Is Scorched-Earth Policy Illegal?
The question of whether scorched-earth policy is illegal is complex and depends on the context and specific actions taken. In short, while not inherently illegal in all circumstances, the application of a scorched-earth policy in warfare is largely illegal under modern international law due to its devastating impact on civilians and the environment. Specifically, the Geneva Conventions and related protocols prohibit actions that directly harm or deprive civilians of resources essential for survival. This article delves into the intricacies of this policy, exploring its historical context, legal ramifications, and modern applications.
Scorched Earth in Military Context: Illegal Under International Law
The military scorched-earth policy, defined as the destruction of anything that might be useful to an advancing enemy—including infrastructure, crops, and even entire towns—has a long and grim history. Historically, this tactic was aimed at crippling the enemy’s ability to sustain their advance by denying them access to food, shelter, and resources. However, the modern understanding of international humanitarian law (IHL), particularly since the 1977 Additional Protocols to the Geneva Conventions, explicitly prohibits such actions that disproportionately harm civilians.
Key Elements of the Prohibition
The primary reason why scorched-earth tactics are deemed illegal is the protection of civilian populations. The Geneva Conventions state that an Occupying Power may not destroy objects located in occupied territory that are indispensable to the survival of the civilian population. This includes food supplies, agricultural areas, and infrastructure necessary for human life. Any scorched-earth policy carried out by an Occupying Power, even when withdrawing from such territory, must not affect these essential resources.
Furthermore, deliberately targeting civilians or their property as part of a scorched-earth strategy is a direct violation of the principles of distinction and proportionality. Distinction requires warring parties to differentiate between military targets and civilians or civilian objects. Proportionality dictates that attacks must not cause excessive incidental harm to civilians in relation to the military advantage anticipated. Scorched-earth tactics often fail to meet either of these criteria, because they inherently inflict widespread devastation on civilian infrastructure and livelihoods.
Exceptions and Grey Areas
While the core principles are clear, some grey areas exist. For instance, destroying military infrastructure and assets in one’s own territory while retreating may not inherently violate international law, as long as no disproportionate harm is inflicted on the civilian population. The destruction must be for a legitimate military objective and not used as a pretext to cause undue suffering to civilians. However, even in these situations, the line between a lawful military action and a war crime can be difficult to define and is usually assessed on a case-by-case basis by international bodies and tribunals.
Scorched Earth in Corporate Takeovers: A Different Ball Game
Beyond warfare, the term “scorched earth” is also used in corporate settings to describe a defensive strategy against hostile takeovers. In this context, it refers to actions a company may take to make itself less attractive to a potential acquirer, such as selling off valuable assets (also called “crown jewels”), taking on significant debt, or issuing a “poison pill” which would dilute the value of the shares if a takeover proceeds.
Not Illegal, But Controversial
Unlike in military contexts, corporate scorched-earth defenses are not generally illegal. They are, however, controversial and can raise ethical concerns about the long-term stability and viability of a company. The decision to employ such a tactic usually falls to the board of directors, who must weigh the interests of current shareholders against the potential for loss of value or market disruption.
Potential Consequences
While these tactics might deter a hostile takeover, they often come at a significant cost to the company itself. Selling off valuable assets can reduce the company’s overall value and its future prospects, potentially hurting shareholders and other stakeholders in the long run. Moreover, a scorched-earth defense can create uncertainty and damage the company’s reputation.
Conclusion
While the use of a scorched-earth policy in warfare is largely deemed illegal and a violation of international humanitarian law, its use in corporate settings, although ethically questionable, isn’t typically illegal. The key distinction lies in the potential for harm: military scorched-earth tactics invariably inflict widespread and devastating damage on civilian populations, whereas corporate scorched-earth tactics affect the value and stability of a corporation, its stakeholders and the overall market. In both contexts, however, a “scorched earth” approach is characterized by a willingness to inflict significant damage or loss in pursuit of a strategic objective.
Frequently Asked Questions (FAQs)
1. What specific article of the Geneva Conventions prohibits scorched-earth tactics?
While the Geneva Conventions do not specifically use the term “scorched earth,” the prohibition is embedded in Additional Protocol I, Article 54, which prohibits attacking, destroying, removing, or rendering useless objects indispensable to the survival of the civilian population, such as food, agricultural areas, and water infrastructure.
2. What are some historical examples of military scorched-earth policy?
Throughout history, numerous examples exist, including the Russian scorched-earth strategy against Napoleon in 1812 and the Soviet strategy against the Nazi invasion in World War II. Additionally, Dutch troops employed it during World War II in Indonesia.
3. Did the US ever employ a scorched-earth policy?
While not always using the term explicitly, the US has at times employed tactics that could be described as scorched earth, especially during the American Civil War with campaigns such as the “March to the Sea.” However, modern US military doctrine acknowledges the laws of war and largely refrains from such extensive destruction of civilian infrastructure and assets.
4. Is “salting the earth” the same as scorched-earth policy?
“Salting the earth,” a tactic rumored to be used historically to render agricultural land infertile, is often mentioned alongside scorched-earth. However, there is no historical evidence to support the idea that ancient armies actually salted fields to create long term damage, and this should rather be considered as a legend. However, both are aimed at depriving the enemy of resources and are now understood as war crimes when applied to civilian areas.
5. What are the consequences of violating the Geneva Conventions?
Violations can lead to war crime charges at international tribunals, like the International Criminal Court (ICC), and can result in imprisonment or other penalties for individuals found guilty.
6. What is the difference between scorched-earth and a siege?
A siege is a military tactic of surrounding a fortified area, typically a city or fortress, to cut off supplies and force a surrender, while a scorched-earth policy refers to the intentional destruction of resources and infrastructure to deny use by the enemy. They often overlap but are not identical. A siege can be combined with a scorched earth tactic.
7. Can a government destroy its own resources under a scorched-earth policy?
Yes, a government can destroy its own resources as part of a military strategy while retreating, but this is subject to constraints and must not cause disproportionate harm to civilians or destroy resources vital for civilian survival.
8. What does “crown jewels” mean in a corporate scorched-earth strategy?
In a corporate context, “crown jewels” refers to a company’s most valuable assets or divisions. These are the most attractive targets for a potential acquirer. When a company decides to sell them as part of a scorched earth tactic, it makes itself less attractive to the hostile bidder.
9. What is a “poison pill” in corporate takeovers?
A “poison pill” is a defensive strategy that makes a takeover attempt very costly for the hostile bidder. It typically involves issuing new shares at a discounted price to existing shareholders, diluting the bidder’s ownership and making the takeover less financially viable.
10. Are there any ethical considerations to scorched-earth policies in corporate scenarios?
Yes, there are significant ethical considerations. Destroying shareholder value by divesting valuable assets or creating large amounts of debt can be detrimental to a company’s long-term success and may be viewed as a breach of fiduciary duty.
11. Does the media use the term “scorched earth” correctly?
Often the term is loosely applied by media. In a military context, it refers to destruction meant to deny resources, while in business it’s used when a company is acting destructively to prevent a takeover. Media must verify that both conditions are met to ensure its accuracy.
12. Are there any long-term environmental consequences to military scorched-earth tactics?
Yes, the intentional destruction of infrastructure, natural resources, and agricultural lands can have severe long-term ecological consequences, such as soil erosion, pollution, and loss of biodiversity. This can affect local populations and the environment for years to come.
13. Why is it so difficult to prosecute war crimes associated with scorched-earth policies?
Establishing the link between intentional acts and their impact on civilians can be difficult due to issues related to evidence gathering and proving intent. Also, political considerations and lack of cooperation from parties involved can further hinder prosecution.
14. Can civilian populations ever lawfully employ scorched-earth tactics?
No, civilians are not considered legitimate combatants in international armed conflicts and employing such tactics would likely be seen as illegal and may lead to reprisals. However, they may lawfully conduct resistance activities which do not involve the destruction of resources essential for the survival of a population.
15. How has modern warfare changed the concept of scorched-earth?
Modern warfare, with its emphasis on precision strikes and asymmetric conflict, does not make much use of the more traditional, extensive scorched-earth tactics. However, the intent to deprive and destroy continues to surface in different ways such as targeted attacks on resources, use of cyber weapons, or attacks on water supplies. The legal interpretations of what is and isn’t lawful will always be in flux and will be dependent on the specifics of each conflict.