Articles

Scorched Earth: Environmental War

Crimes and International Justice
Bronwyn Leebaw
Environmental devastation is not only a byproduct of war, but has also been a military strategy since ancient times. How have the
norms and laws of war addressed the damage that war inicts on the environment? How should environmental war crimes be
dened and addressed? I address these questions by critically examining the way that distinctions between legitimate and illegitimate
wartime environmental destruction have been drawn in debates on just war theory and the laws of war. I identify four distinctive
formulations for framing the wartime signicance of nature that appear in such debates and analyze how each is associated with
distinctive claims regarding what constitutes humaneness in times of war: nature as property; nature as combatant; nature as
Pandoras Box; and nature as victim. I argue that efforts to investigate and judge the environmental impact of war destabilize and
expose the limitations of core distinctions that animate humanitarian norms, but also offer an important and neglected source of
guidance in addressing those limitations.

mages of wartime suffering are commonly set against

scarred and ruined landscapes. Environmental devastation is not only a byproduct of war and militarism,

Bronwyn Leebaw is Associate Professor of Political Science at the

University of CaliforniaRiverside (bronwyn.leebaw@ucr.edu).
She is a co-organizer of the UC Human Rights Collaboration,
and has published articles on humanitarianism, transitional
justice, human rights, and restorative justice in journals such as
Perspectives on Politics, Human Rights Quarterly, and
Polity. She thanks the Center for Ideas and Society at UC
Riverside for funding to support a working group on the theme
Environmental Legacies of Conict, which provided essential
support in the development of this article. A special thanks to
UCR colleagues Yuhki Tajima, David Biggs, and Derick Fay
for the weekly workshop meetings and discussions of the themes
that animate this piece, and for their insightful comments and
suggestions in response to presentations and early drafts. A
version of this paper was presented at the annual meeting of the
Western Political Science Association in 2012. She thanks all
of those who commented on the paper or presentation at
that time, including John Barry, Breena Holland, Andrew
Valls, and Juliann Allison. This work has also beneted
from ongoing exchanges on these themes with my colleague,
Farah Godrej, as well as from comments received from
participants at meetings and conferences sponsored by the
UC Human Rights Collaboration. Finally, the author
would like to thank Jeffrey C. Isaac and the anonymous
reviewers from Perspectives on Politics, who helped
enormously with their suggestions and advice.
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but has also been implemented as a military strategy since

ancient times. The tale of Roman legions salting the
earth to prevent the Carthaginians from challenging
Rome may be apocryphal, but scorched-earth tactics have
been a regular and familiar strategy of war. General
Sherman devastated the landscape of the Confederacy as
a means of breaking down its morale. Between 1961 and
1971, the United States sprayed 12 million gallons of
toxic chemical agents over more than 6 million acres in
Vietnam. During the Gulf War of 19901991, Iraqi
soldiers detonated Kuwaiti oil wells and pumped enormous quantities of oil into the Red Sea. Wartime
environmental devastation not only destroys biodiversity,
but can also cause disease, starvation, and massive loss of
life. At the same time, claims regarding the urgent
imperatives of war are routinely invoked to justify the
abrogation of laws designed to prohibit environmental
destruction.
The scope and inuence of international norms
governing warfare have grown dramatically in recent
decades.1 How, then, do the laws and norms governing
war address the damage that war inicts on the environment? If all forms of war and militarism damage the
environment, what kinds of damage are, or should be
considered, environmental war crimes? Scholars of
international relations and comparative politics have
become increasingly interested in evaluating the relationship between environmental degradation and war.2 However, wars impact on the environment remains at the
periphery of most contemporary debates on the just war
tradition and humanitarian norms. One reason for this is
that scholarship on these themes continues to be
doi:10.1017/S1537592714002126
American Political Science Association 2014

inuenced by a gulf between those with primarily anthropocentric concerns and those advocating a more ecocentric
turn in international norms. Scholars of human rights and
humanitarian law have tended to focus intensively on
efforts to prevent and punish a subset of egregious crimes
against humanity, encompassing torture, disappearances,
genocide, and ethnic cleansing, particularly in their
engagement with wartime abuses. It is not surprising then
that scholars of environmental politics would tend also to
see the norms and laws of war as essentially peripheral or
inconsequential in relation to their own concerns. No state
has ever been held accountable for environmental
destruction conducted during warfare and no individual
has ever been convicted for environmental war crimes.3
Nevertheless, efforts to distinguish between legitimate
and illegitimate, or criminal, destruction of landscapes
have long gured into debates on the ethics and laws of
war. The word environment did not enter into international humanitarian law until 1976, with the passage of the
Environmental Modication Convention in response to
outrage over the use of Agent Orange in Vietnam.4
However, a number of legal scholars have begun to
examine how a range of provisions of international
humanitarian law such as those dealing with the protection
of property, those dealing with chemical and biological
weapons, as well as the basic principles of proportionality
and distinction at the center of humanitarian law might be
expanded or adapted to encompass broader environmental
protections.5 More recently, the 1998 Rome Statute of the
International Criminal Court incorporated prohibitions
on attacks that are intended or expected to cause longterm and severe damage to the natural environment.6
Other scholars and activists have sought to utilize core
principles of the just-war tradition and humanitarian law
as a basis for preventing and addressing ecocide,
generally dened as widespread, long-term, and severe
damage to the environment.7
I aim to bridge the divide between those concerned
with evaluating crimes against humanity or human rights
abuses and those concerned with environmental degradation and wars impact on environments. One reason for
this divide, I suggest, has been that scholars in both arenas
seem to frame efforts to conceptualize environmental war
crimes as a problem that is conceptually distinct from
efforts to classify and analyze claims about the meaning of
humaneness and crimes against humanity in times of
war. Thus, the concept of environmental war crimes is
often explicitly or implicitly analyzed in relation to the
question of how to weigh the relative importance of
protecting human victims of wartime abuse against the
relative importance of preventing or addressing the environmental degradation caused by war. I propose an
alternative theoretical framing that focuses on how ideas
about the relationship between nature and humaneness
are formulated in international norms, with attention to

how those ideas have shifted over time. A major goal of this
analysis is to demonstrate that the logics by which the just
war tradition and international humanitarian law have
formulated the distinction between legitimate and illegitimate destruction of nature have profound implications for
the role of these frameworks as responses to human
suffering and vice versa. A better understanding of these
logics, I suggest, sheds light on some of the problems
inherent in ongoing efforts to conceptualize environmental war crimes, the broader signicance of these problems
in relation to more general aspirations associated with
humanitarian norms, and how such problems might be
addressed.
The theoretical approach developed here is informed
by insights from scholars of environmental justice, as well
as by more general scholarship in the subelds of
environmental political theory and environmental history, and it aims to bring these subelds into conversation with scholarship on the laws of war and international
criminal justice. Debates about the meaning and value of
nature have always been at the center of struggles over
how to justify political order, dene political responsibility and frame ideas about political agency.8 Scholars
associated with the emerging eld of environmental
political theory have sought to revive a specic concern
associated with the Frankfurt School, which was to
examine how mechanisms for justifying domination or
destruction of nature become implicated in mechanisms
for dominating human beings.9 Yet the logic of environmental protection can also function to justify displacement
or obfuscate exploitation and racism, as documented by
scholars associated with environmental history and environmental justice.10 Such scholars have challenged the
ahistorical, romanticized notions of nature that have
animated certain prominent approaches to environmentalism. Similarly, the analysis developed here examines the
implications of distinctive ways of dening and evaluating
the meaning of nature in the context of norms governing
warfare, with attention to the way in which the logics
utilized to dene and evaluate wartime destruction of
nature become implicated in rationalizing other kinds of
wartime abuses. Scholars associated with environmental
political thought and environmental history, as well as
those associated with new materialism, have, in various
ways, examined how claims about the relationship
between humanity and nature are implicated in the way
that people come to dene and practice political agency.11
The analysis developed here is similarly concerned with
examining how shifting ways of formulating the relationship between humanity and nature have informed claims
regarding responsibility and agency in debates on the
norms governing war.
More specically, I develop a conceptual analysis of
environmental war crimes that locates and examines four
distinctive formulations for regulating the wartime
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destruction of nature in contemporary debates on just war
and international humanitarian law. First, in early debates
and documents, as well as contemporary interpretations of
humanitarian law, a prominent approach to analyzing
wartime destruction of nature has been to evaluate it in
relation to claims regarding property protections in times
of war. Humaneness, in this formulation, has been
dened in relationship to dominion, ownership, discipline, and control, as dened against wanton or
undisciplined actions. Second, in debates that inuenced
provisions of humanitarian law regarding chemical and
biological weapons, nature has also been framed as
a combatant. In this context, humaneness is associated
with the use of technically superior weapons and the close
identication of human agency with scientic mastery in
response to anthropomorphized enemies in nature.
Third, provisions of humanitarian law that aim to dene
and address the crime of ecocide emerged in response to
the massive herbicidal campaign carried out by the US in
Vietnam. Debates on the crime of ecocide were not only
inuenced by an ecological view of nature and humanity
as interdependent, but also by a new formulation that
positioned nature as a kind of Pandoras Box, lled with
creative and destructive forces that humanity has the
power to unleash, yet not control. Finally, with the rise of
international justice institutions, the expansion of the
environmental movement as well as the human rights
movement, nature has also been framed as a victim, or
potential victim, of war crimes. In this formulation,
humaneness and human agency are dened in relation
to the criminal justice binary of guilt and innocence.
Examining these formulations in historical context
sheds light on how changing ideas on the relationship
between humanity and nature, as well as responses to
changes in wars impact on landscapes, have informed
inuential interpretations of just war and international
humanitarian law. However, it is important to stress
that this is not intended to be an evolutionary or
progressive model whereby one formulation has entirely
eclipsed another. Rather, I suggest that each formulation
remains relevant to contemporary interpretations of the
ethics and norms governing warfare and that a better
understanding of these formulations thus exposes problems and possibilities inherent in ongoing debates on
the role of humanitarian norms. I proceed by examining
each formulation in turn, with attention to its distinctive implications and limitations. The concluding
section outlines an alternative theoretical approach to
conceptualizing environmental war crimes, which
would integrate emerging principles of environmental
justice into the debates on the norms governing war.
In many respects, the environmental justice framework
clashes with the principles and priorities associated
with the just-war tradition and international humanitarian norms. Nevertheless, I suggest that ideas associated
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with the environmental justice movement offer a vital

basis for examining and addressing the limitations of the
ethics and laws of war.

The Things of This Inferior World:

Nature as Property
In his classic text, The Law of War and Peace, Grotius
observes that we may nd in History, almost in every
Page . . . whole Cities destroyed, or their Walls thrown
down to the Ground, Lands ravaged, and every Thing set
on re.12 He evaluates the legitimacy of such destruction
in relation to the question of how enemy property is to be
treated in the context of war. Prior to the development of
private property claims, Grotius suggests, all of humanity
enjoyed a weak claim to ownership over what they
found in the natural world. Almighty God at the
creation, he writes, gave to Mankind in general a
Dominion over Things of this inferior world.13
Rivers, lakes, forests, and mountains that have been taken
in the name of a sovereign are not to be considered
wastelands, according to Grotius, but as property of the
rst occupier. Grotius specied that the right to property
was based on the satisfaction of basic needs and argued
that oceans and atmosphere could never be divided and
claimed as property.
In accordance with Grotiuss formulation, then, wartime destruction of nature is subsumed under the question
as to whether and when it is legitimate to destroy enemy
property. When Grotius initially takes up this question in
a chapter entitled On the Right to Lay Waste an Enemys
Country, he reasons that if one is authorized to kill the
enemy, then there can be nothing inherently illegitimate
about destroying the belongings of the enemy. He later
qualies this position, arguing that such destruction can be
legitimate for three reasons: In cases where the original
property right has been deemed illegitimate, as when one
throws a sword into the river to prevent a madman from
using it; to satisfy a debt that has gone unpaid; and to
destroy a country in order to punish cruelty or aggression.
In all other cases, Grotius argues, combatants should take
only what is necessary to secure a strategic advantage in
battle. Quoting Polybius, Grotius writes that it is an act of
extream Madness to destroy those Things, which by being
destroyed do not weaken the Enemy, nor advantage the
Destroyer.14 In his 1758 text, The Law of Nations, Emer
de Vattel adopts a similar position, observing that warring
armies that tear up the vines and cut down the fruit
trees . . . desolate a country for many years to come.15
Vattel, like Grotius, condones scorched-earth policies as
a military strategy and as a means of punishment, but
condemns those who would commit such acts for feeble
reasons or mere revenge.16
Grotius did not see all peoples as equally entitled to
property rights. Those who opted not to cultivate their
land, he argued, were not as deserving of ownership.

Regarding land that is surplus to ones basic needs, Grotius

wrote, we are commanded not to throw it into the sea . . .
nor to leave it unproductive.17 Thus, Richard Tuck
observes that for Grotius, it was not the European settlers
who were at fault for taking hunting grounds from
indigenous peoples, but the indigenous peoples who were
at fault for resisting.18 English colonists would similarly
rationalize the appropriation of Native American lands on
the grounds that the Native Americans were wasting
resources and assert that the natural rights to property
enjoyed by native peoples would be properly superseded
by the civil right to own land that one has enclosed and
improved by raising crops and keeping cattle.19
In his 1814 opinion for Brown v. United States, Chief
Justice John Marshall developed a lengthy discussion of
works by Grotius and Vattel, which essentially disregards
their call for moderation and concludes that war gives to
the sovereign full right to take the persons and conscate
the property of the enemy wherever found.20 Thus,
when the principle of military necessity was outlined in
the 1863 Lieber Code (or General Order 100), it could be
seen not only as a basis for legitimating, but also
restricting wartime devastation of landscapes in relation
to that which was necessary for military aims.21 An
migr to the United States from Prussia and an
abolitionist whose family had been divided by the civil
war, Francis Lieber elaborated rules of conduct that were
to be used as the basis for military law governing Union
forces in a context characterized by the massive expansion
of the army. The Lieber Code is widely considered to
have been the rst effort to codify norms governing
warfare and would have a major inuence on the
subsequent articulation of international laws of war.
Like Grotius and Vattel, Lieber evaluated the destruction of landscapes in relation to property claimsan
analysis that was inuenced by debates on the emancipation
of slaves during the Civil War. In Liebers formulation,
wartime destruction of property could only be justied by
a claim to military necessity. Thus, such destruction was not
legitimate as a basis for punishment, as in the texts of
Grotius and Vattel, nor was it generally permissible in
a context of war, as in Marshalls 1814 ruling. Article 16 of
the Lieber Code sought to place limits on the kind of
destruction that could be justied by appeal to military
necessity, specifying that military necessity . . . does not
admit of the use of poison in any war, nor of the wanton
devastation of a district. Article 16 adds that, in general,
military necessity does not include any act of hostility
which makes the return to peace unnecessarily difcult.22
In the Lieber Code, the difference between legitimate
and illegitimate wartime destruction of nature was
dened in relation to a distinction between military
necessity and wanton devastation. This distinction
remains in the contemporary formulations of international humanitarian law. What then, distinguishes nec-

essary from wanton destruction? A letter from Lieber to

General Halleck written in 1863 lamented that the wanton
destruction of property by our men is alarming . . . it does
incalculable injury. It demoralizes our troops, it annihilates
wealth irrecoverably, and makes a state of peace more and
more difcult.23 In this context, wantonness is given
meaning in relation to the kind of destruction that is likely
to make peace more difcult to obtainthat which is
perceived to be excessive in relation to war aims. The idea
of wanton destruction invokes a distinction between
undisciplined uses of land and disciplined, controlled
cultivation. Lieber held that nature itself existed to be
disciplined by humanity. When God . . . called the earth
into existence, wrote Lieber, he knew that the plough
would be contrived in due time.24 The term wanton also
has associations with indulgence, luxury, immorality,
and unchaste behavior. Helen Kinsellas analysis of
Civil War-era debates on the norms of war directs our
attention to the gendered connotations of the term
wanton, by observing that allegations of wantonness
were applied to Southern women as a way to rationalize
the destruction of Southern cities. 25
Following the logic of the Lieber Code, the 1899 and
1907 Hague Conventions prohibited plunder of public
or private property, wanton destruction of cities, towns, or
villages, or devastation not justied by military necessity.
This same clause appears verbatim in principle 6b of the
1950 Nuremberg Principles.26 Article 23 of the 1907
Hague Convention prohibits combatants from destroying
or seizing property unless such destruction is imperatively
demanded by the necessities of war.27 Articles 42 through
56 specify that occupying powers must safeguard the
property of occupied territories, including the forests,
agriculture, and estates. Occupying powers, according to
article 55, must serve as administrators of forests and
agricultural properties to safeguard the capital of these
properties under their administration. Missing from such
provisions, however, was Liebers primary limiting principle on claims to military necessitythe prohibition of
destruction that might make a return to peace implausible.
In 1945, German General Lothar Rendulic went
before the Nuremberg Tribunal. There, he was charged
with wanton destruction of property for the scorchedearth policies that he carried out in the Finnmark region of
Norway. Rendulic had ordered the civilian population to
evacuate and proceeded to burn the buildings, factories,
and forests of several villages in an effort to deter what he
mistakenly took to be an imminent advance of Russian
troops. In his defense, Rendulic argued that his actions
were justied as military necessity. You must not think
we destroyed wantonly or senselessly, he argued. Everything we did was dictated by the needs of the enemy. That
was its necessity.28 Rendulic also claimed that his actions
were actually humane, insisting that he saw the evacuation
as a way to spare the villagers from a harsh winter. Given
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that 61,000 people were left starving and destitute
following the evacuation, the tribunal recognized this
claim as absurd. The tribunal also recognized that there
was no genuine military necessity to evacuate the region.
Nevertheless, the court determined that in adjudicating
claims regarding military necessity, it is not assertions
regarding objective conditions on the battleeld that
matter, but rather assertions regarding perceived necessity,
based on information available to military commanders at
the time of their actions.29
It would have been awkward, in any case, for the
Nuremberg Tribunal to convict Rendulic for scorchedearth policies, given that the United States had not only
dropped atomic bombs on Hiroshima and Nagasaki, but
also destroyed Dresden, Tokyo, and numerous other
cities in Japan with incendiary bombs. In so doing,
commanders invoked the same logic of military necessity
that was applied to Rendulics defense. As Curtis LeMay
put it, the goal was to end the war without invading Japan
by land. We were not going to be able to do it continuing
as we were, he stated, so we had to do something
radical.30
The Fourth Geneva Convention of 1949 echoes the
1907 Hague Convention in prohibiting the pillage and
destruction of property, except where such destruction
is rendered absolutely necessary by military operations.31 The International Committee on the Red Cross
commentary on this provision species that post-World
War II rulings on scorched-earth charges generally
accepted military necessity as a rationale, but severely
condemned wanton or excessive devastation.32 Just as
Grotius explicitly excluded the air and atmosphere from
his discussion of prohibited wartime destruction of the
environment, the 1907 Hague Convention and the 1949
Geneva Convention similarly fail to address the question
as to whether or how international law should seek to
protect features of the landscape that are not under any
kind of specic ownership.33
Several contemporary legal scholars have observed
that the property protections found in the laws and
norms of war, combined with the core principles of
proportionality and distinction, could offer a basis for
expanding wartime environmental protections.34 The
signicance of these provisions may be better understood
with attention to the way in which they are bound up in
ideas regarding the relationship between humanity and
nature. In these texts, nature has been valued in relation
to property claims. In the conclusion to his inuential
environmental history of colonial New England, William
Cronon observes that different systems of property reect
and inform distinctive ways of valuing landscapes, which
can have profound ecological effects.35 A property system
that encouraged colonists to regard land as a commodity
thus led them to direct a greater proportion of production
for sale in the marketplace. As norms governing warfare
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were codied, they outlined a basis for valuing nature in

relation to claims about property and military necessity,
which shifted over time with the advent of total war.
A core principle of international humanitarian law is
that the aspirations associated with military necessity ought
to be balanced against the principle of humanity, and that
violence carried out in the name of military necessity
ought to be proportionate in relation to military goals.
Where nature is valued in relation to property claims, the
destruction that combatants might do to their own
territories in the name of furthering military aspirations
is not a relevant concern. As for the property of the enemy,
the principle of military necessity has been interpreted to
permit potentially limitless destruction, as long as such
destruction is carried out in accordance with perceived
wartime imperatives. Landscapes that are not enclosed,
cultivated, and disciplined, and landscapes that are not
owned, are not valued or protected by such provisions.
People without recognized ownership rights are not
protected from the destruction of their lands.
What is not permitted, in this formulation, is wanton
destruction of property. The distinction between wanton
and necessary wartime destruction of nature is informed
by implicit claims regarding the meaning of humaneness as
well. To be humane is to have some degree of respect for
the property of others, even that of ones enemies. To be
humane is also to exercise discipline and control in the act
of destruction, as juxtaposed against laying waste that is
carried out, as Grotius puts it, like the sword of
a madman. This idea that humaneness should entail the
exercise of discipline and control in relation to nature was
historically invoked to justify conquest and dispossession.
In the context of total warfare, this formulation became
a strategy for circumventing the principles of proportionality and distinction. The destruction of property has been
characterized as a humane alternative to killing, even
where it results in civilian deaths and destruction of
communities.

Peril behind the Front Lines: Nature as

Combatant
In debates on the legitimacy of chemical and biological
weapons, a different way of formulating the relationship
between humanity and nature took shapeone that
framed nature not only as a form of property, but also as
an active enemy combatant. As Americans began to supply
the Allies with industrial and agricultural products during
World War I, the chemical industry grew, and when the
US entered the war, it established the Chemical Warfare
Service as an institution within the military. The Chemical
Warfare Service was able to grow by publicizing civilian
uses for chemical weapons as a tool for pest control. In
their campaigns to promote insecticides, they declared
insects to be our mortal enemies, militarizing the
campaign against insects. Within the US military, insects

came to be seen as enemy combatants in World War I, as

part of campaigns against louse-born typhus. At the same
time, the US Bureau of Entomology publicized its
importance to National Defense by describing itself as
waging warfare against insect life.36 In 1943, a war
against mosquitos, the peril behind enemy lines, was
declared in an effort to combat enormous rates of malaria
infections in American troops ghting in the Southwest
Pacic.37
Where nature is dened primarily in relation to
property claims, humaneness is identied with notions
of discipline, control and ownership. The idea of nature
as presenting a creeping, insidious, teeming, and often
invisible threat became associated with efforts to dene
humaneness in relation to technical mastery and scientic
achievement. In this context, jus in bello ideas regarding
what constitutes humane weaponry and modes of combat
are inuenced by claims regarding scientic achievement
and technical sophistication.
The Hague Conventions of 1899 and 1907 had
banned the use of asphyxiating and deleterious gases.
Only 27 nations had ratied it and the United States was
not among them. The American delegate to the convention argued that poison gas might be more humane than
existing weapons.38 The 1925 Geneva Protocol for the
Prohibition of the Use in War of Asphyxiating, Poisonous,
or Other Gases was introduced by an American delegation.
However, ratication was blocked in the Senate. Military
Affairs Committee chair James Wadsworth successfully
made the case that poison gas was more humane than
other weapons.39
During the interwar years, in the face of pressure to
ban chemical weapons and de-fund the industry that was
involved in developing them, the Chemical Warfare
Service sought to sustain itself by selling its role in an
ongoing war against insects. They did so by advertising
the use of gases developed for use in war as the quickest
and surest method in attacking crop destroying pests.40
This kind of campaign was designed to appease those who
had attacked chemical weapons as inhumane weapons of
war, by demonstrating their value in times of peace. In
a 1926 editorial, the New York Times afrmed this
strategy, noting that it will not be necessary to argue that
poison gases are humane agencies of warfare when the
enemy is the boll weevil.41
By justifying its place in a war against nature, the
Chemical Warfare Service secured space to continue
developing new chemical weapons. This positioning of
chemical weapons as humane strategies in a war against
nature formed a kind of bridge back to the defense of
such weapons as humane strategies for waging war against
human enemies. The idea of mobilizing technicallysophisticated strategies in a war against nature is also
identied with efforts to make war appear to be more
humane. Wartime propaganda has incorporated imagery

of pest control as a strategy for sanitizing the violence of

war. The words of a 1921 pamphlet produced by the
Chemical Warfare Service nicely illustrates both of these
logics: the airman of the next war will not need a machine
gun or even bombs. . . . All he need do is attack a sprayer to
the tail of his machine and rain down poison on the earth
beneath as the farmer kills bugs on his potato elds.42
As Chief of the CWS, Amos Fries argued that chemical
weapons were the most powerful and most humane
method of warfare ever invented.43 War as a form of pest
control is thus framed as more civilized, technically
sophisticated, and therefore more humane than other
forms of warfare.
Metaphors that liken the killing of human beings to
the killing of insects or animals are appealing as a way to
establish a stance of moral distance from violence, as in
this journal excerpt quoted by Paul Fussell: Then we
killed. . . . I saw about ten Germans writhing like trout in
a creel at the bottom of a shell-hole.44 The idea of waging
a just war against nature extends this logic by dening
humaneness in relation to the work of extermination and
sanitation. This formulation was invoked in propaganda
campaigns that were mobilized to dehumanize enemy
populations and to justify total war, as well as genocide.
The US Armys campaign against malaria deployed racist
depictions of Japanese soldiers portrayed as mosquitos,
lice, and other insects. The media characterized the Pacic
war as an extermination effort.45 Prominent authors
likened the Japanese population as a whole to cockroaches,
mice, and vermin. Nazi propaganda notoriously likened
Jews to vermin.
If nature could be understood as an enemy combatant
and a security threat, then the forces of nature could also be
mobilized to ght on ones side. A number of militaries
have mobilized animals and insects for battle. Since 1943,
Britain has awarded the Dickin Medal to animals that
demonstrate valor in military service. The award nearly
always awarded to a dog or a homing pigeon.46 The
militarization of dolphins made the news recently when
Ukrainian military dolphins were forced to switch
nationalities and were incorporated into the Russian
navy.47 Honeybees have been trained to work in bomb
detection units, bats have been equipped with incendiary
devices, and in an ill-fated program dubbed, Operation
Acoustic Kitty, the CIA even attempted to involve cats in
efforts to spy on the Soviets during the Cold War.48
In the context of the Cold War, the use of deliberate
ecological destruction and contamination was also pursued as a weapon of war. Joshua Hamblin reports that in
1951, Congressman Albert Gore, Sr., proposed that the
dangerous waste from plutonium processing could be
utilized to contaminate the demilitarized zone across the
Korean peninsula, such that all vehicles, weapons, food,
and apparel entering the belt would be poisoned by
radioactivity.49 His plan was met with approval by some
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in the military, who saw it as a humane strategy of
defense that would not involve actual killing, but merely
a severe warning to all to stay well away. A 1961 NATO
report quoted by Hamblin contends that an advantage of
environmental warfare is that it might be so subtle that
the weapons and battles are hard to identify.50
Targeting the ecological vulnerability of an enemy,
according to the report, could be a way to cripple ones
enemies then, without engaging in traditional modes of
combat, thereby eliding protections of civilians outlined
in humanitarian law.
In implementing Operation Ranch Hand, US forces
sprayed approximately 20 million gallons of Agent Orange
and other chemical herbicides over an area of South
Vietnam that was roughly the size of the state of
Massachusetts.51 They did so as part of a military strategy
designed to eradicate the forest cover and food supply of
the NLF forces. The US military also used Rome ploughs
to destroy vegetation alongside the road in an effort to
prevent ambushes. Some people just wanted to blow it all
to hell, animal, vegetable, and mineral, wrote Michael
Herr in his memoir, Dispatches, A lot of people knew that
the country could never be won, only destroyed, and they
locked into that with breathtaking concentration.52 Fred
Anderson of the US Army War College extolled the virtues
of herbicidal warfare, arguing that defoliation in Vietnam
had reduced casualty rates, revealed enemy ambush
positions, and allowed the US military to destroy the
NLFs food supply. Compared to most weapons of war,
he stated, herbicides score pretty high on the scale for
humaneness.53 In response to charges that herbicides
represented toxic poisons in violation of the 1925 Gas
Protocol, US ofcials characterized them as harmless
weed killers.54
Jane Bennett has argued that the image of dead or
thoroughly instrumentalized matter feeds human hubris
and our earth destroying fantasies of conquest and
consumption and that an appreciation for agentic
contributions of nonhuman forces might be a useful
way to counter this hubris by taking aim at the narcissistic
reex of human language and thought.55 Attention to the
way in which nature has been positioned as a combatant in
debates on the ethics and laws of war complicates some of
the assumptions behind this conjecture. In debates on the
norms governing war, nature has not simply been viewed
instrumentally, as dead matter, valuable only in relation
to human use, but characterized as a combatant capable of
overpowering humanity or, alternatively, ghting with
valor at our side. The relationship between humanity
and nature is not simply presented as one of separation,
domination, and control, but is also explicitly militarized.
Undomesticated nature is not treated with mere indifference, then, as it is in the texts of Grotius, but is viewed with
suspicion, as an ever-present threat. Humaneness is linked
in this formulation, not only with notions of control and
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Perspectives on Politics

ownership, but also to a more expansive aspiration to

manipulate, anticipate, and completely annihilate all
potential threats that might be posed by nature.
This formulation has not necessarily inuenced the
jurisprudence of international legal ofcials and institutions. However, it has had a signicant life in national
and domestic debates and appropriations of humanitarian
law. This logic associated with nature as combatant has
been invoked to justify total devastation of environments
without regard for limitations that might be imposed by
sovereign borders and property ownership. It is also
associated with the militarization of the human response
to nature during times of peace. A war on pests is
posited as something that even pacists could support with
enthusiasm. And, in a circular logic, the legitimacy of
chemicals used in warfare is established with reference to
their acceptance and use in domestic arenasthe claim
that they are nothing more than weed killers.
The idea of nature as combatant has also informed
distinctive ways of interpreting humaneness in relation to
claims regarding what constitutes a crime against humanity under the norms and laws of war. Proponents of
chemical weapons identied them as a humane alternative to conventional weaponry, citing their use in
domestic contexts as evidence and invoking their association with scientic and technological progress. In this
formulation, humaneness in war is paradoxically identied with the development of technologies that situate
human combatants at a remove from the act of killing,
which in turn allows them to more easily dehumanize
their enemies. This notion of humaneness as rooted in
technical and scientic mastery is invoked, for example,
in the defense of drone warfare, and its role in sanitizing
violence has recently been dramatized by the Not
a Bugsplat campaign.56 The idea of waging a war against
nature has also been recognized as an effective basis for
deliberately eliding protections outlined in the Geneva and
Hague Conventions by targeting civilian populations in
ways that are more subtle and insidious than conventional
weapons, and therefore more difcult to detect.

We Know Very Little about What We

Are Doing: Nature as Pandoras Box
In 1962, Rachel Carson published The Silent Spring
a book that would transform the way that people thought
about the environment. The book opened with what
Carson referred to as a fable for tomorrow, which
describes life in a quaint small town and then imagines
a scenario in which all of its wildlife has been destroyed by
a mysterious blight.57 Carsons fable aims to shock
readers into seeing the familiar with new eyes. At rst,
the story seems chilling and unbelievable, until the reader
begins to see that it conveys a logic that is already
underway. In the context of a detailed analysis of the
impact of insecticides on the environment and the human

body, Carson also articulated an alternative way of

conceptualizing humanity in relation to nature. The book
opens with E.B. Whites observation that our approach to
nature is to beat it into submission. Afrming Whites
argument that we would stand a better chance if we
accommodated ourselves to the planet and viewed it
appreciatively, Carson called for an attitude of wonder
and humility to replace the human drive to master and
control the natural world.
There are many varieties of ecology and political
ecology. The particular ecological view that Carson
outlined in the extraordinarily inuential Silent Spring
was informed by her awareness of the devastating impact
and potential of nuclear and chemical weaponry. In calling
for wonder and humility, Carson elaborated a set of
themes or principles upon which to ground this alternative
approach. She not only maintained that humanity ought
to approach the natural world with greater humility, but
also challenged our sense of nature as a space outside of
human life, available for conquest, domination, and use,
repositioning humanity as part of nature and therefore
interdependent in ways that we could not afford to ignore.
Carson challenged the way in which damage to the
environment was calculated in time, arguing that we could
only fully appreciate our relationship with nature by
looking much farther back into the past, and also by
looking beyond our xation on the near term to anticipate
the environmental effects of todays actions that will be
inherited by generations of the future.
During roughly the same time period, a number of
prominent scientists, leaders, and military strategists
raised a similar set of concerns in relation to wars impact
on the environment. In his famous nal speech as
president in 1960, Dwight D. Eisenhower had warned,
not only of a military-industrial complex, but also of the
rise of a scientic technological elite with increasing
inuence over public policy, and implored Americans to
avoid the impulse to live only for today, plundering, for
our own convenience, the precious resources of tomorrow.58 Kenneth Boulding, founder of the Journal of
Conict Resolution, underscored the limits of human
knowledge in relation to the environment, arguing that
we know very little about what we are really doing . . . we
do not understand earth at all.59 In a 1965 statement, the
American Association for the Advancement of Science
warned of the uncertain effects of radiation, pesticides, and
weather modication.60 Networks of scientists operating
in the US and the Soviet Union worked to expose the
harmful effects of nuclear testing and to organize protest
movements that led to the Limited Test Ban Treaty of
1971.61
Concerns regarding wartime environmental destruction crystallized in response to the US use of herbicides,
daisy cutters, and weather modication in Vietnam.
In a letter to Richard Nixon, FAS chairman, Marvin

L. Goldberger described geophysical warfare as a

Pandoras box, to which seemingly inoffensive weather
modication may be the disastrous key.62 According to
this logic, nature itself is cast as a kind of Pandoras Box,
which, once tampered with, might unleash powerfully
destructive forces that cannot be controlled and that
threaten to overwhelm us. The analogy also captures
a shift in thinking regarding the identication of
humanity and humaneness with scientic rationality and
technical accomplishments. Pandoras intellectual curiosity,
itself a gift from the Gods, is ultimately what dooms her and
imperils the earth. Like Pandora, we are intelligent enough
to destroy our world, suggests Goldberger, but not capable
of understanding or controlling the forces that we set in
motion. In the arena of international law, these kinds of
concerns generated new efforts to prohibit ecocide and
environmental modication.
David Zierler, who has written a meticulous history of
anti-Agent Orange activism in the US, credits Arthur
Galston with coining the term ecocide.63 Galston was
a plant biologist and chair of the botany department at
Yale University. He was motivated not only by concern for
the impact of herbicidal warfare, but also by his awareness
that the US and other militaries had been developing
increasingly sophisticated chemical weapons, and that
defoliation was likely to remain as a prominent military
strategy in future conicts. According to Zierler, Galston
was also motivated by some degree of guilt regarding the
role that his own doctoral research may have played in the
development of herbicides.
Speaking at a 1970 conference entitled War Crimes
and the American Conscience, Galston declared that just
as the world had come together in the aftermath of the
Nuremberg Trials to condemn crimes against humanity
and to prohibit genocide, so too should states now come
together to condemn the crime of ecocide. Galston
described ecocide as the willful, permanent destruction
of environments in which people can live in a manner of
their own choosing.64 In a paper published that same
year, Galston developed this point, arguing that the largescale destruction of the countryside violates the principle
of discrimination in humanitarian law, by destroying
the primary food source for civilian populations. 65
He added that the long-term ecological consequences
of herbicidal warfare were essentially unknown, but
possibly devastating.
Richard Falk, a professor of international law, went on
to develop this set of ideas by putting them in the broader
context of international humanitarian law, and by drafting a proposal for an international convention prohibiting
ecocide. In a paper published in 1973, Falk also referred
back to the Nuremberg precedent for guidance. Falk saw
the Nuremberg Trials as a kind of legislative spasm,
which drew upon a common sense of moral outrage to
move beyond existing parameters of international law.66
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Falk argued that the widespread public outrage in response
to the use of Agent Orange in Vietnam offered a similar
opportunity to advance international law to encompass
a prohibition against ecocide. Like Galston, Falk emphasized the the impact of environmental devastation on
civilians. He advocated a new orientation in humanitarian
law, based on a concept of human ecology . . . wherein the
bonds between man and nature provide an essential
focus for inquiry.67 Falk recognized that all warfare is
detrimental to health and the environment, and that
environmental devastation is an inevitable byproduct of
counterinsurgency tactics.68 However, he maintained
that just as international humanitarian law attempts to
establish limitations designed to protect noncombatants
from certain egregious abuses, it might do the same with
regard to the most egregious abuses of the environment.
Falk called for a new law that would criminalize those
cumulative war effects that do not merely disrupt, but
substantially or even irreversibly, destroy a distinct ecosystem.69 The draft convention on ecocide that Falk
proposed in 1973 denes ecocide as the acts, committed
with intent to destroy, in whole or in part, a human
ecosystem, including the development of weapons of
mass destruction, use of herbicides, bombs, bulldozing,
weather modication, and forced removal for military
objectives.70 It outlined various provisions for holding
violators accountable, including removal from positions of
public trust, prosecution, responsibility for redress, as well
as a commission of experts designed to investigate allegations of ecocide. A separate draft protocol prohibited
environmental warfare that deliberately disrupts the
ecological basis of life on earth.71
The environmental protections that were ultimately
articulated in the 1977 Convention on the Prohibition of
Military or Any Other Hostile Uses of Environmental
Modication Techniques, known as the ENMOD Convention, were far more modest than what Falk had
envisioned. Signatories agree to refrain from military or
any other hostile use of environmental modication
techniques having widespread, long-lasting, or severe
effects, as the means of destruction, damage or injury to
any other state party.72 The document of understanding
that accompanies the convention claries the meaning of
these terms, suggesting that widespread would entail a
space of several hundred square kilometers, long-lasting
would be measured in months or approximately a season,
and that severe damage meant damage of a kind
that posed signicant harm to human life.73 The
ENMOD convention applies only to interstate war, retaining the emphasis on sovereign territory and ownership
that animates the major international humanitarian
conventions. The convention does not prohibit or restrict
research and development of those techniques.74 Finally,
the convention lacks a clear basis for establishing accountability or demanding redress.
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Perspectives on Politics

The Additional Protocol I to the Geneva Conventions,

also adopted in 1977, similarly outlines a set of new
wartime environmental protections. Protocol I prohibits
attacks that threaten objects indispensable to the survival
of the civilian population and attacks on works and
installations containing dangerous forces such as dams,
dykes, and nuclear generating stations.75 However, such
attacks are permitted in cases where such installations are
used in regular, signicant, and direct support of
military operations. Protocol I also contains language
calling explicitly for efforts to protect the environment
during armed conict. It goes further than ENMOD in
that it prohibits not only deliberate environmental modication, but also acts that may be expected to cause
widespread, long-term and severe damage to the natural
environment.76 However, in the Additional Protocol the
wording or severe from the ENMOD convention, was
replaced with and severe, establishing a cumulative
standard that would be far more difcult to meet.
Moreover, parties to the convention indicated that they
interpreted long-lasting as approximately a decade,
rather than a single season.77
The ecological approach advocated by thinkers such as
Carson, Galston, Falk and others thus had only a modest
impact on the specic provisions of humanitarian law.
Advocacy in favor of expanding international law further
to prevent and punish the crime of ecocide continued,
but did not have a real inuence on the elaboration of
legal standards.78 Although the protections outlined in the
ENMOD Convention and Protocol I were inspired by US
actions in Vietnam, they set thresholds for establishing
a violation that were so high that they actually authorize
much of what was done in Vietnam.79 Reecting on these
limitations, Falk concludes that humanitarian law is
simply too anthropocentric to accommodate meaningful
ecocentric reform. 80
It is important to recognize, however, that it was not
only an anthropocentric orientation per se that Falk,
Galston, and others challenged with their case against
ecocide, but also the specic logics of anthropocentrism at
work in ideas about the relationship between humanity
and nature that have informed debates on the laws of war.
They challenged the idea of humaneness grounded in
control over nature, insisting that our concern for the
environment could not be bound up in the logic of
consumption, use, and ownership, but must be reframed
as an extension of our concern for ourselves. Carson,
Galston, and Falk also challenged assumptions regarding
the civilizing role of science and technology in shaping
understandings of humanity and humaneness that have
informed prominent interpretations of international
humanitarian norms. In developing the case for prohibiting ecocide, they underscored the limits of scientic
knowledge and understanding of the impact of herbicide
and chemical weapons. We are too ignorant, wrote

Galston, to know how far-reaching and how long lasting

will be the changes in ecology brought about by widespread spraying of herbicides in Vietnam.81
These efforts gave rise to a new way of formulating the
relationship between humanity and nature in interpretations of the laws and norms of war, which contained its
own vulnerabilities. In accordance with this ecological
formulation, humanity is recognized as part of nature
and, like Pandora, tragically poised to destroy our world
through a volatile amalgam of intellect and ignorance,
agency and helplessness. The difculty is not simply the
anthropocentrism of humanitarian law, but the challenge
of formulating a basis for responsibility in contexts where
we acknowledge that we actually know very little about
what we are doing. Falks own draft ecocide convention
struggles with this challenge, recognizing that ecocide may
be done unconsciously, but also requiring intent to
establish culpability. The vulnerability of the Pandoras
Box formulation, then, is that instead of becoming
a cautionary tale that inspires prudence and restraint, it
can too easily become available to justify fatalism and the
evasion of responsibility.

International Criminal Justice: Nature

as Victim
International humanitarian law and international environmental law both expanded in the years following the
end of the Cold War. In the text of the 1992 Convention
on Biological Diversity, the goal of conserving biological
diversity is recognized as having intrinsic value as well as
value in relation to educational, scientic, and recreational
purposes. This stress on the intrinsic value of biological
diversity resonates with a critique of anthropocentrism
that had been articulated in the work of a range of
environmental theorists and ethicists. Deep ecology, as
outlined by Arne Naess, rejected what he referred to as the
environmental movements shallow focus on pollution
in afuent arenas in favor of a broad case for extending the
right to live and blossom beyond the human context to
other forms of life.82 Philosopher Kenneth Goodpaster
refuted the philosophical case for restricting moral considerability to sentient or rational human beings and
argued for the extension of moral standing to encompass
the more general condition of being alive.83 Robyn
Eckersleys ecocentric approach to political theory called
for a radical reorientation in perspective, which would
regard all of the various parts of the biotic community as
valuable for their own sake.84
Representing a range of different scholarly approaches
and ecological perspectives, such thinkers share a common
project of expanding the concept of moral worth to
encompass the non-human environment. In so doing,
such works echo concerns expressed by thinkers such as
Carson and Falk, including the emphasis on revealing
interconnectedness and the complexity of ecological

relationships, as well as the limitations of human knowledge. However, these critiques of anthropocentrism also
moved to insist upon a foundational ethic that would
recognize the intrinsic value of nonhuman nature, as
apart from its relationship to human health and survival.
A common practical expression of this value has been
a concern with the conservation of biological diversity.85
During this same time period, human rights law also
expanded and began to inuence the laws of war, most
notably in the context of the emergence of international
and national war crimes tribunals.86 Of course, the
human rights framework is bound up in the very
anthropocentric basis for moral standing that Goodpaster
and other environmental ethicists called into question.
The 1948 Universal Declaration of Human Rights locates
the basis for basic rights protections in the dignity and the
inherent worth of the human person, as endowed with
reason and conscience. However, the norms governing
war also came to incorporate emerging ideas regarding the
intrinsic value of nature. The 1992 Rio Declaration on
Environment and Development recognized warfare as
inherently destructive of the environment and urged
states to cooperate in the further development of
international law pertaining to wartime environmental
protections. The Rome Statute for the International
Criminal Court contains a response to this call in the
form of a provision criminalizing widespread, longterm, and severe damage of the natural environment
even when not connected with the health or survival of
a human population.87
In accordance with the ICC Statute, then, nature can
be a victim of war crimes. In theory, concern for wars
impact on the environment is no longer restricted to
notions of ownership or human suffering caused by the
destruction of landscapes. This principle thus appears to
offer a radical challenge to the various forms of anthropocentricism that have animated humanitarian norms.
That is, it challenges the basic formula for evaluating jus in
bello claims by weighing the potential for human suffering
against claims regarding military imperatives and insists
upon regard for wars impact on the non-human environment. In order to understand the signicance of this
development, I suggest, it is important to consider not
only what it means to recognize nature as a victim of war
crimes, but also how claims regarding the meaning of
humaneness and the relationship between nature and
humanity are formulated in response to this recognition.
Where nature is formulated as a victim of war crimes,
humaneness has tended to be identied with the claim
to innocence, as dened in relation to criminal guilt.
Understood as a potential perpetrator of crimes against
nature, humanity is also implicitly conceptualized as apart
from, or outside of, nature in this formulation, while
humanity and nature appear as distinct and potentially
competing victim categories.
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This set of logics is on display in responses to
allegations regarding the environmental impact of the
1999 NATO bombings of Kosovo and Serbia. NATO
had bombed an oil renery in Novi Sad, petrofuel storage
in Bor, and transformer stations in the cities of Bor and
Nis. NATO bombs and missiles had also struck Serbias
Pancevo Industrial Complex, releasing a number of toxic
chemicals.88 We . . . appealed for the cessation of targeting sources which release toxic, teratogenic, and carcinogenic chemicals, recalled the Vice Director of a health
center in Pancevo to a team of Canadian investigators,
but we were not heard.89 Concerns were also been raised
regarding NATOs use of cluster bombs and depleted
uranium weapons.90 The United Nations Environmental
Program (UNEP) and the UN Centre for Human
Settlements developed a joint investigation team, The
Balkan Task Force, to investigate the environmental
impact of the NATO bombings with attention to
human health as well as local ecology. The task force
found environmental hot spots in several cities,
observing a potential threat to the health of the civilian
population.91 A designated group of specialists within
the task force assigned to investigate depleted uranium
weaponry found potentially dangerous levels of radiation at bombing sites.92 The Balkan Task Force also
displayed a concern for the intrinsic value of nature, by
investigating the impact of NATO bombing on biodiversity in Serbia with attention to genetic effects, species
effects, and ecosystem effects. The task force found no
clear evidence of such effects, thought it acknowledged the
difculty of distinguishing between the impact of the
bombing and the environmental effects of policies that
pre-dated the NATO attacks.
The question as to whether or not the NATO bombings might have constituted environmental war crimes
was subsequently explored by a committee established by
the International Criminal Tribunal for the former
Yugoslavia (ICTY) to investigate the legality of the
NATO bombings under international law. Ultimately,
the committee recommended that the ICTY decline to
pursue the investigation further.93 While acknowledging
that the bombing did cause some damage to the
environment, the committee maintained the exact
extent of the damage was still unknown, and that it
would be difcult to know how much of this damage could
be attributed to the NATO bombings.94 Applying the
proportionality standard outlined in the ICC Statute, the
committee argued that where a target is sufciently
important, a greater degree of risk to the environment
is justiable.95 Finally, and perhaps most importantly, the
committee argued that it would be impossible to establish
criminal intent in relation to the environmental impact of
the bombing. To do so, it argued, would require showing
that the attack was launched intentionally in the knowledge that it will cause widespread, long-term, and severe
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Perspectives on Politics

damage to the environment that would be clearly

excessive in relation to overall military objectives. To
meet this standard, argued the committee, would require
demonstrating that the defendant had actual knowledge
as to the grave environmental effects of a military attack.
The committee observed that this standard would be
difcult to establish for the purposes of any prosecution.96
According to this logic then, humaneness in war is
associated with innocence, as dened in relation to
criminal intent and individualized guilt. The emphasis
on individual criminal guilt offers a basis for establishing
accountability for wars impact on the environment, but
remains in tension with core aspirations of the kind of
ecological thinking that inspired the criminalization of
ecocide. Most notably, ecologists such as Galston and Falk
worked to reveal the complexity of ecological relationships
as well as the limitations of human knowledge and control
in relation to our environmental impact. As the ICTY
committee report indicates, evidence regarding the complexity of causal relationships and the limitations of
human knowledge and control in relation to the long
term outcomes of our actions becomes a basis for
exoneration in the context of a criminal trial, where
a central goal is to establish criminal intent. And in
contrast with the Pandoras Box formulation, which offers
a dark, if fatalistic, view of human innocence by casting it
as the potential basis of our undoing, the nature as victim
formulation tends to elevate innocence, rather than
responsibility, as a desirable status.
The 1999 NATO bombings of Kosovo and Serbia had
been carried out in the name of humanitarian imperatives, reigniting debates about whether humanitarian
intervention should be considered a form of just war, and
whether military intervention to stop atrocities was, or
should be, permissible under international law. As noted
in the ICTY committee report, the NATO bombings not
only caused environmental and infrastructural damage,
but also killed an estimated 500 Serb civilians.97 In
accordance with the logic of international humanitarian
law, the civilian deaths as well as the environmental
destruction caused by the bombings are classied as
collateral damage in relation to military objectives. In
relation to the humanitarian objectives of the bombings,
the civilians, and the environment, then, are also positioned as sacricial victims. That is, their destruction is
acknowledged and grieved, but understood as a tragically
unavoidable sacrice in relation to a larger moral objective,
rather than as a crime or a wrong.98
Robyn Eckersley offers a variation on the nature-asvictim formulation in the form of a proposal for expanding the case for humanitarian intervention to encompass
a legal justication for military intervention in response
to ecocide and other severe ecological crises.99 Eckersley
suggests that such interventions are potentially legal and
legitimate in response to ecological crises that have

transborder spillover effects and those associated with

massive human rights violations. She adds that if we see
ourselves as interconnected with nature, it follows that we
should also recognize a moral obligation to intervene to
prevent crimes against nature in the form of massive
ecosystem destructioneven where such destruction does
not threaten human populations. Eckersleys proposal
unites the logic of emergency rescue that animates the
case for humanitarian intervention with the preservationist
case for urgent responses to irreversible ecological emergencies. Thus the proposal identies human agency with
urgent and efcient responses to short-term crisis in a
manner that stands in tension with deliberative democratic
politics, as well as with efforts to address the long-term,
indirect, and uncertain impact of military interventions.100
Although Eckersley acknowledges that most ecological
crises are not amenable to a military solution, she largely
avoids the problem of how to address the environmental
destruction caused by war itself.
One institution that is evaluating the environmental
impact of war is the United Nations Environmental
Program, which now routinely conducts post-conict
environmental assessments, sending scientists to test air
quality, soils, and rivers in an effort to evaluate wars
impact on the environment with attention to short-term
effects on health, as well as long-term effects on biodiversity. In the texts of UNEP post-conict assessments,
however, damage to the environment is addressed in
accordance with the logic of humanitarianism to address
the needs of victims, without sustained attention to
questions of justice and historical accountability. These
efforts to document wars impact on the environment are
being conducted outside of the framework of justice and
rights that animates the array of institutions that have
emerged to reckon with war crimes and crimes against
humanity. Meanwhile, institutions that are explicitly
designed to advocate post-conict justice and reconciliation, such as truth commissions, have tended to emphasize
the interior wounds associated with trauma, with little, if
any, attention to wars legacy on environments.
As integrated into the laws and ethics of war, then, the
idea of nature as victim has been associated with two
somewhat paradoxical outcomes. First, the idea of nature
as victim has been associated with efforts to integrate
ecocentric values into the norms governing war by
recognizing nonhuman nature as intrinsically valuable
and by limiting its destruction even where such destruction does not affect human populations in obvious ways.
In theory, this logic suggests a much broader response to
wars impact on the environmentone that extends well
beyond the context of international humanitarian law. For
example, the National Resources Defense Council
(NRDC) has sued the United States Navy under federal
environmental law on the grounds that navy sonar
exercises are causing mass whale strandings.101 Such efforts

to recognize nature as a victim or potential victim of war

are informed by an insistence on the interdependence of
humanity and nature and by the recognition of humanity
as part of nature. Paradoxically, however, when conceptualized in relation to a victim-perpetrator framework, this
regard for the intrinsic value of nature has implicitly
treated humanity and nature as separate and potentially
competing victim categories. This reinforces the divide
between those concerned with human rights and humanitarian protections, on the one hand, and those concerned
with the environmental impact of war and militarism on
the other.
Second, the framework of international criminal justice
is ostensibly a basis for accountability in relation to
environmental destruction, but also serves to radically
limit avenues for responsibility and agency in response to
such destruction. According to this logic, humaneness is
associated with innocence or guilt in relation to criminal
allegations. Innocence can be proven by appealing to
ignorance regarding the environmental impact of ones
actions in times of war, uncertainty regarding the longterm outcomes of such actions, and a lack of criminal
intent. The recognition of nature as a potential victim of
environmental war crimes under international law has thus
been accompanied by a set of thresholds that seem virtually
guaranteed to absolve militaries of responsibility for
environmental devastation. In that sense, nature is positioned as a kind of sacricial victim in relation to
imperatives associated with military necessity, as well as
the humanitarian rationales for intervention. In the
broader environmental movement, the idea of nature as
victim has sometimes implied the opposite claimthat
humanity is inherently guilty of destroying nature by our
very presence.102 This logic of essential human guilt, like
the appeal to humaneness as innocence, implies the
impossibility of meaningful responsibility and human
agency in relation to environmental destruction. In the
concluding section that follows, I will consider how the
environmental justice framework might offer a basis for
addressing these limitations.

Conclusion: Environmental Justice

and the Laws of War
If all war threatens the environment, then what is the
signicance of these efforts to distinguish between legitimate and illegitimate wartime environmental devastation?
Certainly, a more effective way to protect the planet and
save lives would be to oppose war altogether. Nevertheless,
these distinctions matter a great deal in understanding how
the just-war tradition and humanitarian norms legitimate
certain forms of violence and destruction, as well as their
potential critical role in response to war. I have argued that
the signicance of environmental war crimes comes into
sharper focus with attention to the way in which the ethics
and norms governing war have been inuenced by claims
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regarding the relationship between nature and humaneness. Instead of seeing humanitarian norms as bound up in
a static or uniform anthropocentric logic, I suggest that
these norms are animated by several distinctive ways of
formulating the relationship between nature and humanity, which have different implications for their legitimating
role, as well as their critical potential.
Where wartime destruction of nature and environment
is assessed as a violation of property rights in the laws of
war, for example, the scope of concern has been limited to
damages that one state inicts against another, while
leaving states free to inict environmental devastation
within their own boundaries, either in the context of
intra-state conict or through weapons testing. Such
provisions have also been associated with a way of
formulating the relationship between nature and humanity
that views nature in instrumental terms, and associates
humaneness with the exercise of discipline and control,
condemning wantonness, while condoning destruction
carried out in accordance with military discipline and
necessity. Yet nature has not always been instrumentalized
as passive matter in the laws and ethics of war. In debates
on provisions dealing with chemical and biological weapons, for example, nature has also been anthropomorphized
and assigned agency as an enemy combatant. As formulated against an idea of nature as an insidious and hostile
threat, claims about humaneness in warfare have been
associated with an appeal to scientic mastery, technical
achievement, and aspirations to attain purity and total
control of ones surroundings. This logic has functioned to
sanitize mass murder as well as environmental destruction.
A commonly expressed hope, articulated by Rachel
Carson and somewhat differently by Jane Bennett, has
been that a less violent, dominating, and destructive
relationship with our world might be attained through
a greater appreciation for the limitations of human
agency. If we humans have been too narcissistic, too sure
of our own power in the past, it makes sense to think that
a less arrogant view of human agency might inform
a more just and sustainable politics. Yet as integrated into
the conventions of humanitarian law, this posture of
humility can also become the basis for abdicating
responsibility. The logic associated with the idea of
nature as a kind of Pandoras Box, lled with creative
and destructive forces that we can unleash yet cannot
control, has the potential to inspire prudence and care.
However, this same logic can function to reinforce
passivity and fatalism. The framework of international
criminal justice has been appealing in this regard because it
offers a potential basis for establishing accountability.
With the expansion of international criminal justice and
environmental activism, nature was recognized as a potential victim of war crimes. The idea of nature as victim has
been associated with a formulation that identies
humaneness and human agency in relation to the binary
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Perspectives on Politics

of innocence and criminal guilt. In accordance with this

logic, however, efforts by ecologists to underscore our lack
of certainty and knowledge regarding the long-term
environmental outcomes of military actions can become
a basis for evading, rather than establishing, responsibility.
These formulations are not mutually exclusive and not
meant to be exhaustive. Although they can be traced to
specic historical debates about wars impact on landscapes
and environments, each remains relevant to contemporary
debates. They have very different implications for how we
conceptualize and judge the way that wars are fought, yet
together they underscore a set of common concerns regarding the role of humanitarian norms in relation to
environmental destruction. That is, the logic by which
humanitarian norms distinguish between the legitimate and
illegitimate destruction of nature has also functioned to
rationalize the suspension or circumvention of protections
ostensibly owed to human beings under the laws of war.
At the same time, claims regarding what constitutes
humaneness in relation to wartime environmental destruction have been mobilized to justify not only the environmental devastation caused by war, but also that which
occurs beyond the battleeld. With this in mind, I suggest
that those engaged in scholarship and policy relating to
crimes against humanity and human rights, as well as those
focused on environmental issues more generally, should
pay more attention to the way that the ethics and laws of
warfare address environmental destruction.
Having drawn upon scholarship associated with
environmental justice in developing this analysis and
critique, I will conclude by briey considering how
such scholarship might also offer guidance in moving
forward. The environmental justice movement encompasses various efforts to challenge prominent or mainstream environmentalists to document and address
radically disproportionate burdens of environmental
degradation experienced by people of color, the poor,
or otherwise marginalized populations.103 Inuenced
by the civil rights movement, the labor movement, and
indigenous rights activism, environmental justice scholars have been particularly concerned with distributive
justice and racism. At the same time, they have contested
the application of static categories for assessing the costs
and benets of environmental harm in favor of an
approach that acknowledges diversity and contested
character of ideas regarding the relationship between
nature and humanity.104 Nevertheless, environmental
justice scholars tend to converge on a central concern
with what might be characterized as a formulation of nature
as home. This scholarship has sought to prioritize attention to the ways that environmental degradation destroys,
poisons, or uproots people from home. While this focal
point emerged as part of a critique of certain wildernessoriented conservationist approaches to environmentalism,
the loose focus on nature as home encompasses not only

urban landscapes, living spaces, and notions of ownership,

but also places of community, work, education, and the
general habitability of earth.
In many ways, environmental justice would appear to
be entirely incompatible with the ethics and laws of war.
The ethics and norms governing war are construed as
apolitical, universal, and generally deferent to the status
quo of state-centrism and global inequality. In contrast,
the environmental justice movement has been explicitly
political, oriented toward the particular claims of local
communities. The ethics and laws of war are premised on
a minimalist approach to justiceone that accommodates war and defers to imperatives claimed on behalf of
military necessity. In contrast, environmental justice has
been associated with an expansive vision of justice that
entails systemic critique, redress, and structural change.
Humanitarian norms were designed to address the kinds of
calculations that are made with regard only to immediate
concerns of the present, in contexts of emergency, crisis,
and imminent threat. In contrast, environmental justice
scholars have investigated historical responsibilities for
environmental harm, and have advocated a precautionary
and preventative approach in relation to potential future
outcomes of present-day policies and actions.
How, then, could ideas associated with environmental
justice be meaningfully brought to bear on the ethics and
norms of war? In addressing this question, it is useful to
consider how the human rights movement has inuenced
debates on the ethics of war. Human rights principles also
offer a vision of justice that clashes with that embodied in
humanitarian norms. Where the humanitarian framework once abstained from judgments regarding internal
governance, the human rights framework insists upon an
expansive rights-based governance as a basis for sovereignty at all times. In contrast with the humanitarian
framework, which accepts a good deal of mass killing in
the form of collateral damage, the human rights
framework condemns all extrajudicial killings.105 Nevertheless, the human rights framework has been mobilized
to inuence the laws of war through two kinds of
challengesan internal challenge and an external challenge. Human rights have been mobilized to advance an
internal challenge to international humanitarian law as the
category of crimes against humanity is expanded to
encompass violations associated with the human rights
framework and is applied to internal governance outside of
the context of interstate war.106 The human rights
framework has also been the basis of an external challenge
that resists the reduction of justice claims to the narrow
and inherently fragile status that they are granted within
the connes of the laws and ethics of war. For example,
prominent human-rights groups have challenged military
detentions and drone warfare associated with US counterterror policy by contending that our response to acts of
terror ought to be construed as a form of criminal justice,

bound and limited by human rights obligations, rather

than as a potentially boundless form of warfare. Feminist
theory has similarly been mobilized to inform an internal
challenge to debates on the ethics and laws of war, which
have been expanded to better address gendered forms of
violence, as well as an external challenge that aims to
expose the limitations and contradictions inherent in the
very logics animating the ethics and norms governing
war.107
Ideas associated with environmental justice could
similarly inform both an internal and an external response
to the limitations inherent in the ethics and norms
governing war. One way to address the limitations of
efforts to dene and address environmental war crimes
from within the framework of existing norms and institutions might be through efforts to integrate environmental
justice principles into processes of post-conict justice and
reconciliation. More specically, environmental justice
principles and strategies might aid in bridging the divide
between the work of ofcial post-conict institutions, such
as truth commissions, trials, and restorative justice practices, and the work of post-conict environmental assessments that are being carried out by UNEP and other
various independent teams of scholars, by giving sustained
attention to the long-term and disproportionate burdens
of the environmental harm caused by conict and
militarism, while tracing its impact on communities.
This kind of analysis could be useful in several ways.
First, such an analysis would help to better ground and
contextualize post-conict reckoning processes that have
centered on interior emotions and trauma as legacies of
wartime violence and abuse. Second, attention to the
disproportionate environmental legacies of war might
yield insights that are useful for efforts to understand
the causes of conict and possibilities for conict
resolution. Third, an environmental justice perspective
could usefully inform current efforts to expand humanitarian law as the basis for confronting a more broadly
construed conception of ecocide, with attention to the
historical and political roots of such crises and an
emphasis on prevention, precaution, redress, and contentious politics. Fourth, efforts to document the long-term
impact and disproportionate burdens of environmental
destruction on nature as home could be brought to bear
on jus ad bellum debates regarding the legitimacy of war by
reframing the way in which the costs of war are assessed.
Finally, this kind of investigation may yield ndings that
could be used to challenge and reformulate criteria for
establishing jus in bello claims about what constitutes
a proportionate or a discriminating use of force under the
laws of war.
Environmental justice might play an equally useful role
in addressing the limitations of environmental war
crimes by offering an external challenge to the ethics
and laws of war. In their efforts to conceptualize and
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pursue environmental justice, scholars, activists and policymakers open up a series of questions that unsettle core
assumptions about agency and responsibility that have
animated various formulations of environmental war
crimes: How might it be possible to develop an ethic
for acting in the face of emergency, threat, and crisis,
without losing sight of responsibilities rooted in the
past and owed to those that will live in the future?
How to shed a destructive posture of helplessness and
innocence in the face of uncertainty in order to
advance a basis for political responsibility? How can
collective agency be imagined in the absence of appeals
to mastery, certainty, and control? These kinds of
questions cannot easily be pursued from within the
framework of humanitarian law and norms, yet they
remain vital to the project of bringing environmental
destruction from the periphery to the center of debates
on the ethics of war.

Notes
1 See, for example, Walzer 2002, Crawford 2003,
Sikkink 2011, Teitel 2011.
2 For example, see Gleditsch 1998; Dinar 2001, Ross
2004.
3 Weinstein 2005, 698.
4 Roberts 2000, 58.
5 See for example, Roberts 2000, Drumbl 1998.
6 Rome Statute for the International Criminal Court
(1988), Art. 8, no. 2 (b).
7 Falk 1973, 8096; Higgins 2010; Eckerslsey 2007,
293316.
8 See Meyer 2001.
9 See Luke 1997, Biro, 2011, Leiss 2011.
10 See for example, Southwest Organizing Project
Letter, March 15, 1991; Cronon 1995, 6990; Guha
1997, 1420.
11 See Coole and Frost, 2010.
12 Grotius 2005, vol. 3, 46.
13 Grotius 2005, vol. 2, 143.
14 Grotius 2005, vol. 3, 109.
15 Vattel 2008, 570.
16 Vattel 2008,5 7071.
17 Tuck 2005.
18 Ibid.
19 Cronon 2003, 65.
20 Brown v. United States, 1814, 12. U.S. 110 Supreme
Court of the United States.
21 Carnahan 1998, 213231.
22 General Orders no. 100 [The Lieber Code] April 24,
1863. [Need more source info. Put into References.]
23 Letter from Francis Lieber to General Halleck, New
York, May 20, 1863. Reprinted in Hartigan 1983,
108.
24 Quoted in Samson 1998, 130.
25 Kinsella 2011.
784

Perspectives on Politics

26 The Nuremberg Principles: Principles of International Law Recognized by the Nurnberg Tribunal
and in the Judgment of the Tribunal (1950). [Put
this source into the References.]
27 Hague Convention (IV) Respecting the Laws and
Customs of War on Land and its Annex, The Hague
October 19, 1907. [What is this? Its not in your
References.]
28 The Hostage Case, Testimony of Lothar Rendulic,
August 26, 1947.
29 Solis 2010, 287.
30 Downes 2008, 114.
31 Geneva Convention (IV) Relative to the Protection
of Civilian Persons in Times of War, Geneva, UN
Treaty Series 75, August 12, 1949, Art. 53. [This is
not in your References. What is the governing body?]
32 Pictet 1958, 302. [Not in your References.]
33 Roberts 2000, 57.
34 Roberts 2000; Best 1988.
35 Cronon 2003, 83.
36 Russell 2001, 47.
37 Ibid., 116.
38 Ibid., 5.
39 Ibid., 68; See also, Hall 2009.
40 Russell 2001, 64.
41 Ibid., 65.
42 Ibid., 66.
43 Ibid., 50.
44 Fussell 2000, 239.
45 Russell 2001, 132133.
46 BBC News, Dickin Medal Awarded to Bomb
Snifng Search Dog, updated February 6, 2010,
16:40 GMT. [Not in your References; need more
information date, time, etc.]
47 Faith Karimi Ukranian Dolphins to Switch
Nationalities, Join Russian Navy, CNN World,
updated March 27, 2014, 7:41 EDT. [Not in your
References; need more information date, time, etc.]
48 See Kosek 2010; Anthes 2013.
49 Hamblin 2013, 49.
50 Ibid., 138.
51 Zierler 2011, 15.
52 Herr 1968, 59.
53 Anderson 1970.
54 U.S. Urges Inquiry on Poison Charge, New York
Times, August 15, 1964.
55 Bennett 2009, vxi.
56 Zach Schonfeld, #Notabugsplat, an Art Project
Designed to Be Seen by Drones, Newsweek, April
22, 2014, 4:38 PM.
57 Carson 2002, 2.
58 Eisenhower 1961.
59 Hamblin 2013, 174.
60 Ibid., 157.
61 See Evangelista 2002, 4573.

62
63
64
65
66
67
68
69
70
71

72
73

74
75

76
77
78
79
80
81
82
83
84
85
86
87
88
89
90

91

92
93

Quoted in Hamblin 2013, 203.

Zierler 2011, 15.
Ibid., 19.
Galston 1970, 409.
Falk, 1973, 84.
Ibid., 85.
Ibid., 84, 92.
Ibid., 90.
Ibid., 93.
Ibid., Appendix II. According to Hamblin,
USSoviet talks on the ENMOD Convention were
seen by many as a way to divert attention from
nuclear weapons; Hamblin 2013, 212.
Convention on the Prohibition of Military or Any
Hostile Use of Environmental Modication Techniques
(ENMOD Convention) December 10, 1976.
ENMOD Convention, Understandings, a-c.
[These two are not in your References.Understandings is the technical name for the last section of
the ENMOD convention, which is cited above.
Should I not use the shorthand?]
Wyatt 2010, 593646.
Protocol Additional to the Geneva Conventions of
12 August 1949, and relating to the Protection of
Victims of International Armed Conicts (Protocol I),
8 June 1977, art. 54, 56. See also Yuzon 1996, 817.
[Not in your References]
Protocol I 1977, art. 35.
Henckaerts and Beck 2005, 158.
Higgins 2010.
Falk 2007, 145. [Not in your References]
Falk 2007, 155. [Not in your References]
Galston 1967, 125.
Naess 1978.
Goodpaster 1978, 310.
Eckersley 1992, 28.
See Naess 1978; Eckersley 1992; Eckersley 2007;
Rolston 1988.
See Meron 2000, Teitel 2011, Sikkink 2011.
Rome Statute of the International Criminal Court,
U.N. Doc. A/CONF.183/9.
Sameit 2008, 5678.
Ashford and Gottstein 2000, 257.
Cluster bombs are lled with 150200 soda-sized
bomblets, which have a 5 to 7 percent dud rate.
The use of cluster bombs left an estimated 11,000
unexploded bomblets behind in Kosovo; (-Sameit
2008, 57073.
Specically, the Balkan Task Force found mercury in
the soil of Pancevo, unsafe levels of dioxin and PCBs
in Kragujevac, and unsafe drinking water in Novi Sad;
UNEP and Centre for Human Settlements 1999.
UNEP 2001. [Not in your References.]
Final Report to the Prosecutor By the Committee
Established to Review the NATO Bombing

94
95
96
97
98
99
100
101

102
103
104
105
106
107

Campaign Against the Federal Republic of

Yugoslavia, 2000; ICTY Committee Report.
Ibid., Section Ai, para 14.
Ibid., Section Ai, para 19.
Ibid., Section Ai, para 23.
Ibid., Section Av, para 53.
See Koskenniemmi 2002, 15975.
Eckersley 2007.
For a discussion of the tension between open
deliberative political processes and policy responses
to species decline, see Ellis 2008, 114-49.
In 2008, the Supreme Court ruled that national
security considerations outweighed the need to
protect marine mammals from sonar exercises;
Winter v. Natural Resources Defense Council, 555 U.S.
7 (2008). The NRDC continues to challenge this
ruling on the grounds that it minimized the damage
that such exercises cause to marine mammals. See
Horwitz 2014.
See Cronon 2003.
See: Bullard 1990; Pulido 1996, 2000; Cole and
Foster 2001; Pellow 2007; Holland 2007; Sze and
London 2008; Sarathy 2012.
See The Principles of Environmental Justice
(1991); Schlosberg 2004. [Not in your References.]
See Bennoune 2004; Leebaw 2007.
See Teitel 2011.
See Buss and Manji 2005; Kinsella 2011; ORourke
2013; Sjoberg 2013; Aolain 2013. [Not in your
References.]

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