The two most significant legal developments skirting around the issue are; the UN’s “Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques” (ENMOD) and the inclusion of provisions in “Additional Protocol I” (API) prohibiting methods causing “widespread, long-term, and severe damage to the natural environment” during warfare.
This may sound promising to any uninitiated in the legal mire that is directed by politics. Applauding these Treaties is premature, given the near impossibility of: a) clearly violating the directives and b) enforcing any punitive measures.
Define and enforce. Two primary issues that derail so many international legal initiatives. Without them, it’s all propaganda and flag-waving.
The API sets an unattainable threshold. It demands the fulfillment of All Three elements of “damage” (widespread, long-term, and severe) for any military action to be in direct violation. I refer you again to my “Two Primary Issues” of “Define and Enforce” that undermine this seemingly straightforward directive.
The ambiguity surrounding this legal terminology again underscores the importance of clarity and specificity in definitions in the global legal arena. How is “widespread” determined? How is “long-term” measured? What levels of measurement define “severe”? The debate rages on over differing international interpretations of terms and cultural meanings between the connected directives. Additionally, neither ENMOD or API explicitly state that any breach constitutes an actual crime. If there is no crime- what point is there in discussing punishment?
The graph below illustrates the crux of the problem, clearly indicating the language issues; “several”, “at least”, “approx. a season”, “significant disruption” etc.
While an understanding was reached to determine the definitions in ENMOD, there is still a dispute about the meaning of the terms in API.
The definitions provided here are among the more commonly accepted. (S.Daft)
To date, the only military event that has sufficiently met both ENMOD and API standards was the deliberate setting fire to the Kuwaiti oil fields by Iraqi forces. One event in a world of wars and environmental destruction that now includes the Ukraine, Gaza, and again, Syria amongst others. There are currently over 25 ongoing military conflicts around the world.
In 2021, an effort was made to instill methods for quantifying the destruction of natural environments thus clarifying criminal responsibility. An international panel consisting of environmental and criminal lawyers gathered in an attempt to address the issue. They presented us with a new definition outline for; “ecocide”.
Drawing on the 1945 post-war efforts to define and condemn WWII war atrocities, the term “ecocide” embodies the accepted legal elements of “genocide” and “crimes against humanity” as the basis for the terms legal definition. The innovative and determined work of British lawyer Polly Higgins (1968-2019) and Australian James Crawford (1948-2021), were foundational in pushing forward an initiative to insert protection of the environment as a real and central part of modern international law.
An official and legal inclusion of “ecocide” would for the first time since 1945, add a new crime to international criminal law. It would also support expanded parameters of the existing crime of “severe damage to the environment during armed conflicts”.
In 1972, Swedish Prime Minister Olaf Palme publicly supported the concept of ecocide as an international crime at the “UN Conference on the Human Environment” where it finally slipped in the back door and entered the arena of public awareness but limited debate.
The 2021 special panel formally requested that ecocide be added to the Rome Statue as a 5th crime against humanity. In their argument, they presented a definition of ecocide as follows:
“1. For the purpose of this Statute, “ecocide” means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.
- For the purpose of paragraph 1:
(a). “Wanton” means with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated;
(b). “Severe” means damage which involves very serious adverse changes, disruption or harm to any element of the environment, including grave impacts on human life or natural, cultural or economic resources;
(c). “Widespread” means damage which extends beyond a limited geographic area, crosses
state boundaries, or is suffered by an entire ecosystem or species or a large number of human beings;
(d). “Long-term” means damage which is irreversible or which cannot be redressed through natural recovery within a reasonable period of time;
(e). “Environment” means the earth, its biosphere, cryosphere, lithosphere, hydrosphere, and atmosphere, as well as outer space.”
In a heroic effort to tackle the previous vague definitions under ENMOD and API, they included and expanded on the original treaty parameters. They added a deeper level of definition but still failed in specifics by using terms such as; “reasonable period of time”, large number of human beings”, “reckless disregard” etc.
However, it brought the concept of “ecocide” to the public forum, a major achievement. It invited the conversation into the light, forcing politicians to take reluctant notes.
While support for ecocide laws criminalising the mass damage and destruction of ecosystems by war and conflict is slowly gaining momentum, it still rates low in any political forum. Fully acknowledging it would introduce the dangerous concept of war in and of itself being a crime.
In the grim tapestry of armed conflict, the links between wars and the destruction of ecosystems, natural water resources, and human tragedy are distressingly public and evident to all. The consequences reverberate beyond the immediate battlegrounds permeating across time, endangering equally the environments and the health and well-being of civilian populations dependent on those same natural resources.
Based on the body of evidence, we can conclude that the environment, whether through deliberate military action or as collateral damage is as much a victim of war as humanity. If we are to survive, war is not the answer.
