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)[4/16/200110:12:22Pmbusinesses 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]