If You Can Bomb It, You Can Litigate It: Climate War, Complicit States, and a World on Fire.

• Date: 01 January 2021
• Published date: 01 January 2021
• Author: Blankenship, Sam
• Record Number: 660000572
• Author: Blankenship, Sam

INTRODUCTION

Humanity has never faced an existential threat like climate change, and it shows. (1) Like the apocryphal frog in a slowly heating pot of water, not noticing the danger until it is too weak to jump out, the world is dangerously close to reaching the point at which it will be too late to stop rising temperatures. (2) The slow pace of climate change is uniquely dangerous; it lulls nations into slow responses or prevents them from responding at all. (3) So far, individual States have remained in the pot, failing to make the requisite changes to leap out as the heat rises. Indeed, some countries have even taken steps backwards (4) despite the ever-increasing odds of global calamity. (5) The humanitarian crisis of global climate change may still be avoided, but it will take concerted international action. (6) This note argues that the use of force can be justified to compel individual States to address climate change in accord with international obligations, much as the use of force has been justified in the humanitarian context during the past few decades. (7) Justifying the use offeree in this context is not for the purpose of promoting military action, but rather to promote the building and strengthening of international institutions dedicated to addressing the looming threat of climate change with the seriousness afforded other international crises.

In the international community, force is justified only in the most extreme circumstances. (8) Although often this action only consists of limited military strikes, the message is clear: the international community cares enough about what an individual State has done to support the use of force against it. Through force, the international community makes its discontent known and tries to enforce compliance with international law. (9) Most of the internationally accepted military actions in the late 20th and early 21st centuries have been justified under such a theory, from UN intervention in the Kosovo War (10) to the global War on Terror. (11) In effect, the international community accepts force only in the most dire circumstances. (12) The use of force is a sign that the international community takes an issue seriously. (13) It is surprising and disturbing, then, that the international community has been so tepid in its response to States' disinterested or nonexistent efforts to address climate change. (14)

This note explores the legal feasibility of using force to compel countries to action on climate change. (15) It does so to argue that, because using force to compel action on climate change can be justified in the same way as using force to address humanitarian crises such as torture and genocide, the international community is obliged to treat States unwilling to address their contributions to climate change in the same way it treats those violating human rights. It does not advocate for States to use force but for States to recognize the severity of the crisis and act accordingly. This note begins by comparing the efficacy and enforceability of the Paris Agreement to the Rome Statute, international responses to the climate crisis and extreme human rights violations respectively. In comparing the two, this note seeks to highlight the gulf between what the international community can do when so moved, as evinced by the Rome Statute, and the weakness of what it chose to do with the Paris Agreement. This note then surveys traditional use-of-force justifications before finally proposing a model by which limited use of force against nations that refuse to address environmental concerns could be justified using existing theories of jus ad bellum. (16) Ultimately, this note calls for strong international legislation requiring individual State action on climate change enforced by an international court similar in scope and jurisdiction to the International Criminal Court.

COMPARING ROME TO PARIS: TWO VASTLY DIFFERENT RESPONSES TO IMMENSE HUMANITARIAN CONCERNS

1. Paris Agreement

   The most recent effort by the international community to address climate change on a global level was the Paris Agreement, which entered into force on November 4, 2016. (17) The Paris Agreement modified the United Nations Framework Convention on Climate Change with the stated goal of "bring[ing] all nations into a common cause to undertake ambitious efforts to combat climate change and adapt to its effects, with enhanced support to assist developing countries to do so." (18) The Agreement currently has 195 signatories and 190 parties (19) and espouses valuable and aspirational goals, from limiting global temperature increases to no more than 2 degrees Celsius (20) to enhancing climate change education, training, public awareness, and access to information. (21) Unfortunately, the Paris Agreement lacks any meaningful way to compel compliance with its articles. Indeed, the Paris Agreement requires only three actions of its signatories: provide a national greenhouse gas inventory report, (22) provide climate change impact and adaptation reports, and submit to an explicitly "non-adversarial and non-punitive" review board of technical experts to analyze their reports. (23)

   The Paris Agreement does not provide for any way to compel compliance with even these "requirements," let alone the more meaningful steps called for (but not required) in other articles. (24) Indeed, recent events have shown that the Agreement also does not have the ability to keep signatory States (like the United States) in the Agreement. (25) The United States example also illustrates the ineffectiveness of the Agreement to compel countries to change course. One year after Trump announced his intent to depart from the Agreement, American performance on reaching goals laid out by the Agreement actually improved. (26) If a country may announce its intention to withdraw from the Agreement, signaling intent not to adhere to the articles therein, and still improve its climate protection performance, the strength with which the Paris Agreement addresses climate change is rendered highly suspect.

   Indeed, the United States' "improvement" still lags well behind the requirements needed to meet the Paris Agreement's goals. (27) Under the Paris Agreement, signatories set their own emission goals. (28) These goals do not reflect net emission reductions required to meet the 2 degree Celsius maximum set out by the Agreement, but merely reflect what the individual signatory wants to achieve. (29) In short, the Paris Agreement leaves too much to the good-faith participation of signatories and lacks any means of enforcing cooperation. As the United States has shown, relying on such good faith is naive at best. In a world where some signatories are preparing to benefit from the otherwise ill-effects of climate change, (30) the Agreement simply does not go far enough.

2. The Rome Statute

   The Rome Statute of the International Criminal Court ("the Rome Statute"), adopted on July 17, 1998 by 120 States, (31) established the International Criminal Court ("ICC"). The ICC has jurisdiction over only "the most serious crimes of concern to the international community as a whole": genocide, crimes against humanity, war crimes, and the crime of aggression. (32) The Rome Statute's preamble makes clear that the ICC is an explicit reaction to the "unimaginable atrocities that deeply shock the conscience of humanity" suffered by millions during the twentieth century. (33) The preamble further outlines that the goal of the ICC is to "put an end to impunity for the perpetrators of these crimes and thus to contribute to the prevention of such crimes." (34)

   This is a lofty goal, but the ICC has a fair amount of power to achieve it. Article 4 of the Rome Statute gives the ICC international legal personality (35) and "such legal capacity as may be necessary for the exercise of its functions and the fulfillment of its purposes." (36) The ICC may exercise its functions with a fairly broad reach, as it has jurisdiction where: "crimes were committed by a State Party national, or in the territory of a State Party, or in a State that has accepted the jurisdiction of the Court; or the crimes were referred to the ICC Prosecutor by the United Nations Security Council." (37) In effect, the ICC can reach into any State under the right circumstances and exercise its jurisdiction over State and non-State actors alike.

   Once it does so, the Rome Statute provides the ICC with a bevy of tools to seek justice. The ICC Prosecutor has substantial power to conduct thorough, independent investigations in the territory of a State. (38) Once the Prosecutor's findings are submitted to a Pre-Trial Chamber, that Chamber may take actions including issuing warrants of arrest or summonses to appear, similar to a common law grand jury. (39) Arrest warrants are submitted to and enforced by States Parties, which must take steps immediately upon receipt to arrest the person in question "in accordance with its laws and the provisions of [Rome Statute] Part 9." (40) Part 9 requires that States Parties "cooperate fully with the Court in its investigation and prosecution of crimes within the jurisdiction of the Court." (41)

   The ICC has used these levers of power with varying degrees of success. For example, while some arrest warrants issued by the ICC have resulted in the surrender of their targets, (42) many others have yet to yield results. (43) Furthermore, much like the Paris Agreement, the Rome Statute assigns no consequences to powerful States who decide to withdraw their compliance with the ICC. (44) Finally, the ICC has been the target of accusations of a Eurocentric bias that borders on racism. (45) While the Rome Statute does not inherently lend itself to this last problem, it is a weakness that merits mention. These weaknesses aside, the ICC has been broadly effective since its inception, especially given the Court's novel function. (46) It has secured several...