Ethics, Nationalism, and Just War: Medieval and Contemporary Perspectives

9. Protecting the Natural Environment in Wartime: Ethical Considerations from the Just War Tradition

9 Protecting the Natural Environment in Wartime Ethical Considerations from the Just War Tradition gregory m. reichberg and henrik syse Ethics, War, and Nature What protection does the natural environment merit in wartime? It was in the aftermath of the Vietnam War of 1961–75 that this question came into focus. Wars have always brought destruction in their wake; and the twentieth century was by no means the first to show concern for the effects of armed conflict on our natural surroundings. However, the Vietnam War does “stand out in modern history as one in which intentional anti-environmental actions were a major component of the strategy and tactics of one of the adversaries, one in which such actions were systematically carried out for many years and over large areas” (Westing, 1976: 1). Concern over these and similar practices—such as the Iraqi attacks on oil installations during the Gulf War of 1990–91, when hundreds of wells were deliberately set aflame—has fueled debate over the moral and legal implications of environmental despoliation in war. Should military acts that cause widespread harm to the environment be counted among the grave breaches of the laws of armed conflict? And why should the environment deserve this special protection? Is it because vital human interests depend upon it—or because of its own inherent worth? Normative considerations about the status of the natural environment in wartime are not readily translated into absolute prohibitions. As con190 ∏ Protecting the Natural Environment 191 cerns natural, nonhuman entities, the laws of armed conflict have no direct analogue to the statutes that unequivocally condemn the intentional killing of noncombatants, sexual violence, or the use of torture. The environmental interdictions that do exist are invariably couched in the language of military necessity and proportionality. Since legal and moral discussions of war are now so closely intertwined , we begin with a representative sampling (by no means a complete list) of some legal instruments that seek to safeguard the environment in wartime.1 This will bring into greater relief some key points in the ethical analysis that follows. Article 2, paragraph 4 of Protocol III annexed to the U.N. Convention on Certain Conventional Weapons (1980) declares that “it is prohibited to make forests or other kinds of plant cover the object of attack by incendiary weapons except when such natural elements are used to cover, conceal or camouflage combatants or other military objectives, or are themselves military objectives.” Similarly, article 35.3 of the 1997 Protocol I Additional to the Geneva Conventions of 1949 prohibits attacks on the natural environment by reference to the extent, not the kind of destruction wrought: “It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment.” It is, however, possible to read this last proscription as implying an outright condemnation of environmental destruction when it reaches a certain level. This is the interpretation proposed in the U.S. Army’s Operational Law Handbook: “GP [Geneva Protocol] I does not employ the traditional balancing of military necessity against the quantum of expected destruction. Instead, it establishes this level as an absolute ceiling of permissible destruction” (Judge Advocate General’s School, U.S. Army, 1997: 5–18). Still, even on this interpretation , no special category of natural entity is excluded from attack per se. By contrast, the provisions of the 1976 ENMOD (Environmental Modification Techniques) Convention would seem to offer an instance in which international law identifies certain kinds of natural phenomena as deserving of special protection in wartime, since articles 1 and 2 expressly forbid the hostile use—under any circumstances whatsoev1 . For more detailed treatment of the environmental aspects of laws of war, see the essays in part 2 of Austin and Brunch, 2000. 192 Gregory M. Reichberg and Henrik Syse er—of “environmental modification techniques” such as “any technique for changing—through the deliberate manipulation of natural processes —the dynamics, composition or structure of the earth, including its biota , lithosphere, hydrosphere and atmosphere, or of outer space” (Green, 1993: 149). In point of fact, however, this convention “deals essentially, not with damage to the environment, but with the use of forces of the environment as weapons” (Roberts, 2000: 58; emphasis added). Hence it bears little direct applicability to the issue now under consideration: protection of the environment in wartime. The 1959 Antarctic...