International Humanitarian Law (“IHL”) and its principles of distinction and proportionality hinge not just on the masculine notion of ‘military objectives’ but also on what Richard D Ryder calls speciesism. In addition to assuming supremacy and upholding the vitality of the state-centric interests and military objectives, IHL, through its foundational ideals and principles enables non-recognition and non-protection of ‘non-human’ entities. This leads to the subordination of various elements of the environment, particularly in the present age of technological advancement and posthumanism. Science, technology, and their impact on our social and physical environments are reshaping the debate on what it means to be human. Such changes in the relationship between humans and nonhuman entities are now reflected in the realm of armed conflicts with the advent of phenomena such as AI, warbots, proxy soldiers, and much more (see here and here for a wider discourse).
While there can be arguments supporting and reinforcing the need for such technological advancements based on the objectivity they offer in the arena of armed conflicts, it is only evident that future post-human or trans-human societies will continue to be racialised and biased, just like human-like robots are gendered and raced. The nature of these developments will naturally manifest similar, if not identical biases and prejudices as their manufactures, coders, and other such human agents. Therefore, the activities in armed conflicts, whether human or not, will continue to perturb the planet’s main system, such as climate and geology in addition to being gendered and biased. In order to be prepared for these challenges and eventualities, conversations must be had over the existing prejudices contained in IHL against the environment as well as women, which the author argues are intertwined.
While it can be argued that IHL recognises and provides for the protection of the environment and its various elements, history bears testimony to the fact that the law, in general, has been anthropocentric, and thus, IHL is no exception. This two-part post will deal with the anthropocentric nature of the law of armed conflicts. Part I of the article will showcase the inherent inadequacies of IHL’s foundational principles, i.e. distinction and proportionality, vis-à-vis environmental and ecological protection. In Part II, there is a deeper and more specific analysis of the subsisting nature of IHL from an eco-feminist perspective that provides an avenue to consider a more inclusive interpretation of the IHL framework and the beneficiaries of its protection.
Principles of Distinction, Proportionality and the Lack of Environment Protection
Proclaimed as the creme de la crème of IHL, the principle of distinction distinguishes between combatants and civilians and lays down a prohibition on direct attacks against civilian objects. While this lays a firm foundation on which IHL and armed conflicts operate, it does so by turning a blind eye to the unpopular, yet very relevant factors of environment and ecology. While civilian objects such as hospitals and schools are supposed to be non-targetable and are therefore protected from any kind of attack, IHL fails to address the environment as an ‘object’ worthy of any protection.
At first instance, IHL seeks not to ‘prevent’ environmental harm, but only to reduce it. While IHL provides for a degree of protection under Article 35(2) and Article 55(1) of the Additional Protocol I to the Geneva Conventions (“AP-I”), it does so in a conditional fashion. In these provisions, the natural environment is protected only against “widespread”, “long-term”, and “severe” damages. Aside from this extremely high threshold of damage, which is an aberration from the protection offered to other objects under IHL, there are two manifest difficulties in enforcing these provisions in practice. First, the term “long-term” damage is taken by states to connote harm the impact of which must last for decades. This is in contrast to other less predominant conventions, where “long-term” damage includes environmental harm that can last for months, or a season.
Second, this high threshold applies conjunctively with the rule of proportionality, i.e., states’ obligations to minimise collateral damage. This means that states must “avoid” attacks which would cause such “harm” to non-military objectives as is “excessive” to the military advantage anticipated. This includes the environment until it becomes a military objective. However, while launching attacks, it is often nearly impossible to predict their potential “long-term” or “severe” harm to the environment, as the true impact of the attack may also depend on factors such as pre-existing pollution. Thus, states may not be responsible for such harm when the full extent of environmental harm was unpredictable during the attack. Nor are states explicitly obliged to refrain from attacks when this predictive assessment cannot viably be made. Given both these difficulties, hazardous and fatal environmental damages accruing from occurrences such as the bombing of industrial facilities and chemical plants in Afghanistan and the age-old oil spills during the Gulf War are legally permitted within IHL.
If the disintegration of various parts of the environment, be it flora or fauna was not enough, IHL has been silent on the use, rather, the exploitation of such natural entities by human agents in propagating armed conflicts. As witnessed in the case of the U.S. military invasion in Guam (1950s), in addition to facilitating the exploitation of various components of ecology, the laws of warfare also managed to utilise and capture the intrinsic value of some of the non-human entities such as snakes and poisonous plants as weapons and novel methods of attack. Ever since the Guam fiasco, IHL has barred any deliberate attack against the natural environment. However, its shortcomings in protecting the environment from “incidental” harm on par with its protection for civilians still persist.
In the era of post-humanism, IHL needs to recognise its inherent drawbacks by extensively addressing legal subjectivity and must account for damage to non-human and ecological entities in warfare, as not inferior or subordinate to human species, but as legal equals. IHL’s failure to overtly address environmental damages is similar, if not identical to its failure to address wartime sexual violence. The discourse surrounding the plight of women is Syria and Iraq highlight the effect of military interventions and the weaponisation of sexual violence in regions of conflict. These gaps in its rules and provisions are inherent to the law and need to be reexamined through a lens that is inclusive enough to protect and safeguard the interests and rights of those entities that have been otherwise left unrecognised and unaffiliated. Thus, if IHL claims to be a law that caters to the humanitarian side of armed conflicts by balancing it with its military objectives, it must redefine its humanitarian goals in a more inclusive manner warranting the differential needs and demands of both human and non-human elements of nature. It thus becomes vital to view the law itself from an eco-feminist standpoint, a theory that caters to all elements of nature in an effective way.
In Part II, the author will proceed to engage with and critique the IHL framework from an eco-feminist perspective to analyse the post-human (and modern) evolution of the field to call for an inclusive interpretation of IHL rules.
Anmol Ratan is a third year law student at the National Law School of India University, Bangalore. His areas of interest are Constitutional Law, International Human Rights Law and Dalit-Feminist jurisprudence. He has worked in the past with human rights organizations such as the United Nations, Aga Khan Foundation, Commonwealth Human Rights Initiative (CHRI). He is currently the Convenor of Savitri Phule Ambedkar Caravan (SPAC), a student-led collective based in NLSIU, Bangalore that works on social justice and minority rights.
Image: Diane Lane-Hymans.