere, do not merely violate environmental norms but they devastate territorial integrity, displace populations, and render lands uninhabitable for generations. In doing so, they strike at the very core of what Article 2(4) seeks to protect.

If international law is to retain any relevance in this present state of growing emergency, and urgency, it must learn to see beyond bombs and bullets and recognise the violence of environmental collapse as the most enduring weapon of war.