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