Ethics & International Affairs Volume 21.3 (Fall 2007): Feature and Online Symposium on Ecological Intervention: Some Worries about Ecological-Humanitarian Intervention and Ecological Defense (Online Exclusive)

Sep 26, 2007

In "Ecological Intervention: Prospects and Limits," Robyn Eckersley offers an emergency stopgap and glimmer of hope to halt environmental destruction: states and coalitions of states should be permitted to use military force to prevent urgent and acute environmental damage1. While I find her article well-written and her arguments for ecological-humanitarian intervention (EHI) and ecological defense (ED) intriguing, in what follows I will outline a number of reasons for caution and skepticism about using military force to prevent crimes against nature.

Before I begin, two brief caveats are in order. First, I applaud Eckersley's effort to bring together environmental philosophy and the ethics of war and peace. There is little discussion between people who work in these two areas, and there is much common ground of concern2. Second, I hope that Eckersley's article and the responses provided by Simon Dalby, Matthew Humphrey, Clare Palmer, and me are the harbingers of continued future, and fruitful, discussion.

Eckersley provides a moral, political, and legal groundwork for armed EHI and ED. Consider first the legality of such military ventures. Conventional international law has yet to fully catch up with the custom of standard, non-ecological humanitarian intervention (HI). Under the rubric of the United Nations Charter, the use of military force is permissible only in matters of self-defense (Article 51) and when authorized by the UN Security Council (Chapter VII). Eckersley (pp. 302-304) notes the general reluctance of the UN Security Council to authorize HIs. Presuming that this general legal problem for HIs can be surmounted, what legal precedents exist for armed EHIs? Beyond a passing comment that environmental criminal prosecution exists for "'scorched earth' environmental atrocities" (p. 294), Eckersley surprisingly provides no real discussion of environment-specific international treaties that regulate war and that would seem to be the most likely legal precedents for EIH (and ED).

There are three such treaties: (1) the United Nations Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (1976)--known as the ENMOD Convention; (2) the Protocol Additional to the Geneva Conventions of 12 August 1949 and relating to the Protection of Victims of International Armed Conflicts--known as Protocol I (1977); and (3) the Rome Statute of the International Criminal Court (July 17, 1998), which established the International Criminal Court. Rather than actually protecting the natural environment, the ENMOD Convention prohibits deliberate modification of natural processes such that they are used as weapons of war. In contrast, both Protocol I and the Rome Statute are designed to protect the environment. Article 35(3) of Protocol I prohibits any methods or means of warfare that can cause "widespread, long-term and severe damage to the natural environment"; Article 55(1) of Protocol I adds a prohibition against damages to the natural environment that "prejudice the health or survival of the [human] population"; and Article 8.2(b)(iv) of the Rome Statute defines causing "widespread, long-term and severe damage to the natural environment" as a war crime.

The existence of these environment-specific international treaties is less than reassuring. Consider first that no environment-specific treaty has ever been invoked to actually protect the environment or to bring charges against a nation-state for environmental damage. One of the clearest cases of deliberate environmental damage occurred during the 1991 Persian Gulf War when Iraqi forces released approximately 11 million barrels of oil into the northern Arabian Gulf and when the fires caused from the sabotage of more than 800 oil wells spewed approximately 6 million gallons of crude oil into the atmosphere3. The fact that the United States claimed these actions violated neither the ENMOD Convention nor Protocol I is telling and shows how little bite international environmental law actually has4. Second, the ENMOD Convention, Protocol I, and the Rome Statute apply only to interstate armed conflicts, and conflicts that might warrant EHIs are not interstate conflicts. Third, the threshold for environmental damage for all three of these treaties is "widespread, long-lasting, and severe," a threshold Eckersley notes on page 310 to define ecocide. This threshold is not defined in Protocol I or the Rome Statute. In an "Understandings Regarding the Convention" text meant to accompany the ENMOD Convention, widespread is defined as "encompassing an area on the scale of several hundred square kilometers"; long-lasting is defined as "lasting for a period of months, or approximately a season"; and severe is defined as "involving serious or significant disruption or harm to human life, natural or economic resources or other assets." Thus, environmental damage must cover an area almost half the size of the U.S. state of Rhode Island, last for a minimum of at least three months, and/or be severe, simply redefined as serious or significant. Is this how Eckersley wants to legally stipulate the crime of ecocide? A fourth issue for treaties designed to protect the environment from military damage is that environmental "collateral damage" is permissible when it is done in the name of military necessity and offers a military advantage. Similar to the alleged remark of a U.S. commander in Vietnam—"we had to destroy the town [Ben Tre] in order to save it"—it is not too farfetched to imagine hearing a military commander say, "we had to destroy the mountain gorillas in order to save them." In terms of precedent from environment-specific international treaties, I submit that the legal ground for Eckersley's notion of an armed EHI is less than firm5.

Eckersley's political legitimacy ground is also not without problems. She claims that the Rio Declaration "represents the most up-to-date encapsulation of international environmental norms" that "makes clear that states have environmental responsibilities in relation to their own territories" (p. 308). While it does contain some laudable norms, it is important to note that the Rio Declaration has had little if any real effect on the political world of international relations. At the 1992 United Nations Conference on Environment and Development there was no agreement on an expected Earth Charter, and the main document produced at the conference—Agenda 21—was never implemented. Much of the conference was directed toward sustainable development (as seen in Principle 1 of the Rio Declaration) and, more importantly, on the development side of sustainable development6. The global South was wary about global North concerns with nature conservation and pollution abatement taking precedence over concerns about poverty and underdevelopment.

Eckersley's notion of an armed EHI to prevent ecocide ("widespread, long-lasting, and severe" environmental damage), transboundary spillover effects (namely pollution), and other crimes against nature (namely biodiversity loss) is a good example of Northern concern exhibited at Rio. She correctly notes that an armed EHI to protect biodiversity might be "regarded by developing states as yet another imperialist scheme by the North to deny former colonies the right to make use of their natural resources for the benefit of their own people" (p. 308). There is considerable and sometimes vociferous debate on the ground and in scholarly literature about how the protection of nonhuman nature occurs at the expense of local peoples7. In this debate between mainstream environmentalists and environmental justice advocates, the notion of an armed EHI seems to come down squarely on the side of the former, and Eckersley's advocacy seems akin to what environmental justice advocates pejoratively call the "Yellowstone model" of environmental injustice. After its creation in 1872, US Army Calvary was posted to guard Yellowstone National Park, in large part to prevent Bannock, Tukedeka, and other Shoshone Indians from entering the park, killing game animals, and otherwise utilizing natural resources that they had used prior to the arrival of Euro-Americans. From the perspective of environmental justice advocates and local peoples, any armed intrusion under the banner of an "EHI" would likely be viewed as yet another instance of environmental injustice.

This brings us to the last ground for Eckersley's notion of an armed EHI: moral legitimacy. In order to be morally legitimate, many people argue that a standard HI must satisfy criteria from the just war tradition (JWT)8. In terms of a just war or the justice of going to war-jus ad bellum-this includes legitimate (or right) authority, just cause, right intention, macro-proportionality, likelihood of success, and last resort. In terms of fighting justly-jus in bello-this includes discrimination and micro-proportionality. There is much that can be said about applying these JWT criteria to an armed EHI and ecological defense (ED), but I will limit my discussion to just cause and proportionality.

As noted above, Eckersley suggests that just causes for armed EHIs and ED include stopping ecocide, transboundary spillover effects, and other crimes against nature. While there are clear instances of ecocide, such as the ancient Roman obliteration of Carthage, trying to define instances of "widespread, long-lasting, and severe" environmental damage today seems fraught with difficulties. How widespread, long-lasting, and/or severe does the damage have to actually be before a military response threshold is passed? It is important to remember that militaries are designed first and foremost to kill. Militarizing the mitigation of transboundary spillover effects seems akin to issuing a death threat against one's neighbor because of pollution emissions. I need only look ten miles south of my home in San Diego, California, to see the tragic consequences of a similar policy: the militarization of the US-Mexico border to mitigate the transboundary spillover effects of undocumented people entering the US. Illegally crossing a political boundary to work is not an act of war that should demand a military response. Likewise, emitting harmful pollution is a crime that should demand good police and judicial work.

The final "just cause" category of crimes against nature is also problematic. Eckersley focuses her discussion of this on the protection of biodiversity (pp. 304-309). If conservation biologists are correct that current anthropogenic species extinctions are 300 to 2,700 times higher than the background extinction rate (prior to the evolutionary arrival of humans), the number of species extinctions occurring each day is quite staggering9. One would need to pick one's battles wisely to decide which of these potential extinctions warrants an armed intervention. While I agree with Eckersley that a species threatened with extinction is a tragic problem that demands an immediate response, I am not convinced that military action is the correct response.

Just cause is stretched even further when Eckersley suggests preemptive military strikes in the name of ED (pp. 299-301). Michael Walzer classically has argued that a preemptive strike is a just cause for war when a potential aggressor state has a manifest intent to injure, is actively preparing to intend danger, and doing anything other than fighting preemptively will magnify the risk to the potentially aggressed-against state10. The most likely just cause candidate for preemptive ED is a transboundary spillover effect, particularly air and water pollution. It is doubtful that most people who emit pollutants do so with a manifest intent to harm. Eckersley's ED would instead need to focus on militarily preventing the unintended consequences of actions that result in pollution. This prevention of a possible future danger seems more akin to a preventative strike against a gathering threat—precisely the justification the US used to invade Iraq in 2003. In the preface of the fourth edition (2006) of Just and Unjust Wars, Walzer correctly notes that such preventative war is not justifiable under the guise of the JWT. Eckersley's ED might fail to meet the jus ad bellum criterion of just cause.

Finally, consider proportionality. A possible war must pass a macro-proportionality test (jus ad bellum) in which more good than evil will be achieved by going to war, and an actual war must pass micro-proportionality tests (jus in bello) whereby more good than evil is achieved throughout the means of war, such as individual battles, tactics, and weapons use. There is a general dearth of environmental ethics discussion of what some call the ecology of war and peace—the effects of military activities on the environment—in spite of the fact that the world's militaries are estimated to be the largest single polluter on Earth, accounting for as much as 20 percent of all global environmental degradation11. Conventional military activities have many negative environmental consequences12. Consequently, a war on environmental destruction, such as an armed EHI or ED, would more likely be a war of environmental destruction.

In conclusion, there are a number of reasons to proceed with caution and skepticism in regard to the prospects of ecological intervention. Rather than searching for new environmental reasons to use our militaries, perhaps we should instead find new environmental reasons to restrain such use.

1.Robyn Eckersley, "Ecological Intervention: Prospects and Limits," Ethics & International Affairs21, no. 3 (Fall 2007), pp. 293-316.

2.See, for example, my attempt to bring environmental ethics considerations into the just war tradition. Mark Woods, "The Nature of War and Peace: Just War Thinking, Environmental Ethics, and Environmental Justice," in Michael W. Brough, John W. Lango, and Harry van der Linden, eds., Rethinking the Just War Tradition(Albany: State University of New York Press, 2007), pp. 17-34.

3.Muhammad Sadiq and John C. McCain, eds., The Gulf War Aftermath: An Environmental Tragedy (Dordrecht: Kluwer Academic Publishers, 1993); Farouk El-Baz and R.M. Makharita, eds., The Gulf War and the Environment(New York: Gordon and Breach Science Publishers, 1994).

4.The UN held Iraq responsible for this environmental damage, but Iraqi liability stemmed from the wrongful occupation of Kuwait and not from Iraq's actual environmental actions.

5.In addition to the ENMOD Convention, Protocol I, and the Rome Statute, there are a variety of non-environment specific international treaties that plausibly could help protect the environment from war crimes. These treaties include: (1) Hague Convention IV Concerning the Laws and Customs of War on Land (1907), (2) Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (Geneva Convention 1925), (3) Fourth Geneva Convention (1949) relative to the protection of Civilian Persons in Time of War, (4) Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict (1954), (5) Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water (Limited Test Ban Treaty 1963), (6) Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction (1974), (7) 1980 Convention on Certain Conventional Weapons and its Protocols, (8) Chemical Weapons Convention (1992), and (9) Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction (Ottawa Convention 1997). For discussion of some of these treaties and the three environment-specific treaties, see Richard Falk, "The Inadequacy of the Existing Legal Approach to Environmental Protection," pp. 137-155; Adam Roberts, "The Law of War and Environmental Damage," pp. 47-86; and Michael N. Schmitt, "War and the Environment: Fault Lines in the Prescriptive Landscape," pp. 87-136; all in Jay E. Austin and Carl E. Bruch, eds., The Environmental Consequences of War: Legal, Economic, and Scientific Perspectives(New York: Cambridge University Press, 2000).

6.Wolfgang Sachs, "Global Ecology and the Shadow of 'Development'," in Wolfgang Sachs, ed., Global Ecology: A New Arena of Political Conflict(London: Zed Books, 1993), pp 3-21.

7.Giovanna Di Chiro, "Nature as Community: The Convergence of Environment and Social Justice," William Cronon, ed., Uncommon Ground: Toward Reinventing Nature (New York: W.W. Norton & Company, 1995), pp. 298-320; Charles Zerner, ed., People, Plants, and Justice: The Politics of Nature Conservation (New York: Columbia University Press, 2000); Steven R. Brechin, Peter R. Wilshusen, Crystal L. Fortwangler, and Patrick C. West, eds., Contested Nature: Promoting International Biodiversity with Social Justice in the Twenty-first Century(Albany: State University of New York Press, 2003).

8.Shi Yinhong and Shen Zhixiong, "After Kosovo: Moral and Legal Constraints on Humanitarian Intervention," in Bruno Coppieters and Nick Fotion, eds., Moral Constraints on War: Principles and Cases (Lanham, MD: Lexington Books, 2002), pp. 256-260; Paul Christopher, The Ethics of War and Peace: An Introduction to Legal and Moral Issues, 3rd ed., Upper Saddle River, NJ: Pearson Prentice Hall, 2004), pp. 244-255.

9.Martha J. Groom, "Threats to Biodiversity," in Martha J. Groom, Gary K. Meffe, and C. Ronald Carroll, eds., Principles of Conservation Biology, 3rd ed. (Sunderland, MA: Sinauer Associates, 2006), p. 86; Malcolm L. Hunter, Jr. and James Gibbs, Fundamentals of Conservation Biology, 3rd ed. (Malden, MA: Blackwell Publishing), p. 120.

10.Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations, 4th ed., (New York: Basic Books, 2006), p. 81.

11.Michael Renner, "Assessing the Military's War on the Environment," in Lester R. Brown et al., eds., State of the World 1991: A Worldwatch Institute Report on Progress Toward a Sustainable Society(Washington, DC: W.W. Norton & Company, 1991), pp. 135-152.

12.Direct impacts on the environment include: (1) formation of craters and compaction, erosion, and contamination of soils by bombs, missiles, and military vehicles and their hazardous and toxic residues, (2) other forms of land pollution ranging from latrines and garbage dumps to landmines, unexploded ordnance, and radioactive dust, (3) defoliation, deforestation, and land degradation, (4) contamination of surface waters and groundwater, (5) atmospheric emissions and resulting air pollution from military equipment and vehicles, (6) direct and collateral killing of animals and plants and loss of habitat, (7) degradation and destruction of protected natural areas, and (9) noise pollution of 140 decibels or more from low-flying aircraft and weapons that can lead to long-term hearing impairment in people and animals. Further environmental harms for people include: (a) damage and destruction of water storage and distribution systems, waste and wastewater treatment facilities, and sewer systems, (b) damage and destruction of croplands, pasturage, marine fisheries, and the resulting loss of agricultural products or other foodstuffs, and (c) damage and destruction of other human structures ranging from buildings to power grid systems and entire towns. These environmental harms in turn can (i) disrupt or destroy the social and economic infrastructures of human communities, (ii) dislocate human populations and result in displaced peoples and refugees, and (iii) create new opportunities for pathogenic microbes and the spread of infectious diseases among human populations. See Asit K. Biswas, "Scientific Assessment of the Long-Term Consequences of War," pp. 303-315; Jeffrey A. McNeely, "War and Biodiversity: An Assessment of Impacts," pp. 353-378; both in Austin and Bruch, eds., The Environmental Consequences of War.

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