Should the world adopt a law to recognise ecocide as a global crime?

From the Vietnam War to the crisis in West Asia, the environment is no longer just collateral damage. It is becoming a target in its own right

It was an American scientist, Arthur Galston, who coined the word “ecocide” in 1970 to describe the catastrophic effects from the indiscriminate use of the infamous Agent Orange by US troops fighting in the Vietnam War. Agent Orange was used as a powerful herbicide to destroy large swathes of thick vegetation, within which Viet Cong guerrillas were suspected of hiding and launching surprise attacks against American troops. 

Agent Orange was used alongside napalm, an incendiary weapon that ignited upon impact into a sticky gel that would cling to the target, destroying material, undergrowth and enemy personnel, via intense heat, extensive burns and suffocation. But napalm did not leave lingering, long-term damage. Agent Orange did. 

Soil contaminated by it is still being cleaned up in several affected areas in the country. Its ecological impact is multi-generational, and its toxicity is known not only to poison the soil and water sources, but also to affect human DNA, causing cancer and birth defects passed down through generations. If napalm was like a chemical weapon, Agent Orange served as both a chemical and biological weapon. Galston was right in describing its use as ecocide, in the same category as genocide and war crimes. However, this was accepted neither by the US nor by the international community. 

An effort was made to cover such actions in Protocol 1 to the Geneva Convention, concluded in 1977. Article 35(3) and Article 55 explicitly prohibit warfare methods that are intended or expected to cause widespread, long-term, and severe damage to the natural environment. This seems to cover collateral environmental damage, but the key here is intentionality, which is difficult to prove. The Iraqi leader, Saddam Hussein, deliberately set fire to the oil wells in Kuwait after he was forced to retreat from the kingdom in the Gulf War 1.0 in 1991. These wells burnt for several months causing immense and long-lasting environmental damage but his actions were not described as ecocide. The legal position remained ambiguous. 

The issue has once again come to the fore with the repeated aerial and artillery bombardment of the densely populated region of Gaza by Israeli Defense Forces, turning it into an ecological dead zone. The mountains of rubble are estimated at 39 million tonnes, which include asbestos, heavy metals and toxic chemicals. 

The bombing of oil and gas facilities by the US and Israel in Iran has also inflicted huge, immediate, and long-lasting damage to the country’s environment, rendering vast swathes of its territory uninhabitable, with the soil poisoned by toxic chemicals both from the ordnance used and from the targeted facilities, such as oil refineries. These effects have been described as a “slow motion chemical war.” According to one report, the military assault on Iran created an “apocalyptic environmental crisis”, with the 9 million residents of Tehran affected by the black cloud and toxic fallout from the bombing of an oil storage facility on the outskirts of the capital. This is estimated to have released 5 million tonnes of CO2 in just two weeks. 

In the Ukraine War, some of the rich grain-growing areas of the country, including its major river, Dnipro, are saturated with toxic chemicals, which are the residue of bombs, artillery shells, and missiles rained on the country by Russia.  Unexploded munitions embedded in agricultural fields are a constant threat to farmers. It is estimated that 30 per cent of the country is littered with landmines and unexploded ordnance, which impacts agricultural production and physically tears up the topsoil ecosystem, resulting in long-term land degradation. Now, Ukraine is paying Russia back in the same coin. The recent hits on Russian oil refineries have led to toxic black smoke enveloping large areas around them, including the important city of St Petersburg. It has become difficult to dismiss this as collateral damage since it would be well understood that deliberately attacking an oil refinery would have catastrophic environmental consequences. 

Legal experts have defined ecocide as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term environmental damage”. 

In 2010, Polly Higgins, a Scottish lawyer, argued that the Earth should be recognised as a legal entity and should be entitled to legal protection against spoliation by individuals, businesses, or governments. She led an international movement — Stop Ecocide International — to have ecocide recognised as an international crime under the Rome Statute. The Rome Statute is an international treaty adopted on July 17, 1998, which set up the International Criminal Court, with its jurisdiction to cover genocide, crimes against humanity, war crimes, and the crime of aggression. If accepted, ecocide would become the fifth category of international crimes. 

After her death in 2019, Stop Ecocide International is being led by her long-time associate, Jojo Mehta. 

The experience of the three recent wars, two of which are still ongoing, reflects the reality that the damage to the environment in the targeted country may be as extensive as, and more long-lasting than, the immediate damage to military targets. It is only a small step to weaponising the country’s environment itself. Nor would such environmental damage remain confined within national or regional borders. 

The Persian Gulf is home to a unique marine ecosystem that boasts of rare and unique coral reefs. Its nutrient-rich waters are home to a diverse marine biology of shellfish, oysters, scallops, crabs and shrimps. Their population has been devastated by the oil spills from sunken vessels and stranded oil tankers and cargo ships in the Strait of Hormuz. 

The shallow lagoons ringed by thick mangrove forests have also been contaminated by oil spills and may never recover once they die. The collapse of fisheries has deprived thousands of their livelihoods. The nature and scale of warfare has changed dramatically. The environment is no longer just collateral damage in a war. It is becoming a target in its own right. This will have serious global consequences. A war anywhere could become war everywhere as far as planetary ecology is concerned. Recognising the Earth as a legal entity with its own rights makes sense, as does ecocide as a crime against humanity. 

Indian tradition considers Nature as a mother who nurtures, a cosmic mother cow or a Kamadhenu. If laws are passed to protect the cow as a holy being, why not pass legislation to safeguard Mother Earth as a legal entity entitled to protection? 

  The writer is a former foreign secretary