PROSECUTING ENVIRONMENTAL DAMAGE UNDER INTERNATIONAL CRIMINAL LAW by dfgh4bnmu

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									              PROSECUTING ENVIRONMENTAL DAMAGE UNDER

                           INTERNATIONAL CRIMINAL LAW

                                            Matthew Gillett1


Abstract:

          With environmental issues such as climate change, deforestation, loss
          of biological diversity and pollution emerging as global threats over the
          last two decades, and with diplomatic efforts such as the 2009
          Copenhagen Climate Summit failing to produce convincing solutions, it
          is critical to explore alternative means of preventing serious damage to
          the environment. One possible mechanism is international criminal law,
          which has experienced a remarkable resurgence over the last twenty
          years. International tribunals have been created and have adjudicated
          cases and international criminal law has been codified and
          jurisprudentially developed. However, despite this activity,
          prosecutions at the international level of those responsible for severe
          environmental destruction have not eventuated.

          Certain commentators suggest that too much emphasis is placed on
          prosecuting individuals responsible for grave destruction of the
          environment under provisions directly prohibiting such damage,
          otherwise known as ecocentric provisions. These commentators suggest
          that it would be more productive to prosecute environmental damage
          indirectly under well-established prohibitions against harm to human
          beings and their interests, otherwise known as anthropocentric
          provisions. In order to explore the validity of this claim, this report sets
          out a performance appraisal and analysis of the prosecution of serious
          environmental damage under international law. It is designed to
          stimulate those working in the field of international environmental law
          to look to international criminal law as a means of protecting the natural
          environment. At the same time, it is hoped to generate suggestions for
          the further incorporation of environmental law principles into
          international criminal law.



Introduction: Adding an extra tool to the kit

Human conflict has resulted in severe damage to the environment throughout the history
of mankind. Over the last two decades, the natural environment has been seriously

1
       Matthew Gillett is a Legal Officer in the Office of the Prosecutor of the International Criminal
Tribunal for the former Yugoslavia. All views expressed herein are those of the author and do not represent
those of the Office of the Prosecutor of the International Criminal Tribunal for the former Yugoslavia or the
United Nations.
harmed on a number of occasions, most visibly during the Gulf War in 1991. With
technological sophistication developing rapidly, mankind‟s potential destructiveness
continues to increase and the international community is becoming aware of the fragility
of the natural habitat. At the same time, the past twenty years have witnessed the
remarkable rise of international criminal law. This body of law and practice presents an
underexplored vehicle to address environmental damage. The following analysis seeks to
highlight the potential, and some of the remaining hurdles, of using international criminal
law to prevent and punish serious destruction of the environment.

It should be noted at the outset that international criminal law is not a panacea capable of
eliminating the threat of environmental destruction. Indeed, international criminal law is
inherently post hoc – for a trial to occur the damage must usually have already occurred.2
Although deterrence is an aim of international criminal law, it goes beyond the core
objective of ensuring that perpetrators of atrocities face justice. Accordingly, the aim of
this paper is not to shift the focus of the struggle to protect the environment away from
political and regulatory solutions. Rather, it is intended to explore ways in which
international criminal law can be better used as an additional tool to protect the
environment.

Terminology and ambit of the study

With respect to terminology, two theoretical approaches – anthropocentrism and
ecocentrism, are referred to herein. Proponents of the former take an essentially utilitarian
view, attributing value to the environment to the extent it serves the interests of
humankind.3 Proponents of the latter view ascribe an intrinsic value to the environment,
so that any damage to it is a harm in and of itself, irrespective of whether human beings
suffer as a result.4

Although the analysis herein focuses on international criminal law, it also uses the term
“law of armed conflict”. The law of armed conflict encompasses international
humanitarian law (jus in bello), public international law concerning when states may
engage in armed conflict (jus ad bellum), as well as human rights law applicable in armed
conflict. The relationship between the law of armed conflict and environmental law is
underexplored. Some guidance can be gleaned from the advisory opinion of the
International Court of Justice (“ICJ”) on the threat or use of nuclear weapons. It held that
neither environmental law nor the law of armed conflict5 overrides the other. At the same

2
        There is a possible exception to this requirement under the mode of liability of attempt, which is
included in the Rome Statute of the International Criminal Court, Article 25(3)(f). Given the gravity
requirements underlying international criminal law, for example in Article 53 of the Rome Statute, it is
unlikely, though not inconceivable, that an individual would be prosecuted for attempt in relation to
damage to the environment.
3
        See for example Brigadier-General Joseph G. Garrett III, US Army, “The Army and the
Environment: Environmental Considerations during Army Operations” in Richard Grunawalt, John King
and Ronald McClain (eds.), Protection of the Environment During Armed Conflict, International Law
Studies, Vol.69 (1996), pp.42, 45-46.
4
        See for example Eric Jensen, “The International Law of Environmental Warfare: Active and Passive
Damage During Armed Conflict, 38 Vand. J. Transnat‟l L. 145 (2005).
5
        The ICJ referred specifically to jus ad bellum but the broader context of its decision has clear
implications for jus in bello as well; see Legality of Threat or Use of Nuclear Weapons, Advisory Opinion,
I.C.J. Reports 1996, p.226 (“Advisory Opinion on Nuclear Weapons”), para.34.




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time, it held that environmental law informs the law of armed conflict, particularly in
relation to the requirements of proportionality and necessity.6 As such, the relationship
does not fit the simple lex specialis model, but rather can be characterised as a dynamic
reciprocal interaction.

International criminal law refers to the law, procedures, and institutions connected with
the trials of persons accused of the most serious crimes of concern to the international
community. The trials typically focus on notorious episodes of criminality, such as in
Rwanda, Sierra Leone, the ex-Yugoslavia, Cambodia, and East Timor. Various
institutions have applied international criminal law over the last two decades, beginning
with the International Criminal Tribunal for the former Yugoslavia (“ICTY”) and the
International Criminal Tribunal for Rwanda (“ICTR”) in the early 1990s, following on
with the creation of the International Criminal Court (“ICC”) in 1998, and most recently
featuring the establishment of the Special Tribunal for Lebanon (“STL”).

A number of environmental treaties concern species of flora and fauna, the seas, and the
atmosphere and require states to criminalise damage to those aspects of the environment.7
Whilst these conventions fall outside the scope of international criminal law in its
institutional form (the form of international criminal law examined in this paper), 8 they
are also valid mechanisms for addressing serious environmental threats, meriting further
development. The difference between those mechanisms and the ones examined in this
paper is that whereas the former rely on domestic institutions for investigations and
prosecutions, the latter complement domestic prosecutions with international or
internationalised judicial bodies, such as the ICC. The mechanisms examined in this
paper thus offer the potential added value of the procedures and resources of international
institutions acting outside the confines of domestic criminal systems. Although this added
value should not be over-exaggerated, it is significant in a number of respects. The ICC,
for example, currently has 113 State Parties, which would be required to cooperate with
the Court if it issued a warrant of arrest for an individual accused of crimes within the
Court‟s jurisdiction. The added value would be particularly significant where the State
normally exercising jurisdiction was unable or unwilling to try perpetrators of serious
damage to the environment. In such circumstances, the Court would have an independent
power to prosecute the perpetrators.



6
          Advisory Opinion on Nuclear Weapons, paras.30, 33. See also Office of the Prosecutor Press
Release, Prosecutor‟s Report on the NATO Bombing Campaign; The Hague, 13 June 2000, PR/ P.I.S./
510-e; Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing
Campaign Against the Federal Republic of Yugoslavia (“Final Report on NATO”), available at
http://www.icty.org/sid/7846 (last accessed 4 October 2009), para.22. As another example, see the US
Commander's Handbook on the Law of Naval Operations, cited in Rymn James Parsons, “The Fight to
Save the Planet: U.S. Armed Forces, “Greenkeeping,” and Enforcement of the Law Pertaining to
Environmental Protection During Armed Conflict”, 10 Geo. Int'l Envtl. L. Rev. 441 (1998), p.478.
7
        See, e.g., International Convention for the Regulation of Whaling 1946, 161 UNTS 72, TIAS 1849,
62 Stat.(2) 1716, 4 Bevans 248, Article IX(3); Convention for the Prevention of Marine Pollution by
Dumping from Ships and Aircraft, 15 February 1972, Article 15(3), UKTS 119, 11 ILM 352; Basel
Convention on the Control of Transboundary Movement of Hazardous Wastes and their Disposal, Article
9, 22 March 1989, 28 ILM 657.
8
        Contrast Stephen McCaffrey, “Criminalisation of Environmental Protection”, in Cherif Bassiouni,
International Criminal Law (3rd ed.) (Martinus Nijhoff: Leiden 2008), Vol.I, p.1018 (listing eight indicia,
the presence of any one of which would qualify an instrument as part of international criminal law).




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Given the current topography of international criminal law, the present study has a
primary, though not exclusive, focus on prosecuting environmental damage through the
mechanisms of the ICC. Whereas the other international tribunals and courts are limited
to addressing crimes committed in specific geographic and temporal contexts, the ICC
has a potentially unlimited temporal and geographic jurisdictional reach. 9 Furthermore,
unlike the other courts and tribunals, the ICC is intended to be a permanent court.

The paltry record of prosecutions under international criminal law for
environmental damage

The issue at the heart of this paper is how best to use international criminal law to address
serious environmental damage. This paper does not analyse the anterior question of
whether the prosecution of environmental damage should be undertaken at all, but instead
proceeds on the basis that the stigma and financial consequences of a conviction make
criminal proceedings an effective mechanism to counter and deter environmental
destruction.10

Surveying the operation of international criminal law shows that it presents a potential,
rather than a demonstrated, means of addressing environmental destruction. No
individual has yet been convicted within this context of environmental crimes.11 A small
number of cases arising from World War II concerned instances of serious environmental
damage. The most notable was that of German General Lothar Rendulic before the
International Military Tribunal at Nuremberg. In pursuit of his scorched earth tactics,
German troops burnt and destroyed villages and surrounding facilities in the Norwegian
province of Finmark when retreating from an advancing Russian army. Rendulic was
ultimately acquitted of the charge of wanton destruction, as the Tribunal accepted that he
genuinely (though wrongly) perceived the destruction to be militarily justified at the
time.12

Since Nuremberg, there have been no significant prosecutions under international
criminal law for serious damage to the environment. Neither the ICTY nor the ICTR has
9
        For example, under Article 13(b) of the Rome Statute, the United Nations Security Council may
refer a situation to the Court from any area of the world.
10
        See Stephen McCaffrey, “Criminalisation of Environmental Protection”, in Cherif Bassiouni,
International Criminal Law (3rd ed.) (Martinus Nijhoff: Leiden 2008), Vol.I, p.1015-1016.
11
        Tara Weinstein, “Prosecuting Attacks that Destroy the Environment: Environmental Crimes or
Humanitarian Atrocities?”, 17 Geo. Int‟l Envtl. L. Rev. 697 (2005), (“Weinstein 2005”), p.698.
12
        The Hostages Trial (Wilhelm List and Others), 8 Law Reports of Trials of War Criminals 66, 66-69
(1948); Ensign Florencio J.Yuzon, Deliberate Environmental Modification Through the Use of Chemical
and Biological Weapons : “Greening” the International Laws of Armed Conflict to Establish an
Environmentally Protective Regime, 11 Am. U. J. Int‟l L. & Pol‟y 793, 815. Another German military
officer, Alfred Jodl was also prosecuted in part for scorched-earth practices in the north of Norway; Trials
of War Criminals Before the Nuernberg Military Tribunals under Control Council Law No.10, Part XXII,
November 1945-October 1946, 568-71 (1948). In other proceedings, nine German civilian officials in
occupied Poland were charged with for their “ruthless exploitation of Polish forestry,” involving the
“wholesale cutting of Polish timber to an extent far in excess of what was necessary to preserve the timber
resources of the country.” The Committee of the United Nations War Crimes Commission found that a
prima facie case of pillage under article 53 of the Four Geneva Conventions was established and listed the
German officials as accused war criminals. History of the United Nations War Crimes Commission and the
Development of the Laws of War 496 (Her Majesty‟s Stationary Office, 1948) (discussing Case No. 7150);
cited in Aaron Schwabach, “Ecocide and Genocide in Iraq: International Law, the Marsh Arabs, and
Environmental Damage in Non-International Conflict”, 15 Colo. J. Int‟l Envtl. L. & Pol‟y 1 (2004), p.17.




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undertaken such prosecutions.13 At the International Criminal Court, the charges against
Omar Al-Bashir are founded upon the systematic pillaging of villages across a large
area.14 While such destruction is analogous to the widespread destruction discussed in the
World War II scorched-earth cases, it is not a direct prosecution for environmental
damage.15

Given the lack of prosecutions, an immediate question that arises is whether the lack of
prosecutions for environmental damage constitutes an enforcement issue rather than a
deficit in the existing legal provisions. The International Committee of the Red Cross
(“ICRC”), in relation to the suggested creation of a fifth Geneva Convention for the
protection of the environment, has taken the position that existing law is largely sufficient
to protect the environment and that the issue is rather the enforcement of the law.16 A
symposium of military and academic experts addressing the protection of the
environment during armed conflict and other military operations endorsed the ICRC‟s
position in this respect.17

In support of the ICRC position, there are indeed a number of provisions of international
humanitarian law prohibiting or limiting the opportunity for environmental destruction.
For example, in making military targeting decisions, commanders are required to pay
attention to the environment,18 and reprisals against the environment are prohibited, and
thus would not provide any defence to the charge.19 Moreover, the environment
presumptively enjoys protection against intentional attacks on civilian objects.20
Intentionally attacking the environment would thus violate the principle of distinction. It
is also true that the lack of enforcement of environmental prohibitions, and international
criminal law in general, is a serious problem.21 However, it would be unwise to focus
only on enforcement and ignore the significant problems remaining in the legal landscape

13
        A committee from the Office of the Prosecutor of the ICTY enquired into the potential criminality
of NATO actions during its bombing campaign against the Federal Republic of Yugoslavia in 1999. The
Committee found that the NATO bombing campaign did cause damage to the environment, but that the
damage did not reach the threshold required by Additional Protocol I. See Final Report on NATO, paras.14,
17.
14
        Prosecutor v. Omar Al Bashir, Case No.ICC-02/05-01/09, Warrant of Arrest for Omar Hassan
Ahmad Al Bashir, 12 July 2010, pp.5-7.
15
        Although the burning of villages in Darfur is similar in effect to the scorched earth policies inflicted
on Norway by the Nazis during World War II, it should be noted that the crime of pillaging technically
relates to the appropriation, rather than the destruction, of property; ICC Elements of Crimes, Article
8(2)(e)(v). Other ICC indictees facing charges of pillage and/or destruction of property include Germain
“Simba” Katanga and Mathieu Ngudjolo for crimes committed during the armed conflict in the Democratic
Republic of Congo, Jean-Pierre Bemba Gombo for crimes committed in the Central African Republic,
Ahmad Muhammad Harun and Ali Muhammad Ali Abd-Al-Rahman for crimes committed in Darfur,
Sudan, and Joseph Kony, Vincent Otti, Okot Odhiambo and Dominic Ongwen for crimes committed in
Uganda.
16
        Antoine Bouvier, “Protection of the Environment in Time of Armed Conflict”, International Review
of the Red Cross no. 285, p.567-578, available at http://www.icrc.org/Web/eng/siteeng0.nsf/html/57JMAU
(last access 7 July 2010).
17
        Parsons 1998, p.476.
18
        Advisory Opinion on Nuclear Weapons, paras.30-31.
19
        ICJ Legality of Nuclear Weapons, para.30-31.
20
        This is indicated inter alia by the placement of Article 55(2) in Additional Protocol 1 under the
heading “civilian objects”.
21
        Note, for example, the still outstanding ICC arrest warrants for inter alia Joseph Kony and the
leaders of the Lords Resistance Army in Uganda.




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relevant to environmental destruction. Indeed, it is difficult to overcome inadequacies in
the law by enforcing those very same inadequate provisions.

The underdevelopment of international criminal law with respect to the
environment

Numerous legal hurdles restrict the efficacy of prosecutions for environmental damage.
For a start, there are few environmental provisions that entail criminal responsibility. The
primary ecocentric prohibition – against causing widespread, long-term and severe
damage to the environment, finds restatement in Article 8(2)(b)(iv) of the Rome Statute
of the ICC, which is subject to considerable limitations.

The ICC, despite being the face of the future of international criminal justice, is
hampered in its ability to prosecute environmental damage due to significant
jurisdictional and operational constraints. Temporally, it cannot prosecute crimes that
occurred prior to 1 June 2002. Materially, the crimes that it can prosecute are strictly
enumerated and only include one provision (Article 8(2)(b)(iv)) explicitly addressing
serious damage to the environment. As its name indicates, that one provision is hedged
with qualifications that render it inapplicable to all but the most extreme incidents of
environmental destruction. It incorporates a permissive military necessity test and
requires a high showing of mens rea. Furthermore, the environmental damage has to be
committed in an international armed conflict and connected with that armed conflict for
liability to arise.22 Moreover, as a customary rule, the prohibition on causing widespread,
long-term, and severe damage to the environment is not considered by the ICRC to apply
to nuclear weapons and may not even cover persistent objector States, such as the United
States, with respect to conventional weapons.23 Consequently, international criminal law
must be further developed in order to realise its potential as a tool for the effective
prosecution of environmental destruction.

The use of anthropocentric provisions to prosecute environmental damage

Certain commentators have suggested that protecting the environment through
international criminal law may be better achieved in the short term by utilising
anthropocentric provisions rather than ecocentric provisions. These commentators do not
seek to minimise or downplay the serious threat of environmental damage. Rather, they
argue that using anthropocentric prohibitions, instead of direct prosecutions under
ecocentric provisions, will be a more effective means of curbing serious harm to the
environment in the short-term. Proceeding in this manner can be called the bypass
approach as it eschews the direct route in favour of an alternative means of preventing
and punishing environmental harm.

A leading proponent of this alternative approach, Tara Weinstein, argues that instead of
doggedly pursuing direct prosecutions under ecocentric provisions, as an intermediate
step “the international community should focus on prosecuting environmental destruction

22
     See also Parsons 1998, p.451.
23
     Jean-Marie Henckaerts, “Customary International Humanitarian Law: A Response to US
Comments”, 89 Int‟l Rev. Red Cross 473, (2007), p.482. See also John Bellinger and William Haynes, “A
US Government Response to the International Committee of the Red Cross Study Customary International
Humanitarian Law”, 89 Int‟l Rev. Red Cross 443 (2007), 455-460.




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when conducted to achieve another atrocity, such as genocide or crimes against
humanity”.24 Other authors express similar sentiments.25 Prosecutions under these
alternative provisions would provide litigated documentation of individual criminal
culpability for environmental destruction, while at the same time avoiding some of the
restrictions inherent in current ecocentric provisions.

A number of benefits would ensue from the bypass approach. First, it would avoid the
potentially prohibitive requirement of proving the extent of the environmental damage
with scientific certainty. Proving widespread, long-term, and severe damage beyond
reasonable doubt would be extremely difficult. Using the prohibitions against wanton
destruction (Article 8(2)(a)(iv) for international conflicts) and destruction of property of
an adversary (Article 8(2)(e)(xii) applicable in non-international armed conflicts) and
inhumane acts (under Article 7(1)(k)) could potentially capture environmentally
deleterious conduct without requiring the demonstration of exacting scientific proof.
Second, the bypass approach avoids the limitation on its application to international
armed conflicts. Neither genocide nor crimes against humanity require a nexus to armed
conflict. Third, other criminal provisions do not contain the permissive military
expediency test of Article 8(2)(b)(iv), which obliges the Prosecution to show that the
accused knew or unreasonably dismissed the prospect that the destruction would be
“clearly excessive” in relation to the concrete military advantage anticipated.

The bypass approach is used in other settings.26 One example is that of using persecution
as a crime against humanity to punish the denial of fundamental rights, such as the rights
to life, freedom and security of the person.27 The crime of persecution centres primarily
on discrimination against a protected group (political, racial, national, ethnic, cultural,
religious, or gender).28 The Prosecution must prove the specific discriminatory intent of
the perpetrators. However, the Prosecution must also prove the physical component of the
crime, which includes human rights violations as well as more tangible crimes, such as
murder, torture, and sexual violence. Consequently, the crime of persecution provides a
vehicle to punish human rights violations, so long as the Prosecution can also show
discriminatory intent. In this way human rights violations can be criminally punished,
despite the fact that they constitute a harm distinct from, but nonetheless overlapping
with, the harm of discrimination on a prohibited basis.29

An example of the application of the bypass approach in relation to environmental
damage can be found in the charges against Omar Al-Bashir before the ICC.30 Among the
methods that the Prosecution accused Al-Bashir of using in his genocidal campaign in
Darfur was destroying “food, wells and water pumping machines, shelter, crops and

24
       Weinstein 2005, p.698.
25
       Dr. Mohammed Wattad, “The Rome Statute & Captain Planet: What Lies Between „Crimes Against
Humanity‟ and the „Natural Environment‟?‟”, 19 Fordham Envtl L. Rev. 265 (2009), “I argue that
damaging the natural environment suits the concept of „crimes against humanity‟”, p.282.
26
       Weinstein 2005, p. 713.
27
       See Prosecutor v. Nahimana et al., Case No.ICTR-99-52-A, Appeal Judgement, 28 November 2007,
para.986.
28
       Rome Statute of the ICC, Article 7(1)(h).
29
       In this way, the crime of persecution acts as a bridge between international humanitarian law and
human rights law.
30
       Strictly speaking, the ICC uses the term “document containing the charges” instead of “indictment”,
but the latter is used herein for the sake of brevity.




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livestock, as well as any physical structures capable of sustaining life or commerce.”31
This indicates that the use of environmental destruction to cause serious harm to national,
religious, racial or ethnic groups of people (for example through large-scale killing,
causing severe mental or physical suffering, inflicting conditions of life on a group of
people calculated to bring about its physical destruction in whole or in part, or imposing
measures intended to prevent births within the group)32 may be charged and prosecuted
under the rubric of genocide.33

In a similar vein, Weinstein suggests that charges of genocide and other crimes against
humanity could be used to prosecute the devastating draining of the marshes in southern
Iraq in the 1990s. The draining of this 20,000 square kilometre area at the meeting point
of the Tigris and Euphrates rivers was accelerated by Saddam Hussein after the Shi‟a
population‟s failed uprising against his rule following the 1991 Gulf War. The effects on
the ecosystem and the local population were severe. 90% of the marshes dried out by the
year 2000 and the number of Marsh Arabs living in the area dropped from over 250,000
in 1990 to 40,000 by 1993.34 Prosecuting this environmental destruction under
anthropocentric provisions would avoid the stringent requirements of proving
widespread, long-term and severe damage to the environment. It would reduce the need
for scientific certainty as to the sufficiently long-term duration of the damage. It would
obviate the need to show a connection to an international armed conflict. Perhaps most
importantly, it would eliminate the need to show that no reasonable decision-maker could
have determined that the damage was not clearly excessive in relation to the anticipated
military advantage.35

In light of the above considerations, the bypass approach has a number of advantages.
Moreover, examples of its potential application are readily identifiable. In that respect, it
is a promising means of addressing environmental damage.

The disadvantages of using anthropocentric provisions to prosecute environmental
damage

International criminal law has a strong symbolic component. Prosecuting environmental
damage indirectly under anthropocentric provisions may result in convictions of limited
symbolic impact vis-à-vis environmental values. The harm to the environment will not be
recognized as a wrongful act per se. On the face of the judgement, the sanction imposed
will be founded on the anthropocentric harm rather than the ecocentric harm resulting
31
       Prosecution‟s Application under Article 58, ICC-02/05-151-US-Exp and ICC-02/05-151-US-Exp-
Anxsl-89; Corrigendum ICC-02/05-151-US-Exp-Corr and Corrigendum ICC-02/05-151-US-Exp-Corr-
Anxsl & 2. A public redacted version was filed on 12 September 2008, ICC-02/05-157-AnxA
(“Prosecution Application”), para.174.
32
       See Rome Statute, Article 6(a), (b), (c) and (d).
33
       The Prosecution would have to prove genocidal intent in connection with these actions. In this
respect, it is notable that although the Trial Chamber initially rejected the Prosecution‟s application for a
warrant of arrest on genocide charges, it did so on an incorrect basis and subsequently accepted that Al-
Bashir‟s genocidal intent was a reasonable inference based on the evidence; Second Warrant of Arrest
against Omar Hassan Ahmad Al Bashir, ICC-02/05-01/09, 12 July 2010 2009, Pre-Trial Chamber 1;
Judgement on the Appeal of the Prosecutor against the “Decision on the Prosecution‟s Application for a
Warrant of Arrest against Omar Hassan Ahmad Al Bashir”, ICC-02/05-01/09-OA, 3 February 2010,
Appeals Chamber.
34
       Weinstein 2005, p.715.
35
       Weinstein 2005, pp.718-721.




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from the perpetrator‟s actions. From an environmental perspective, this could even be
seen as a negative outcome, as it would reinforce the notion that environmental harm is
only criminal to the extent that it harms humans and their property and that the
environment does not merit the same level of protection that we extend to anthropocentric
interests, or indeed any separate protection whatsoever.

The declaratory function of international criminal law as an expression of the
international community‟s opprobrium militates in favour of prosecuting environmental
damage under ecocentric provisions rather than indirectly under anthropocentric
provisions. In addition to that abstract consideration, there are practical drawbacks to
prosecuting environmental damage indirectly under anthropocentric provisions.
Prosecutors pursuing the bypass route will be tempted away from proving the extent of
the environmental damage. Such damage will be difficult to prove in precise terms with
scientific accuracy, a difficulty compounded by the fact that judges in international
criminal law, as in domestic law, tend to lack scientific training. This constitutes a strong
systemic reinforcer for the traditional approach of introducing evidence of
anthropocentric harm, such as murdered and wounded victims, rather than evidence of
harm to the environment. A tendency not to introduce evidence of environmental damage
will in turn reduce the likelihood of such damage being established and reflected in the
judgements of the court, which may even weaken the international community‟s efforts to
prohibit serious damage to the environment.

The need to develop international criminal law to address environmental damage

While the use of ecocentric provisions and the bypass approach both bear potential, there
are serious drawbacks and limitations inherent in these approaches. Consequently,
broader measures must also be pursued to enhance the potential of international criminal
law to address environmental destruction. One measure would be to focus on better
enforcement of environmental protections, including through armed force. Parsons points
out that military enforcement of environmental protections (which could be called
environmental intervention) has the advantage of being immediate, direct, and
compelling.36 However, military intervention to prevent environmental destruction could
well prove self-defeating. Military action almost inevitably causes environmental
damage. Using military means is thus likely to perpetuate the very harm that is sought to
be avoided. It is also questionable whether armed intervention on an environmentally
protective rationale is mandated under jus ad bellum. Humanitarian intervention, which is
both justified and necessary in qualifying circumstances, generates considerable debate
about its legal parameters. Military intervention to protect the environment raises even
more complex legal and political questions.

Of more pressing urgency is the need to develop international criminal law to include
robust ecocentric provisions. Given the prevalence of environmental destruction, such
provisions should not be limited to the most extreme examples of intentional
environmental damage. Instead the provisions should extend the coverage of international
criminal law so that it concretises the requirement to take environmental considerations
into account in assessing necessity and proportionality, and criminalises the conscious
36
       See for example Parsons, p.495 (“Whatever cautions may be raised against the use of armed force as
a mechanism for enforcement of the law pertaining to environmental protection during armed conflict, few
enforcement tools are more immediate, direct and compelling than armed force.”)




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failure to do so. The environmental component inherent in the obligations of necessity
and proportionality has been recognized by the ICJ, as discussed above. Accordingly,
there is a basis for developing international criminal law to apply to breaches of these
requirements, at least in the case of manifest breaches resulting in serious harm to the
environment. An example would be military operations undertaken in conscious
disregard of the environmental impact thereof, which could have been avoided by the use
of alternative means available to the perpetrator at the time. Incorporating such criminal
prohibitions would be consistent with international environmental law principles and with
international and domestic criminal law principles.

An intermediary step towards protecting the environment under international criminal
law would be to extend the prohibition against causing long-term, widespread, and severe
damage to the environment to apply during non-international armed conflicts. Currently,
the relevant provision (Article 8(2)(b)(iv) of the Rome Statute) applies only to inter-State
conflicts, which excludes coverage of the most prevalent form of conflicts in the post
Cold-War world, non-international armed conflicts. The introduction of a parallel
provision covering non-international armed conflicts could be carried out at the next
review conference of the ICC. At the 2010 ICC Review Conference in Kampala the
Court‟s jurisdiction was extended to cover crimes of using various prohibited weapons in
non-international armed conflicts in addition to the Court‟s pre-existing jurisdiction over
such crimes in international armed conflicts under Article 8.37 This provides a template
for incrementally enhancing the Court‟s ability to address serious harm to the
environment. An extension of the Court‟s jurisdiction over environmental crimes would
raise issues concerning the status under customary international law of the prohibition in
the context of non-international armed conflicts.38 In this respect, the adoption of such an
amendment, signaling the willingness of over 100 States to criminalise serious damage to
the environment in non-international armed conflicts, would constitute a strong indication
that the prohibition had crystallised as a principle of customary international law.

As stated above, environmental damage committed outside of armed conflict is not
subject to any direct criminal sanction under international criminal law.39 The resulting
question is whether crimes against the environment, should be established as a distinct,
free-standing category of international criminal law. Crimes against the environment
would have to be part of a widespread or systematic attack directed against the
environment. The underlying acts could encompass, for example, reckless misconduct at
nuclear power facilities;40 testing biological weapons; intentional dumping of oil or
chemical waste at sea; trade in endangered species, hazardous wastes or ozone-depleting

37
       See “Draft resolution amending article 8 of the Rome Statute”, ICC Review Conference Document:
RC/WGOA/1/Rev.2, 4 June 2010.
38
       See Jean-Marie Henckaerts and Louise Doswald-Beck (eds.), Customary International
Humanitarian Law, (ICRC: Geneva, 2005), p.151 (“State practice establishes this rule as a norm of
customary international law applicable in international, and arguably also in non-international, armed
conflicts.” Note that the rule formulated by the ICRC differs from that in Article 8(2)(b)(iv) of the Rome
Statute as it does not contain a military necessity clause). But see John Bellinger and William Haynes, “A
US Government Response to the International Committee of the Red Cross Study Customary International
Humanitarian Law”, 89 Int‟l Rev. Red Cross 443 (2007), p.460.
39
       With the possible exception that it could be included within the crime of humanity of causing great
suffering under Article 7(1)(k) of the Rome Statute.
40
       Timothy Schofield, “The Environment as an Ideological Weapon: A Proposal to Criminalise
Environmental Terrorism”, 26 B. C. Envtl. Aff. L. Rev. (1998-1999), pp.622, 626-627.




                                                                                                       10
substances; and intentional large-scale and illegal carbon emissions.41 These prohibitions
would remain in effect outside of armed conflict. Whilst this development remains a
normative aspiration at the moment, models for such a category of crimes exist, for
example the crime of ecocide, which appears in domestic penal codes ranging from
Russia to Vietnam.42 Establishing a category of crimes against the environment would be
a proactive move in the struggle to protect the environment and to preserve
intergenerational equity.43

The necessity of developing international criminal law to address serious damage to the
environment is consistent with the principles set out in the Rio Declaration.44 These
guiding principles indicate that States must cooperate to take active measures to protect
the environment. Preventing serious damage to the environment is necessary not only to
prevent warfare and other harm to human interests but also because such environmental
devastation is wrong per se. Although international criminal law is not a panacea to the
problem, it is an additional mechanism available to the international community. If
developed and used effectively, international criminal law could have a significant impact
on the protection of the environment in times of war and peace.




41
        See Mark Drumbl, “International Human Rights, International Humanitarian Law, and
Environmental Security: Can the International Criminal Court Bridge the Gaps?”, 6 ILSA J. Int‟l & Comp.
L. 305 (2000), p.325.
42
        See Jean-Marie Henckaerts and Louise Doswald-Beck (eds.), Customary International
Humanitarian Law, (ICRC: Geneva, 2005), Vol.II, p.883-887.
43
        In this respect, crimes against the environment share a common rationale with crimes against future
generations. As the world becomes increasingly aware of this pressing rationale, these two related forms of
categorising wrongful conduct will develop and coalesce in a mutually re-enforcing manner.
44
        Principle 13 of the Rio Declaration on Environment and Development, A/CONF.151/26, 14 June
1992 requires that “States shall develop national law regarding liability and compensation for the victims of
pollution and other environmental damage. States shall also cooperate in an expeditious and more
determined manner to develop further international law regarding liability and compensation for adverse
effects of environmental damage caused by activities within their jurisdiction or control to areas beyond
their jurisdiction.”




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