OPINION: Militaries need to recognize the legal rights of the environment

(Photo/Kevin Schmid/Unsplash)

By Ananya Mukherjee (MPA '24)

Wartime environmental protection is a topic that is seldom debated. Experts in international law and policymakers around the world are decidedly cautious about entering this complex domain.

The perpetual balancing act between military objectives and the rights of non-military entities takes an even more intriguing turn when it comes to the environment. Unlike civilians or "non-combatants," as they are referred to in the international law paradigm, the environment has very few inherent rights. It cannot demand protection, question the necessity or severity of military strikes, or, at its core, advocate for itself. As a voiceless spectator, progress on policies for wartime environmental protection has been slow and lengthy.

The infamous "Scorched-Earth Policy," which relied on the "strategy" of destroying everything in its path, has been in use since the early days of warfare. It was employed by Napoleon as early as 1812 and continued with the United States' use of Agent Orange during the Vietnam War. The Vietnam War witnessed the defoliation of over 3.1 million hectares of forest land, extensive destruction of crops and foodgrains, alterations to the course of rivers, and permanent damage to Vietnam's ecosystem.

Any discussion of wartime environmental destruction is incomplete without considering the ongoing conflict in Ukraine. This conflict has affected 30% of the country's protected areas. Wartime environmental destruction in Ukraine has been undeniable, catastrophic, and of staggering scope. Civilian structures and buildings have been reduced to rubble, while continuous fires and bombings have ravaged the country's soil. Devastating impacts on crop production, unnatural diversion of water resources, and the near-extinction of several endemic species, such as the sandy mole rat and saker falcon, have been observed.

Yet, more often than not, insufficient attention is given to environmental damage. As of February, the financial cost of this destruction was estimated at over $51 billion.

Unfortunately, international law provisions concerning wartime environmental damage remain ineffective. Perhaps one of the only provisions directly addressing this concept, Article 8(2)(b)(iv) of the Rome Statute, criminalizes environmental damage during international armed conflicts but requires the damage to be "disproportionate to the anticipated military advantage." This means that militaries may, prima facie, cause environmental damage during international armed conflicts, but they may be held accountable by the International Criminal Court if such damage is deemed "disproportionate." While military "proportionality" is an accepted concept under the laws of war, the question of whether this standard should be blindly applied to the environment remains unanswered.

It is likely that even "proportionate" damage could result in severe environmental degradation and harm. The ability to quantify environmental destruction at the time of the attack is also limited, depending on available technology. In many cases, in the context of the environment, long-term environmental damage is only recognized years into the future. For example, the extensive destruction caused by the use of Agent Orange, which not only affected Vietnam's ecosystem but also impacted countries like Thailand, has only recently come to public attention. This raises the broader question of whether environmental damage should be permitted at all, regardless of its military value. Shouldn't militaries be required to minimize environmental risks?

The 21st century has witnessed a growing consensus on the immediate and devastating threat of climate change. The unique nature of the environment as a global common has facilitated the implementation of numerous collaborative policy frameworks. The UN Framework Convention on Climate Change, the Kyoto Protocol, and the Paris Agreement are all examples of the increasing focus on environmental protection and global cooperation.

The scarcity of environmental resources poses challenges not only today but will most significantly impact future generations. Intergenerational Equity is now a crucial principle of international law. In the current pursuit of sustainability, climate mitigation and adaptation, climate resilience, and a myriad of other "climate" conscious initiatives, where does the military's responsibility to preserve the environment fit in? Currently, 6% of global greenhouse gas emissions are attributed to military activities alone. Prohibiting militaries from targeting and damaging the environment would be a decisive step in securing legal rights for the environment and protecting future generations.

The current international frameworks favor militaries, allowing them to classify the environment, considered a "civilian object," into a legitimate "military objective." Despite Article 8(2)(b)(iv) being a part of the Rome Statute since its inception in 2002, not a single prosecution has been initiated under this section to date. The provisions provided to the military under this provision make it nearly impossible for the Prosecutor to launch a successful case. Practices that involve using the environment for military benefit at the expense of all others, as seen in Ukraine, are unlikely to cease if such leeway continues to be granted to warring armies.

International law's reluctance to act on the military's tendency to target and destroy the environment allows armies worldwide to act with impunity. While governments, businesses, international and national organizations, and an increasing number of today's youth are coming together to prevent further environmental damage, the military arms of these same governments have conveniently been left out of the equation. For example, while the International Criminal Court has launched an investigation into Ukraine and issued an arrest warrant against Putin, this is limited to the forced deportation of Ukrainian children. There has been no mention of the alarming and ongoing environmental damage.

Interestingly, the ICRC Guidelines for Military Manuals provide instructions and methods for armed forces to protect the environment. These guidelines, if widely adopted by armed forces, could be instrumental in curbing wartime environmental damage.

Ananya Mukherjee (MPA '24) has an active interest in the fields of human rights, international law, and environmental security. In her previous career, she worked as a corporate lawyer.

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