The Things of This Inferior World: Nature as Property

In his classic text, The Law of War and Peace, Grotius observes that “we may find in History, almost in every Page … whole Cities destroyed, or their Walls thrown down to the Ground, Lands ravaged, and every Thing set on fire.”^{Footnote 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.”^{Footnote 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 first occupier. Grotius specified 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 Grotius’s 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 Enemy’s 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 qualifies 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.”^{Footnote 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.”^{Footnote 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.”^{Footnote 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 one’s basic needs, Grotius wrote, “we are commanded not to throw it into the sea … nor to leave it unproductive.”^{Footnote 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.^{Footnote 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.^{Footnote 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 confiscate the property of the enemy wherever found.”^{Footnote 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.^{Footnote 21} An émigré 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 first effort to codify norms governing warfare and would have a major influence on the subsequent articulation of international laws of war.

Like Grotius and Vattel, Lieber evaluated the destruction of landscapes in relation to property claims—an analysis that was influenced by debates on the emancipation of slaves during the Civil War. In Lieber’s formulation, wartime destruction of property could only be justified 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 Marshall’s 1814 ruling. Article 16 of the Lieber Code sought to place limits on the kind of destruction that could be justified 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 difficult.”^{Footnote 22}

In the Lieber Code, the difference between legitimate and illegitimate wartime destruction of nature was defined 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 “necessary” 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 difficult.”^{Footnote 23} In this context, wantonness is given meaning in relation to the kind of destruction that is likely to make peace more difficult to obtain—that 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.”^{Footnote 24} The term wanton also has associations with indulgence, luxury, immorality, and unchaste behavior. Helen Kinsella’s 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.^{Footnote 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 justified by military necessity.” This same clause appears verbatim in principle 6b of the 1950 Nuremberg Principles.^{Footnote 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.”^{Footnote 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 Lieber’s primary limiting principle on claims to “military necessity”—the 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 scorched-earth 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 justified 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.”^{Footnote 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 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 battlefield that matter, but rather assertions regarding perceived necessity, based on information available to military commanders at the time of their actions.^{Footnote 29}

It would have been awkward, in any case, for the Nuremberg Tribunal to convict Rendulic for scorched-earth 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 Rendulic’s 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.”^{Footnote 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.”^{Footnote 31} The International Committee on the Red Cross commentary on this provision specifies that post-World War II rulings on scorched-earth charges generally accepted military necessity as a rationale, but severely condemned wanton or excessive devastation.^{Footnote 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 specific ownership.^{Footnote 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.^{Footnote 34} The significance 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 influential environmental history of colonial New England, William Cronon observes that different systems of property reflect and inform distinctive ways of valuing landscapes, which can have profound ecological effects.^{Footnote 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 were codified, 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 one’s 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 shape—one 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.”^{Footnote 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 fighting in the Southwest Pacific.^{Footnote 37}

Where nature is defined primarily in relation to property claims, humaneness is identified 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 define humaneness in relation to technical mastery and scientific achievement. In this context, jus in bello ideas regarding what constitutes humane weaponry and modes of combat are influenced by claims regarding scientific achievement and technical sophistication.

The Hague Conventions of 1899 and 1907 had banned the use of “asphyxiating and deleterious gases.” Only 27 nations had ratified 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.^{Footnote 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, ratification was blocked in the Senate. Military Affairs Committee chair James Wadsworth successfully made the case that poison gas was more “humane” than other weapons.^{Footnote 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.”^{Footnote 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 affirmed 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.”^{Footnote 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 technically-sophisticated strategies in a war against nature is also identified 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 fields.”^{Footnote 42} As Chief of the CWS, Amos Fries argued that chemical weapons were “the most powerful and most humane” method of warfare ever invented.^{Footnote 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.”^{Footnote 44} The idea of waging a just war against nature extends this logic by defining 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 Army’s campaign against malaria deployed racist depictions of Japanese soldiers portrayed as mosquitos, lice, and other insects. The media characterized the Pacific war as an “extermination” effort.^{Footnote 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 fight on one’s 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.^{Footnote 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.^{Footnote 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.^{Footnote 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.”^{Footnote 49} His plan was met with approval by some 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.”^{Footnote 50} Targeting the ecological vulnerability of an enemy, according to the report, could be a way to cripple one’s 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.^{Footnote 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.”^{Footnote 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 NLF’s food supply. “Compared to most weapons of war,” he stated, “herbicides score pretty high on the scale for humaneness.”^{Footnote 53} In response to charges that herbicides represented toxic poisons in violation of the 1925 Gas Protocol, US officials characterized them as “harmless weed killers.”^{Footnote 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 reflex of human language and thought.”^{Footnote 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, fighting 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 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 influenced the jurisprudence of international legal officials and institutions. However, it has had a significant 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 pacifists 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 arenas—the 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 identified them as a humane alternative to conventional weaponry, citing their use in domestic contexts as evidence and invoking their association with scientific and technological progress. In this formulation, humaneness in war is paradoxically identified 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 scientific 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.^{Footnote 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 difficult to detect.

We Know Very Little about What We Are Doing: Nature as Pandora’s 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.”^{Footnote 57} Carson’s fable aims to shock readers into seeing the familiar with new eyes. At first, 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. White’s observation that “our approach to nature is to beat it into submission.” Affirming White’s 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 influential 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 fixation on the near term to anticipate the environmental effects of today’s 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 war’s impact on the environment. In his famous final speech as president in 1960, Dwight D. Eisenhower had warned, not only of a “military-industrial complex,” but also of the rise of a “scientific technological elite” with increasing influence 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.”^{Footnote 58} Kenneth Boulding, founder of the Journal of Conflict 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.”^{Footnote 59} In a 1965 statement, the American Association for the Advancement of Science warned of the uncertain effects of radiation, pesticides, and weather modification.^{Footnote 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.^{Footnote 61}

Concerns regarding wartime environmental destruction crystallized in response to the US use of herbicides, daisy cutters, and weather modification in Vietnam. In a letter to Richard Nixon, FAS chairman, Marvin L. Goldberger described “geophysical warfare” as a “‘Pandora’s box,’ to which seemingly inoffensive weather modification may be the disastrous key.”^{Footnote 62} According to this logic, nature itself is cast as a kind of Pandora’s 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 identification of humanity and humaneness with scientific rationality and technical accomplishments. Pandora’s 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 modification.

David Zierler, who has written a meticulous history of anti-Agent Orange activism in the US, credits Arthur Galston with coining the term ecocide.^{Footnote 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 conflicts. 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.”^{Footnote 64} In a paper published that same year, Galston developed this point, arguing that the large-scale destruction of the countryside violates the principle of discrimination in humanitarian law, by destroying the primary food source for civilian populations.^{Footnote 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.^{Footnote 66} 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.”^{Footnote 67} Falk recognized that “all warfare is detrimental to health and the environment,” and that environmental devastation is an inevitable byproduct of counterinsurgency tactics.^{Footnote 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.”^{Footnote 69} The draft convention on ecocide that Falk proposed in 1973 defines 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 modification, and forced removal for military objectives.^{Footnote 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.”^{Footnote 71}

The environmental protections that were ultimately articulated in the 1977 Convention on the Prohibition of Military or Any Other Hostile Uses of Environmental Modification 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 modification techniques having widespread, long-lasting, or severe effects, as the means of destruction, damage or injury to any other state party.”^{Footnote 72} The document of understanding that accompanies the convention clarifies 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 “significant harm to human life.”^{Footnote 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.^{Footnote 74} Finally, the convention lacks a clear basis for establishing accountability or demanding redress.

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.^{Footnote 75} However, such attacks are permitted in cases where such installations are used in “regular, significant, and direct” support of military operations. Protocol I also contains language calling explicitly for efforts to protect the environment during armed conflict. It goes further than ENMOD in that it prohibits not only deliberate environmental modification, but also acts that “may be expected to cause widespread, long-term and severe damage to the natural environment.”^{Footnote 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 difficult to meet. Moreover, parties to the convention indicated that they interpreted “long-lasting” as approximately a decade, rather than a single season.^{Footnote 77}

The ecological approach advocated by thinkers such as Carson, Galston, Falk and others thus had only a modest impact on the specific 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 influence on the elaboration of legal standards.^{Footnote 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.^{Footnote 79} Reflecting on these limitations, Falk concludes that humanitarian law is simply too anthropocentric to accommodate meaningful ecocentric reform.^{Footnote 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 specific 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 scientific 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.”^{Footnote 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 difficulty 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.” Falk’s 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 Pandora’s 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, scientific, 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 movement’s “shallow” focus on pollution in affluent arenas in favor of a broad case for extending “the right to live and blossom” beyond the human context to other forms of life.^{Footnote 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.”^{Footnote 83} Robyn Eckersley’s 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.”^{Footnote 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.^{Footnote 85}

During this same time period, human rights law also expanded and began to influence the laws of war, most notably in the context of the emergence of international and national war crimes tribunals.^{Footnote 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, long-term, and severe damage of the natural environment” even when not connected with the health or survival of a human population.^{Footnote 87}

In accordance with the ICC Statute, then, nature can be a victim of war crimes. In theory, concern for war’s 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 war’s impact on the non-human environment. In order to understand the significance 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 identified with the claim to innocence, as defined 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.

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 refinery in Novi Sad, petrofuel storage in Bor, and transformer stations in the cities of Bor and Nis. NATO bombs and missiles had also struck Serbia’s Pančevo Industrial Complex, releasing a number of toxic chemicals.^{Footnote 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 Pančevo to a team of Canadian investigators, “but we were not heard.”^{Footnote 89} Concerns were also been raised regarding NATO’s use of cluster bombs and depleted uranium weapons.^{Footnote 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.^{Footnote 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.^{Footnote 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 difficulty 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.^{Footnote 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 difficult to know how much of this damage could be attributed to the NATO bombings.^{Footnote 94} Applying the proportionality standard outlined in the ICC Statute, the committee argued that where a target is “sufficiently important,” a greater degree of risk to the environment is justifiable.^{Footnote 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 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 difficult to establish for the purposes of any prosecution.^{Footnote 96}

According to this logic then, humaneness in war is associated with innocence, as defined in relation to criminal intent and individualized guilt. The emphasis on individual criminal guilt offers a basis for establishing accountability for war’s 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 Pandora’s 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.^{Footnote 97} In accordance with the logic of international humanitarian law, the civilian deaths as well as the environmental destruction caused by the bombings are classified 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 sacrificial victims. That is, their destruction is acknowledged and grieved, but understood as a tragically unavoidable sacrifice in relation to a larger moral objective, rather than as a crime or a wrong.^{Footnote 98}

Robyn Eckersley offers a variation on the nature-as-victim formulation in the form of a proposal for expanding the case for humanitarian intervention to encompass a legal justification for military intervention in response to ecocide and other “severe ecological crises.”^{Footnote 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 destruction—even where such destruction does not threaten human populations. Eckersley’s 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 identifies human agency with urgent and efficient 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.^{Footnote 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-conflict environmental assessments,” sending scientists to test air quality, soils, and rivers in an effort to evaluate war’s 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-conflict 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 war’s 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-conflict justice and reconciliation, such as truth commissions, have tended to emphasize the interior wounds associated with trauma, with little, if any, attention to war’s 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 war’s impact on the environment—one 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.^{Footnote 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 one’s actions in times of war, uncertainty regarding the long-term 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 sacrificial 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 claim—that humanity is inherently guilty of destroying nature by our very presence.^{Footnote 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 significance 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 significance of “environmental war crimes” comes into sharper focus with attention to the way in which the ethics and norms governing war have been influenced by claims 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 inflicts against another, while leaving states free to inflict environmental devastation within their own boundaries, either in the context of intra-state conflict 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 scientific mastery, technical achievement, and aspirations to attain purity and total control of one’s 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 Pandora’s Box, filled 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 identifies humaneness and human agency in relation to the binary 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 specific historical debates about war’s 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 battlefield. 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 briefly 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.^{Footnote 103} Influenced 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 benefits of environmental harm in favor of an approach that acknowledges diversity and contested character of ideas regarding the relationship between nature and humanity.^{Footnote 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 wilderness-oriented 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 justice—one 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 influenced 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.”^{Footnote 105} Nevertheless, the human rights framework has been mobilized to influence the laws of war through two kinds of challenges—an 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.^{Footnote 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 confines 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.^{Footnote 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 define 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-conflict justice and reconciliation. More specifically, environmental justice principles and strategies might aid in bridging the divide between the work of official post-conflict institutions, such as truth commissions, trials, and restorative justice practices, and the work of post-conflict 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 conflict 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-conflict 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 conflict and possibilities for conflict 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 findings 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 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.