University of Amsterdam. Amsterdam Law School.
The International Criminal Court;
Prosecuting Those Responsible for Crimes Against the Natural
Environment by Means of Warfare
Sebastiaan de Greeuw 0167487 Supervisor Prof. Dr. Harmen van der WiltContents: iii List of Abbreviation and Acronyms iv List of Major Treaties and Other Instruments v List of Cases 1. Introduction: A The silent victim of war 6 B Aim of the research 7 C Methodology and design of the research 8 2. Environmental attack in the Gulf Conflict of 1990 ‐ 1991: A Factual background 8 B The Sea Island Terminal oil spills 9 C The burning of Kuwait's oil wells 10 3. The evolution of environmental protective legislation in armed conflict: A Environmental protection under international humanitarian law 10 B The absence of prosecution in recent history, International Tribunals 16 C The ICC and the introduction of article 8(2)(b)(iv) Rome Statute 18 4. Application of article 8 (2) (b) (iv) Rome Statute: A The damage threshold 20 B The concept of proportionality 26 C The mental element 33 D Non‐applicability to non‐international armed conflicts 38 5. Conclusion 40 Bibliography
List of Abbreviation and Acronyms iii AP/I Additional Protocol I to the Geneva Conventions BC Before Christ ENMOD Environmental Modification Convention EoC Elements of Crime GC Geneva Conventions 1949 HC Hague‐convention of 1899 or1907 ICC International Criminal Court ICL International Criminal Law ICRC International Committee of the Red Cross ICTR International Criminal Tribunal for Rwanda ICTY International Criminal Tribunal for Former Yugoslavia IHL International Humanitarian Law ILC International Law Commission IMT International Military Tribunal NATO North Atlantic Treaty Organization OTP Office of the Prosecutor PrepCom Preparatory Committee RS Rome Statute of the International Criminal Court UN United Nations UNEP United Nations Environmental Program UNSC United Nations Security Council VW Vietnam War WW I World War I WWII World War II
List of Major Treaties and Other Instruments iv Charter of the International Military Tribunal, 59 Stat. 1544, 1547, 82 U.N.T.S. 279, Aug. 8, (1945) Convention on the Prohibition of Military or Other Use of Environmental Modification Techniques, Adopted by the United Nations General Assembly, Res. 31/72, 1108 UNTS, 151, December 10, (1976) Draft Code of Crimes against the Peace and Security of Mankind, International Law Commission, UN.DOC A/51/10, (1996) International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, UN. DOC A/56/10, (2001) Official records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflict, Volume XV, DOC.CDDH/215/Rev.1, Geneva (1974‐1977) Preparatory Committee on the Establishment of an International Criminal Court, December 1‐12 (1997), Working Group on Definitions and Elements of Crime, UN.DOC. A/AC.249/1997WG.1/CRP.9. Protocol Additional to the Geneva Convention Relating of the Protection of Victims of International Armed Conflicts, 16 ILM. 1391, U.N.DOC. A/32/144, June 8, (1977) Report of the Conference on the Committee of Disarmament, Understanding relating to the ENMOD Convention, UN Doc. A/31/27, New York, United Nations, (1976) Rome Statute of the International Criminal Court, U.N. DOC. A/CONF. 183/9, July 17, (1998) The Geneva Convention, Relative to the Protection of Civilian Persons in Time of War. International Committee of the Red Cross, Geneva August 12, (1949), United Nations Diplomatic Conference of Plenipotentiaries of the Establishment of the International Criminal Court., UN.DOC. A/CONF. 183/C.1/SR.44th Plenary Meeting, June 17 – July 15, (1998) United Nations Security Council, Resolution 660, S/RES/0660, August 2 (1990) United Nations Security Council, Resolution 687, S/RES/0687, April 8, (1991) Vienna Convention Law of Treaties, 1155 U.N.T.S. 331, 8 I.L.M. 679, entered into force January 27, (1980)
List of Cases v Judgment, United States v. Goering, et al., International Military Tribunal, October 1, 1946, Nazi Conspiracy and Aggression: Opinion and Judgment 110, (1947) Law Reports of Trials of War Criminals, Selected and Prepared by the United Nations War Crimes Commission, Volume XIII, Published by her Majesty’s Stationary Office, (1949)
1‐A The Silent Victim of War, an introduction: The modern assault on the environment began about 50 years ago, during and immediately after World War II. “Barry Commoner.” Biologist, Politician and leading Ecologist.1 In times of an armed conflict damage is inevitable. It is well known that war is destructive. However the focus on the effects of damage are primary viewed from an anthropocentric point of view. Almost all crimes under international law take mankind as their central element. But it is not only mankind that suffers in times of conflict. Several other aspects of our world suffer too. In almost every armed conflict, the natural environment suffers great damage. Water is polluted, forest is burned down, land is destroyed, and air is polluted. Although the natural environment has the power to heal itself over time, such damages may never be underestimated. In many cases the damage to the natural environment may even be irrevocable. Leaving the natural environment destroyed for generations to come.2 Nevertheless, the consequences to the environment by warfare never received much international attention. It was not until the aftermath of the Vietnam War ‐ one of the most atrocious attacks on the environment ‐ that the effects of warfare on the environment got some of its deserved attention within the International community. 3 Unfortunately these agreements only allow for State responsibility or in the best‐case scenario lead to domestic criminal sanctions. Direct international criminal liability for environmental war crimes was up till then not possible.4 The introduction of the International Criminal Court may be considered as a turning point and a milestone in the international protection of the natural environment in times of conflict. The ICC, which came into force in 2002, allows for criminal liability for environmental war crimes on an international level. Those grievous commanders responsible for the destruction of the environment by means of warfare can now be held criminal liable for their acts. To read article 8(2)(b)(iv) of the Rome Statute of the International Criminal Court it stipulates 1 Joseph Demakis, the Ultimate Book of Quotations, Copyright, 2012, p.97 2Julian Wyatt, Law‐making at the intersection of International Environmental, Humanitarian and Criminal Law: The Issue of Damage to the Environment in International Armed Conflict, International Review of the Red Cross, Volume 92, number 879, September 2010, p.596 3Convention on the Prohibition of Military and other Hostile Use of Environmental Modification Techniques, entered into force October 5 1978. 4 United Nations Environment Programme, 2009, Protecting the Environment During Armed Conflict, An Inventory and Analysis on International Law, p. 29.
that: “Intentionally launching an attack in the knowledge that such an attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long‐term and severe damage to the natural environment which would be clearly in excessive in relation to the concrete and direct overall military advantage anticipated”.5 Even though the article is introduced as a breakthrough in the protection of environmental damage on an international criminal level. It appears to be shooting blanks. Since the introduction of the article and going into force of the ICC, the article has never been induced. This is not because environmental war crimes do not occur in modern warfare, a contrary. To illustrate: in 2006, the Israeli bombing campaign in Lebanon caused enormous damage to the infrastructure as well as to the natural environment. An act that did not go unrecognized by the International Community.6 So, why no perpetrator has ever been held accountable for their crimes? Is it not important? Is the article’s scope too limited? 1‐B The Aim of the Research: In theory, article 8(2)(b)(iv) RS is capable of providing the natural environment unprecedented protection in the form of international criminal liability of commanders in charge. However in practice, the article might not be so groundbreaking as it looks. Moreover it has never been induced. Such lack of practice is obviously not favourable. With this thesis, I would like to demonstrate whether or not the article could be effective in prosecuting those responsible for environmental war crimes. Does the article give the Court enough to hold on to in their quest to prosecute any alleged perpetrator, or is the article still work in process? The purpose of this thesis is: A Critical legal analyse of article 8(2)(b)(iv) Rome Statute: Identifying the limitations to effectively prosecute environmental war criminals. 5 Rome Statute of the International Criminal Court, July 17, 1998, U.N. Doc. A/CONF. 183/9, article 8 (2) (b) (iv). 6 Cymie Payne, Peter Sand, Gulf War Reparations and the UN Compensation Commission: Environmental, Liability, Oxford University Press, 2011, p.190.
1‐C Methodology and Design of the Research: This thesis will be set out according the under defined methodology and design: In Chapter two, I will give an example of one of the most serious attack on the natural environment in an armed conflict: the attack on the environment in the Gulf conflict of 1990 ‐ 91. An example I will use in the application of the article throughout this thesis. In Chapter three, I will discuss the evolution of environmental protective legislation in international humanitarian law as well as in its subset international criminal law. Thereby introducing article 8(2)(b)(iv) of the Rome Statute. An article that allows for criminal liability of those responsible for environmental war crimes. In Chapter four, I will extensively discuss and interpret the applicability of the article. Taking all the important elements of the crime in account. Thereby understanding that the Court will never have jurisdiction with respect to the crime as committed by Saddam Hussein. Since the crime was committed before the entry into force of the Rome Statute.7 Finally, in chapter five, I will give my conclusion. 2. THE ENVIRONMENTAL ATTACK IN THE GULF CONFLICT OF 1990 – 1991: 2‐A Factual Background: One of the most devastating attacks on the environment, and a good illustration of environmental war crimes, took place during the 1990‐1991 Gulf‐war in Kuwait. A war that started due to the occupation of Kuwait by Iraq.8 To avoid any third country to interfere with the occupation, Saddam Hussein threatened to destroy the natural environment.9 In effect, Iraq held the natural environment of Kuwait hostage. Much like Iraq had previously done, by holding Western civilians hostage as a human shield in Iraqi military facilities.10 The international community responded by mandating direct withdrawal. International peace 7 Ibid supra note 5, article 11(1) Rome Statute. 8 Jessica E. Seacor. "Environmental Terrorism: Lessons from the Oil Fires of Kuwait." American University International Law Review 10, no. 1 (1996), p.484. Kuwait's unwillingness to raise its oil prices in the world market may have triggered Iraq to attack; In addition, Iraq was struggling to pay off its lingering debt from the 1980‐88 war with Iran; Finally, President Hussein believed that because Kuwait had been situated historically within Iraq's borders, Iraq was entitled to Kuwait's oil resources and revenues. 9 Michael N. Schmitt, Essay's on Law and War on the Fault Lines, T.M.C Asser Press, 2011, p.3 10 General Report, Central Bureau of Intelligence United States of America, Putting Non Combatants at Risk, Saddam’s Use of Human Shields, 2003, pp. 1‐8. Available at: https://www.cia.gov/library/reports/general‐ reports‐1/iraq_human_shields/iraq_human_shields.pdf
and security was at stake.11 After diplomatic and economic sanctions did not have the desired effect, the UNSC gave green light for a military intervention.12 As a consequence, days after the allied forces began their operation; Iraq began to carry out their earlier threat to destroy the natural environment.13 The primary reasons were retaliation and military gain, however the effects on the environment were disastrous and unprecedented.14 To some it reflected an entire new dimension to warfare; others even refer to it as the environmental holocaust.15 2‐B The Sea Island Terminal Oil Spill: To prevent allied ships to dock and air forces to land on the ships, Saddam Hussein ordered to pump high quantities of crude oil from tankers and “storage” facilities into the Gulf.16 It is not scientifically sure how much oil has been released in the Gulf. Initially the overall spill was estimated around 11 million barrels. However later reports suggest much less. One on‐ site investigator claimed an oil spill of approximately 6 to 8 million barrels. Creating an oil slick extending 1500 km2 along the Kuwaiti and Saudi‐Arabian coastline.17 Even if the lowest estimate is correct, the devastating effect on the environment was still enormous and the consequences horrific. Although Saddam Hussein threatened with oil spills, it is worth mentioning that he later denied the conduct. In a complaint to the UN, he claimed the oil spills were the direct consequence of the allied air attacks, not due any deliberate act from the Iraqi’s.18 In a later interview he did not admit nor did he deny the deliberate intention of the oil spills. He did say that the use of oil was justified as a defense technique in the war against the allied forces.19 11 United Nations Security Council, Resolution 660, S/RES/0660, 2 August 1990 12 The deadline was set on the 15th January, 1991, see: United Nations Security Council, Resolution 687, S/RES/687, 8 April, 1991 13 Peter Rowe a.o., The Gulf War 1991‐1992 in International and English Law, Routledge Taylor and Francis Group 1993 p.131. 14 M.T. Okorodudu‐Fubara, Oil in the Persian Gulf Wan Legal Appraisal of an Environmental Warfare, St. Mary's Law Journal 23, 123 et seq.,176, 1991‐1992. p.134. 15 Ibid Okorodudu, p.129. And; Beau Grosscup, Strategic Terror: The Politics and Ethics of Aerial Bombardment, Zed Books Ltd., 2006, p.150. 16 Spencer C. Tucker, The Encyclopdia of Middle East Wars, The United States in the Persian Gulf, Afghanistan and Iraq Conflicts, ABC‐CLIO, LLC, 2010, p.422. 17 Mark J. Caggiano, The Legatimicy of Environmental Destruction in Modern Warfare, Customary Substance over Conventional Form, 20 Envtl. Aff. 479, 1993, p.480. 18 New York Times, January 26, 1991. Available at: http://www.nytimes.com/1991/01/26/world/war‐in‐the‐ gulf‐the‐president‐bush‐calls‐gulf‐oil‐spill‐a‐sick‐act‐by‐hussein.html. Last visited: 10 February, 2013. 19 Jonathan P. Edward the Iraqi Oil Weapon in the 1991 Gulf War: A Law of Armed Conflict Analyse, Naval Law Review, 105, 1992, p.107.
2‐C The Burning of Kuwait's Oil Wells: Another act of Saddam Hussein to avoid defeat was the burning and blowing up of Kuwait’s oil wells. Already before the allied attack took place, Saddam Hussein ordered his military troops to place and detonate explosives at most of Kuwait’s oil wells and other facilities.20 Apart from ill‐will, Saddam Hussein hoped that the thick heavy black smoke from setting ablaze Kuwait’s oil wells would make it difficult for the coalition air forces to approach their targets. Accumulated with the oil slick, this would presumably give Saddam Hussein the military advantage in any defense against the attack.21 At the moment the allied forces began their ground attacks to force surrender the Iraqi forces had already set ablaze over 500 oil wells. By the time the Iraqis retreated from Kuwait and defeat was inevitable, it is estimated that over 800 oil wells detonated with explosives were ignited, out of which over 650 were set ablaze and burning for months, and the remaining wells were continuously gushing oil, creating oil lakes and pools.22 3. THE EVOLUTION OF ENVIRONMENTAL PROTECTIVE LEGISLATION IN ARMED CONFLICT: 3‐A Environmental Protection under International Humanitarian Law, and Lack of Enforcement: Whether or not intentionally inflicted or collateral, the environment has throughout the history of warfare always been subject to destruction and degradation. The environment has never been sparred in times of war, and is one of those many ‐ although silent ‐ victims of warfare.23 In particular, the deliberate use of the natural environment as a tool of war is as ancient as warfare itself.24 Early examples of such deliberate destruction to the environment in times of conflict date way back as far as 1290 BC. In this ancient past, the Assyrians used the strategy 20 Olof Lindén, Arne Jernelöv, and Johanna Egerup, The Environmental Impacts of the Gulf War 1991, Interim Report, IR‐04‐019, Approved by Sten Nilsson Deputy Director and Leader, Forestry Project, April 2004, p.21. 21 Kathlyn Gay and Martin Gay, Voices from the Past, The Persian Gulf War, Text Copyright, 1996, p.41. 22 Tamir Husein, Kuwait Oil Fires, Source Estimates and Plume Characterization, Atmosphere and Environment, Volume 28:13, 1994, Elsevier Science Ltd, p.2150. 23 See generally: Susan D. Lanier‐Graham, The Ecology of War, Environmental Impact of Weaponry and Warfare, Walker, New York, 1993. 24 Ibid.
of salting the earth of Mitanni as reprisal for their earlier rebellion. The effect on the environment was disastrous.25 Or what about the scorched earth policies undertaken by the Scythians around 514. BC. The Scythians tried to destroy everything that was useful to avoid the threat of King Darius, leaving their land devastated.26 Other more recent examples are the destruction of Verdun by poison gas in WWI, the burning of Norwegian lands during WWII, the use of Agent Orange in the Vietnam War, and perhaps the worst of them all, the discussed destruction of the Gulf and ignition of the oil fields in the Gulf war.27 In spite these plenty of proof of environmental destructive conduct in times of conflict, the protection of the environment never played an influential role in the “ancient” past. By scanning the ancient past, there are some retraceable efforts of environmental‐protective standard setting. For example under the fifth book of the old Hebrew bible and the Jewish Torah there is some scattered mention of environmental protection.28 Or what about the Jure Belli ac Pacis, the first military handbook by Hugo de Groot. Nevertheless we cannot say that environmental protection in times of war received broad recognition and support. Actually it is not wrong to say that environmental protection was as good as nearly.29 Making a jump in time, this lack of recognition to protect the environment became even more obvious at the beginning of the last century when the codification of significant international humanitarian law (hereinafter IHL) took place. By looking at the early codified international laws of war we see that neither the Hague‐ convention of 1899 nor of 1907 (hereinafter HC) acknowledged the intrinsic value of the natural environment in conflict situations. This might be already considered somewhat disappointing, especially considering that at the time of the HC weapons of mass destruction already existed.30 25 The salting of the earth or sowing with salt was the ritual of spreading salt on conquered cities to symbolize a curse on its rehabilitation. See: R.T. Ridley, To Be Taken with a Pinch of Salt: The Destruction of Carthage", Classical Philology 81 (2), 1986, pp.140–146. 26 The Scythians set fire to their lands, poisoned their water wells and destroyed their food supplies to make sure the troops of King Darius could not survive. King Darius had no other option than to concede defeat. See; Gerard Chaliand, Nomadic Empires, From Magnolia to the Danube, Transaction Publishers, New Brunswick, New Jersey, 2005, p.4. 27 Tara Weinstein, Prosecuting Attacks that Destroy the Environment: Environmental Crimes or Humanitarian Atrocities, The Georgetown Int'l Envtl. Law Review, Volume 17:697, p.700. 28 Deuteronomy 20:19‐20 (Modern Language Bible) states that: “When you lay siege to a city for many days, making war against it to capture it, you shall not destroy its surrounding fruit trees by cutting them with an axe; you may eat their fruit, but you must not cut them down. Are the trees of the field people, defenders of the city, that you should lay siege on them? Those tress, however, that you know are not fruit trees you may cut down and use to build siege works against the city that is warring against you, until it falls. 29 Michael N. Schmitt, Humanitarian Law and the Environment, Denver Journal of International Law and Policy, Volume 28:3, 19‐08‐2003, p. 267 30 Obviously the effects on the environment by mass destructive weapons are bigger. Aaron Schwabach, Law regarding Protection of the Environment during Wartime, p.2. Obviously the effect on
Even the later introduced, important Geneva‐conventions of 1949 (hereinafter GC) denied the natural environment direct protection. The treaty does not mention the term “environment” once. And even though it is well known that the GC is primary based on the protection of human values, any form of direct environmental regulation would not have been considered as a frivolous luxury. Such is backed by the knowledge that the development of advantaged technology has increased environmental destructive effects, and the example of the scorched earth policies undertaken by German generals in WWII.31 In spite of the lack of direct visible environmental protective regulation, it is fair to say that the GC does contain several provisions that indirectly might bear upon it.32 Under the treaty some limited and incidental protection might be given to the environment through the prohibition of pillage33 and property destruction if not military necessary.34 Furthermore the prohibition
of extensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly, is considered a grave breach. Such breaches even give rise to criminal liability based on universal jurisdiction.35 Likewise some rules of international customary law could serve to give some protection to the environment in armed conflict. First of all, the principle of proportionality requires that “collateral damage” may not be excessive in relation to the military advantage.36 States need to balance their interest, through subjective valuation of military, humanitarian but also environmental concerns (emphasis added). And require those in charge to minimize loss of life and collateral destruction.37 Secondly, military necessity prohibits acts of warfare, which are deemed unnecessary to achieved military advantage. Such includes environmental damage where inappropriate to the military gain obtained.38 Albeit this discussed indirect protection and some principles of international law might offer some form of protection to the environment, it is nevertheless hard to imagine that it provides the environment by mass destructive weapons is bigger tan by other weapons. 31 Carl Bruch, All's not fair in Civil War, Criminal Liability for Environmental Damage in Internal Armed Conflict, 25 Vt. L. Review 695 2001, p.716. 32 A. Bouvier, Protection of the Natural Environment in Time of Armed Conflict, Article International Review Red Cross, no. 285, 31‐12‐1991. Available at: http://www.icrc.org/eng/resources/documents/misc/57jmau.htm. Last visited: 10 January, 2013. 33 The Geneva Convention of August 12, 1949, relative to the Protection of Civilian Persons in Time of War. International Committee of the Red Cross, Geneva, pp.153‐221, article 33. 34 Ibid, Geneva Convention IV, article 53. 35 Ibid, Geneva Convention IV, article 147. 36 Janina Dill, Applying the Principle of Proportionality in Combat Operations, Oxford Institute for Ethics, Law and Armed Conflict, December 2010, executive summary. 37 Ibid supra note 27. Tara Weinstein, p.703. 38 Curtis F.J. Doebbler, Introduction to International Humanitarian Law, CDP Publishing, 2005, p.47.
the environment the protection that it deserves. Protection remains rather incidental and will always be without direct focus on the natural environment. 39 Human values always prevail. After the Vietnam War, the international community finally woke up. The destructive effects of Agent Orange on the environment, a chemical that destroyed over 4.5 million acres of land, shocked the world.40 The international community finally acknowledged, to some extent, the need for direct environmental regulation under IHL. Hence, in 1977, two treaties were introduced that directly address the natural environment in armed conflict.41 These treaties are: the Convention on the prohibition of Environmental Modification Techniques (hereinafter ENMOD),42 and two provisions to the Additional Protocol I to the GC 1949 (hereinafter AP/I.43 The ENMOD was the first treaty to specifically deal the protection of the environment in war under IHL (although also applicable in peace‐time). The ENMOD came to life to prohibit the deliberate use of modification techniques that cause widespread, long‐term or severe damage to the environment.44 Even though the environment finally was provided with direct protection, there are several shortcomings to the treaty. First of all the ENMOD is considered fairly limited in its scope. The applicability of the ENMOD only extends to cases of deliberate modification (emphasis added) techniques, and thereby only if such occurs on the territory of other signatories.45 Second, and perhaps more importantly, enforcement of the norm is particularly weak. A breach of the ENMOD will not create a regime for civil nor criminal liability.46 At most, the ENMOD offers States the discretion (emphasis added) to criminalize violations of the treaty in their domestic legal order.47 Notwithstanding international enforcement of a breach of the ENMOD only allows for a formal complaint to the United Nations Security Council (hereinafter UNSC). Cooperation and consultation are the preferred methods to solve any alleged violation 39 McManus, Civil Liability in War Time, Adapting the United Nations Compensation for the Iraq War, Boston College Environmental Affairs Law Review, Volume 33, Issue 2, 2006, p.442. 40 Hisao Furukawa, Mitsuaki Nishibuchi and Yasuyuki Kono, Ecological Destruction, Health and Development; Advancing Asian Paradigms, Trans Pacific Press, 2004, p.215. 41 Ibid supra note 29. M.N. Schmitt, p.267. 42 Convention on the Prohibition of Military or Other Use of Environmental Modification Techniques, Adopted by the United Nations General Assembly, Res. 31/72, December 10, 1976, 1108 UNTS, 151. 43 Protocol Additional to the Geneva Convention Relating of the Protection of Victims of International Armed Conflicts, June 8, 1977, 16 ILM. 1391, U.N.Doc. A/32/144. 44 Ibid, article I. Article I stipulates: “Each State Party to this Convention undertakes not to engage in military or any other hostile use of environmental modification techniques having widespread, long‐lasting or severe effects as the means of destruction, damage or injury to any other State Party”. 45 Ibid supra note 29. M.N Schmitt, p.280. 46 Steven Freeland, Human rights, the environment and conflict: Addressing crimes against the environment, 2004. Available at: http://www.surjournal.org/eng/conteudos/artigos2/ing/artigo_freeland.htm 47 See article IV ENMOD, Each State Party to this Convention undertakes to take any measures it considers necessary in accordance with its constitutional processes to prohibit and prevent any activity in violation of the provisions of the Convention under its jurisdiction or control.
of the treaty. Making enforcement post hoc and political in nature.48 The AP/I is the second treaty that finally provides for direct protection to the natural environment. This treaty, as will later be unraveled, can be considered as the most authoritative precedent of article 8(2)(b)(iv) RS, alias the first international environmental war crime. The protection to the environment under the treaty has been stipulated in two separate provisions, namely article 35(3) and 55.49 Where article 35 (3) stipulates that: “it is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long‐term and severe damage to the natural environment”. Article 55 goes on to state that: “Care shall be taken in warfare to protect the natural environment against widespread, long‐ term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended, or may be expected, to cause such damage to the natural environment and thereby to prejudice the health or survival of the population”. The obvious question is off course why two articles? Well, while both articles do overlap, the emphases of both articles are different. According to the ICRC commentaries on the AP/I, the incorporation of two articles was needed to secure full protection to the natural environment. The first provision approaches the problem of environmental damage from the perspective of methods of warfare, like i.e. the scorched earth strategy as discussed before. Noteworthy it becomes clear that the scope is wider than the ENMOD, which limits its scope to a (emphasis added) means of warfare namely; modification techniques. The second article has been included to create a more general obligation for an specific object, namely the natural environment.50 Although the AP/I covers a far wider area of environmental damage than the ENMOD, international enforcement is again rather weak. Like the ENMOD, any violation of the AP/I, in general, may only attract State responsibility. And even though State responsibility seeks a 48 Florencio J. Yuzon, Deliberate Environmental Modification Through the Use of Chemical and Biological Weapons, Greening the International Laws of Armed Conflict to Establish an Environmental Protective Regime, 11 Am. U.J. Int'l Law and Policy 793, 1996, p.808. 49 Ibid supra note 43, AP/I Article 35 (3) resp. 55. 50 Karen Hulme, Taking Care to Protect the Environment against Damage: A meaningless obligation?, Int'l Review Red Cross, Vol:92, Nr.879, 2010, pp.676‐678.
form of reparation were possible,51 it is unfortunate to say that in general State responsibility is not considered as an effective means in enforcing the norm. Several legal experts believe this is especially the case with regard to environmental damage in wartime.52 To use the words of Michael N. Schmitt: “Even if reparations were widely imposed, it is unlikely that they would be an effective deterrent to environmental destruction. States that resort to armed force are unlikely to decide to forgo an act because of the pecuniary risk, for the risk only becomes a reality if the state suffers a military defeat. The desire to avoid possible defeat would certainly outweigh any deterrent effect generated by the possibility that the loser might have to make reparations. After all, in the vast majority of cases, the likelihood of defeat will exceed the likelihood of having to pay reparations; states sometimes lose without having to pay reparations, but they almost never make reparations without having lost.”53 To be sure, violations of the AP/I may also attract criminal liability. However criminal liability for violations of these articles can only take place on a domestic level.54 And even though such criminal liability is not entirely discretionary, like the ENMOD, we have to primary rely on States to implement and enforce the norm. 55 The grave breaches‐regime of the AP/I however might offer outcome on the matter, but unfortunately it does not! Where any violation of a “grave” breach under the GC or the AP/I oblige States to prosecute or extradite individuals responsible for such grave acts “aut dedere aut judicare”, neither of the environmental‐centered articles of the AP/I are considered as such. Therefore there is no obligation to extradite or prosecute individuals for environmental war crimes on a domestic level.56 However, this is not to say that international criminal liability is the panacea that is capable of eliminating all threat of environmental destruction in times of war.57 But where State 51 ILC Articles on Responsibility of States for Internationally Wrongful Acts, UN. DOC A/56/10, 2001, article 34. 52 Among these scholars are Drumbl, Heller and Lawrence, Weinstein, Schmitt. See: Heller and Lawrence, The limits of article 8(2)(b)(iv) Rome Statute, The First Ecocentric Environmental War Crime, 2007, pp.8‐10. See also: Weinstein, Prosecuting Attacks that Destroy the Environment: Environmental Crimes or Humanitarian Atrocities?.,pp.701‐702 53 Michael N. Schmitt, Essays on Law and War at Fault Lines, Green War an Assessment of the Environmental Law of International Armed Conflict, TMC Asser Press, 2012, p.458. 54 Ibid supra note 4. UNEP, p.29. 55 All States are required to take all possible measures to ensure to live up to their obligations, such should include criminal sanctions. Ibid supra note 32. A.Bouvier, para. 6.5. 56 Ibid. 57 Matthew Gillet, Prosecuting Environmental Damage under International Criminal Law, p.2. Available at: http://www.esil‐en.law.cam.ac.uk/Media/Draft_Papers/Agora/Gillett.pdf
responsibility fails to provide solid environmental protection and we need to rely on domestic legal orders for possible criminal liability, international criminal law might at least be able to discourage perpetrators, like Saddam Hussein, from carrying out environmental destructive acts of war in the future.58 After all, did the IMT not pointed out after WWII that: “crimes are committed by men, not abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced.59 3‐B Absence of International Prosecution under International Tribunals: Due to knowledge that the protection of the environment never played a significant role under IHL, it will not come as a surprise that ICL, the subset of IHL, also failed to play an important role in the possibility to prosecute war criminals responsible for extreme environmental damage.60 Nevertheless, by taking a look at the legal history of ICL, some precedents of environmental war crimes prosecution can be found. After WWII, the Nuremberg tribunal, the first international tribunal in charge of the prosecution of serious war crime criminals, addressed a small number of cases that were concerned with serious environmental damage by warfare. Based on article 6(1) IMT Charter,61 the tribunal tried two German Generals for carrying out the so‐called scorched earth practices in the event of WWII, in resp. Norway and Russia.62 And, even though article 6(1) IMT did not directly address the natural environment and the prosecutions were only considered to be partly successful,63 they do share some importance in our case. Namely; it shows that at the early stages of ICL, there was some consideration to prosecute environmental damage caused by acts of war.64 58 Julian Wyatt, Law‐making at the intersection of international environmental, humanitarian and criminal law: the issue of damage to the environment in international armed conflict, Int’l Review Red Cross, Volume 92 Number 879 September 2010 p.614. 59 Judgment, United States v. Goering, et al., International Military Tribunal, October. 1, 1946, Nazi Conspiracy and Aggression: Opinion and Judgment, 110, 1947. 60 Ibid supra note 4, UNEP, pp.28‐29. 61 Charter of the International Military Tribunal, art. 6(1), Aug. 8, 1945, 59 Stat. 1544, 1547, 82 U.N.T.S. 279. Article 6 IMT charter made the wanton destruction of cities, towns or villages, or devastation not justified by military necessity a warcrime. 62 Ibid supra note 31. Bruch, p.716. Both General Alfred Jodl and Lothar Rendulic were accused of war crimes associated to scorched‐earth policies, resp. in Norway and Russia.
General Lothar Rendulic, responsible for scorched earths in Norway, was acquitted on the grounds that he honestly, if not mistakenly, believed that his actions were justified by military necessity. See also: United Nations War Crimes Commission, 3 Law Reports of Trials of War Criminals, 1949, p.68
64 Ajuna Dibley and Emily Kerr, Denouncing and deterring environmental harm: an argument for the reconsideration of international crimes to protect the environment, p.21. Available at:
Albeit these first precedents of environmental war crimes, this never resulted in the creation of a solid crime as such. Moreover there has never been another prosecution that was based on the destruction of the environment by an act of warfare.65 This can be considered somewhat disappointing, especially considering the fact that international tribunals have got the power to draft articles that go beyond the grave breaches of IHL and the growing awareness of environmental damage in times of war.66 However both tribunals did not feel the urge to include an “extra” crime of environmental war crimes. By taking a look at the Statutes of the international tribunals, it hard to get around the fact that as well the statute of the ICTY as that of the ICTR do not give direct power to prosecute environmental war crimes. Moreover they do not mention the environment what so ever.67 Albeit, it is worth mentioning that in the aftermath of the Gulf war there had been an attempt from the international community to create an international tribunal that included the war crime against the environment, namely the Iraqi‐tribunal. However such tribunal never came to life.68 In spite the lack of environmental protective legislation under the statutes of both tribunals, it is important to say that the ICTY may still prosecute environmental war crimes. The ICTY, unlike the ICTR, is not limited to only prosecute crimes that are stipulated in their statute. This means that if the Court wishes it could still prosecute commanders for environmental war crimes based on another article under IHL.69 Moreover, by looking at the legal history of the ICTY, it shows that the Court took the prosecution for environmental war crimes into consideration once. After the bombing of Serbia and Kosovo by the NATO, an event that caused great environmental damage, the OTP ordered a commission of experts to investigate whether there was enough evidence for a prosecution against NATO personnel for environmental crimes. In this respect, it had a look at articles 35(3) and 55 AP/I. However, in the end, the commission could not agree that the damage satisfied the requirement “excessive long‐term” yet, due to unreliability of scientific assessment (emphasis added), as will later be discussed more profoundly. The OTP accepted the statements of the commission and decided not to proceed in investigation. A missed opportunity, to my opinion and from and environmental point of view, 65 Ibid supra note 57, Gillet, p.4. 66 Ibid supra note 58. Julian Wyat, p.615. 67 Ibid supra note 27. Weinstein, p.704. 68 Ibid supra note 31, Bruch, p.716. 69 Article 3 Statute ICTY: The International tribunal shall have power to prosecute persons violating the laws or customs of war, such violations shall include but not be limited to....
to set a precedent. 70 All in all, the history of the ICL obviously lacks the prosecution of environmental war crimes, no doubt about that. However this did not mean that there was no appetite at all within international law for criminalization of environmental “war” crimes. Between 1983 and 1996, before the introduction of the ICC, the ILC developed an environmental war crime in their “draft Code of Crimes against Peace and Security of Mankind”.71 In the version of 1996, article 20 (g) of the Draft code prohibited: in case of armed conflict, using methods or means of warfare not justified by military necessity with the intent to cause widespread, long‐term and severe damage to the natural environment and thereby gravely prejudice the health or survival of the population and such damage occurs.72 Although the article is still rather anthropocentric due to the requirement of human suffering, it points out the desire for the inclusion of environmental war crimes on an international level. Next to the development of an environmental war crime, the ILC also developed a broad environmental crime without the nexus to war. This was the so‐called crime of ecocide. However this crime was eventually rejected from the draft.73 According to Doudou Thiam, special rapporteur of the ILC, the time was not ripe for the inclusion of such a broad environmental crime.74 3‐C The ICC and the Introduction of Article 8(2)(b)(iv) of the Rome Statute: Eventually in 1998, the international community has made progress into contemplating the prosecution of those who are responsible for environmental damage in times of conflict. The Rome Statute, the founding treaty of the ICC inserted a provision that allows for the direct prosecution of environmental war crimes.75 The inclusion of this provision was probably the response to the extreme environmental damage as witnessed during the Iraqi retreat from Kuwait in 1991.76 70 Steven Freeland, Modern Warfare and Conflict Demand Enhanced Environmental Rules and a Mechanism for Enforcement, p.5. 71 Karen Hulme, War Torn Environment: Interpreting the Legal Threshold, Martinus Nijhoff Publishers, 2004, pp. 106‐107. 72 Draft Code of Crimes against the Peace and Security of Mankind, International Law Commission, UN.DOC A/51/10, 1996, article 20. 73 Ibid supra note 64. Dibley and Kerr, pp.21‐24. 74 Ibid, p.24. 75 Drumbl, International Human Rights, International Humanitarian Law and Environmental Security: Can the International Criminal Court Bridge the Gaps., ILSA Journal of International & Comparative Law,Vol. 6:305, 2000 p.310. 76 Marc A. Ross, 'Environmental Warfare and the Persian Gulf War: Possible Remedies to Combat Intentional Destruction of the Environment', Dickinson Journal of International Law, 10, 1992, pp. 515‐40.
Article 8(2)(b)(iv) of the Statute prohibits: “Intentionally launching an attack in the knowledge that such an attack will cause...or widespread, long‐term and severe damage to the natural environment which would be clearly in excessive in relation to the concrete and direct overall military advantage anticipated”.77 The introduction of the article was considered as an important breakthrough in the protection of the environment. Apart from the fact that it acknowledges that environmental destruction in wartime is one of the most serious atrocities of concern to the international community78, it seems to approach the protection from an ecocentric rather than an anthropocentric point of view.79 Moreover it finally attaches direct individual criminal liability for those responsible, or accomplice, to the conduct by an independent apparatus on an international level.80 Even though the article is more than welcome within ICL, it is difficult to avoid the conclusion that the article is far less groundbreaking than what was hoped for from an environmental perspective. Not only is it highly questionable that this single provision is enough for the Court to focus on environmental damage in times of war. As Mark Drumbl correctly points out; the protection of the environment is only explicitly mentioned once in the RS. Therefore it is not unlikely that the article ends up peripheral given the broad array of other crimes to which the energy of the Court will be directed.81 Such a proposition is backed by the knowledge that the primary basis of the RS is anthropocentric rather than ecocentric. Making environmental interests clearly subordinate to human interests.82 Moreover, by applying the article it is hard to get around several “practical” concerns. As will later be discussed more profoundly in chapter 4, the article is, most likely, limited in the ability to prosecute, and remains a lot of work in process. First of all the article, like the earlier provisions from the ENMOD and AP/I, adopted a rather vague “actus reus”. In particularly the troika requirement of “widespread, long‐term and 77 Ibid supra note 5, article 8 (2)(b)(iv) Rome Statute. 78 Ibid supra note 5, article 1 Rome Statute. 79 No direct harm to humans has to be found in order for liability to be triggered. See: M. Drumbl: Accountability for Property Crimes and Environmental War Crimes: Prosecution, Litigation, and Development, 2009, p.8. Available at: http://ictj.org/sites/default/files/ICTJ‐Development‐PropertyCrimes‐FullPaper‐2009‐ English.pdf. Last visited: March 4 2013. 80 Notable, the ICC does not have universal jurisdiction, but only to the crimes committed on territory or by national of signatories of the RS and complementary to national prosecutions. See articles 1, 12, 17 Rome Statute, ibid supra note 5. Also; Under article 25 Rome Statute, individuals can be held responsible as perpetrators, with direct or inmediate participation in the crime; as co‐perpetrators, when the crime is committed in a group and all actors have contributed to the crime; and as intermediary perpetrator, when an individual has committed the crime through another person 81 M.Drumbl.Waging War Against the World: The Need to Move from War Crimes to Environmental Crimes, Fordham Int’l Law Journal, Volume 22, Issue 1, 1998, p.126. 82 Ibid supra note 27, Weinstein, p.714.
severe” damage to the natural environment seems highly problematic. In any attempt to prosecute, these elements of the damage threshold trigger numerous of interpretative concerns for the Court to overcome.83 Secondly, the article requires a strict intentionality of the conduct. A perpetrator may only be liable when the damage is inflicted with the intention and knowledge of its disastrous effects. Not only does this leave no room for negligence, it is a rather difficult criterion for the prosecutor to prove.84 Thirdly, on top of the latter, the RS introduced an excuse to the inflicted damage in the form of a proportionality test. However as will become visible, this test only further complicates the article and must not be trivialized.85 At last, the article only applies to those attacks in an international armed conflict. This limits the article's scope substantially, especially considering that most recent attacks on the environment are the result of internal armed conflicts, as later will be revealed.86 4. APLLICATION OF ARTICLE 8(2)(B)(IV) ROME STATUTE: 4‐A The Damage Threshold: In order to successfully prosecute an alleged individual perpetrator of environmental war crimes, the conduct needs to consist out of the following physical elements. The crime is an attack that results in “widespread, long‐term and severe damage” to the environment.87 In the following chapter, I explore and interpret the application of the “actus reus”, and then in particular the damage threshold. The previous discussed Iraqi‐case will be used as an example in the application of the article. From the article it becomes clear that the drafters of the RS, like the earlier discussed AP/I and ENMOD, related the assessment of environmental damage to a geographical, temporal and intensity dimension.88 Nevertheless these characteristics are rather vague in wording and, as later revealed more extensively, unspecified in meaning. If the ICC wishes to prosecute any alleged perpetrator, these terms are in need of specification and/or interpretation. 83 Ibid. 84 Ibid supra note 4. UNEP, p.30. 85 Robert Cryer, Hakan Friman, Darryl Robinson, Elizabeth Wilmshurst, An Introduction to International Criminal Law and Procedure, Cambridge University Press, Second edition, 2010, p.299. 86 Aurelie Lopez, Criminal Liability for Environmental Damage Occurring in Times of Non International Armed Conflict: Rights and Remedies, 18 Fordham Envtl. Law Review 231, 2006, pp.232‐233. 87 Ibid supra note 5, Article 8(2)(b)(iv) RS. 88 See the terms widespread, long‐term and severe, Article 8(2)(b)(iv) Rome Statute, supra note 5.
While accepting that the RS fulfills its own purpose in ICL, it has been suggested that the ICC could independently interpret the damage threshold of the article.89 However such a proposition is highly undesirable. By looking at the RS, it becomes clear that there are no legal documents that give any guidance on the specification of the characteristics. Neither the RS nor the EoC give any guidance related to the interpretation and application of the threshold.90 To begin with, such ambiguity of the terms is highly unwanted and problematic in the context of criminal law, and raises two important issues. First of all the principle of legality requires that all crimes are construed as specific and detailed as possible. The addressee of the crime needs to have a clear understanding of what conduct is prohibited.91 However with no guidance to the meaning of the troika, it is rather difficult to predict what kind of environmental damage the Court will consider as of such gravity to justify a conviction. Secondly, the rule of lenity as stipulated under article 22(2) RS provides that in case of ambiguity, any definition shall be interpreted in favor of the person being investigated, prosecuted or convicted. Consequently, this rule could already lead to unfortunate outcomes in an early attempt to enforce the article's crime.92 However if the Court decides to prosecute, it will, most likely, look for interpretative guidance in other international treaties with regard to the meaning of the terms. Such recourse to other treaties is admissible and stimulated under the RS where appropriate,93 and even further advised by the general rules of interpretation as codified under the Vienna Convention of the Law of Treaties.94 The most obvious treaties whereto the ICC might look for interpretative guidance will be the earlier discussed two articles of the AP/I and the ENMOD. By taking a look at the ENMOD, we see that the treaty originally did not specify the meaning of the troika. However after serious criticism of several countries, like the Netherlands, United Kingdom and former West Germany, who found the terms unacceptable ambiguous, Member‐ States adopted an understanding of the terms as developed Committee of Disarmament at the first Review Conference.95 The understanding defines the troika according to the following 89 William H. Boothby, The Law of Targeting, Oxford University Press, 2012, p.97. 90 Thomas J. Gardner and Terry M. Anderson, Criminal Law, Wadsworth Cengage Learning, Eleventh edition, 2012, p.12. 91 Ibid. 92 Ibid supra note 5, Article 22(2) Rome Statute. 93 Ibid., Article 21 (b) Rome Statute 94 Cyril Laucci, The Annotated Digest of the International Criminal Court, Martinus Nijhoff Publishers, 2007, p.40. See also; article 31 (3) (c) of the Vienna Convention on the Law of Treaties which stipulates that: the interpretation of an international treaty (what the RS obviously is) has to take in account any relevant rules of international law applicable in relation between the treaty parties. 95 The Sunshine Project, Facts and Research about Biological Weapons and Biotechnology > ENMOD Found on: http://www.sunshine‐project.org/enmod/art1.html. Last visited 16 December 2012.
definitions: Widespread: refers to a geographic area; the environmental modification must cover an area of several hundred (200) square kilometers; Long‐lasting: means effects lasting for a period of months, or approximately a season; Severe: means involving serious or significant disruption or harm to human life, natural and economic resources or other assets.96 The definitions of the terms by the understanding are rather clear, especially with regard to the first two characteristics that are defined by a certain amount of quantity. Only the last characteristic that of severity is somewhat ambiguous and open for interpretation.97 If the Court would interpret article 8(2)(b)(iv) RS according the standards of the ENMOD, it will most likely (fictional) be able to prosecute Saddam Hussein or other Iraqi commanders co‐responsible for environmental war crimes. The threshold of the characteristics is rather low, and the actions in Kuwait possibly will fit within the meaning of the characteristics. It is therefore fair to say that from an environmental perspective it will clearly pay off if the Court would give interpretative value to the definitions of the ENMOD. However by reading the additional understanding, it is fairly doubtful whether the Court might actually give interpretative value to the definitions. It appears that the understanding of the EMNOD blocks any possible interpretative value of the definitions to the Court.98 By way of explanation, the last paragraph of the understanding of article I ENMOD expressly stipulates that: “It is further understood that the interpretation set forth above is intended exclusively for this Convention and is not intended to prejudice the interpretation of the same or similar terms if used in connection with any other international agreement”.99 It is hard to get around the fact that any interpretative value of the terms, by other treaties like the RS, is regrettably curtailed by the understanding of the CCD. The definitions are exclusively 96 Report of the Conference of the Committee on Disarmament, Volume I, General Assembly Official records: Thirty‐first session, Supplement No. 27 (A/31/27), New York, United Nations, 1976, pp. 91‐92 97 Yoram Dinstein, The Conduct of Hostilities under the Law of Armed Conflict, Cambridge University Press, 2004, p.191. 98 Ibid. 99 Ibid supra note 96, CCD Understanding ENMOD, pp.91‐92.
set for the treaty itself.100 Hence, it is more likely that the Court will give interpretative value to the articles of the AP/I. Nevertheless, besides the above‐mentioned interpretative block by the understanding, there are more arguments in favor to give interpretative value to the AP/I. First of all, contrary to the ENMOD,101 both the articles of the AP/I as well article 8(2)(b)(iv) share the exact same language.102 Furthermore, unlike the ENMOD, both treaty provisions of the AP/I and the RS require all three characteristics of the threshold to be proven cumulatively.103 Such a different ”higher” approach can find its justification in the argument that the latter treaties extend their scope to objective foreseeable collateral damage by acts of warfare, whereas the ENMOD is limited to intentional inflicted damage by modification techniques.104 By allowing a low (er) threshold the signatories to the AP/I and RS feared that inevitable and ordinary battlefield damage to the environment might fall under the scope of the articles. Whereas, the intention is to address those cases of exceptional grave damage by acts of warfare.105 All in all, in all probability, the drafters had the text of the AP/I in mind while writing article 8 (2)(b)(iv) RS.106 Such a proposition on the thoughts of the drafters is even further trussed by the knowledge that most articles derive from the Geneva Conventions and their additional two protocols.107 Unfortunately, it is rather difficult to avoid the conclusion that the terms of the threshold under the AP/I were also left without the appropriate specification by the drafters. We see the same problem of ambiguity as with the later introduced article 8(2)(b)(iv) RS. Neither the provisions nor the preparatory works of the AP/I give any specific details how to interpret the troika, leaving the terms open for specification.108 100 Ibid supra note 96, CCD understanding, pp. 91‐92 101The ENMOD speaks off long‐lasting in stead off long‐term, see article I ENMOD and article 35 (3) and 55 AP/I. 102 Compare article 35 (3) and 55 AP/I to article 8 (2) (b) (iv) Rome Statute. 103 See the word “or” in article I ENMOD and “and” in article 35 (3) and 55, resp. article 8 (2) (b) (iv) RS. 104 Michael Bothe, Karel J. Partsch and Waldemar A. Solf, New Rules for Victims of Armed Conflict: Commentary on the Two 1977 Protocols Additional to the Geneva Conventions of 1949, Martinus Nijhoff Publishers, 1982, p.347, para.2.6.1. See also: Explanation ICRC on rule 45, Available at: http://www.icrc.org/customary‐ ihl/eng/docs/v1_rul_rule45. Last visited: January 3, 2013. 105 Ines Peterson believes that if the threshold is to low it will expand the scope of the articles of the AP/I and article 8(2)(b)(iv) Rome Statute beyond grave and exceptional to ordinary. See: Ines Peterson, The Natural Environment in Times of Armed Conflict: A Concern for International War Crimes Law?, Leiden Journal of International Law, Volume 22, Issue 02, June 2009, p.????? See also: Official records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflict, Vol XV, Doc.CDDH/215/Rev.1, Geneva, 1974‐1977, para.27, p.268. 106Knut Dorman, Elements of War Crimes under the Rome Statute of the International Criminal Court, Sources and Commentary, Cambridge University Press, 2003, p.166. 107Flavia Lattanzi and William A. Schabas, Essays on the Rome Statute of the International Criminal Court, Volume II, Il Sirente, 2003, p.316. 108 Ole K. Fauchald, David Hunter and Wang Xi, Yearbook of International Environmental Law, Vol.19, 2008, p.43.
From the preparatory works we only find some indication to the term “long‐term”. Some delegates referred to the term as a period measured in decades. About the other two characteristics the preparatory works are scrupulously silent.109 Hence the AP/I still gives the presiding judge, who wishes to determine the definitions, little guidance in defining the damage threshold. Nevertheless, there have been several attempts to remedy these flaws of ambiguity of the AP/I by legal experts. One of the scholars that tried to shed some light on the vagueness and ambiguity of the term is Karen Hulme. According to her analysis of the article, the troika can be interpreted into the following definitions:110 First of all, the term long‐term should be measured in a time of decades, meaning twenty or thirty years minimum. This reflects the preparatory works of the AP/I, which specifically mentions the duration of decades.111 Secondly the term widespread could cover over several tens of thousands kilometers.112 Here Hulme probably takes the proposition that the drafters of the AP/I had the damage of the Vietnam War in mind, of approximately 20000 square kilometers.113 Thirdly, the term severe needs to be explained as that damage that prejudices the health and survival of the population. Meaning a significant interference with human life or human utilities.114 If we should take these definitions as correct, it will most definitely set a very high threshold. Maybe even insurmountable high since all three characteristics in article 8(2)(b)(iv) need to be proven cumulatively. Several legal experts even disputed that the actions of burning Kuwait's oil wells, and the deliberate oil spills, would meet up to such “high” threshold requirements.115 Besides the fact that the threshold is fiercely high, one element of the threshold in particular is problematic, namely the term “severe”. If we take the meaning of the term as interpreted by experts like Karen Hulme, and others i.e. Austin and Bruch, for true, it will substantially lower the protection to the environment “per se”.116 109 Ibid. 110 Austin and Bruch, Environmental Consequences of War, Legal, Scientific and Economic Perspectives, 2000, p.563. See also: Supra note 71. K.Hulme, 111 Ibid, p.94. 112 Ibid, p.92. 113Dinstein, Protection of the Environment in International Armed Conflict, 2001, Max Planck Yearbook of United Nations Laws, p.542. 114Ibid, supra note 71, K. Hulme, p.96. 115K. Hulme, Armed Conflict, Wanton Ecological Devastation and Scorched Earth Policies: How the Gulf Conflict Revealed the Inadequacies of the Current Laws to Ensure Effective Protection and Preservation of the Natural Environment, Journal of Armed Conflict Law, Volume 45 p.70. 116 See meaning threshold, supra note 110.
The term severe takes an anthropocentric approach to the issue of environmental damage rather than an ecocentric approach. Only that damage that prejudices the health and survival of the population may fall within the scope of the article, no matter how big the disaster might be. Such is clearly unwanted from an environmental point of view. In the case of the Gulf war such will most definitely exclude the deliberate oil spills into the Gulf. In spite the massive scale pollution and the lethal effect to various species, it is improbable that such damage will prejudice the health and survival of the population.117 However, next to the problem of ambiguity of the terms there is another major problem attached to the assessment of the damage threshold. As Tara Weinstein pointed out regarding the conduct by the Iraqi's in the Gulf war; the ambiguity of the terms is compounded by scientific difficulties inherent in measuring environmental destruction.118 For example, in the case the burning of Kuwait's oil wells, the initial reports reported extreme and long‐lasting air, soil and water pollution.119 However as Weinstein correctly states: it not only takes time and close monitoring to determine these long‐term effects to the environment, the effects eventually could also be less severe than anticipated initially.120 Assessing the damage closely after the conduct took place might give an incorrect conclusion. Moreover it is rather unreliable, taking in account nature's own ability to heal itself.121 A logical following question however is; how long does the Court need to wait? Who knows! There are no guidelines what so ever. A second matter of scientific difficulties may be the fact that is not always easy to attribute the exact amount of damage to a particular party in war. Such is especially the case in the Gulf war. Obviously Iraq's had the biggest hand in the environmental damage caused in Kuwait, however the devastating effect of the unprecedented bombing of the coalitions to force Iraq's retreat should not be underestimated and overlooked. It is still highly disputable for how much environmental damage Iraq/Saddam Hussein is exactly responsible.122 Hence it will be, 117 Lewis A. Owen and Professor Kevin T Pickering, An Introduction to Global Environmental Issues, Second Edition, Routledge Taylor and Francis Group, 1997, p.209 118The long term impacts of the oil spill are more difficult to quantity in part because such and assessment requires careful, consistent long term monitoring, and because the affected area is large and diverse. See: Tara Weinstein, Prosecuting Attacks that Destroy the Environment: Environmental Crimes of Humanitarian Atrocities?, 17 Georgetown Int’l Environmental Law Review 697, 2005, p.708. See also the following article: Available at: http://www.theenergylibrary.com/node/13080. Last visited: 4 March 2013.
119 Farouk El‐Baz,R. M. Makharita, The Gulf War and the Environment, Gordon and Breach Science Publishers, 1994, p.127 120Ibid, supra note 27. Tara Weinstein, p.708 121Ibid 122Carl E. Bruch & Jay Austin, The 1999 Kosovo Conflict: Unresolved Issues in Addressing the Environmental Consequences of War, 30 Environmental Law Reporter, 10069, 2nd edition, 2002, excerpted in David Hunter et al. International Environmental Law and Policy pp.1397‐1400. “Noting that it is difficult to discern which contamination is due to wartime actions and which is pre‐existing,
in some cases, really difficult for the prosecutor to prove for what an exact amount of damage a perpetrator is responsible. Something that the threshold of the article clearly is requires. There needs to be a clear relationship between the attack and the damage done.123 Next to earlier discussed ambiguity of the terms, these scientific problems create a major problem in the assessment of the damage by the Court. Consequently, like is the case with ambiguity of the terms, if the Court cannot reliably quantify and identify the damage, any perpetrator will likely be acquitted based on the principle of legality. How extreme and devastating the damage to the environment might be.124 Taking the above into account, it were just these reasons of scientific unreliability and ambiguity of the terms that played a key role for the OTP, in the case of environmental damage caused by the NATO in Kosovo, not to decide to prosecute. Moreover the OTP, in a comment, was even unwilling to entertain that the actions in Iraq met the damage threshold.125 4‐B The Concept of Proportionality: 4B‐1 The concept: Even if the Court finds proof of widespread, long‐term and severe damage to the natural environment, something that is already a big hurdle to overcome, criminal liability will be denied if such damage to the environment is “not clearly excessive in the relation to the concrete and direct overall military advantage anticipated”.126 The ICC hereby introduced a proportionality concept that requires the Court to weigh the inflicted environmental damage of the attack against the foreseen military advantage, thereby showing the need for destruction.127 Nevertheless such does not mean that it justifies the violated norms of law applicable at the time of conflict. As well said by Knut Dormann in his commentaries on the RS and in particular on article 8(2)(b)(iv): “It reflects the proportionality requirement inherent in determining the legality of any military activity undertaken in the context of an armed conflict”.128 or caused by the Serbs during the conflict”. 123The damage is the direct result of an attack, see article 8 (2)(b)(iv) RS, supra note 5. 124 Ibid supra note 5, Article 22(3) Rome Statute. 125Aaron Schwabach, NATO's War in Kosovo and the Final Report to the Prosecutor of the International Criminal Tribunal for the Former Yugoslavia, Tulane Journal of International and Comparative Law, Volume 9, Spring, 2001, p.18. Available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=412182. Last visited: 6 March 2013.
126 Last sentence of article 8 (2)(b)(iv) Rome Statute, supra note 5. 127 Ibid supra note 29. M.N. Schmitt., p.283.
As a result of this test, not all inflicted environmental damage by means of warfare is prohibited. The article only covers disproportionate damage. Proportionate damage to environment does not fall under the scope of article 8(2)(b)(iv) RS. Obviously, it is fair to ask if such a concept is desirable from an environmental point of view? Should not all, widespread, severe and long‐term damage to the environment be protected by the article? An issue I will dwell on later in this chapter. However, apart from issue above, the introduction is not without other concerns. Taking a look at the language of the concept and applying this to the present case, numerous problems arise. For starter, the proportionality concept as introduced is heavily weighed in favour of finding the attack proportional. 129 Furthermore, like the earlier discussed damage threshold, the language of the concept suffers from serious ambiguity. 130 A problem that should not be underestimated, as it can have serious legal consequences. 131 4B‐2 Three alternatives of the draft‐text: Looking at the negotiation history of RS, it comes to notice that the choice for this particular proportionality‐test, as stipulated in the article, was not taken without discussion or debate. Before the drafters of the RS completed their final version, the PrepCom presented a draft‐text with three alternatives to the article. Each of these alternatives contained a different proportionality‐test, which might have given different scopes to the article .132 These three alternatives included; intentionally launching an attack in the knowledge that such an attack will cause widespread, long‐term and severe damage to the natural environment: 1. Which is not justified by military necessity; 2. Which would clearly be excessive in the relation to the concrete and direct military advantage anticipated and; 3. No proportionality‐test at all.133 The first alternative reflects the principle of military necessity as stipulated in article 6 of the and Commentary, ICRC, Cambbridge University Press, 2003, p.161. 129 Heller and Lawrence, The limits of article 8(2)(b)(iv), p. 17. 130 Ibid supra note 75, M. Drumbl, pp.318‐319. 131 As earlier discussed in chapter 4ª, ambiguity violates the principle of legality. 132 Preparatory Committee on the Establishment of an International Criminal Court, 1‐12 December 1997, Working Group on Definitions and Elements of Crime, A/AC.249/1997WG.1/CRP.9, p.2. Available at: http://www.iccnow.org/documents/WarCrimes.pdf. 133 Ibid.
IMT Charter and forms part of customary international humanitarian law.134 The second alternative is a rather complex set of words, which language has almost entirely been borrowed from article 51(5) AP/I. 135 The third option did not allow for a proportionality‐ test.136 4B‐3 A desirable concept: By looking at the alternatives, the no‐proportionality‐test clearly prevails from an environmental point of view. If the damage threshold is met, liability of an alleged perpetrator cannot be denied. Even though the no‐proportionality‐test received rather wide support under the delegates of the RS, the drafters eventually decided to reject the notion.137 Several States, like the United Kingdom, criticized that the scope of the article would become too broad and therefore unrealistic without a proportionality‐test.138 However the ultimate rejection can be considered as somewhat disappointing and illogical. Disappointing because the no‐proportionality‐test is clearly most desirable from environmental point of view. It leaves no room for any excuse of liability. Giving the environment most protection. Illogical because not in the line of expectations. The article most authoritative precedents, article 35(5) and 55 AP/I, did not implement a proportionality‐test. 139 The prohibition as set was meant to be absolute. Therefore not allowing for any limitation of liability. Exactly for this reason the damage threshold was set so high.140 A proportionality‐ test of article 8(2)(b)(iv) RS only further complicates prosecution of environmental war crimes. 4B‐4 Proportionality concept weighed in favour of finding the attack proportional: 134 See the similar text of article 6 IMT Charter, supra note 61. See also: Francoise Hampson, Military Necessity, Available at: http://www.crimesofwar.org/a‐z‐ guide/military‐necessity. Last visited 21 August 2013. 135 Ibid supra note 43, Article 51(5) AP/I. 136 Preparatory Committee on the Establishment of an International Criminal Court.. 137 United Nations Diplomatic Conference of Plenipotentiaries of the Establishment of the International Criminal Court., 4th Plenary Meeting, 15 June‐17 July, 1998, UN.Doc. A/CONF. 183/C.1/SR.4., paras. 44 (Syria), 48 (Lebanon), 66 (United Arabic Emirates), 67 (Greece), 69 (Vietnam), 70 (Bahrain), 73 (Denmark); UN.Doc. A/CONF. 183/C.1/SR.5., paras. 21 (Saudi Arabia), 23 (Tunisia), 33 (Egypt), 46 (Brazil), 58 (Switzerland), 62 (Morocco), 70 (Turkey), 83 (Senegal). 138 UN.Doc. A/CONF. 183/C.1/SR.5. 15 June‐17 July, 1998, Para 37 (United Kingdom) 139 Ibid supra note 43, Article 35(5) AP/I. 140 Ibid supra note 105, Ines Peterson.
