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]