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)[4/16/200110:12:21PmInternational 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]