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 PM
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 “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]
International Human Rights A number of [s]tates expressed their understanding that the military advantage anticipated from an attack is intended to refer to the advantage anticipated from the attack considered as a whole and not from isolated or particular parts of the attack. 62 On a related note, it is unclear by whom and according to what standards the" anticipation "is to be judged Does there have to be an objective element to the anticipation, or can the belief be subjectively held yet unrealistic? If the notion of military advantage remains subjective in the mind of the military or political leader under the circumstances in which th tactical decision was made, then the defense could be too widely available. In order to curtail misuse of the defense, it will be important to establish some objective standards as to when the military advantage of an attack may justify widespread, long-term, and severe damage to the environment The difficulties which inhere in giving appropriate meaning to the defense of military advantage raise more penetrating questions. These questions militate in favor of reconsidering the interaction between international environmental law and international humanitarian law. Certain practices- such as genocide and torture- have been sanctioned as illegal by the international community to the extent that they can never be undertaken even if essential to defend national sovereignty Why should intentional environmental desecration not be similarly proscribed? C. The Mental Element: Strict Intentionality In the case of Article &(2)(b(iv), criminal sanction will only fall upon an individual who knows his or her behavior will cause widespread, long-term, and severe damage to the environment which is clearly excessive in relation to the overall military advantage anticipated and, notwithstanding proof of this knowledge, still commits the act with the full intention of causing the environmental damage. More concisely, the perpetrator must be found to have acted willfully and in the knowledge that the attack will cause the prohibited environmental damage. 63 The Rome Statute therefore" presupposes that the attack was launched in the knowledge that [the] consequences listed occur. 64 The ICRC has interpreted the phrase"in the knowledge"as requiring the person committing the act [to know] with certainty that the described results would ensue, and this would not cover recklessness. 65 The fact that there is no liability for negligently or carelessly inflicting widespread, long-term, and severe damage to the environment means that persons who are found to act negligently will not face any sanction at all. The provision therefore covers only the most invidious offender. It goes without saying that proving this very onerous intentionality requirement will not be easy As a result, a more proactive approach may be required. Military and political officials in both developing and developed nations should be educated on the environmentally harmful effects of certain types of warfare, and be informed of the technologies to avoid reliance on such strategies in the first place. In this regard, the work of the ICRC can play a pivotal role. The ICRC has published a document entitled Guidelines for Military Manuals and Instructions on the Protection of the Emvironment in Times of Armed Conflict( Guidelines), which are Intended as a tool to facilitate the instruction and training of armed forces in an often neglected area of international humanitarian law: otection of the atural environment. The Guidelines[]. sole aim is to contribute in a p I and effective way dissemination purposes. 66 The Guidelines state that they are drawn from existing international legal obligations and, as such, constitute a baseline of ius commune among nations. 67 Many detailed rules are provided in Article Ill(9)of the Guidelines, which cover numerous issues ranging from barring incendiary weapons in forested regions to precluding the use of naval mines Ultimately, it is hoped that the guidelines could constitute the specific level of objective knowledge imputed to al hoped that they will be taken into account as new weaponry is developed. In this latter regard, Article IV(18)of the0 military and civilian leaders and agents for purposes of culpability under Article 8(2 )(b)(iv)of the Rome Statute. It is al Guidelines is particularly important y, development, acquisition or adoption of a new weapon, means or method of warfare, states are under an obligation to determine whether its would, in some or all circumstances, be prohibited by applicable rules of international law, including those providing protection of the environ ://www.nsulaw.nova.edu/student/organizations/ilsajournal/6-2/drumbl%206-2.htm(7of27)[4/16/200110:12:22Pm
A number of [s]tates expressed their understanding that the military advantage anticipated from an attack is intended to refer to the advantage anticipated from the attack considered as a whole and not from isolated or particular parts of the attack.62 On a related note, it is unclear by whom and according to what standards the “anticipation” is to be judged. Does there have to be an objective element to the anticipation, or can the belief be subjectively held yet unrealistic? If the notion of military advantage remains subjective in the mind of the military or political leader under the circumstances in which the tactical decision was made, then the defense could be too widely available. In order to curtail misuse of the defense, it will be important to establish some objective standards as to when the military advantage of an attack may justify widespread, long-term, and severe damage to the environment. The difficulties which inhere in giving appropriate meaning to the defense of military advantage raise more penetrating questions. These questions militate in favor of reconsidering the interaction between international environmental law and international humanitarian law. Certain practices - such as genocide and torture - have been sanctioned as illegal by the international community to the extent that they can never be undertaken even if essential to defend national sovereignty. Why should intentional environmental desecration not be similarly proscribed? C. The Mental Element: Strict Intentionality In the case of Article 8(2)(b)(iv), criminal sanction will only fall upon an individual who knows his or her behavior will cause widespread, long-term, and severe damage to the environment which is clearly excessive in relation to the overall military advantage anticipated and, notwithstanding proof of this knowledge, still commits the act with the full intention of causing the environmental damage. More concisely, the perpetrator must be found to have acted wil1fully and in the knowledge that the attack will cause the prohibited environmental damage.63 The Rome Statute therefore “presupposes that the attack was launched in the knowledge that [the] consequences listed occur.”64 The ICRC has interpreted the phrase “in the knowledge” as requiring “the person committing the act [to know] with certainty that the described results would ensue, and this would not cover recklessness.”65 The fact that there is no liability for negligently or carelessly inflicting widespread, long-term, and severe damage to the environment means that persons who are found to act negligently will not face any sanction at all. The provision therefore covers only the most invidious offender. It goes without saying that proving this very onerous intentionality requirement will not be easy. As a result, a more proactive approach may be required. Military and political officials in both developing and developed nations should be educated on the environmentally harmful effects of certain types of warfare, and be informed of the technologies to avoid reliance on such strategies in the first place. In this regard, the work of the ICRC can play a pivotal role. The ICRC has published a document entitled Guidelines for Military Manuals and Instructions on the Protection of the Environment in Times of Armed Conflict (Guidelines), which are: Intended as a tool to facilitate the instruction and training of armed forces in an often neglected area of international humanitarian law: the protection of the natural environment. The Guidelines[‘] ... sole aim is to contribute in a practical and effective way to raising awareness ... [T]hey are an instrument for dissemination purposes.66 The Guidelines state that they are drawn from existing international legal obligations and, as such, constitute a baseline of jus commune among nations.67 Many detailed rules are provided in Article III(9) of the Guidelines, which cover numerous issues ranging from barring incendiary weapons in forested regions to precluding the use of naval mines. Ultimately, it is hoped that the Guidelines could constitute the specific level of objective knowledge imputed to all military and civilian leaders and agents for purposes of culpability under Article 8(2)(b)(iv) of the Rome Statute. It is also hoped that they will be taken into account as new weaponry is developed. In this latter regard, Article IV(18) of the Guidelines is particularly important: In the study, development, acquisition or adoption of a new weapon, means or method of warfare, states are under an obligation to determine whether its employment would, in some or all circumstances, be prohibited by applicable rules of international law, including those providing protection of the environment International Human Rights http://www.nsulaw.nova.edu/student/organizations/ILSAjournal/6-2/Drumbl%206-2.htm (7 of 27) [4/16/2001 10:12:22 PM]
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)[4/16/200110:12:22Pm
in 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]
International Human Rights businesses seeking to clear the forests for economic development. 81 Nonetheless, even if negotiators had the willingness and succeeded in according the ICC jurisdiction over ecocide as a most serious crime[ of concern to the international community as a whole, 82 concerns would remain as to the ICCs ffectiveness in terms of being able or suited to enforce such a prohibition. As a result, collapsing environmental crimes ithin the iCC might not be the most effective way to sanction such crimes. This article identifies five reasons why this might be so: (1)environmental crimes may become lost amid the hurly-burly of the ICC's activities; (2)ICC personnel have low environmental expertise and there may consequently be very high transaction costs involved in"getting up to speed"on environmental issues; (3)the sanctions which the ICC can order are not appropriate to correcting environmental desecration; (4) there is limited scope under the Rome Statute to integrate preexisting international law in he area of environmental crimes; and(5)environmental harm may well be best deterred by a negligence standard which is essentially incompatible with the mandate of a permanent international court designed to punish the most serious crimes of concern to humanity. This Article will now consider each of these in turn A. Environmental concerns lost in the shuffle Clearly, one of the major successes of the Rome Statute is that it creates an institution to actually punish the conduct it prohibits. Nonetheless, from the environmental point of view, the extent to which"environmental crimes"will receive the ICC's attention is uncertain given the broad array of other crimes to which it will have to direct its energies. The environmental war crime constitutes only one provision out of dozens in Part 2 of the Rome Statute. And A[t]his provision has largely escaped notice amid the larger debate about the creation of the court and the scope of its jurisdiction. @83 Article 8(2)(b)(iv)remains peripheral to the ongoing discussions of the Working Group on the elements of Crimes held at the Preparatory Commission sessions. 84 As a result, there is no indication that, as work on the establishment of the ICC progresses, the environmental war crime will be able to attract the attention it requires in order to be effectively implemented B. Low Environmental Expertise of the Judges and Prosecutors Judges and prosecutors on the ICC will likely not have expertise in the area of environmental law, policy or science. This can heighten the transaction costs of proceeding judicially, 85 as well as produce ineffective jurisprudence. Were environmental crimes to be litigated in a separate forum or before a specialized agency, there could be a greater guarantee of some level of scientific expertise C. Inappropriate Sanctions Part 7 of the Rome Statute offers the most contemporary compilation of the international community's thinking on international crimes ought to be punished The punishment provisions of the Rome Statute contain two limitations effectiveness of Article 8(2)(b)(iv) First, the jurisdiction of the ICC is limited to natural persons. This makes it impossible to find any institutional or state liability should it be difficult to prove that the actions of one or some individuals accounted for the environmental Law. Article 9 of which establishes jurisdiction over corporate offenders together with natural perso do ough Criminal Second, sentencing is limited to imprisonment, fines, and forfeiture of the proceeds of the crime. 87 There does not appear to be much room to compel restitution, remediation of blight, establish civil liability or, simply put, to clean up the environmental harm. This is again unlike the Council of Europe's Convention on the Protection of the Environment Through Criminal Law, Article 6 of which provides that sanctions include imprisonment, fines, as well as reinstatement of the environment. 88 This is also unlike the UNCC's approach to remedying environmental crimes committed during the Gulf War. 89 Nor does the ICC have injunctive powers to stop violations from occurring Without the ICC being able to order restorative or injunctive remedies, the curative nature of the punishment for causing widespread, long-term, and severe " damage to the natural environment is limited at best. It is true that the Rome Statute permits fines and assets collected to be transferred to a Trust Fund for the benefit of victims of the crime. 90 Access to this ://www.nsulaw.nova.edu/student/organizations/ilsajournal/6-2/drumbl%206-2.htm(9of27)[4/16/200110:12:22Pm
businesses seeking to clear the forests for economic development.81 Nonetheless, even if negotiators had the willingness and succeeded in according the ICC jurisdiction over ecocide as a “most serious crime[ ] of concern to the international community as a whole,”82 concerns would remain as to the ICC’s effectiveness in terms of being able or suited to enforce such a prohibition. As a result, collapsing environmental crimes within the ICC might not be the most effective way to sanction such crimes. This Article identifies five reasons why this might be so: (1) environmental crimes may become lost amid the hurly-burly of the ICC’s activities; (2) ICC personnel may have low environmental expertise and there may consequently be very high transaction costs involved in “getting up to speed” on environmental issues; (3) the sanctions which the ICC can order are not appropriate to correcting environmental desecration; (4) there is limited scope under the Rome Statute to integrate preexisting international law in the area of environmental crimes; and (5) environmental harm may well be best deterred by a negligence standard which is essentially incompatible with the mandate of a permanent international court designed to punish the most serious crimes of concern to humanity. This Article will now consider each of these in turn. A. Environmental Concerns Lost in the Shuffle Clearly, one of the major successes of the Rome Statute is that it creates an institution to actually punish the conduct it prohibits. Nonetheless, from the environmental point of view, the extent to which “environmental crimes” will receive the ICC’s attention is uncertain given the broad array of other crimes to which it will have to direct its energies. The environmental war crime constitutes only one provision out of dozens in Part 2 of the Rome Statute. And A[t]his provision has largely escaped notice amid the larger debate about the creation of the court and the scope of its jurisdiction.@83 Article 8(2)(b)(iv) remains peripheral to the ongoing discussions of the Working Group on the Elements of Crimes held at the Preparatory Commission sessions.84 As a result, there is no indication that, as work on the establishment of the ICC progresses, the environmental war crime will be able to attract the attention it requires in order to be effectively implemented. B. Low Environmental Expertise of the Judges and Prosecutors Judges and prosecutors on the ICC will likely not have expertise in the area of environmental law, policy or science. This can heighten the transaction costs of proceeding judicially,85 as well as produce ineffective jurisprudence. Were environmental crimes to be litigated in a separate forum or before a specialized agency, there could be a greater guarantee of some level of scientific expertise. C. Inappropriate Sanctions Part 7 of the Rome Statute offers the most contemporary compilation of the international community’s thinking on how international crimes ought to be punished. The punishment provisions of the Rome Statute contain two limitations on the effectiveness of Article 8(2)(b)(iv). First, the jurisdiction of the ICC is limited to natural persons. This makes it impossible to find any institutional or state liability should it be difficult to prove that the actions of one or some individuals accounted for the environmental desecration. This is unlike the Council of Europe’s Convention on the Protection of the Environment Through Criminal Law, Article 9 of which establishes jurisdiction over corporate offenders together with natural persons.86 Second, sentencing is limited to imprisonment, fines, and forfeiture of the proceeds of the crime.87 There does not appear to be much room to compel restitution, remediation of blight, establish civil liability or, simply put, to clean up the environmental harm. This is again unlike the Council of Europe’s Convention on the Protection of the Environment Through Criminal Law, Article 6 of which provides that sanctions include imprisonment, fines, as well as reinstatement of the environment.88 This is also unlike the UNCC’s approach to remedying environmental crimes committed during the Gulf War.89 Nor does the ICC have injunctive powers to stop violations from occurring. Without the ICC being able to order restorative or injunctive remedies, the curative nature of the punishment for causing “widespread, long-term, and severe” damage to the natural environment is limited at best. It is true that the Rome Statute permits fines and assets collected to be transferred to a Trust Fund for the benefit of victims of the crime.90 Access to this International Human Rights http://www.nsulaw.nova.edu/student/organizations/ILSAjournal/6-2/Drumbl%206-2.htm (9 of 27) [4/16/2001 10:12:22 PM]