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