Criminalizing reprisals against the natural environment

Abstract

Throughout history, armed conflicts have frequently seen serious harm committed against the natural environment. From the early 1960s to 1971, the United States used Agent Orange to defoliate large tracts of Vietnamese forests. In the 1990s, Saddam Hussein vengefully ordered the burning of Kuwaiti oil wells, resulting in massive pollution to the air, land and surrounding seas. More recently, ecocentric harm has been documented in the Colombian civil war, by the so-called Islamic State group, and in the Ukraine conflict, among others. Whilst international humanitarian law (IHL) contains several prohibitions against environmental harm, the most striking is Article 55(2) of Additional Protocol I, whereby “[a]ttacks against the natural environment by way of reprisals are prohibited”. Although this provision appears absolute and unconditional, critical questions persist regarding its status under customary international law and its applicability in non-international armed conflicts. Moreover, its criminalization has not been explored in the jurisprudence of international courts or in the relevant scholarly literature, despite the fact that penal sanctions against individuals are an important factor for enforcement of environmental protections.

To fill the lacuna, the following analysis examines the prohibition and criminalization of reprisals against the natural environment. It reviews conventional and customary international law to determine the current status of a putative criminal prohibition and its potential as lex ferenda. Importantly, it also assesses the relevance of reprisals against the natural environment for prosecutions under existing war crimes, such as attacks on civilian objects and destruction of enemy property. It generates novel insights for the application of international law to ecocentric harm, including that (1) reprisals against the natural environment are not criminal per se, but (2) conceptualizing the environment as a civilian object opens up clear paths for prosecuting attacks, including reprisals, against it; (3) the inherently intentional nature of reprisals has far-reaching implications for their prosecution; (4) reprisals can significantly impact the pivotal test of military necessity which arises in criminal prohibitions such as that found in Article 8(2)(b)(iv) of the Rome Statute; and (5) situations of reprisals could impact the application of the proposed definition of ecocide.

Traversing IHL and international criminal law (ICL), the article identifies ways in which these traditionally anthropocentric bodies of law can be reoriented to accommodate ecocentric values. This reconceptualization is significant, as the prospect of criminal sanctions is critical for deterring potential perpetrators and potentially adds a basis for reparations designed to remediate damage to the environment. The assessment redresses the fact that the natural environment has been seen as a peripheral matter under both IHL and ICL and has remained under-explored despite the ongoing destruction wrought on nature including during armed conflict. It seeks to elevate the environment to a core protected value under these legal regimes, as a reflection of our increasing awareness that the natural environment is critical for the well-being of current and future generations and our growing appreciation of the intrinsic importance of protecting nature.

Introduction

This article examines means of protecting the natural environment¹ under international humanitarian law (IHL) and international criminal law (ICL). It seeks to enhance the protection of the environment both for its value for human well-being and in its own right.² As a silent victim of armed conflict,³ the natural environment can suffer damage that long outlasts the cessation of hostilities.⁴ Recent events in Ukraine have highlighted the direct and indirect risks posed to nature during warfare,⁵ particularly with the destruction of the Kakhovka Dam and resulting flooding of tens of thousands of hectares of land.⁶ Whereas environmental harm can occur accidentally, history has demonstrated that vindictive leaders will sometimes intentionally order attacks against the environment.⁷ The most notorious example of this in recent decades is that of Saddam Hussein's Iraqi forces burning around 600 oil wells in Kuwait during the 1990–91 Gulf War.⁸ Other conflicts, from the Second World War,⁹ to Vietnam,¹⁰ to the Colombian civil war,¹¹ to those involving the so-called Islamic State group,¹² have also seen the environment targeted.¹³

Now the international community faces the spectre of nuclear weapons being used against Ukraine,¹⁴ or a conventional weapon damaging the Zaporizhzhia Nuclear Power Plant.¹⁵ Such incidents would almost inevitably result in severe ecocentric damage – including destruction of natural features, flora and fauna – due to the blast, heat, and fallout of radioactive isotopes (some of which have half-lives decades or centuries long), alongside the grave anthropocentric consequences.¹⁶ Russian spokespersons and supporters have reportedly invoked reprisals to justify attacks against Ukraine on multiple occasions – such as President Putin in response to the Ukrainian attacks on the Crimean Bridge,¹⁷ and President Ramzan Kadyrov of Chechnya in response to drone attacks on Moscow¹⁸ – while also accusing Ukraine of committing reprisals.¹⁹ These threats (as well as similar ones from countries such as North Korea²⁰), along with the continuing threat to the environment during armed conflict, emphasize the pressing need for clarity regarding the legal framework governing reprisals and its application to attacks on the natural environment.

IHL is far from silent regarding environmental harm during armed conflict. Additional Protocol I (AP I), in particular, has several provisions that are directly relevant, including Articles 35(3) and 55(1), which have been subject to extensive scholarly attention.²¹ Less attention has been directed towards Article 55(2) of AP I, which states that “[a]ttacks against the natural environment by way of reprisals are prohibited”.²² Despite this ostensibly unconditional framing, reprisals against the natural environment raise critical questions, including their customary international law status, their potential criminalization per se, and their impact on existing criminal provisions. Those debates build on a contentious history. During the negotiations of AP I, reprisals “proved to be one of the most controversial and intractable of problems”.²³ In 2022, when commenting on the prohibitions against reprisals under Articles 51–55 of AP I, renowned IHL scholar Yoram Dinstein stated they are premised on

an unreasonable expectation that, when struck in contravention of [the law of international armed conflict], the victim would turn the other cheek to the attacker. This sounds more like an exercise in theology than in [the law of international armed conflict].²⁴

While Dinstein's reservations reflect the fact that reprisals were historically countenanced as a way to unilaterally force compliance with legal obligations, there has been a discernible shift since the 1990s towards prosecutions under international law as the key enforcement mechanism.²⁵ For environmental protection, there still have not been any convictions under ICL for harming nature.²⁶ Nonetheless, the shift towards criminal prosecution is significant, and the impetus to prosecute environmental destruction is gaining momentum.²⁷ However, the possibility of prosecuting reprisals against the natural environment remains under-explored in the literature.²⁸ Whereas other works have examined the application of ICL to environmental harm,²⁹ there has been no detailed consideration of criminal liability for reprisals in this respect. This reflects the fact that reprisals were traditionally used as a means to justify violations of IHL rather than being a basis on which to be prosecuted. Significant works on international criminal liability for environmental harm contain no discussion of reprisals,³⁰ and similarly, the concept of reprisals was overlooked entirely by the Independent Expert Panel in its definition of ecocide.³¹

This article seeks to redress that gap by reconceptualizing whether the IHL prohibition on reprisals against the natural environment could constitute a basis for criminal prosecution under ICL.³² The discussion first explains this ecocentric reconceptualization as a normative innovation which also has operational implications for the protection of the environment. It then examines the meaning, history, status and guiding parameters of reprisals, particularly against the environment, as a matter of IHL and customary international law. These are contested issues, subject to contrasting views from States and commentators, but are necessary prefatory matters in order to assess the criminalization of reprisals against the natural environment. The article takes a uniquely bifocal approach, looking both at the legal status of reprisals against the natural environment from a doctrinal perspective and at the factual relevance of reprisals from a litigation strategy perspective. The doctrinal discussion is important given the persistence of contentious questions regarding reprisals, such as their customary status.³³ Equally, the relevance of the factual scenario of reprisals is important for the operationalization of this source of potential environmental protection. Both facets of the discussion are undergirded by a rigorous analysis of IHL and ICL, which allows for the identification of areas of consonance and dissonance between these two international law regimes. At the theoretical level, the purpose is to inculcate ecocentric considerations into the traditionally anthropocentric realms of IHL and ICL.³⁴ A complementary purpose is to identify ways in which reprisals can be relevant at the operational level of international criminal justice when imposing criminal liability and ordering reparations for environmental harm.

Normative and operational facets of the analysis

The present examination of the ecocentric potential of reprisals entails innovations at both the normative and operational levels of analysis. Normatively, this article reorients debates regarding reprisals towards an ecocentric (also termed “eco-sensitive”) perspective, looking at how this doctrine can result in greater protection of the environment and not only of humans and their property.³⁵ In doing so, it diverges from the traditionally anthropocentric approach to IHL, which created an oppositional dichotomy between human and environmental interests, typically subjugating the latter to the former.³⁶

Specifically, it does so by eschewing the conventional understanding of reprisals as a form of unilateral self-help measure that aims to reduce violations of IHL by the opposing side.³⁷ It assesses whether the prohibition of reprisals against the natural environment can provide a basis for criminal prosecution of those harming nature. Although this “greening”³⁸ of prosecutions involves a novel reconceptualization of the role of reprisals, it does not seek to undermine the core tenets of IHL and ICL.³⁹ Most importantly, it does not seek to displace the protection offered by these bodies of law against unnecessary suffering and death, in line with the principle of humanity.⁴⁰

Accordingly, the present study proceeds on the presumption that the overarching normative frameworks of these two fields of international law will remain in place,⁴¹ other than the proposed addition of the crime of ecocide, as discussed herein. Alternative conceptual approaches, such as equating the environment with humans and extending to it all human-centred protections,⁴² are not pursued herein. Such wholesale approaches would risk dissipating the hard-fought achievement of anthropocentric protections, such as the majority of the crimes enforced before the International Criminal Court (ICC). They would also risk conflating the two separate but overlapping concepts of “humanity” and the “natural environment”, which would in turn mystify critical notions required to redress atrocity crimes, such as agency, intentionality and victimhood.⁴³

Nonetheless, this article's examination of the criminalization of the IHL prohibition of reprisals against the natural environment is normatively significant, as it demonstrates the extent to which a traditionally anthropocentric doctrine such as reprisals can be reassessed with an ecocentric objective in mind (to maximize its utility for environmental protection). This reorientation adheres to the broader movement looking to situate the environment alongside human beings as core protected entities under international law.⁴⁴ It proceeds on the understanding that human well-being is reliant on a sustainable environment,⁴⁵ while also recognizing the intrinsic value of protecting the environment per se, irrespective of its utility to human beings.⁴⁶ The context of reprisals is particularly important for environmental protection – as Dinstein observes, an “obvious constraint of belligerent reprisals relates to the protection of the natural environment” because “[t]he interest in preserving the natural environment is shared by mankind as a whole”.⁴⁷ This protection has both anthropocentric and ecocentric facets; in the latter sense it can extend to elements of the environment including remote areas and ecosystems which do not directly benefit human life.

In responding to calls in the literature to increase the environmental protection offered by international criminal justice,⁴⁸ this article conducts an original inquiry.⁴⁹ Reprisals have hitherto been disregarded as a ground for criminal prosecution. They were not included as a crime in the Rome Statute of the ICC,⁵⁰ and have instead been used as a shield by defence teams seeking to avoid their clients’ liability for violations of IHL.⁵¹ Reorienting the relevance of reprisals away from a justification for serious harm to the environment and towards a basis for prosecution thereof enhances the ecocentric protection provided by international law.

At the operational level of achieving practical advances in protecting nature, prosecution is critical for deterrence, which constitutes an important tool for environmental protection.⁵² The International Committee of the Red Cross (ICRC) and the International Law Commission (ILC) have both explicitly recognized that reprisals against the natural environment are prohibited as a matter of IHL.⁵³ But legal rules directed to conflicting parties are not sufficient to achieve accountability and deterrence, as they are applicable to abstract entities such as States and other parties to conflicts. Instead, criminal sanctions against decision-makers (specifically the military and political leadership, given that reprisals require that level of authorization, as discussed below⁵⁴) constitute the most direct means of enforcing international law. As observed by the judges of the International Military Tribunal at Nuremberg, “crimes are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced”.⁵⁵ Convictions under ICL also form the basis for reparations orders, which could encompass environmental remediation and thereby constitute an important tool in redressing harm to nature.⁵⁶ Moreover, the possibility of criminal sanctions for reprisals against the environment sends a symbolic message⁵⁷ by placing those acts on a par with other atrocity crimes. Given that few individual cases are prosecuted as atrocity crimes before the ICC or other international (or internationalized) courts, the symbolism of recognizing the criminal nature of such reprisals will be of equal or even greater impact in deterring potential perpetrators of harm to the environment.

In light of the anthropogenic threat to the environment, the ICC Office of the Prosecutor's 2016 case selection guidelines state that it will pay “particular consideration to crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land”.⁵⁸ Yet the only provision under the Rome Statute explicitly referring to the natural environment, Article 8(2)(b)(iv),⁵⁹ is a war crime set out in such restricted terms that it is inapplicable in most conceivable circumstances.⁶⁰ Consequently, the potential for reprisals against the natural environment to be criminalized per se presents a novel potential basis of liability. Additionally, the occurrence of reprisals being undertaken against the natural environment is significant for prosecutions of environmental harm under other existing provisions in the Rome Statute, as well as for the proposed new crime of ecocide,⁶¹ due to its impact on proving the mental element of crimes and on disproving claims of military necessity, as detailed later in this article.⁶²

Elements and etymology of belligerent reprisals

Having set out the rationale and normative context of the present inquiry, the analysis now turns to the specific parameters of reprisals. According to Frits Kalshoven, reprisals are

intentional violations of a given rule of the law of armed conflict, committed by a Party to the conflict with the aim of inducing the authorities of the adverse party to discontinue a policy of violation of the same or another rule of that body of law.⁶³

Several conditions must be met for a claimed reprisal to provide a lawful justification for violating IHL. These are set out, with some variations, by the ICRC, and by the International Criminal Tribunal for the former Yugoslavia (ICTY) Trial Chambers in the Kupreškić ⁶⁴ and Martić ⁶⁵ cases, as follows:

1. 1. The sole purpose of reprisals should be to pressure the opposing party to comply with the law of armed conflict.⁶⁶

2. 2. Reprisals should be used only as a last resort when all other means have proven to be ineffective.

3. 3. Reprisals should only be imposed after a prior and formal warning to the adversary.⁶⁷

4. 4. The actions taken in reprisal must be proportionate to the initial violation(s) of the law of armed conflict.⁶⁸

5. 5. Reprisals should only be taken pursuant to a decision made at the highest political or military level.

6. 6. Reprisals must terminate as soon as they have achieved their purpose of putting an end to the breach which provoked them.⁶⁹

Terminologically, the word “reprisals” (or the term “belligerent reprisals”) is primarily used in the context of jus in bello.⁷⁰ Reprisals must be distinguished from retortion,⁷¹ which has been described as a “severe countermeasure to the acts which it is wished to end, [which] nevertheless remains in accordance with ordinary law”.⁷² Legally, reprisals should also be distinguished from retaliation, which refers to actions undertaken for the motive of revenge. The claimed excuse of retaliation does not provide those launching attacks on the environment with any legal justification for their actions; if anything, admitting a retaliatory aim would undermine the legality of such attacks.⁷³ Reprisals also differ from the purported defence of tu quoque, whereby the fact that the adversary has also committed similar crimes is claimed as a defence for the accused's crimes. Attempts to raise tu quoque as a defence have been routinely rejected by international courts, from the war crimes trials following the Second World War⁷⁴ through to the ad hoc tribunals in the 1990s.⁷⁵

The permissibility of reprisals, which continues to be debated, has divided scholarly opinion across at least three centuries. Whereas de Vitoria, Calvo and Fiore opposed their use, Grotius thought they were justifiable subject to certain conditions.⁷⁶ Nonetheless, the scope for permissible reprisals has clearly reduced over time. Under the Lieber Code of 1863, reprisals (then called retaliation) were regulated under Article 27, which stated that “[t]he law of war can no more wholly dispense with retaliation than can the law of nations”.⁷⁷ The Lieber Code noted in Article 28, however, that reprisals should

never be resorted to as a measure of mere revenge, but only as a means of protective retribution, and moreover, cautiously and unavoidably; that is to say, retaliation shall only be resorted to after careful inquiry into the real occurrence, and the character of the misdeeds that may demand retribution.⁷⁸

Prior to the Second World War, the scope for reprisals was wider than it is today. Whereas Article 2 of the 1929 Convention on Prisoners of War prohibited reprisals against prisoners of war, reprisals against the civilian population were still arguably permissible.⁷⁹ From 1949, the Geneva Conventions excluded most reprisals against civilians.⁸⁰ Later, in the Additional Protocols of 1977, further prohibitions on reprisals were enshrined into conventional law. Several of these are directly and indirectly applicable to attacks on the natural environment, as detailed below.⁸¹

Despite having lost considerable favour in modern times, the logic behind reprisals must be borne in mind. Reprisals were conceived as a form of self-help, in an era prior to the period of criminal enforcement of international law. By allowing for unilateral deviation from the usual protections of IHL, they theoretically created an incentive for belligerent parties to adhere to law of armed conflict, subject to the threat of “painful consequences” from the opposing party should they fail to do so.⁸² But the evident risk of reprisals turning into escalatory spirals of violence should also be heeded. It was explained during the negotiations of AP I that “often recourse to reprisals – in retaliation for the conduct, whether proven or only imputed, of the adverse party – was invoked in justification of most atrocious cruelties perpetrated against the innocent”.⁸³ In the worst cases, reprisals not only fail to achieve their purported aim but instead can lead to “counter-reprisals and, in the final analysis, to an escalation of atrocities inexorably contributing to make of an armed conflict a truly Dantesque hell”.⁸⁴ Although human civilians have to be protected from the ravages of callous abuses as a priority,⁸⁵ the environment can also be victimized in cycles of escalating violence. On this basis, a detailed examination of the legal prohibition and prosecution of reprisals against the natural environment is essential, in order to forestall cycles of violence against anthropocentric and ecocentric interests alike.

Outlawing reprisals against the natural environment: A powerful yet imperfect set of prohibitions

Following on from the preceding discussion of the origin and parameters of reprisals, this section engages in a doctrinal assessment of the current status of reprisals under treaty and customary law, in both international armed conflicts (IACs) and non-international armed conflicts (NIACs). In this respect, it primarily focuses on IHL, which is important for reprisals, given that they sit at the intersection of law and military strategy. In turn, IHL is relevant for ICL,⁸⁶ as the framework and principles of IHL are incorporated into the Rome Statute of the ICC via the references to the framework of the law of armed conflict in Articles 8 and 21.⁸⁷

In assessing these conventional provisions, a foundational point for the present discussion is the view of the ICRC and many other commentators that the natural environment is a civilian object.⁸⁸ Although the categorization of the environment as an “object” could be seen as contrary to the ecocentric ethos insofar as it implies the objectification of the environment,⁸⁹ it is better considered as a terminological matter aimed at reimagining existing IHL provisions in order to extend their protections to the environment. Equally, despite using the term “civilian”, this view does not restrict the “natural environment” to those areas or facets which are of use to humans. Instead, it is a broader conception that encompasses flora, fauna and natural spaces irrespective of their use to humans.

Conventional international law applicable to reprisals against the natural environment

The core of IHL comprises international treaties including the 1949 Geneva Conventions and their Additional Protocols of 1977. These instruments contain several land-based (non-naval and non-aerial, where there are no impacts on land)⁹⁰ prohibitions against reprisals that are potentially relevant to destruction of the natural environment.

Beginning with the Geneva Conventions, Article 33 of Geneva Convention IV (GC IV), which is applicable during IACs, prohibits reprisals against protected persons and their property.⁹¹ The term “property” is interpreted broadly for Article 33, including “all types of property, whether they belong to private persons or to communities or the State”.⁹² A broad interpretation has also been given to the term “property” by the Katanga Trial Chamber.⁹³ In line with these approaches, aspects of the environment, including those not typically conceived as property, such as wild flora and fauna and hinterlands, could qualify as property for the purposes of Article 33.⁹⁴ That qualification is problematic, as discussed below,⁹⁵ but provides a means of extending IHL protections to the environment.

Looking to the Additional Protocols, after extensive debates on the issue of reprisals,⁹⁶ the final text of AP I considerably expanded the range of reprisals that are prohibited under IHL. As noted, Article 55(2) of AP I is directly and explicitly relevant to attacks on the environment, as it provides that “[a]ttacks against the natural environment by way of reprisals are prohibited”. Several other prohibitions on reprisals in AP I are also potentially relevant to attacks on the natural environment, including:⁹⁷

• • Article 52(1): “civilian objects shall not be the object of attack or of reprisals”.

• • Article 53(c): concerning cultural objects and of places of worship, “it is prohibited: to make such objects the object of reprisals”.

• • Article 54(4): concerning objects indispensable to the survival of the civilian population, “[t]hese objects shall not be made the object of reprisals”.

• • Article 56(4): concerning works and installations containing dangerous forces, “[i]t is prohibited to make any of the works, installations or military objectives mentioned in paragraph 1 [dams, dykes and nuclear electrical generating stations] the object of reprisals”.

More indirectly, Article 51(6) prohibits attacks against the civilian population or civilians by way of reprisals, which is relevant when attacks against a civilian population impact the environment. Other treaty-based prohibitions against reprisals, such as Article 4(4) of the 1954 Convention for the Protection of Cultural Property, which prohibits them against both human and natural cultural property “of great importance to the cultural heritage of a people”, are potentially relevant.

Taking these provisions collectively, the natural environment is both directly protected from reprisals under AP I and indirectly protected through prohibitions on reprisals against several other types of entities. However, while this web of protection is substantively far-reaching, it is a conventional prohibition and is therefore restricted to States party to AP I,⁹⁸ which itself is directed to IACs. Accordingly, it is important to assess the status of restrictions on reprisals under customary international law, including during NIACs.

Customary international law applicable to reprisals against the natural environment

Moving from conventional to customary international law, the status of the prohibitions on reprisals varies considerably. For persons and their property falling within the protection of GC IV, the prohibition on reprisals is also reflected in customary international law.⁹⁹ Similarly, Rule 147 of the ICRC Customary Law Study indicates that the prohibitions on reprisals against objects cited in the 1949 Geneva Conventions and 1954 Hague Cultural Property Convention have attained customary law status.¹⁰⁰ However, for persons and objects falling outside the confines of those treaties (including the environment, to the extent that it does not qualify as an object protected under those treaties), the customary picture is more complex.

On the one hand, international criminal tribunals have concluded that reprisals against civilians are prohibited in all circumstances. In the context of a NIAC, the ICC Mbarushimana Pre-Trial Chamber held that “reprisals against the civilian population as such, or individual civilians, are prohibited in all circumstances, regardless of the behaviour of the other party”.¹⁰¹ In Kupreškić, the ICTY Trial Chamber held that practices had moved on since the 1970s and that all civilians are protected against reprisals under customary international law.¹⁰² It apparently considered that the law governing reprisals applies in the same way in both IACs and NIACs, as it held that “it is not necessary … to determine whether the armed conflict was international or internal”.¹⁰³

On the other hand, the ICTY's reasoning in Kupreškić was called “unconvincing” by the United Kingdom, which argued that “the assertion that there is a prohibition in customary law flies in the face of most of the state practice that exists”.¹⁰⁴ For its part, the ICRC considers that “it is difficult to conclude that there has yet crystallized a customary rule specifically prohibiting reprisals against civilians during the conduct of hostilities” but “there appears, at a minimum, to exist a trend in favour of prohibiting such reprisals”.¹⁰⁵ This schism hints at the differing entry points to the inquiry that are taken by international courts which focus on criminalized prohibitions as opposed to IHL-centred institutions.

Of particular relevance to the natural environment are reprisals against civilian objects.¹⁰⁶ However, the customary status of reprisals against civilian objects is disputed.¹⁰⁷ Dinstein distinguishes reprisals against civilians from those directed at civilian objects, stating that “[t]he exclusion of civilian persons from the lawful scope of belligerent reprisals, spurred by basic precepts of human rights law, does not imply that every inanimate civilian object must be equally protected”.¹⁰⁸

Turning to reprisals against the natural environment itself, the issue is contentious, but some State practice and opinio juris,¹⁰⁹ along with notable commentators, provides a measure of support for asserting that these are prohibited as a matter of customary law. Several countries include prohibitions on reprisals against the natural environment in their military manuals.¹¹⁰ While acknowledging the debates on this issue, Dinstein¹¹¹ and Schmitt¹¹² nonetheless consider that the collective interest of humanity in protecting the environment, as outlined above,¹¹³ justifies outlawing reprisals against it.¹¹⁴

Principle 15 of the ILC's Draft Principles on Protection of the Environment in Relation to Armed Conflicts (ILC Draft Principles) holds that reprisals against the natural environment are prohibited in all types of armed conflict.¹¹⁵ However, while Germany, Switzerland, Austria, New Zealand, Italy, the Nordic countries and the ICRC supported the text of Principle 15, they did not explicitly frame it as a customary principle.¹¹⁶ Conversely, States opposed to Principle 15, such as the United States, the United Kingdom, France and Israel (the first three of which are declared nuclear powers and the last of which reportedly has such capacity¹¹⁷), indicated that they did not consider the prohibition to reflect custom.¹¹⁸ Consequently, in its commentary to the Principle 15, the ILC concluded that “the customary nature of the prohibition of attacks against the environment by way of reprisals is not settled”.¹¹⁹ Similarly, the ICRC's Guidelines on the Protection of the Environment in Times of Armed Conflict (ICRC Guidelines) frame reprisals against the natural environment in relation to AP I, indicating that the ICRC does not consider the underlying prohibition to have customary status.¹²⁰ Consequently, while there is a reasonable basis to assert the customary status of reprisals against the natural environment, it is not established beyond all debate that the necessary requirements of showing general State practice and opinio juris in conformity with the rule have been met.¹²¹ This lingering ambiguity has consequent effects for the criminalization of such reprisals, as discussed below.

The challenging framework governing prohibition of reprisals in NIACs

Having examined the legal status of reprisals against the natural environment, several additional observations must be set out regarding the context of NIACs. Challenging questions arise concerning reprisals under the more “rudimentary” framework governing NIACs.¹²² Given that NIACs are the most frequent type of conflict, and given that the applicability of reprisals in this context has only been subjected to limited examination,¹²³ it is important to address the issue before examining the implications for criminal enforcement.

Reprisals are not mentioned at all in Additional Protocol II (AP II).¹²⁴ For some, this implies that reprisals are simply inapplicable to NIACs (termed the “extralegal” approach).¹²⁵ De La Bourdonnaye interprets this as prohibiting attacks against the natural environment by way of reprisal.¹²⁶ For others, the silence on reprisals necessitates a “permissive” approach whereby parties to conflict “are free to use reprisals without any legal impediments”.¹²⁷ A third “restrictive” approach would see reprisals available in NIACs, but subject to the exacting parameters imposed on them, which are discussed above.¹²⁸

Although the extralegal approach may align with the theoretical framework of IHL,¹²⁹ when it comes to individual criminal responsibility and legal procedure before international courts, a different set of considerations arise, including the onus on the prosecution to prove its case beyond reasonable doubt, the legality principle, and the latter's associated edict of in dubio pro reo, whereby ambiguity must be read in favour of the accused.¹³⁰ In this context, the extralegal approach of categorically excluding a potential legal justification will not sit well with criminal judges.

This conclusion is borne out by the fact that international courts confronted with parties claiming to have been conducting lawful reprisals have gravitated towards strictly interpreting the requirements for those reprisals’ applicability.¹³¹ For present purposes, the analysis presupposes that there is a possibility of the doctrine of reprisals being allowed in IACs and NIACs, but that it would always at minimum be limited by the usual customary requirements of purpose, last resort, proportionality, decisions at the policy level and so forth, as set out above.¹³²

Turning to reprisals against the natural environment in NIACs, the lack of any provision in AP II corresponding to Article 55(2) of AP I creates a broad scope for interpretation. As with many IHL principles, those relating to reprisals in IACs are not necessarily automatically transferable to NIACs.¹³³ Permanent sovereignty over natural resources is usually considered to vest in the State,¹³⁴ and international environment law obligations are usually considered to fall on the national government.

On this issue, Principle 15 of the ILC Draft Principles, which prohibits reprisals against the natural environment, is applicable to all types of conflicts. However, noting the legal uncertainty regarding its customary status, the ILC expressly states that “the principle is not intended to qualify or alter the scope and meaning of existing rules on reprisals under either conventional or customary international law”.¹³⁵ Given the foundational importance of IHL for ICL, this uncertainty regarding the customary international law status of the prohibition on reprisals in NIACs¹³⁶ is legally unsatisfactory. It could arguably manifest in judges entering a finding of non liquet ¹³⁷ in criminal proceedings, which would undermine the justiciability and thereby the enforceability of the legal protections of the environment against individuals who order attacks causing serious ecocentric harm.

Criminalizing ecocentric reprisals: The key to enforcement

Building on the preceding foundational survey of IHL, the assessment now turns to whether the doctrine of reprisals against the natural environment may have a role in ICL. The exegesis is dual-faceted, looking at the criminalization of such reprisals per se as well as their relevance for prosecuting environmental harm under established Rome Statute crimes. This focus on enforcement is important. Without enforcement mechanisms, prohibitions risk lacking a significant deterrent effect and will therefore have limited, if any, influence on the decisions of individual perpetrators of attacks on the natural environment.¹³⁸ Moreover, ICL can obviate any justification for parties to engage in the horizontal self-help mechanism of reprisals,¹³⁹ and can instead induce compliance through the credible threat of “the prosecution and punishment of war crimes and crimes against humanity by national or international courts”.¹⁴⁰ By examining the criminalization of reprisals, the present study looks to open up a new avenue for enforcing environmental protections. The potential addition of a new basis for penal sanctions concerning reprisals is operationally significant. It would expand the options available for prosecuting environmental harm under ICL (currently, Article 8(2)(b)(iv) of the Rome Statute is the only direct means of doing so). Normatively, it would demonstrate how an ecocentric reconceptualization of IHL can flow into increased means of enforcing environmental protections under ICL.¹⁴¹

A prefatory issue is whether adding the label of “reprisals” to attacks on the natural environment could in fact exclude liability.¹⁴² While this may fly in the face of the emphatic prohibition of such reprisals in AP I, there are non-States Parties which are arguably not bound by AP I's terms.¹⁴³ Accused persons from these States may attempt to argue that reprisals are available to excuse the unlawfulness of such attacks against the natural environment.¹⁴⁴ However, with eminent experts such as Schmitt and Dinstein arguing that reprisals against the natural environment should be prohibited in all circumstances,¹⁴⁵ and the ICC and ICTY's jurisprudence indicating a restrictive view of reprisals,¹⁴⁶ it is far from evident that the ICC would accept even the potential applicability of reprisals as a justification in this respect.¹⁴⁷ Even if reprisals against the natural environment could be raised as a potential justification, they would almost certainly be subject to the exacting conditions (last resort, proportionality and so forth) set out above. Precedents such as the Martić case show that an accused will struggle to fulfil these preconditions required to claim a justification of reprisals. In Martić, the Trial and Appeals Chambers found that Martić's claimed excuse of reprisals did not avail as (1) the shelling of Zagreb was not a measure of last resort and (2) the Republika Srpska Krajina authorities had not formally warned the Croatian authorities before shelling Zagreb.¹⁴⁸ Given that the conditions are cumulative, the likelihood of an accused successfully using reprisals as a justification for violations during armed conflict is negligible.

Do reprisals against the natural environment constitute a war crime per se?

The most direct basis for accountability and enforcement would arise if the prohibition on reprisals against the natural environment entailed individual criminal responsibility in and of itself.¹⁴⁹ To amount to a war crime, such reprisals would have to constitute a “serious” violation of IHL.¹⁵⁰

Looking to the core instruments of IHL (the Geneva Conventions and Additional Protocols), reprisals against the natural environment are not listed as grave breaches.¹⁵¹ Turning to the ICC, reprisals are not per se included in the Rome Statute as war crimes.¹⁵² The only war crime provision that explicitly addresses attacks on the natural environment is Article 8(2)(b)(iv), which prohibits

[i]ntentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.

There is considerable overlap with a putative crime of reprisals against the natural environment. The term “attack” lends itself to a similar interpretation in Article 8(2)(b)(iv) of the Rome Statute to that found in Article 55(2) of AP I.¹⁵³ Nonetheless, the two notions are not coterminous; specifically, Article 8(2)(b)(iv) is limited to IACs and contains the conjunctive elements of widespread, long-term and severe, as well as the need to show excessive harm,¹⁵⁴ which render it narrower and more stringent than a general prohibition on reprisals against the natural environment.¹⁵⁵

More broadly, Drumbl has argued that there is “residual jurisdiction” under Article 8 of the Rome Statute for additional war crimes, going beyond the enumerated ones.¹⁵⁶ However, this conflicts with the requirement of reading the Statute strictly, under Article 22(2), whereby “[t]he definition of a crime shall be strictly construed and shall not be extended by analogy” and “[i]n case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted”.¹⁵⁷ Consequently, there is no specific basis criminalizing reprisals against the natural environment under the Rome Statute or IHL.

In the absence of definitive or explicit criminalization of reprisals against the natural environment under the Rome Statute or the main instruments of IHL, the analysis now turns to customary international law. Several soft-law instruments, such as the World Charter for Nature and the Rio Declaration, contain broad hortatory statements about protecting the environment from warfare, but nothing in the nature of a precise criminal prohibition.¹⁵⁸ The ILC has referred to “massive pollution of the atmosphere or of the seas” as “international crimes”,¹⁵⁹ but these broad terms are not framed with the precision of a criminal provision, and the ILC did not delve into key considerations such as individual criminal responsibility.¹⁶⁰

Article 15 of the ILC Draft Principles contains a more precise prohibition on reprisals against the natural environment. However, this cannot be used to support criminalization, as Principle 9(3) provides that “[t]he present draft principles are also without prejudice to: (a) the rules on the responsibility of non-State armed groups; (b) the rules on individual criminal responsibility”.

Based on the foregoing, it can be concluded that there is no specific war crime of committing reprisals against the natural environment, whether as a matter of conventional or customary international law.

Using other war crimes to indirectly prosecute reprisal attacks against the natural environment

In lieu of a direct war crime of attacking the environment by way of reprisal, a variety of other war crimes are nonetheless potentially applicable to this conduct.

IHL provisions indirectly applicable to ecocentric reprisals

Regarding grave breaches of IHL, reprisals against the natural environment could potentially qualify under several prohibitions contained in Article 147 of GC IV and Article 85 of AP I.¹⁶¹ Under Article 147, grave breaches of GC IV include extensive destruction and appropriation of “protected” property. This covers both private and public property, as set out above.¹⁶² Noting that the natural environment is considered a civilian object,¹⁶³ and that in many States components of the natural environment will be public (or private in some cases) property, any extensive destruction of the natural environment would prima facie violate this prohibition. Labelling the environment as property in order to justify the criminalization finds precedent in the ILC's Draft Code of Crimes against Peace and Mankind. In that document, Article 20(g) addresses harm to the environment, but was justified as a criminal sanction by relying inter alia on Article 23(g) of the Hague Regulations of 1907, which focuses on the destruction or seizure of enemy property.¹⁶⁴ Under national constitutions, the environment is often characterized as the property of the State;¹⁶⁵ this also accords with the principle of permanent sovereignty.¹⁶⁶ However, labelling the environment as property is problematic from an ecocentric viewpoint,¹⁶⁷ particularly for areas such as the global commons and for areas that are traditionally home to indigenous peoples, as detailed below.¹⁶⁸

As a matter of IHL, if the natural environment is made into a military object, for example through the use of a forest as a military base or a hilltop location for launching attacks, then it would no longer qualify as a civilian object and its destruction would not qualify as a war crime under Article 147.¹⁶⁹ The fact that the acts were undertaken as reprisals could significantly expand the scope of applicable circumstances for the crime of extensive destruction; according to Dörmann, whereas extensive destruction is usually limited to occupied territory, if the destruction is undertaken as a form of reprisal, then it is not so territorially limited.¹⁷⁰

Turning to AP I, reprisals against the natural environment would qualify as war crimes (grave breaches) if they involved:

• • Article 85(3)(b): launching indiscriminate attacks on civilian objects with knowledge that the attacks would result in excessive damage to the natural environment (as a civilian object);¹⁷¹

• • Article 85(3)(c): launching attacks on works or installations containing dangerous forces (such as dams or nuclear power plants) with knowledge that the attacks would result in excessive¹⁷² damage to the natural environment (whether as a civilian object or in some cases as a military objective);¹⁷³ or

• • Article 85(4)(d): attacking a facet of the natural environment which is a place of worship constituting the cultural or spiritual heritage of peoples (such as natural World Heritage Sites), and to which special protection has been given by special arrangement, and causing extensive destruction to it (presuming the site had not been used in support of the military effort in the sense of Article 53(b) of AP I), whether as a civilian object or in some cases as a military objective.¹⁷⁴

On first view, these provisions criminalize a significant range of activities that cause environmental destruction, particularly in relation to attacks on dams, nuclear power plants, and places of worship constituting cultural and spiritual heritage. However, the expansive potential is somewhat limited by the requirement that, to constitute war crimes, the relevant attacks would have to be committed wilfully and cause death or serious injury to the body or health of persons.¹⁷⁵ On this basis, attacks purely directed against the environment which did not cause death or serious injury would not qualify as grave breaches under AP I.

Rome Statute provisions indirectly applicable to ecocentric reprisals

Regarding ICL, the most comprehensive treaty is the Rome Statute of the ICC. Reprisals against the natural environment could fulfil the elements of a small number of war crimes in IACs under Article 8 of the Rome Statute.

As mentioned above, the only Rome Statute provision mentioning the natural environment is Article 8(2)(b)(iv), which is limited to IACs.¹⁷⁶ This provision is subject to such stringent requirements – including the conjunctive elements of widespread, long-term and severe damage, a multi-part mens rea test, and a proportionality assessment from the perspective of the commander – that any conviction under its terms is unlikely.¹⁷⁷ Nonetheless, as discussed below, a reprisals-type scenario opens up possible means of meeting those restrictive elements.

Additionally, some other provisions that do not mention the environment could nonetheless be used to indirectly prosecute reprisals against it. First, there is Article 8(2)(a)(iv), setting out the crime of extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly. This essentially corresponds to the grave breach under Article 147 of GC IV (as qualified by Article 33), as discussed above. Conceptualizing the environment as property would allow reprisals against nature to be prosecuted under this provision – although it would also require the commodification of the natural environment, by viewing it simply as the property of humans, which runs counter to the ecocentric animus.¹⁷⁸ A related provision is Article 8(2)(b)(xiii) on destroying or seizing the enemy's property, but this would similarly require conceptualizing the targeted environmental feature as property, which is problematic,¹⁷⁹ and qualifying it as property belonging to the opposing side,¹⁸⁰ which would potentially exclude aspects of the environment falling under the perpetrating side's ownership – a notable gap in coverage, particularly in scorched-earth-type scenarios.¹⁸¹

Second, there is Article 8(2)(b)(ii), which prohibits intentionally directing attacks against civilian objects – that is, objects which are not military objectives. On the presumption that the environment (or targeted part thereof) is civilian in nature, this is a significant basis for prosecution, albeit limited to IACs.¹⁸²

For NIACs, there are fewer paths to prosecution of reprisal attacks on the natural environment under the Rome Statute. The provision with the most potential applicability is Article 8(2)(e)(xii), which prohibits destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict.¹⁸³

However, as mentioned above, the requirement that the target of the destruction be “property” of the adversary can be problematic for the natural environment. Many aspects of the natural environment are not considered property per se, most notably the global commons such as Antarctica, the high seas or outer space,¹⁸⁴ and indigenous groups may well contest Western notions of ownership over natural features of the landscape.¹⁸⁵ Categorizing the natural environment as “property” risks sending a symbolic message that runs counter to efforts to enforce eco-sensitive international law, and may create a conceptual basis for profit-seeking persons or entities to attempt to acquire property rights over these areas of the natural environment. The gains in potential prosecutorial pathways must be carefully weighed against the risk of the unintended commodification of the natural environment. Moreover, Article 8(2)(e)(xii) would not cover the destruction of components of the natural environment belonging to the perpetrator's side as a reprisal. In this way, there is a risk that this could create an asymmetric application of the prohibition, potentially violating the IHL principle of the equal application of the law between belligerents.¹⁸⁶ Because environmental features considered as property would typically vest in the State,¹⁸⁷ the opposing forces could be covered by the crime of destroying or seizing it, whereas there would be no corresponding liability for the State's armed forces.

Aside from those mentioned above, less directly applicable war crimes that could nonetheless potentially encompass aspects of environmental harm include pillage under Article 8(2)(b)(xvi) and (e)(v) of the Rome Statute,¹⁸⁸ and intentionally using starvation of civilians as a method of warfare under Article 8(2)(b)(xxv) for IACs and Article 8(2)(e)(xix) for NIACs.

In sum, while there is some promise in pursuing the indirect route to prosecuting reprisals against nature under other war crimes, each crime brings with it specific elements that will require proof to the requisite standard. Enforcement via these alternative prohibitions is imperfect, because the specific harmful conduct of conducting reprisals against the natural environment will not be the raison d’être underlying the criminal provision. Moreover, several of these routes will require the environment to be conceptualized as property, which has provoked concerns of expropriation of land rights, particularly from the indigenous perspective. Nonetheless, while imperfect, the use of alternative provisions does provide viable legal means to redress situations of reprisals against the natural environment, which is particularly important during times of armed conflict. To fulfil these legal avenues, facts and evidence will be the necessary sustenance. In this respect, the factual scenario of reprisal attacks will present several uniquely significant factors for litigation strategies, as is explored in the following section.

Operational significance of reprisals against the natural environment for litigating criminal responsibility

Having conducted the survey of the doctrinal basis for prosecuting reprisals against the natural environment, the examination now turns to the operational significance of the scenario of reprisals for prosecutions of environmental harm under existing international crimes. Applying the reprisals scenario to the framework of ICL, with a particular focus on the natural environment, produces several conclusions of relevance to prosecuting this type of harm.

First, because the environment is presumptively a civilian object,¹⁸⁹ there is a clear path to prosecute its destruction under the label of directing attacks against civilian objects, for example under Article 8(2)(b)(ii) of the Rome Statute or Article 85(3)(b) of AP I. In fact, it may be more feasible to prosecute reprisal attacks on the natural environment in this way than attacks on other types of civilian objects, such as houses or vehicles. This is because there is a stronger basis to argue that reprisal attacks on the natural environment are banned as a matter of custom than there is for reprisals against more traditional civilian objects.¹⁹⁰ Prosecuting a reprisal against the natural environment under the label of deliberate attacks on civilian objects avoids the potentially insurmountable challenge of meeting the triple conjunctive requirements of widespread, long-term and severe harm to the natural environment under Article 8(2)(b)(iv) of the Rome Statute.¹⁹¹

Second, the inherently intentional facet of reprisals bears far-reaching implications for prosecuting attacks on the environment. In asserting an IHL justification under the doctrine of reprisals, an accused would have to admit to purposefully targeting the natural environment. Indeed, if the act was not undertaken as an intentional means of forcing the opposing side to desist from its own violations, it will not qualify as a reprisal.¹⁹² For criminalization, intentionality is always a significant factor, and is often the most difficult to prove. Defendants in environmental harm cases will typically deny any intent to cause ecocentric harm and will instead argue that the harm was an unfortunate incidental outcome of their actions, perhaps not even foreseen at all.¹⁹³ Acknowledging intentional action would be a risky tactic for the accused, as it would considerably alleviate the prosecution's burden of demonstrating that the targeting was intentional. This mens rea issue is typically one of the most difficult elements to establish, particularly in shelling and bombardment cases.¹⁹⁴ Acknowledging that the attacks were purposefully directed against a non-military target, such as the natural environment, would also open up a clear path to prosecuting for the war crime of intentionally directing attacks against civilian objects under Article 8(2)(b)(iv) of the Rome Statute.¹⁹⁵

Third, to the extent that reprisal attacks against the natural environment are strictly prohibited, this can be seen as effectively obviating the exacting “excessive” harm assessment of Article 8(2)(b)(iv).¹⁹⁶ The “excessive” harm assessment requires the weighing of the “damage to the natural environment” against the “concrete and direct overall military advantage anticipated”. However, impermissible conduct, such as reprisals against the natural environment, cannot be included as part of the permissible military advantage for this test, as that would undermine the carefully crafted prohibitions set out under IHL. Similarly, the commander seeking to justify the military advantage sought could not argue that destroying cultural sites, or killing prisoners, could provide a concrete and direct military advantage; consequently, there is no permissible “military advantage” being sought. In the same way, if reprisal attacks against the natural environment are strictly prohibited, this would also be relevant to prosecutions based on Article 85(3)(b) and (c) of AP I, potentially in domestic criminal proceedings, as these provisions also refer to an “excessive” harm assessment.

On a similar basis, reprisals against the natural environment also cannot be countenanced as justifiable pursuant to military necessity. Reprisals are only applicable to the natural environment if it is not being used for military purposes (if the environment were attacked because of its use as a military objective – for instance, if a cave complex were used as a weapons depot and military base – this would not be a reprisal, as it would not be an unlawful act under IHL, which is an inherent requirement to qualify as a reprisal).¹⁹⁷ This is significant for the IAC crime of extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly¹⁹⁸ and the NIAC crime of destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict.¹⁹⁹

A fourth way in which the reprisals scenario would impact criminal prosecution arises from the leadership requirement. As noted, a decision to launch reprisal attacks must be taken at the “highest political or military level”.²⁰⁰ This requirement, which equates to the leadership element of the crime of aggression,²⁰¹ is an important factor for harms such as aggression and environmental harm, which are primarily produced by policies and strategic decisions, rather than by individual actors at the foot soldier level.²⁰² It would satisfy the leadership clause which has been suggested for possible inclusion in a proposed definition of ecocide.²⁰³ Additionally, this factor may be taken into account as weighing in favour of selecting a case according to the ICC Office of the Prosecutor's policy of focusing on those most responsible for crimes within the Court's remit.²⁰⁴

The requirement that authorizations for reprisals are given by the political or military leadership, as set out above,²⁰⁵ will also assist when demonstrating the mental element required to prove criminal responsibility for environmental destruction. By specifically requiring authorization from the leadership, the framework of reprisals addresses situations in which decision-makers have been made aware of the nature of the targeted entity rather than situations in which the attack has been undertaken by errant soldiers acting outside of the chain of command. Although the mental element will still be contested in litigation, and the extent of the awareness of environmental impacts will depend on the facts of specific cases, this concentration of information in the hands of decision-makers will considerably advance efforts to establish that awareness in order to prove criminal responsibility of the members of the military or political leadership who order reprisal strikes on the environment.

Although the preceding analysis has shown four ways in which reprisals can be relevant to prosecuting environmental harm under ICL, an interpretive issue arises in relation to the term “attack” in Article 55(2) of AP I.²⁰⁶ Does this mean that harm to the environment through acts like deforestation, land clearing and animal species eradication would be excluded from Article 55(2) if these acts were not considered attacks? It is questionable whether these forms of ostensibly non-military harm would amount to attacks. Under Article 49(1), “attacks” are defined as “acts of violence against the adversary, whether in offence or in defence”.²⁰⁷ Concerning the conviction under Article 8(2)(e)(iv) against Al-Mahdi for the crime of “[i]ntentionally directing attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives”, Bill Schabas has argued that

the term “attack” [in the context of IHL] is not the word that would be used to describe the demolition or destruction of structures, using implements that are not weapons or military in nature, and where armed adversaries are not to be found within hundreds of kilometres.²⁰⁸

Similar objections may arise if the label of attacks on the natural environment is applied to non-military-type environmental harm, such as the dismantling of environmental protections like nuclear power plant or hydroelectric dam safety measures, as has reportedly been seen in the Ukraine context.²⁰⁹ Whether such conduct may be considered an “attack” would be subject to dispute if litigated as a form of IHL-based crime against the environment. The issue further highlights that this potentially impactful area of law remains contentious and will necessitate close judicial attention in future legal proceedings, an endeavour which the present article seeks to assist.

Conclusions: Criminalizing reprisals as a means to avoid escalatory spirals of ecocentric and anthropocentric harm

The scenario of attacks in reprisal against the natural environment brings into sharp focus the divergences between IHL and ICL. Whereas such reprisals are categorically prohibited under Article 55(2) of AP I, that emphatic statement has not been carried through to the criminalization of this conduct. There is no grave breaches or war crimes provision explicitly outlawing reprisals against the natural environment. The lack of an explicit crime in this respect means that the IHL prohibition is addressed only to States and other belligerent parties, and lacks direct enforceability against individuals who order attacks on the environment as measures of reprisal.

Despite the lack of a direct criminal sanction, the preceding analysis demonstrates that scenarios involving purposeful reprisal attacks have considerable significance for the prosecution of environmental harm. In particular, this form of reprisals scenario opens up clear paths to prosecute environmental harm via other provisions under the Rome Statute (and potentially under other grave breaches in AP I and GC IV), it obviates the restrictive “excessive” damage test and military necessity test, and the leadership requirement may be a factor in case selection and in prosecuting environmental harm under a putative definition of ecocide should that be adopted before the ICC or any other criminal court. Moreover, asymmetry persists in relation to NIACs, in which there is no crime of attacking civilian objects per se; instead, the crime of destroying enemy property under Article 8(2)(e)(xii) of the Rome Statute is the most applicable alternative, but that creates several incongruities in relation to the natural environment.²¹⁰ The practical implications of these doctrinal points of analysis are important, as they address core obstacles to prosecuting environmental harm under ICL, and potentially provide a basis for reparations to be ordered, which could include environmental remediation.

Moreover, the analysis involves a significant reinterpretation of the normative framework governing conduct in armed conflict. By reconceptualizing reprisals from their traditionally anthropocentric grounding to a more ecocentric orientation, the approach herein departs from the conventional understanding that reprisals are a means of excusing accountability for violations of IHL (as a utilitarian means of seeking to end greater violations of IHL). In doing so, it provides a framework within which to realize the significant latent potential of reprisals to protect the environment. However, this “greening” of the normative basis of reprisals does not seek to undermine the core tenets of IHL and ICL, most importantly the protection of human life from unnecessary suffering and death. Rather, it seeks to ensure that the laudable shift in the conceptualization of IHL and ICL from a State-sovereignty-oriented approach to a human-centred approach (the principle of hominum causa omne jus constitutum est – all law is created for the benefit of human beings) progresses to recognizing the imperative value of protecting nature and human beings (in accordance with the emerging principle of natura et hominum causa omne jus constitutum sunt – all law is created for the benefit of human beings and the natural environment).²¹¹

These practical and normative considerations show that any element of reprisal inherent in an attack on the natural environment should be given close attention and thoroughly investigated. It should certainly not be shied away from due to a misplaced concern that reprisals against the natural environment are likely to be seen as justified under IHL. To the contrary, the tenor and detail of IHL provides a strong indication that the opposite would be true, particularly to the extent that an accused acknowledges the intentionality of an attack on the environment.

At the same time, the analysis shows that critical questions persist regarding the difference, if any, between a military “attack” on the environment, on the one hand, and harm to or destruction of the environment during an armed conflict, on the other, and the relevance of incidental harm to the environment arising from reprisal attacks. The imperative to address these questions is pressing.²¹² There has been a discernible shift away from horizontal ad hoc enforcement of international law through unilateral State actions and towards the vertical enforcement of law according to commonly accepted red lines such as war crimes, crimes against humanity, genocide and aggression.²¹³ These efforts continue to cement reliance on atrocity crimes prosecutions rather than unilateral reprisals, and can reduce the core risk of reprisals – namely, the prospect of “escalatory spirals” that act to the detriment of the life and health of humans and the planet.²¹⁴