International Human Rights International Human Rights International Humanitarian Law, and Environmental Security Can the International Criminal court Bridge the Gaps? Mark a drumbo 工 工 NTRODUCTION2 工工 OVERVIEW OF THE ENVIRONMENTAL CONSEQUENCES OF ARMED CONFLICT 4 THE ICC AND ENVIRONMENTAL PROTECTION: THE LANGUAGE OF THE ROME STATUTE 7 The Physical Act: Widespread, Long-term and Severe Damage Exculpatory Effects of Military Advantage 16 The Mental Element: Strict Intentionality 19 工s工 T WORTH GREENING THE ICC?21 A Environmental Concerns lost in the shuffle 24 Low Environmental Expertise of the Judges and Prosecutors Inappropriate Sanctions 25 D Limited Scope of Judicial Interpretation 27 No Room for Negligence or Recklessness 28 PUNITIVE SANCTIoN, PROACTIVE PROTECTION, OR ENVIRONMENTAL JUSTICE? CONCLUSION 40 L. Introduction Human rights law has evolved considerably over the past half-century. Much of this evolution has occurred at the international level. Evolution can, of course, consist of growth and expansion, or decline and regression. For the most part, the recent international evolution of human rights law has tended towards growth and expansion Growth can involve the creation of new mechanisms to enforce basic civil rights by holding accountable those who international lawyers. This activity has most immediately culminated in the adoption of the Rome Statute of the tivit these rights. In recent years, the creation of mechanisms to promote accountability has become a focal point of activi International Criminal Court(hereinafter"Rome Statute)l in July, 1998. The Rome Statute innovates on both the procedural and substantive fronts. Along with creating an enforcement mechanism in the form of the International detailed list of what can prospectively be sanctioned as the"most serious crimes of concern to the internation roviding a Criminal Court(hereinafter"ICC), the Rome Statute also refines prior customary and conventional rules by providing a community as a whole. 2 In this regard, the Rome Statute creates important linkages between human rights, international humanitarian law, and international criminal law. This gives rise to what one scholar has labeled the"humanization of international humanitarian law 3 Although there has been considerable parallelism between international human rights and international humanitarian law, this has, for the most part, occurred within the nexus of classic human rights such as the right to life, the right to freedom from persecution, and the right to bodily integrity. The evolution and growth of social and political rights, and their penetration into the world of international humanitarian law, has been much slower. A traditionally socio-political right whose exploration shall constitute the focus of this Article is the right to live in a healthy and productive environment hich some have called"environmental security. 4 For the most part, the linkage between international humanitarian law and environmental security is weak and may in fact reflect a somewhat troubling disjunction between international ://www.nsulaw.nova.edu/student/organizations/ilsajournal/6-2/drumbl%206-2.htm(1of27)[4/16/200110:12:21Pm
International Human Rights, International Humanitarian Law, and Environmental Security: Can the International Criminal Court Bridge the Gaps? Mark A. Drumbl* I. INTRODUCTION 2 II. OVERVIEW OF THE ENVIRONMENTAL CONSEQUENCES OF ARMED CONFLICT 4 III. THE ICC AND ENVIRONMENTAL PROTECTION: THE LANGUAGE OF THE ROME STATUTE 7 A. The Physical Act: Widespread, Long-term and Severe Damage 12 B. Exculpatory Effects of Military Advantage 16 C. The Mental Element: Strict Intentionality 19 IV. IS IT WORTH GREENING THE ICC? 21 A. Environmental Concerns Lost in the Shuffle 24 B. Low Environmental Expertise of the Judges and Prosecutors 25 C. Inappropriate Sanctions 25 D. Limited Scope of Judicial Interpretation 27 E. No Room for Negligence or Recklessness 28 V. PUNITIVE SANCTION, PROACTIVE PROTECTION, OR ENVIRONMENTAL JUSTICE? 30 VI. CONCLUSION 40 I. Introduction Human rights law has evolved considerably over the past half-century. Much of this evolution has occurred at the international level. Evolution can, of course, consist of growth and expansion, or decline and regression. For the most part, the recent international evolution of human rights law has tended towards growth and expansion. Growth can involve the creation of new mechanisms to enforce basic civil rights by holding accountable those who violate these rights. In recent years, the creation of mechanisms to promote accountability has become a focal point of activity for international lawyers. This activity has most immediately culminated in the adoption of the Rome Statute of the International Criminal Court (hereinafter “Rome Statute”)1 in July, 1998. The Rome Statute innovates on both the procedural and substantive fronts. Along with creating an enforcement mechanism in the form of the International Criminal Court (hereinafter “ICC”), the Rome Statute also refines prior customary and conventional rules by providing a detailed list of what can prospectively be sanctioned as the “most serious crimes of concern to the international community as a whole.”2 In this regard, the Rome Statute creates important linkages between human rights, international humanitarian law, and international criminal law. This gives rise to what one scholar has labeled the “humanization” of international humanitarian law.3 Although there has been considerable parallelism between international human rights and international humanitarian law, this has, for the most part, occurred within the nexus of classic human rights such as the right to life, the right to freedom from persecution, and the right to bodily integrity. The evolution and growth of social and political rights, and their penetration into the world of international humanitarian law, has been much slower. A traditionally socio-political right whose exploration shall constitute the focus of this Article is the right to live in a healthy and productive environment, which some have called “environmental security.”4 For the most part, the linkage between international humanitarian law and environmental security is weak and may in fact reflect a somewhat troubling disjunction between international International Human Rights http://www.nsulaw.nova.edu/student/organizations/ILSAjournal/6-2/Drumbl%206-2.htm (1 of 27) [4/16/2001 10:12:21 PM]
International Human Rights environmental law and humanitarian concerns. although international humanitarian law may well be humanized, it is not showing signs of being "environmentalized gap between international humanitarian law and environmental security should trouble international lawyers. Just as context for the infliction of wanton and extensive destruction to the environment This destruction creates profound ilar led conflict often creates a context in which the most serious human rights abuses occur. so too does it create a sir environmental insecurity. Part II of this Article explores the insecurities caused by the environmental consequences of armed conflict. Although the international community has shown considerable concern for the humanitarian consequences of war, 5 it has been significantly more hesitant in accounting for war's environmental consequences. It is for this reason that a very fruitful exploration of the progress that has been made and that still needs to be made in terms of harmonizing international humanitarian law with environmental protection can emerge from a study of how the international community monitors the environmental consequences of war. Part Ill examines the successes and failures of the international legal order in controlling these consequences and directs its focus on the ICC's jurisdiction to prosecute environmental war crimes. Part IV argues that the ICC may not be particularly well-suited to sanction environmentally destructive behavior. This raises the more penetrating question whether punitive criminal approaches pursued in isolation of other policy devices can ever promote environmental security. Part V is proscriptive, sketching ways in which the promotion of environmental security can be made more effective. Part V posits that the effective promotion of environmental security requires a multifaceted approach, which combines criminal prosecution, preventative measures litigation in the United States, involves more proactive use of international anti-discrimination conventions to gllardce and specially tailored remedies. An additional element of this multifaceted approach, inspired by environmental ju against the infliction of environmental insecurity on already disempowered groups. In the end, this encourages environmental security to become more closely integrated with both the protection of human rights and international humanitarian law l. Overview of the Environmental Consequences of Armed Conflict Modification or desecration of the natural environment has often been used as a strategic mechanism to safeguard state sovereignty. Over two millennia ago, Roman soldiers salted the soil of Carthage. Much more recently, Agent Orange was used to defoliate the Vietnamese jungle. In fact, it is estimated that, from 1962 to 1971, the United States sprayed twelve million gallons of defoliant over more than ten percent of what was then South vietnam. 7 United States estimates reveal that fourteen of the areas forests were destroyed. 8 Other estimates place the figure at nearly one-third. 9 Regardless of the exact numbers, Abroad stretches of the landscape are still bare of trees. @10 Civilians and soldiers who had been exposed to defoliants claim to have passed the ill-effects through their family lines. In fact, there are tens of thousands of hysically or mentally disabled children in Vietnam whose disabilities can be linked to the spraying of Agent Orange which occurred before they were born or even conceived. 11 During the 1990-1991 Gulf War, vast quantities of oil were dumped into the Persian Gulf to contaminate Kuwaits water supply. 12 Kuwaiti oil wells were also deliberately ignited by Iraqi troops. 13 Remedying the losses and damages suffered as a direct result of Iraq's unlawful invasion and occupation of Kuwait has prompted the creation of the United Nations Compensation Commission(hereinafter"UNCC" )as a subsidiary organ of the United Nations. 14 The UNCC is a unique initiative(part court of law, part arbitral tribunal) which adopts mass tort litigation approaches to settle claims and pay compensation, including for damage to the Kuwaiti environment and public health. Iraq, whose liability is presumed, is to pay reparations out of its frozen international assets as well as from a portion of its future oil export earnings. Thus far, 2.6 million claims have been filed. 15 The asserted value of these claims is $250 billion. 16 Reports of significant ecological destruction are also emerging from the Federal Republic of Yugoslavia(hereinafter FRY ). NATO aerial bombardment of the FRY under Operation Allied Force has resulted in the destruction of oil refining installations as well as storage facilities for other industrial products. Much of this destruction arose from the fertilizer and refinery complex in Pancevo resulted in the discharge of oil, gasoline, and dichloride(a powerful rcinogen)into the Danube river. 18 The bombardment of the Pancevo facility also caused the emission of toxi gases. 12 The result, according to one Western observer, is an"ecological disaster", with the pollution"spread[ingl downstream to Romania and bulgaria and then into the black Sea. 20 Scientists are also very concerned that extensive ://www.nsulaw.nova.edu/student/organizations/ilsajournal/6-2/drumbl%206-2.htm(2of27)[4/16/200110:12:22Pm
environmental law and humanitarian concerns. Although international humanitarian law may well be “humanized,” it is not showing signs of being “environmentalized.” The gap between international humanitarian law and environmental security should trouble international lawyers. Just as armed conflict often creates a context in which the most serious human rights abuses occur, so too, does it create a similar context for the infliction of wanton and extensive destruction to the environment. This destruction creates profound environmental insecurity. Part II of this Article explores the insecurities caused by the environmental consequences of armed conflict. Although the international community has shown considerable concern for the humanitarian consequences of war,5 it has been significantly more hesitant in accounting for war’s environmental consequences. It is for this reason that a very fruitful exploration of the progress that has been made and that still needs to be made in terms of harmonizing international humanitarian law with environmental protection can emerge from a study of how the international community monitors the environmental consequences of war. Part III examines the successes and failures of the international legal order in controlling these consequences and directs its focus on the ICC’s jurisdiction to prosecute environmental war crimes. Part IV argues that the ICC may not be particularly well-suited to sanction environmentally destructive behavior. This raises the more penetrating question whether punitive criminal approaches pursued in isolation of other policy devices can ever promote environmental security. Part V is proscriptive, sketching ways in which the promotion of environmental security can be made more effective. Part V posits that the effective promotion of environmental security requires a multifaceted approach, which combines criminal prosecution, preventative measures, and specially tailored remedies. An additional element of this multifaceted approach, inspired by environmental justice litigation in the United States, involves more proactive use of international anti-discrimination conventions to guard against the infliction of environmental insecurity on already disempowered groups. In the end, this encourages environmental security to become more closely integrated with both the protection of human rights and international humanitarian law. II. Overview of the Environmental Consequences of Armed Conflict Modification or desecration of the natural environment has often been used as a strategic mechanism to safeguard state sovereignty. Over two millennia ago, Roman soldiers salted the soil of Carthage. Much more recently, Agent Orange was used to defoliate the Vietnamese jungle. In fact, it is estimated that, from 1962 to 1971, the United States sprayed twelve million gallons of defoliant over more than ten percent of what was then South Vietnam.7 United States estimates reveal that fourteen of the area’s forests were destroyed.8 Other estimates place the figure at nearly one-third.9 Regardless of the exact numbers, Abroad stretches of the landscape are still bare of trees.@10 Civilians and soldiers who had been exposed to defoliants claim to have passed the ill-effects through their family lines. In fact, there are tens of thousands of physically or mentally disabled children in Vietnam whose disabilities can be linked to the spraying of Agent Orange which occurred before they were born or even conceived.11 During the 1990-1991 Gulf War, vast quantities of oil were dumped into the Persian Gulf to contaminate Kuwait’s water supply.12 Kuwaiti oil wells were also deliberately ignited by Iraqi troops.13 Remedying the losses and damages suffered as a direct result of Iraq’s unlawful invasion and occupation of Kuwait has prompted the creation of the United Nations Compensation Commission (hereinafter “UNCC”) as a subsidiary organ of the United Nations.14 The UNCC is a unique initiative (part court of law, part arbitral tribunal) which adopts mass tort litigation approaches to settle claims and pay compensation, including for damage to the Kuwaiti environment and public health. Iraq, whose liability is presumed, is to pay reparations out of its frozen international assets as well as from a portion of its future oil export earnings. Thus far, 2.6 million claims have been filed.15 The asserted value of these claims is $250 billion.16 Reports of significant ecological destruction are also emerging from the Federal Republic of Yugoslavia (hereinafter “FRY”). NATO aerial bombardment of the FRY under Operation Allied Force has resulted in the destruction of oil refining installations as well as storage facilities for other industrial products. Much of this destruction arose from the indiscriminate effects of bombing from very high altitude levels.17 In particular, the destruction of a petrochemical, fertilizer and refinery complex in Pancevo resulted in the discharge of oil, gasoline, and dichloride (a powerful carcinogen) into the Danube river.18 The bombardment of the Pancevo facility also caused the emission of toxic gases.19 The result, according to one Western observer, is an “ecological disaster”, with the pollution “spread[ing] downstream to Romania and Bulgaria and then into the Black Sea.”20 Scientists are also very concerned that extensive International Human Rights http://www.nsulaw.nova.edu/student/organizations/ILSAjournal/6-2/Drumbl%206-2.htm (2 of 27) [4/16/2001 10:12:22 PM]
International Human Rights flooding may result from ice which may form on the Danube and then become lodged behind three bridges in Novi Sad which were bombed during Operation Allied Force21 The areas most at risk include low-lying portions of Serbia, as well as Croatia and parts of Hungary. 22 In short, " If]rom antiquity to the present, examples of environmental destruction in war abound. 23 But it is not only actual war which creates environmental insecurity. The environment also faces severe threats as nations prepare to go to war(mobilization) and as nations turn back from the threat of war(decommissioning and disarmament ). 24 On this latter point, Russian attempts to decommission its nuclear submarines in the Arctic Ocean are being carried out with insufficient financial and human resources and seriously threaten that particularly fragile marine environment. 25 Testing of weapon specifically nuclear and chemical weapons -also has particularly noxious effects on the environment. These activities collateral to actual armed conflict therefore require regulation. Nonetheless, for the most part, the environmental consequences of such activities remain unsupervised and unmonitored ll. The Icc and Environmental Protection The Language of the rome statute It is only very recently that the international community has made inroads into contemplating the prosecution of those who engage in unacceptable use of the environment during wartime. In this regard the language of the rome Statute is important. For the first time, environmental war crimes are independently sanctioned and an apparatus is provided for the punishment of those who commit such crimes. Although there was some scattered mention of environmental war crimes at the Nuremberg Trials, 26 over the past five decades humanitarian abuses have been treated separately from environmental desecration. This disconnect is revealed in the Statute of the International Criminal Tribunal for Former Yugoslavia27 and the Statute of the International Criminal Tribunal for Rwanda. 28 Neither Tribunal is directly empowered to prosecute those who propagate environmental insecurity through the commission of environmental war crimes. The International Criminal Tribunal for the Former Yugoslavia has some jurisdiction over war crimes which bear an incidental relationship to the security of the natural environment. 29 The International Criminal Tribunal for Rwanda essentially lacks jurisdiction over even incidental violations of environmental security. 30 Under the language of the Rome Statute, however, intentional infliction of harm to the environment may constitute a war crime. 31 More specifically, Article 8(2)(b)(iv) prohibits [emphasis added Intentionally 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. 32 The negotiation history of Article &(2)(b)(iv)merits a brief review. The draft of the rome Statute which served as the basis for the final negotiations listed three other options along with the language which was eventually adopted in Article 8(2)(b)(iv). 33 The three rejected options are 1. Intentionally 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 not justified by military necessit 2. Intentionally 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 //ww.nsulaw nova edu/student/organizations/IL SAjournal/6-2/Drumbl %206-2 htm( 3 of 27)[4/16/2001 10: 12: 22 PM
flooding may result from ice which may form on the Danube and then become lodged behind three bridges in Novi Sad which were bombed during Operation Allied Force.21 The areas most at risk include low-lying portions of Serbia, as well as Croatia and parts of Hungary.22 In short, “[f]rom antiquity to the present, examples of environmental destruction in war abound.”23 But it is not only actual war which creates environmental insecurity. The environment also faces severe threats as nations prepare to go to war (mobilization) and as nations turn back from the threat of war (decommissioning and disarmament).24 On this latter point, Russian attempts to decommission its nuclear submarines in the Arctic Ocean are being carried out with insufficient financial and human resources and seriously threaten that particularly fragile marine environment.25 Testing of weapons - specifically nuclear and chemical weapons - also has particularly noxious effects on the environment. These activities collateral to actual armed conflict therefore require regulation. Nonetheless, for the most part, the environmental consequences of such activities remain unsupervised and unmonitored. III. The ICC and Environmental Protection: The Language of the Rome Statute It is only very recently that the international community has made inroads into contemplating the prosecution of those who engage in unacceptable use of the environment during wartime. In this regard, the language of the Rome Statute is important. For the first time, environmental war crimes are independently sanctioned and an apparatus is provided for the punishment of those who commit such crimes. Although there was some scattered mention of environmental war crimes at the Nuremberg Trials,26 over the past five decades humanitarian abuses have been treated separately from environmental desecration. This disconnect is revealed in the Statute of the International Criminal Tribunal for the Former Yugoslavia27 and the Statute of the International Criminal Tribunal for Rwanda.28 Neither Tribunal is directly empowered to prosecute those who propagate environmental insecurity through the commission of environmental war crimes. The International Criminal Tribunal for the Former Yugoslavia has some jurisdiction over war crimes which bear an incidental relationship to the security of the natural environment.29 The International Criminal Tribunal for Rwanda essentially lacks jurisdiction over even incidental violations of environmental security.30 Under the language of the Rome Statute, however, intentional infliction of harm to the environment may constitute a war crime.31 More specifically, Article 8(2)(b)(iv) prohibits [emphasis added]: Intentionally 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.32 The negotiation history of Article 8(2)(b)(iv) merits a brief review. The draft of the Rome Statute which served as the basis for the final negotiations listed three other options along with the language which was eventually adopted in Article 8(2)(b)(iv).33 The three rejected options are: 1. Intentionally 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 is not justified by military necessity. (Or) 2. Intentionally 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. International Human Rights http://www.nsulaw.nova.edu/student/organizations/ILSAjournal/6-2/Drumbl%206-2.htm (3 of 27) [4/16/2001 10:12:22 PM]
International Human Rights 3. No paragraph [in other words, no prohibition on intentionally inflicting widespread, long-term and severe damage to the natural environment] In the end, the provision which was adopted was a compromise and, from an environmental perspective, occupies a middle ground. However, it shares with the first option the important limitation that environmental integrity is secondary to the military advancement of national security interests. There are other important limitations. The jurisdiction of the ICC is restricted to"war crimes in particular when committed as a part of a plan or policy or as part of a large-scale commission of such crimes. 34 The question consequently arises whether the "in particular "language will allow isolated incidents to fall within the purview of the Rome Statute. A more important limitation, however, is the fact that prohibiting harm to the natural environment is explicitly mentioned only once in the entire Rome Statute. 35 This provision may therefore become peripheral given the broad array of other crimes to which the ICC's energies will be directed. As a result, the effect of this provision may well be more apparent than real. Also, the environmental war crimes provision of the rome statute only applies to inter-state armed conflicts. Environmental desecration during internecine conflicts is consequently left unaddressed. 36 This is a troubling gap. 37 Also troubling is the fact that the ICC can only capture environmental crimes committed by military forces actively engaged in hostilities. There is therefore no jurisdiction to sanction the environmental insecurity created by armed forces in the testing of weapons or in the mobilization of forces Nor is there jurisdiction to supervise any disarmament process. 38 Article 8(2 )(b (iv)also triggers more specific interpretive concerns. By way of overview, there are three principal components to the language of Article &(2)(b)(iv): (1)the actual physical act- or actus reus- which consists of launching an attack which causes"widespread, long-term and severe damage"to the natural environment;(2)a second material element, namely that the damage must be"clearly excessive in relation to the concrete and direct overall military dvantage anticipated"; and (3)even if both material elements are found, the mental element-or mens rea - must be demonstrated, thereby entailing proof that the attack was launched intentionally and in the knowledge it will cause widespread, long-term, and severe damage" to the natural environment A. The Physical Act: Widespread, Long-term and Severe Damage A successful prosecution under the Rome Statute will, first and foremost, have to show that the accused launched an attack39 which caused"widespread, long-term, and severe damage to the natural environment. " Of great importance is that all three elements must conjunctively be proven. The language of"widespread, long-term and severe" has woven its way into the handful of other international humanitarian conventions which address the use of the environment in times of war, for example the 1977 United Nations Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques(hereinafter"ENMOD Convention),40 and the 1977 Additional Protocol I to the 1949 Geneva Convention(Protocol I). 41 However, by providing that all three elements must be conjunctively shown to exist, the language of the Rome Statute regresses from the wording of the ENMOD Convention which bases fault disjunctively on proof of only one of these three characteristics What exactly do"widespread, long-term, and"severe" mean? The Rome Statute is silent on this point. The International Law Commission(hereinafter" ILC )has concluded that widespread, long-term and severe"describes the extent or intensity of the damage, its persistence in time, and the size of the geographical area affected by the damage. "42 However, the International Committee of the Red Cross(hereinafter"ICRC )recognizes that the more specific question"as to what constitutes widespread, long-term, and severe damage .. to the environment is open to interpretation. ( @43 In this regard, some interpretive guidance can be provided by the work of the Geneva Conference of the Committee on Disarmament Understanding(hereinafter"CCD Understanding")regarding the application of these itself define these terms. The CCD Understanding provides as follows.ary since the enmod Convention does not terms under the enmod convention 44 This additional work was necess ://www.nsulaw.nova.edu/student/organizations/ilsajournal/6-2/drumbl%206-2.htm(4of27)[4/16/200110:12:22Pm
(Or) 3. No paragraph [in other words, no prohibition on intentionally inflicting widespread, long-term and severe damage to the natural environment]. In the end, the provision which was adopted was a compromise and, from an environmental perspective, occupies a middle ground. However, it shares with the first option the important limitation that environmental integrity is secondary to the military advancement of national security interests. There are other important limitations. The jurisdiction of the ICC is restricted to “war crimes in particular when committed as a part of a plan or policy or as part of a large-scale commission of such crimes.”34 The question consequently arises whether the “in particular” language will allow isolated incidents to fall within the purview of the Rome Statute. A more important limitation, however, is the fact that prohibiting harm to the natural environment is explicitly mentioned only once in the entire Rome Statute.35 This provision may therefore become peripheral given the broad array of other crimes to which the ICC’s energies will be directed. As a result, the effect of this provision may well be more apparent than real. Also, the environmental war crimes provision of the Rome Statute only applies to inter-state armed conflicts. Environmental desecration during internecine conflicts is consequently left unaddressed.36 This is a troubling gap.37 Also troubling is the fact that the ICC can only capture environmental crimes committed by military forces actively engaged in hostilities. There is therefore no jurisdiction to sanction the environmental insecurity created by armed forces in the testing of weapons or in the mobilization of forces. Nor is there jurisdiction to supervise any disarmament process.38 Article 8(2)(b)(iv) also triggers more specific interpretive concerns. By way of overview, there are three principal components to the language of Article 8(2)(b)(iv): (1) the actual physical act - or actus reus - which consists of launching an attack which causes “widespread, long-term and severe damage” to the natural environment; (2) a second material element, namely that the damage must be “clearly excessive” in relation to the “concrete and direct overall military advantage anticipated”; and (3) even if both material elements are found, the mental element - or mens rea - must be demonstrated, thereby entailing proof that the attack was launched intentionally and in the knowledge it will cause “widespread, long-term, and severe damage” to the natural environment. A. The Physical Act: Widespread, Long-term and Severe Damage A successful prosecution under the Rome Statute will, first and foremost, have to show that the accused launched an attack39 which caused “widespread, long-term, and severe damage to the natural environment.” Of great importance is that all three elements must conjunctively be proven. The language of “widespread, long-term and severe” has woven its way into the handful of other international humanitarian conventions which address the use of the environment in times of war, for example the 1977 United Nations Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (hereinafter “ENMOD Convention”),40 and the 1977 Additional Protocol I to the 1949 Geneva Convention (Protocol I).41 However, by providing that all three elements must be conjunctively shown to exist, the language of the Rome Statute regresses from the wording of the ENMOD Convention which bases fault disjunctively on proof of only one of these three characteristics. What exactly do “widespread,” “long-term,” and “severe” mean? The Rome Statute is silent on this point. The International Law Commission (hereinafter “ILC”) has concluded that “widespread, long-term and severe” describes the “extent or intensity of the damage, its persistence in time, and the size of the geographical area affected by the damage.”42 However, the International Committee of the Red Cross (hereinafter “ICRC”) recognizes that the more specific question “as to what constitutes ‘widespread, long-term, and severe’ damage ... to the environment is open to interpretation.@43 In this regard, some interpretive guidance can be provided by the work of the Geneva Conference of the Committee on Disarmament Understanding (hereinafter “CCD Understanding”) regarding the application of these terms under the ENMOD Convention.44 This additional work was necessary since the ENMOD Convention does not itself define these terms. The CCD Understanding provides as follows: International Human Rights http://www.nsulaw.nova.edu/student/organizations/ILSAjournal/6-2/Drumbl%206-2.htm (4 of 27) [4/16/2001 10:12:22 PM]
International Human Rights Widespread"encompassing an area on the scale of several hundred square kilometers Long-term"lasting for a period of months, or approximately a season; Severe"involving serious or significant disruption or harm to human life, natural and economic resources or other assets to the ENMOd Convention and is not intended to prejudice the interpretation of similar terms if used in another s limit Regrettably, the interpretive value of the CCD Understanding is curtailed by the fact that it stipulates that its use is limited international agreement. 45 As the ENMOD Convention deals with"extraordinary manipulations of the natural environment for military purposes, such as creating floods, it is unclear what weight, if any, it would be given by the [CC]. 46 As it turns out, greater interpretive guidance may be obtained from commentaries on Protocol I, especially since its language is, like the Rome Statute's, conjunctive in nature. From an environmental perspective, the prohibitions in Protocol I are more circumscribed than those of ENMOD. For example, "long-term"has been interpreted by the ICrC as meaning lasting for" decades rather than months. 47 The"widespread""and"long-term" principles attempt to ascribe temporal and geographic limitations to environmental harm which, for the most part, does not know such boundaries. As the planet constitutes one single ecosystem, environmental degradation of one part of the earth ultimately affects the entire planet. 48 The"severe "requirement could esources na en ve and this notwithstanding its biodiversity or species-importance. The anthropocentric limitation of"severe"damage to that which affects human life and human consumption of natural resources underscores a more general shortcoming with much of the existing framework of environmental protection during wartime - namely that this protection is not geared to protecting the environment per se, but, rather, humanitys need to make use of it. More troubling is that state practice in some of the signatories to the Rome Statute ascribes the anthropocentric limitation to the totality of the material element of Article 8(2 )(b (iv ) For example, the German Military Manual states that: "Widespread,, "long-term,, andsevere damage to the natural environment is a major interference with human life or natural resources. 49 An additional phrase that requires definition is"natural environment. In its report detailing the work of its 43rd Session the ilc offered a broad definition of "natural environment. 50 This definition focused both on the human environment as well as on the natural environment per se. 51 Having such a broad definition is necessary for Article 8(2)(b)(iv) to fully encompass environmental security as opposed to only covering the protection of human environments(e.g. cities, dwellings, private property) from destruction. The ilC definition of the"natural environment is as follows ds "natural environment" should be taken broadly to cover the environment of the human race and where the human race develops, as well as areas ration of which is of fundamental importance in protecting the environment. These words therefore cover the seas, the atmosphere, climate, forests and ant cover, fauna, flora and other biological elements. 52 It will be important to develop a memorandum of understanding under the rome Statute in which the scope of"natural environment, " widespread, "long-term, "and"severe"is spelled out. The ongoing Preparatory Commission sessions provide an appropriate forum for such discussions. In fact, the Preparatory Commission intends to"ensure the formulation of generally acceptable elements of crimes on Article 8, as part of a complete set of elements of crimes for all crimes, laid down in the [Rome] Statute. 53 Unfortunately, thus far specific discussion of the environmental war crime provision has been very limited. 54 Nonetheless, it is essential to the viability of Article 8(2)(b)(iv) that the definition of //ww.nsulaw nova edu/student/organizations/IL SAjournal/6-2/Drumbl %206-2 htm (5 of 27)[4/16/2001 10: 12: 22 PM
1. “Widespread” encompassing an area on the scale of several hundred square kilometers; 2. “Long-term” lasting for a period of months, or approximately a season; 3. “Severe” involving serious or significant disruption or harm to human life, natural and economic resources or other assets. Regrettably, the interpretive value of the CCD Understanding is curtailed by the fact that it stipulates that its use is limited to the ENMOD Convention and is not intended to prejudice the interpretation of similar terms if used in another international agreement.45 As the ENMOD Convention deals with “extraordinary manipulations of the natural environment for military purposes, such as creating floods, it is unclear what weight, if any, it would be given by the [ICC].”46 As it turns out, greater interpretive guidance may be obtained from commentaries on Protocol I, especially since its language is, like the Rome Statute’s, conjunctive in nature. From an environmental perspective, the prohibitions in Protocol I are more circumscribed than those of ENMOD. For example, “long-term” has been interpreted by the ICRC as meaning lasting for “decades rather than months.”47 The “widespread” and “long-term” principles attempt to ascribe temporal and geographic limitations to environmental harm which, for the most part, does not know such boundaries. As the planet constitutes one single ecosystem, environmental degradation of one part of the earth ultimately affects the entire planet.48 The “severe” requirement could mean that damage to an isolated section of the global commons whose natural resources have not yet been valued by global financial markets could escape punishment; and this notwithstanding its biodiversity or species-importance. The anthropocentric limitation of “severe” damage to that which affects human life and human consumption of natural resources underscores a more general shortcoming with much of the existing framework of environmental protection during wartime - namely that this protection is not geared to protecting the environment per se, but, rather, humanity’s need to make use of it. More troubling is that state practice in some of the signatories to the Rome Statute ascribes the anthropocentric limitation to the totality of the material element of Article 8(2)(b)(iv). For example, the German Military Manual states that: “’Widespread’, ‘long-term’, and ‘severe’ damage to the natural environment is a major interference with human life or natural resources.”49 An additional phrase that requires definition is “natural environment.” In its report detailing the work of its 43rd Session, the ILC offered a broad definition of “natural environment.”50 This definition focused both on the human environment as well as on the natural environment per se.51 Having such a broad definition is necessary for Article 8(2)(b)(iv) to fully encompass environmental security as opposed to only covering the protection of human environments (e.g. cities, dwellings, private property) from destruction. The ILC definition of the “natural environment” is as follows: The words “natural environment” should be taken broadly to cover the environment of the human race and where the human race develops, as well as areas the preservation of which is of fundamental importance in protecting the environment. These words therefore cover the seas, the atmosphere, climate, forests and other plant cover, fauna, flora and other biological elements.52 It will be important to develop a memorandum of understanding under the Rome Statute in which the scope of “natural environment,” “widespread,” “long-term,” and “severe” is spelled out. The ongoing Preparatory Commission sessions provide an appropriate forum for such discussions. In fact, the Preparatory Commission intends to “ensure the formulation of generally acceptable elements of crimes on Article 8, as part of a complete set of elements of crimes for all crimes, laid down in the [Rome] Statute.”53 Unfortunately, thus far specific discussion of the environmental war crime provision has been very limited.54 Nonetheless, it is essential to the viability of Article 8(2)(b)(iv) that the definition of International Human Rights http://www.nsulaw.nova.edu/student/organizations/ILSAjournal/6-2/Drumbl%206-2.htm (5 of 27) [4/16/2001 10:12:22 PM]
International Human Rights the elements it contains is not pitched at such a high level so as to strip the provision of any practical effect. This may well require the threshold of responsibility to be relaxed from the international community's current understanding of the meaning of"widespread, "long-term, and" harm B. Exculpatory Effects of Military Advantage Even if there is proof of widespread, long-term and severe damage to the natural environment, liability is only found if this damage is" clearly excessive" in relation to the"concrete and direct overall military advantage anticipated This second material element permits"military objectives [to be] offered as a defense against charges of environmental damage, even intentional damage, as long as that damage is outweighed by the expected military gain. 55 The exculpating force of"proof of military advantage" traces its roots to the doctrine of"military necessity. " This doctrine has historically been used to mitigate or eliminate responsibility often for grievous breaches of humanitarian standards. In short, " military necessity" is a principle of customary international law56whichauthorizes' military action when such action is necessary for the overall resolution of a conflict, particularly when the continued existence of the acting state would otherwise be in jeopardy. 57 At the Nuremberg trials, the doctrine of military necessity was applied to the destruction of property(the closest the international community has yet come to an environmental war crimes proceeding) in the following manner The destruction of property to be lawful must be imperatively demanded by the necessities of war. Destructi law. There must be some re ble connection between the destruction of property and the overcoming of the enemy forces. 58 Military advantage" may bear an even lower threshold of proof than"military necessity. "As a result, the prohibition in Article 8(2)(b)(iv) may be narrower than its antecedents at customary international law. In the case of Article 8(2)(b (iv) the ambit of" military advantage " is limited by the fact that only" concrete and direct overall military advantage anticipated" can justify the environmental damage. Nonetheless, concrete and direct overall military ady inticipated" still seems easier to prove than"military necessity. In addition, although the"military necessity " defense may in fact form part of customary international law, it is noteworthy that Protocol I, in its prohibition of widespread long-term and severe" harm, did not permit proof of any military advantage or necessity to eliminate wrongdoing. 59 As a result, Article 8(2)(b(iv)'s prohibition is but a diluted version of that in Protocol I There are other concerns with "military advantage"in Article 8(2)(b)(iv). First, although a "proportionality test"(i.e the environmental damage must be clearly excessive in relation to the concrete and direct overall military advantage )is established, no guidelines, definitions or examples of"clearly excessive"are provided. In fact, "the addition of the word in the definition of collateral damage is not reflected in any existing legal source. 60 To this end memoranda of understanding of the Parties to the Rome Statute or initial decisions by the ICC will be important in setting the scope for clearly" excessive Second, the factual element of the proportionality test is also unclear: since proof of "clearly excessive "is required order to find someone guilty, and since the burden of proof rests with the Prosecutor, what type of research and data will have to be marshaled? In addition, adjectival terms such as" concrete "and"direct" and overall " military advantage are somewhat vague and have not yet been comprehensively defined by international law. Nor does the rome Statute provide more particularized definitions of the meaning of these terms. As for" overall, the ICRC has suggested that it indicates that a particular target can have an important military advantage that can be felt over a lengthy period of time and affect military action in areas other than the vicinity of the target itself. 61 In the end, the extent to which these adjectives qualify or extend the exculpating effect of military advantage will bear heavily on the ability of Article 8(2)(b (iv)to punish environmental crimes Finally, the military advantage needs simply to be"anticipated. What does this term signify? Some clarification as to the meaning of anticipated" can emerge from a consideration of state declarations made to the use of "military advantage"( in prior international conventions. It is reported that //ww. nsulaw nova edu/student/organizations/IL SAjournal/6-2/Drumbl %206-2 htm(6 of 27)[4/16/2001 10: 12: 22 PM
the elements it contains is not pitched at such a high level so as to strip the provision of any practical effect. This may well require the threshold of responsibility to be relaxed from the international community’s current understanding of the meaning of “widespread,” “long-term,” and “severe” harm. B. Exculpatory Effects of Military Advantage Even if there is proof of widespread, long-term and severe damage to the natural environment, liability is only found if this damage is “clearly excessive” in relation to the “concrete and direct overall military advantage anticipated.” This second material element permits “military objectives [to be] offered as a defense against charges of environmental damage, even intentional damage, as long as that damage is outweighed by the expected military gain.”55 The exculpating force of “proof of military advantage” traces its roots to the doctrine of “military necessity.” This doctrine has historically been used to mitigate or eliminate responsibility often for grievous breaches of humanitarian standards. In short, “military necessity” is a principle of customary international law56 “which ‘authorizes’ military action when such action is necessary for the overall resolution of a conflict, particularly when the continued existence of the acting state would otherwise be in jeopardy.”57 At the Nuremberg trials, the doctrine of military necessity was applied to the destruction of property (the closest the international community has yet come to an environmental war crimes proceeding) in the following manner: The destruction of property to be lawful must be imperatively demanded by the necessities of war. Destruction as an end in itself is a violation of international law. There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces.58 “Military advantage” may bear an even lower threshold of proof than “military necessity.” As a result, the prohibition in Article 8(2)(b)(iv) may be narrower than its antecedents at customary international law. In the case of Article 8(2)(b)(iv), the ambit of “military advantage” is limited by the fact that only “concrete and direct overall military advantage anticipated” can justify the environmental damage. Nonetheless, “concrete and direct overall military advantage anticipated” still seems easier to prove than “military necessity.” In addition, although the “military necessity” defense may in fact form part of customary international law, it is noteworthy that Protocol I, in its prohibition of “widespread, long-term and severe” harm, did not permit proof of any military advantage or necessity to eliminate wrongdoing.59 As a result, Article 8(2)(b)(iv)’s prohibition is but a diluted version of that in Protocol I. There are other concerns with “military advantage” in Article 8(2)(b)(iv). First, although a “proportionality test” (i.e. the environmental damage must be clearly excessive in relation to the concrete and direct overall military advantage) is established, no guidelines, definitions or examples of “clearly excessive” are provided. In fact, “the addition of the word[ ] ‘clearly’ ... in the definition of collateral damage is not reflected in any existing legal source.”60 To this end, memoranda of understanding of the Parties to the Rome Statute or initial decisions by the ICC will be important in setting the scope for “clearly” excessive. Second, the factual element of the proportionality test is also unclear: since proof of “clearly excessive” is required in order to find someone guilty, and since the burden of proof rests with the Prosecutor, what type of research and data will have to be marshaled? In addition, adjectival terms such as “concrete” and “direct” and “overall” military advantage are somewhat vague and have not yet been comprehensively defined by international law. Nor does the Rome Statute provide more particularized definitions of the meaning of these terms. As for “overall,” the ICRC has suggested that it indicates “that a particular target can have an important military advantage that can be felt over a lengthy period of time and affect military action in areas other than the vicinity of the target itself.”61 In the end, the extent to which these adjectives qualify or extend the exculpating effect of military advantage will bear heavily on the ability of Article 8(2)(b)(iv) to punish environmental crimes. Finally, the military advantage needs simply to be “anticipated.” What does this term signify? Some clarification as to the meaning of “anticipated” can emerge from a consideration of state declarations made to the use of “military advantage”{ in prior international conventions. It is reported that: International Human Rights http://www.nsulaw.nova.edu/student/organizations/ILSAjournal/6-2/Drumbl%206-2.htm (6 of 27) [4/16/2001 10:12:22 PM]
International Human Rights A number of [s]tates expressed their understanding that the military advantage anticipated from an attack is intended to refer to the advantage anticipated from the attack considered as a whole and not from isolated or particular parts of the attack. 62 On a related note, it is unclear by whom and according to what standards the" anticipation "is to be judged Does there have to be an objective element to the anticipation, or can the belief be subjectively held yet unrealistic? If the notion of military advantage remains subjective in the mind of the military or political leader under the circumstances in which th tactical decision was made, then the defense could be too widely available. In order to curtail misuse of the defense, it will be important to establish some objective standards as to when the military advantage of an attack may justify widespread, long-term, and severe damage to the environment The difficulties which inhere in giving appropriate meaning to the defense of military advantage raise more penetrating questions. These questions militate in favor of reconsidering the interaction between international environmental law and international humanitarian law. Certain practices- such as genocide and torture- have been sanctioned as illegal by the international community to the extent that they can never be undertaken even if essential to defend national sovereignty Why should intentional environmental desecration not be similarly proscribed? C. The Mental Element: Strict Intentionality In the case of Article &(2)(b(iv), criminal sanction will only fall upon an individual who knows his or her behavior will cause widespread, long-term, and severe damage to the environment which is clearly excessive in relation to the overall military advantage anticipated and, notwithstanding proof of this knowledge, still commits the act with the full intention of causing the environmental damage. More concisely, the perpetrator must be found to have acted willfully and in the knowledge that the attack will cause the prohibited environmental damage. 63 The Rome Statute therefore" presupposes that the attack was launched in the knowledge that [the] consequences listed occur. 64 The ICRC has interpreted the phrase"in the knowledge"as requiring the person committing the act [to know] with certainty that the described results would ensue, and this would not cover recklessness. 65 The fact that there is no liability for negligently or carelessly inflicting widespread, long-term, and severe damage to the environment means that persons who are found to act negligently will not face any sanction at all. The provision therefore covers only the most invidious offender. It goes without saying that proving this very onerous intentionality requirement will not be easy As a result, a more proactive approach may be required. Military and political officials in both developing and developed nations should be educated on the environmentally harmful effects of certain types of warfare, and be informed of the technologies to avoid reliance on such strategies in the first place. In this regard, the work of the ICRC can play a pivotal role. The ICRC has published a document entitled Guidelines for Military Manuals and Instructions on the Protection of the Emvironment in Times of Armed Conflict( Guidelines), which are Intended as a tool to facilitate the instruction and training of armed forces in an often neglected area of international humanitarian law: otection of the atural environment. The Guidelines[]. sole aim is to contribute in a p I and effective way dissemination purposes. 66 The Guidelines state that they are drawn from existing international legal obligations and, as such, constitute a baseline of ius commune among nations. 67 Many detailed rules are provided in Article Ill(9)of the Guidelines, which cover numerous issues ranging from barring incendiary weapons in forested regions to precluding the use of naval mines Ultimately, it is hoped that the guidelines could constitute the specific level of objective knowledge imputed to al hoped that they will be taken into account as new weaponry is developed. In this latter regard, Article IV(18)of the0 military and civilian leaders and agents for purposes of culpability under Article 8(2 )(b)(iv)of the Rome Statute. It is al Guidelines is particularly important y, development, acquisition or adoption of a new weapon, means or method of warfare, states are under an obligation to determine whether its would, in some or all circumstances, be prohibited by applicable rules of international law, including those providing protection of the environ ://www.nsulaw.nova.edu/student/organizations/ilsajournal/6-2/drumbl%206-2.htm(7of27)[4/16/200110:12:22Pm
A number of [s]tates expressed their understanding that the military advantage anticipated from an attack is intended to refer to the advantage anticipated from the attack considered as a whole and not from isolated or particular parts of the attack.62 On a related note, it is unclear by whom and according to what standards the “anticipation” is to be judged. Does there have to be an objective element to the anticipation, or can the belief be subjectively held yet unrealistic? If the notion of military advantage remains subjective in the mind of the military or political leader under the circumstances in which the tactical decision was made, then the defense could be too widely available. In order to curtail misuse of the defense, it will be important to establish some objective standards as to when the military advantage of an attack may justify widespread, long-term, and severe damage to the environment. The difficulties which inhere in giving appropriate meaning to the defense of military advantage raise more penetrating questions. These questions militate in favor of reconsidering the interaction between international environmental law and international humanitarian law. Certain practices - such as genocide and torture - have been sanctioned as illegal by the international community to the extent that they can never be undertaken even if essential to defend national sovereignty. Why should intentional environmental desecration not be similarly proscribed? C. The Mental Element: Strict Intentionality In the case of Article 8(2)(b)(iv), criminal sanction will only fall upon an individual who knows his or her behavior will cause widespread, long-term, and severe damage to the environment which is clearly excessive in relation to the overall military advantage anticipated and, notwithstanding proof of this knowledge, still commits the act with the full intention of causing the environmental damage. More concisely, the perpetrator must be found to have acted wil1fully and in the knowledge that the attack will cause the prohibited environmental damage.63 The Rome Statute therefore “presupposes that the attack was launched in the knowledge that [the] consequences listed occur.”64 The ICRC has interpreted the phrase “in the knowledge” as requiring “the person committing the act [to know] with certainty that the described results would ensue, and this would not cover recklessness.”65 The fact that there is no liability for negligently or carelessly inflicting widespread, long-term, and severe damage to the environment means that persons who are found to act negligently will not face any sanction at all. The provision therefore covers only the most invidious offender. It goes without saying that proving this very onerous intentionality requirement will not be easy. As a result, a more proactive approach may be required. Military and political officials in both developing and developed nations should be educated on the environmentally harmful effects of certain types of warfare, and be informed of the technologies to avoid reliance on such strategies in the first place. In this regard, the work of the ICRC can play a pivotal role. The ICRC has published a document entitled Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict (Guidelines), which are: Intended as a tool to facilitate the instruction and training of armed forces in an often neglected area of international humanitarian law: the protection of the natural environment. The Guidelines[‘] ... sole aim is to contribute in a practical and effective way to raising awareness ... [T]hey are an instrument for dissemination purposes.66 The Guidelines state that they are drawn from existing international legal obligations and, as such, constitute a baseline of jus commune among nations.67 Many detailed rules are provided in Article III(9) of the Guidelines, which cover numerous issues ranging from barring incendiary weapons in forested regions to precluding the use of naval mines. Ultimately, it is hoped that the Guidelines could constitute the specific level of objective knowledge imputed to all military and civilian leaders and agents for purposes of culpability under Article 8(2)(b)(iv) of the Rome Statute. It is also hoped that they will be taken into account as new weaponry is developed. In this latter regard, Article IV(18) of the Guidelines is particularly important: In the study, development, acquisition or adoption of a new weapon, means or method of warfare, states are under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by applicable rules of international law, including those providing protection of the environment International Human Rights http://www.nsulaw.nova.edu/student/organizations/ILSAjournal/6-2/Drumbl%206-2.htm (7 of 27) [4/16/2001 10:12:22 PM]
International Human Rights in times of armed conflict. 68 In conclusion, unless some level of objective knowledge is read into the intentionality requirement, individuals who che not to inform the es that wh hat they ing is destructive of the en ent might be able the gnorance as a full defense. a failure to incorporate an objective element into the Rome Statute's environmental war crimes also represents a step backwards insofar as Protocol I had, as early as 1977, grounded responsibility not in intentional environmental harm, but simply when there was a reasonable expectation that environmental damage would occur 69 NV. Is it Worth greening the Icc? International lawyers need to consider whether the interests of the global environment are in fact well-served by collapsing environmental crimes within an overarching multilateral mechanism. If so, then an important subsidiary question merges: is the iCC the appropriate mechanism or should a new environmentally specific entity be created The most immediate countervailing option to proceeding multilaterally would be to address environmental crimes within the rubric of independently negotiated regional agreements. In such cases, domestic courts, regional tribunals, or either domestic or regional regulatory agencies could serve as enforcement mechanisms Efforts at the regional level may prove effective in combating environmental crimes within and outside the context of armed conflict. By way of example, in March, 1999, six African countries established an"African Interpol to fight wildlife crime.70 More sweeping is the Council of Europes Convention on the Protection of the Environment Through Criminal Law.71 The motivation behind the Convention is that signatories should take effective measures to ensure that the perpetrators of environmental hazards having serious consequences escape neither prosecution nor punishment. 72 This Convention obliges signatories to criminalize certain intentional or negligent forms of environmental offenses provided. For instance, the intentional discharge of ionizing radiation into the air, soil, or water which causes a (although the negligence may be limited by declaration to acts of gross negligence only ).73 Specific examples significant risk"of death or serious injury is to be prohibited. 74 So, too, is the unlawful disposal or transport of hazardous waste which causes or is likely to cause death, serious injury, or"substantial damage to the quality of air, soi water, animals, or plants. 75 This latter provision is important for it goes beyond the anthropocentric approach to assessing environmental harm which often characterizes current conventions and laws However, these successful regional initiatives should not obscure the importance of multilateral efforts. The two levels can in fact operate contemporaneously. As for the ICC, in order for it to capture environmental crimes outside of the context of war, its jurisdiction would have to be broadened. In this vein, some commentators have suggested making it a crime recklessly or intentionally to harm the environment. 7 This could permit the behavior of armed forces not engaged in hostilities to be regulated, together with corporations and governments who may implement policies which promote nsecurity through environmental modification. This crime has been namedgeocide'or"ecocide. Literally, this constitutes the environmental counterpart of genocide-a killing of the earth. The logic of ecocide is as follows significantly harming the natural environment constitutes a breach of a duty of care, and this breach consists, in the least in tortuous or delictual conduct and, when undertaken with willfulness, recklessness or negligence, ought to constitute a crime. 77 Although some international environmental lawyers may find the criminalization of ecocide to be intellectually attractive, it seems fair to say that its chances of being negotiated into the jurisdiction of the ICC are slim at best. And yet environmental crimes outside armed conflict do occur and, when they do, certainly inflict"widespread, long-term, and severe"damage to the natural environment. Examples of such crimes could include reckless misconduct at nuclear power facilities78 or intentional dumping of oil and chemical wastes from ships(often cruise ships)at sea. 79 Trade in endangered species, hazardous wastes and ozone-depleting substances constitutes an underground market estimated at SU.S. 20 billion annually. 80 Another particularly troubling example of what is arguably an environmental crime which is essentially unregulated at the international level notwithstanding its transnational effects is the setting of forest fires in the Amazon basin and in Indonesia. In both cases, there is compelling evidence that these fires had been deliberately set by ://www.nsulaw.nova.edu/student/organizations/ilsajournal/6-2/drumbl%206-2.htm(8of27)[4/16/200110:12:22Pm
in times of armed conflict.68 In conclusion, unless some level of objective knowledge is read into the intentionality requirement, individuals who choose not to inform themselves that what they are doing is destructive of the environment might be able to use their ignorance as a full defense. A failure to incorporate an objective element into the Rome Statute’s environmental war crimes also represents a step backwards insofar as Protocol I had, as early as 1977, grounded responsibility not in intentional environmental harm, but simply when there was a reasonable expectation that environmental damage would occur.69 IV. Is it Worth Greening the ICC? International lawyers need to consider whether the interests of the global environment are in fact well-served by collapsing environmental crimes within an overarching multilateral mechanism. If so, then an important subsidiary question emerges: is the ICC the appropriate mechanism or should a new environmentally specific entity be created? The most immediate countervailing option to proceeding multilaterally would be to address environmental crimes within the rubric of independently negotiated regional agreements. In such cases, domestic courts, regional tribunals, or either domestic or regional regulatory agencies could serve as enforcement mechanisms. Efforts at the regional level may prove effective in combating environmental crimes within and outside the context of armed conflict. By way of example, in March, 1999, six African countries established an “African Interpol” to fight wildlife crime.70 More sweeping is the Council of Europe’s Convention on the Protection of the Environment Through Criminal Law.71 The motivation behind the Convention is that signatories should take effective measures to ensure that the perpetrators of environmental hazards having serious consequences escape neither prosecution nor punishment.72 This Convention obliges signatories to criminalize certain intentional or negligent forms of environmental offenses (although the negligence may be limited by declaration to acts of gross negligence only).73 Specific examples are provided. For instance, the intentional discharge of ionizing radiation into the air, soil, or water which causes a “significant risk” of death or serious injury is to be prohibited.74 So, too, is the unlawful disposal or transport of hazardous waste which causes or is likely to cause death, serious injury, or “substantial damage to the quality of air, soil, water, animals, or plants.”75 This latter provision is important for it goes beyond the anthropocentric approach to assessing environmental harm which often characterizes current conventions and laws. However, these successful regional initiatives should not obscure the importance of multilateral efforts. The two levels can in fact operate contemporaneously. As for the ICC, in order for it to capture environmental crimes outside of the context of war, its jurisdiction would have to be broadened. In this vein, some commentators have suggested making it a crime recklessly or intentionally to harm the environment.76 This could permit the behavior of armed forces not engaged in hostilities to be regulated, together with corporations and governments who may implement policies which promote insecurity through environmental modification. This crime has been named “geocide” or “ecocide.” Literally, this constitutes the environmental counterpart of genocide - a killing of the earth. The logic of ecocide is as follows: significantly harming the natural environment constitutes a breach of a duty of care, and this breach consists, in the least, in tortuous or delictual conduct and, when undertaken with willfulness, recklessness or negligence, ought to constitute a crime.77 Although some international environmental lawyers may find the criminalization of ecocide to be intellectually attractive, it seems fair to say that its chances of being negotiated into the jurisdiction of the ICC are slim at best. And yet environmental crimes outside armed conflict do occur and, when they do, certainly inflict “widespread, long-term, and severe” damage to the natural environment. Examples of such crimes could include reckless misconduct at nuclear power facilities78 or intentional dumping of oil and chemical wastes from ships (often cruise ships) at sea.79 Trade in endangered species, hazardous wastes and ozone-depleting substances constitutes an underground market estimated at $U.S. 20 billion annually.80 Another particularly troubling example of what is arguably an environmental crime which is essentially unregulated at the international level notwithstanding its transnational effects is the setting of forest fires in the Amazon basin and in Indonesia. In both cases, there is compelling evidence that these fires had been deliberately set by International Human Rights http://www.nsulaw.nova.edu/student/organizations/ILSAjournal/6-2/Drumbl%206-2.htm (8 of 27) [4/16/2001 10:12:22 PM]
International Human Rights businesses seeking to clear the forests for economic development. 81 Nonetheless, even if negotiators had the willingness and succeeded in according the ICC jurisdiction over ecocide as a most serious crime[ of concern to the international community as a whole, 82 concerns would remain as to the ICCs ffectiveness in terms of being able or suited to enforce such a prohibition. As a result, collapsing environmental crimes ithin the iCC might not be the most effective way to sanction such crimes. This article identifies five reasons why this might be so: (1)environmental crimes may become lost amid the hurly-burly of the ICC's activities; (2)ICC personnel have low environmental expertise and there may consequently be very high transaction costs involved in"getting up to speed"on environmental issues; (3)the sanctions which the ICC can order are not appropriate to correcting environmental desecration; (4) there is limited scope under the Rome Statute to integrate preexisting international law in he area of environmental crimes; and(5)environmental harm may well be best deterred by a negligence standard which is essentially incompatible with the mandate of a permanent international court designed to punish the most serious crimes of concern to humanity. This Article will now consider each of these in turn A. Environmental concerns lost in the shuffle Clearly, one of the major successes of the Rome Statute is that it creates an institution to actually punish the conduct it prohibits. Nonetheless, from the environmental point of view, the extent to which"environmental crimes"will receive the ICC's attention is uncertain given the broad array of other crimes to which it will have to direct its energies. The environmental war crime constitutes only one provision out of dozens in Part 2 of the Rome Statute. And A[t]his provision has largely escaped notice amid the larger debate about the creation of the court and the scope of its jurisdiction. @83 Article 8(2)(b)(iv)remains peripheral to the ongoing discussions of the Working Group on the elements of Crimes held at the Preparatory Commission sessions. 84 As a result, there is no indication that, as work on the establishment of the ICC progresses, the environmental war crime will be able to attract the attention it requires in order to be effectively implemented B. Low Environmental Expertise of the Judges and Prosecutors Judges and prosecutors on the ICC will likely not have expertise in the area of environmental law, policy or science. This can heighten the transaction costs of proceeding judicially, 85 as well as produce ineffective jurisprudence. Were environmental crimes to be litigated in a separate forum or before a specialized agency, there could be a greater guarantee of some level of scientific expertise C. Inappropriate Sanctions Part 7 of the Rome Statute offers the most contemporary compilation of the international community's thinking on international crimes ought to be punished The punishment provisions of the Rome Statute contain two limitations effectiveness of Article 8(2)(b)(iv) First, the jurisdiction of the ICC is limited to natural persons. This makes it impossible to find any institutional or state liability should it be difficult to prove that the actions of one or some individuals accounted for the environmental Law. Article 9 of which establishes jurisdiction over corporate offenders together with natural perso do ough Criminal Second, sentencing is limited to imprisonment, fines, and forfeiture of the proceeds of the crime. 87 There does not appear to be much room to compel restitution, remediation of blight, establish civil liability or, simply put, to clean up the environmental harm. This is again unlike the Council of Europe's Convention on the Protection of the Environment Through Criminal Law, Article 6 of which provides that sanctions include imprisonment, fines, as well as reinstatement of the environment. 88 This is also unlike the UNCC's approach to remedying environmental crimes committed during the Gulf War. 89 Nor does the ICC have injunctive powers to stop violations from occurring Without the ICC being able to order restorative or injunctive remedies, the curative nature of the punishment for causing widespread, long-term, and severe " damage to the natural environment is limited at best. It is true that the Rome Statute permits fines and assets collected to be transferred to a Trust Fund for the benefit of victims of the crime. 90 Access to this ://www.nsulaw.nova.edu/student/organizations/ilsajournal/6-2/drumbl%206-2.htm(9of27)[4/16/200110:12:22Pm
businesses seeking to clear the forests for economic development.81 Nonetheless, even if negotiators had the willingness and succeeded in according the ICC jurisdiction over ecocide as a “most serious crime[ ] of concern to the international community as a whole,”82 concerns would remain as to the ICC’s effectiveness in terms of being able or suited to enforce such a prohibition. As a result, collapsing environmental crimes within the ICC might not be the most effective way to sanction such crimes. This Article identifies five reasons why this might be so: (1) environmental crimes may become lost amid the hurly-burly of the ICC’s activities; (2) ICC personnel may have low environmental expertise and there may consequently be very high transaction costs involved in “getting up to speed” on environmental issues; (3) the sanctions which the ICC can order are not appropriate to correcting environmental desecration; (4) there is limited scope under the Rome Statute to integrate preexisting international law in the area of environmental crimes; and (5) environmental harm may well be best deterred by a negligence standard which is essentially incompatible with the mandate of a permanent international court designed to punish the most serious crimes of concern to humanity. This Article will now consider each of these in turn. A. Environmental Concerns Lost in the Shuffle Clearly, one of the major successes of the Rome Statute is that it creates an institution to actually punish the conduct it prohibits. Nonetheless, from the environmental point of view, the extent to which “environmental crimes” will receive the ICC’s attention is uncertain given the broad array of other crimes to which it will have to direct its energies. The environmental war crime constitutes only one provision out of dozens in Part 2 of the Rome Statute. And A[t]his provision has largely escaped notice amid the larger debate about the creation of the court and the scope of its jurisdiction.@83 Article 8(2)(b)(iv) remains peripheral to the ongoing discussions of the Working Group on the Elements of Crimes held at the Preparatory Commission sessions.84 As a result, there is no indication that, as work on the establishment of the ICC progresses, the environmental war crime will be able to attract the attention it requires in order to be effectively implemented. B. Low Environmental Expertise of the Judges and Prosecutors Judges and prosecutors on the ICC will likely not have expertise in the area of environmental law, policy or science. This can heighten the transaction costs of proceeding judicially,85 as well as produce ineffective jurisprudence. Were environmental crimes to be litigated in a separate forum or before a specialized agency, there could be a greater guarantee of some level of scientific expertise. C. Inappropriate Sanctions Part 7 of the Rome Statute offers the most contemporary compilation of the international community’s thinking on how international crimes ought to be punished. The punishment provisions of the Rome Statute contain two limitations on the effectiveness of Article 8(2)(b)(iv). First, the jurisdiction of the ICC is limited to natural persons. This makes it impossible to find any institutional or state liability should it be difficult to prove that the actions of one or some individuals accounted for the environmental desecration. This is unlike the Council of Europe’s Convention on the Protection of the Environment Through Criminal Law, Article 9 of which establishes jurisdiction over corporate offenders together with natural persons.86 Second, sentencing is limited to imprisonment, fines, and forfeiture of the proceeds of the crime.87 There does not appear to be much room to compel restitution, remediation of blight, establish civil liability or, simply put, to clean up the environmental harm. This is again unlike the Council of Europe’s Convention on the Protection of the Environment Through Criminal Law, Article 6 of which provides that sanctions include imprisonment, fines, as well as reinstatement of the environment.88 This is also unlike the UNCC’s approach to remedying environmental crimes committed during the Gulf War.89 Nor does the ICC have injunctive powers to stop violations from occurring. Without the ICC being able to order restorative or injunctive remedies, the curative nature of the punishment for causing “widespread, long-term, and severe” damage to the natural environment is limited at best. It is true that the Rome Statute permits fines and assets collected to be transferred to a Trust Fund for the benefit of victims of the crime.90 Access to this International Human Rights http://www.nsulaw.nova.edu/student/organizations/ILSAjournal/6-2/Drumbl%206-2.htm (9 of 27) [4/16/2001 10:12:22 PM]
International Human Rights Trust Fund is provided for in Article 75, which permits the iCC to make an order specifying reparations to victims for purposes of restitution, compensation, and rehabilitation. However, the Trust Fund does not address a situation where it is the natural environment directly, and humanity only indirectly, which bears the burden of the damage. In addition, the magnitude of wartime environmental harm may be so vast that resources transferred from individual defendants simply cannot go very far in terms of remedying that harm. By way of example, in the gulf war alone Kuwait's environmental claims filed with the UNCC total over $15 billion. 91 Another concern is that "to the extent that charges of environmental war crimes are ancillary to other serious charges, the concern for using the trust fund to aid human victims doubtless will take priority over addressing environmental harms. 92 This, once again, returns us to the problem of pursuing environmental goals in a regime principally designed to address genocide, persecution, and murder As a result, there is cause for concern that environmental crimes will not only be poorly cognizable under the ICC, but also that the punishment for wrongdoing will not address the unique nature of these crimes D. Limited Scope of Judicial Interpretation The list of enumerated war crimes under Article 8(2)(b)appears to be exhaustive. After all, the use of the term" namely implies that the ICC is not to have jurisdiction over serious violations of the laws and customs of war which are not listed in Article 8(2)(b). There is thus little opportunity for judicial interpretation to reach beyond the enumerated environmental war crime. To this end, it might be difficult for the ICC to use Article 2193 to incorporate in its jurisdiction the very small number of international legal materials which may provide more proactive sanction of environmental war crimes than that found in Article 8(2)(b (iv ).94 This constitutes further evidence of the limited ability of the ICC to ccommodate environmental protection concerns. After all, without the flexibility to go beyond the words of the rome Statute notwithstanding developments in international environmental law, the ICC may not be able to do justice to any such developments E. No Room for Negligence or Recklessness The ICC is designed to deter criminal behavior. Unlike direct humanitarian abuses, environmental crimes during warfare may often involve conduct which tends more to the negligent, reckless, or willfully blind than to the intentional. Intention is always difficult to prove. So, too, is causation. Consequently, in order for the ICC to remain within its present mandate it will have to let go all but the most flagrant incidents of deliberate environmental desecration As a result, some of the recommendations suggested in this article to enhance the effectiveness of Article 8(2)(b)(v)may simply not be able to be accommodated by the present mandate of the ICC. 95 Two commentators have offered the following well-placed remarks regarding two of these recommendations [t is difficult to imagine how the [cc] could relax both the threshold of damage and the intent requirement while remaining within its existing mandate. The ountries that acceded to the Rome Statute simply could not have intended to let their military officers be prosecuted for any action hitted with any state of mind, that causes any environmental damage. 96 If only the most egregious form of environmental insecurity has been caught by the ICC, does this augur well for the future promotion of environmental security within the structures of international criminal or humanitarian law? In the end hese structures may only be able to address environmental insecurity in a very limited fashion. The question thus ar whether encouraging remediation as a"punishment(instead of individual imprisonment, fines, and the resultant stigmatization) might bring more nations on board in terms of sanctioning less egregious (yet, when aggregated, likely more destructive) forms of environmental destruction during armed conflict. If so, then an organization supervising a strict liability regime supplemented by a remediation fund might be a preferable institutional device. Such an organization could be established on a regional or ad hoc basis(such as the UNCC ). On the other hand, such an institution may be capable of development as a permanent multilateral entity which could minister to the remediation of global environmental harm. If the fund were to operate on an "at-fault"basis, then it could be financed by the international community yet retain subrogation rights against perpetrators of environmental harm. If the remediation fund were to operate on a"no-fault"basis, it could be capitalized by international contributions assessed by the size and nature of a nation s armed forces(based on the capacity of those forces to create environmental harms ).97 Capitalization can also be sought from the private sector, namely manufacturers of weapons. In this latter regard, the ://www.nsulaw.novaedu/student/organizations/ilsajournal/6-2/drumbl%206-2.htm(10of27)(4/16/200110:12:22Pm
Trust Fund is provided for in Article 75, which permits the ICC to make an order specifying reparations to victims for purposes of restitution, compensation, and rehabilitation. However, the Trust Fund does not address a situation where it is the natural environment directly, and humanity only indirectly, which bears the burden of the damage. In addition, the magnitude of wartime environmental harm may be so vast that resources transferred from individual defendants simply cannot go very far in terms of remedying that harm. By way of example, in the Gulf War alone Kuwait’s environmental claims filed with the UNCC total over $15 billion.91 Another concern is that “to the extent that charges of environmental war crimes are ancillary to other serious charges, the concern for using the trust fund to aid human victims doubtless will take priority over addressing environmental harms.”92 This, once again, returns us to the problem of pursuing environmental goals in a regime principally designed to address genocide, persecution, and murder. As a result, there is cause for concern that environmental crimes will not only be poorly cognizable under the ICC, but also that the punishment for wrongdoing will not address the unique nature of these crimes. D. Limited Scope of Judicial Interpretation The list of enumerated war crimes under Article 8(2)(b) appears to be exhaustive. After all, the use of the term “namely” implies that the ICC is not to have jurisdiction over serious violations of the laws and customs of war which are not listed in Article 8(2)(b). There is thus little opportunity for judicial interpretation to reach beyond the enumerated environmental war crime. To this end, it might be difficult for the ICC to use Article 2193 to incorporate in its jurisdiction the very small number of international legal materials which may provide more proactive sanction of environmental war crimes than that found in Article 8(2)(b)(iv).94 This constitutes further evidence of the limited ability of the ICC to accommodate environmental protection concerns. After all, without the flexibility to go beyond the words of the Rome Statute notwithstanding developments in international environmental law, the ICC may not be able to do justice to any such developments. E. No Room for Negligence or Recklessness The ICC is designed to deter criminal behavior. Unlike direct humanitarian abuses, environmental crimes during warfare may often involve conduct which tends more to the negligent, reckless, or willfully blind than to the intentional. Intention is always difficult to prove. So, too, is causation. Consequently, in order for the ICC to remain within its present mandate it will have to let go all but the most flagrant incidents of deliberate environmental desecration. As a result, some of the recommendations suggested in this Article to enhance the effectiveness of Article 8(2)(b)(iv) may simply not be able to be accommodated by the present mandate of the ICC.95 Two commentators have offered the following well-placed remarks regarding two of these recommendations: [I]t is difficult to imagine how the [ICC] could relax both the threshold of damage and the intent requirement while remaining within its existing mandate. The countries that acceded to the Rome Statute simply could not have intended to let their military officers be prosecuted for any action, committed with any state of mind, that causes any environmental damage.96 If only the most egregious form of environmental insecurity has been caught by the ICC, does this augur well for the future promotion of environmental security within the structures of international criminal or humanitarian law? In the end, these structures may only be able to address environmental insecurity in a very limited fashion. The question thus arises whether encouraging remediation as a “punishment” (instead of individual imprisonment, fines, and the resultant stigmatization) might bring more nations on board in terms of sanctioning less egregious (yet, when aggregated, likely more destructive) forms of environmental destruction during armed conflict. If so, then an organization supervising a strict liability regime supplemented by a remediation fund might be a preferable institutional device. Such an organization could be established on a regional or ad hoc basis (such as the UNCC). On the other hand, such an institution may be capable of development as a permanent multilateral entity which could minister to the remediation of global environmental harm. If the fund were to operate on an “at-fault” basis, then it could be financed by the international community yet retain subrogation rights against perpetrators of environmental harm. If the remediation fund were to operate on a “no-fault” basis, it could be capitalized by international contributions assessed by the size and nature of a nation’s armed forces (based on the capacity of those forces to create environmental harms).97 Capitalization can also be sought from the private sector, namely manufacturers of weapons. In this latter regard, the International Human Rights http://www.nsulaw.nova.edu/student/organizations/ILSAjournal/6-2/Drumbl%206-2.htm (10 of 27) [4/16/2001 10:12:22 PM]
