International Human Rights the elements it contains is not pitched at such a high level so as to strip the provision of any practical effect. This may well require the threshold of responsibility to be relaxed from the international community's current understanding of the meaning of"widespread, "long-term, and" harm B. Exculpatory Effects of Military Advantage Even if there is proof of widespread, long-term and severe damage to the natural environment, liability is only found if this damage is" clearly excessive" in relation to the"concrete and direct overall military advantage anticipated This second material element permits"military objectives [to be] offered as a defense against charges of environmental damage, even intentional damage, as long as that damage is outweighed by the expected military gain. 55 The exculpating force of"proof of military advantage" traces its roots to the doctrine of"military necessity. " This doctrine has historically been used to mitigate or eliminate responsibility often for grievous breaches of humanitarian standards. In short, " military necessity" is a principle of customary international law56whichauthorizes' military action when such action is necessary for the overall resolution of a conflict, particularly when the continued existence of the acting state would otherwise be in jeopardy. 57 At the Nuremberg trials, the doctrine of military necessity was applied to the destruction of property(the closest the international community has yet come to an environmental war crimes proceeding) in the following manner The destruction of property to be lawful must be imperatively demanded by the necessities of war. Destructi law. There must be some re ble connection between the destruction of property and the overcoming of the enemy forces. 58 Military advantage" may bear an even lower threshold of proof than"military necessity. "As a result, the prohibition in Article 8(2)(b)(iv) may be narrower than its antecedents at customary international law. In the case of Article 8(2)(b (iv) the ambit of" military advantage " is limited by the fact that only" concrete and direct overall military advantage anticipated" can justify the environmental damage. Nonetheless, concrete and direct overall military ady inticipated" still seems easier to prove than"military necessity. In addition, although the"military necessity " defense may in fact form part of customary international law, it is noteworthy that Protocol I, in its prohibition of widespread long-term and severe" harm, did not permit proof of any military advantage or necessity to eliminate wrongdoing. 59 As a result, Article 8(2)(b(iv)'s prohibition is but a diluted version of that in Protocol I There are other concerns with "military advantage"in Article 8(2)(b)(iv). First, although a "proportionality test"(i.e the environmental damage must be clearly excessive in relation to the concrete and direct overall military advantage )is established, no guidelines, definitions or examples of"clearly excessive"are provided. In fact, "the addition of the word in the definition of collateral damage is not reflected in any existing legal source. 60 To this end memoranda of understanding of the Parties to the Rome Statute or initial decisions by the ICC will be important in setting the scope for clearly" excessive Second, the factual element of the proportionality test is also unclear: since proof of "clearly excessive "is required order to find someone guilty, and since the burden of proof rests with the Prosecutor, what type of research and data will have to be marshaled? In addition, adjectival terms such as" concrete "and"direct" and overall " military advantage are somewhat vague and have not yet been comprehensively defined by international law. Nor does the rome Statute provide more particularized definitions of the meaning of these terms. As for" overall, the ICRC has suggested that it indicates that a particular target can have an important military advantage that can be felt over a lengthy period of time and affect military action in areas other than the vicinity of the target itself. 61 In the end, the extent to which these adjectives qualify or extend the exculpating effect of military advantage will bear heavily on the ability of Article 8(2)(b (iv)to punish environmental crimes Finally, the military advantage needs simply to be"anticipated. What does this term signify? Some clarification as to the meaning of anticipated" can emerge from a consideration of state declarations made to the use of "military advantage"( in prior international conventions. It is reported that //ww. nsulaw nova edu/student/organizations/IL SAjournal/6-2/Drumbl %206-2 htm(6 of 27)[4/16/2001 10: 12: 22 PMthe elements it contains is not pitched at such a high level so as to strip the provision of any practical effect. This may well require the threshold of responsibility to be relaxed from the international community’s current understanding of the meaning of “widespread,” “long-term,” and “severe” harm. B. Exculpatory Effects of Military Advantage Even if there is proof of widespread, long-term and severe damage to the natural environment, liability is only found if this damage is “clearly excessive” in relation to the “concrete and direct overall military advantage anticipated.” This second material element permits “military objectives [to be] offered as a defense against charges of environmental damage, even intentional damage, as long as that damage is outweighed by the expected military gain.”55 The exculpating force of “proof of military advantage” traces its roots to the doctrine of “military necessity.” This doctrine has historically been used to mitigate or eliminate responsibility often for grievous breaches of humanitarian standards. In short, “military necessity” is a principle of customary international law56 “which ‘authorizes’ military action when such action is necessary for the overall resolution of a conflict, particularly when the continued existence of the acting state would otherwise be in jeopardy.”57 At the Nuremberg trials, the doctrine of military necessity was applied to the destruction of property (the closest the international community has yet come to an environmental war crimes proceeding) in the following manner: The destruction of property to be lawful must be imperatively demanded by the necessities of war. Destruction as an end in itself is a violation of international law. There must be some reasonable connection between the destruction of property and the overcoming of the enemy forces.58 “Military advantage” may bear an even lower threshold of proof than “military necessity.” As a result, the prohibition in Article 8(2)(b)(iv) may be narrower than its antecedents at customary international law. In the case of Article 8(2)(b)(iv), the ambit of “military advantage” is limited by the fact that only “concrete and direct overall military advantage anticipated” can justify the environmental damage. Nonetheless, “concrete and direct overall military advantage anticipated” still seems easier to prove than “military necessity.” In addition, although the “military necessity” defense may in fact form part of customary international law, it is noteworthy that Protocol I, in its prohibition of “widespread, long-term and severe” harm, did not permit proof of any military advantage or necessity to eliminate wrongdoing.59 As a result, Article 8(2)(b)(iv)’s prohibition is but a diluted version of that in Protocol I. There are other concerns with “military advantage” in Article 8(2)(b)(iv). First, although a “proportionality test” (i.e. the environmental damage must be clearly excessive in relation to the concrete and direct overall military advantage) is established, no guidelines, definitions or examples of “clearly excessive” are provided. In fact, “the addition of the word[ ] ‘clearly’ ... in the definition of collateral damage is not reflected in any existing legal source.”60 To this end, memoranda of understanding of the Parties to the Rome Statute or initial decisions by the ICC will be important in setting the scope for “clearly” excessive. Second, the factual element of the proportionality test is also unclear: since proof of “clearly excessive” is required in order to find someone guilty, and since the burden of proof rests with the Prosecutor, what type of research and data will have to be marshaled? In addition, adjectival terms such as “concrete” and “direct” and “overall” military advantage are somewhat vague and have not yet been comprehensively defined by international law. Nor does the Rome Statute provide more particularized definitions of the meaning of these terms. As for “overall,” the ICRC has suggested that it indicates “that a particular target can have an important military advantage that can be felt over a lengthy period of time and affect military action in areas other than the vicinity of the target itself.”61 In the end, the extent to which these adjectives qualify or extend the exculpating effect of military advantage will bear heavily on the ability of Article 8(2)(b)(iv) to punish environmental crimes. Finally, the military advantage needs simply to be “anticipated.” What does this term signify? Some clarification as to the meaning of “anticipated” can emerge from a consideration of state declarations made to the use of “military advantage”{ in prior international conventions. It is reported that: International Human Rights http://www.nsulaw.nova.edu/student/organizations/ILSAjournal/6-2/Drumbl%206-2.htm (6 of 27) [4/16/2001 10:12:22 PM]