Camille Tabary
2015 - 2016
Master Thesis,
L.L.M International Criminal Law
Title: Should large-scale environmental crimes be recognised as a ‘core crime’ protected
under the Rome Statute?
Columbia Law School,
Universiteit Van Amsterdam
Professor Lori Damrosch
Professor Herman van der Wilt
TABLE OF CONTENTS INTRODUCTION ... 3 I. Framing the contours of ‘environmental crimes’ ... 7 A. The lack of consensus on a definition ... 7 1. Definitions from national legislations and International Organisations ... 8 2. Definitions offered by legal scholars ... 9 3. Definition selected for the purpose of this paper ... 10 B. Recent examples of environmental crimes falling under the selected definition ... 11 C. Challenges inherent to the prosecution of environmental crimes ... 13 II. Analysis of the subject matter jurisdiction of the International Criminal Court through the drafting process and body of the Rome Statute ... 13 A. The drafting process leading to the adoption of the Rome Statute ... 14 1. The goal of the process ... 14 2. Debate surrounding the inclusion within the statute of acts harmful to the environment .. 15 3. Application to environmental crimes ... 16 (i) Historical reasons for the selection of the core crimes ... 16 (ii) The maintenance of peace and security
... 17
B. The wording of the Statute of the International Criminal Court ... 19 1. The preamble, Articles 1 and 5 of the Rome Statute ... 19 2. Application to environmental crimes ... 20 (i) Crimes that deeply shock the conscience of humanity ... 20 (ii) Most serious crimes of concern to the international community as a whole... 21
3. Article 8 of the Rome Statute ... 22 III. Normative approach to core international crimes: do environmental crimes violate Larry Mays’ security and international harm principle? ... 23 A. General overview of Larry Mays’ theory ... 23 B. The Security principle ... 24 C. The International Harm principle ... 26 1. Systematic attacks by group perpetrators ... 26 2. Indiscriminate attacks against groups ... 28 CONCLUSION ... 29 Bibliography ... 32Should large-scale environmental crimes be recognised as a “core crime” protected under the Rome Statute? Introduction
Technological progress made over the past century has increased the capacities that states and multinational companies have to exploit extensively and more economically the natural resources of our planet. But the growing reliance on fossil energies, raw materials and wood seem to come at the expense of environmental health and is slowly destroying the life supports upon which humankind depends. Since the late 1960s, major environmental disasters1 have raised public awareness on offences against the environment. The European Court of Human Right (ECHR) has come to acknowledge that “in today’s society, protection of the environment is an increasingly important consideration”2. Regular international summits such as COP21 in Paris3 demonstrate a growing global interest for what Barack Obama considers to be “the greatest threat to our children, our planet, and future generations”4.
Despite this spreading concern in limiting human impact on our habitat, there exists no major international treaty prohibiting all types of crimes committed against the environment. Indeed, whilst specific conventions target hazardous waste5, oil pollution of the seas6 and endangered species7, none recognises an overarching offense of crime against the environment8. This can partly be explained by the fact that to many, the environment remains an important resource. States and multinational corporations can find environmental crime to be in their best interest9. Furthermore, “many conventional and legal forms of human production and
1 The Torrey Canyon Spill in 1967 “raised the spectre of accidental damage on a hitherto unheard of scale” 2 Fredin v. Sweden, 1992, Eur. Ct. H.R. (ser A) at 6 (1991)
3 The United Nations Climate Change Conference was held in Paris from 30/11-12/12/2015
4 Barack Obama on the Whitehouse website https://www.whitehouse.gov/the-record/climate but can
also be interpreted from the remarks made at the first session of the COP21, Nov. 30 2015. 5 Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 6 International Convention for the Prevention of Pollution from Ships, Nov. 2, 1973, 1340 U.N.T.S. 61 7 Convention on International Trade in Endangered Species of Wild Fauna and Flora opened for signature Mar. 3, 1973, 27 U.S.T. 1087, 993 U.N.T.S. 8 Most conventions have been established in response to major environmental catastrophes. 9 An example of insourcing of environmental crime for economic benefit is the illegal exportation of toxic waste to Abijian by Trafigura. States and companies can have economic interests in sending and receiving toxic waste.
interaction do far worse things to the natural environment than those activities deemed illegal10. States may thus be reticent to enter into international agreements limiting companies’ means of exploiting natural resources as this could substantially affect their economic development. This paper will focus on individual international criminal responsibility for large-scaled environmental crimes: the prohibition of such a crime under international criminal law. International Criminal law has for goal the prosecution of individuals for the commission of crimes considered to be “the most serious crimes of concern to the international community as a whole”11. Currently, the International Criminal Court (ICC) has jurisdiction over four crimes12 which are said to constitute core international crimes. Derived from history, the qualification as ‘core’ has often been described as “formally meaningless” and denoting “no juridical quality of the crimes in question”13. Whilst the epithet core seems to be accepted as a mere descriptor of the fact that these offenses fall within the jurisdiction of international criminal courts, the label of a crime as a core international crime may still have significant effects. As described by Bassiouni at the opening of the Rome Conference, the ICC embodies certain fundamental values shared by all the peoples of the world14. The qualification of a crime as an international crime thus sends the strongest possible signal to states and corporations regarding the reprehensibility of the actions in question. In addition to deterring perpetrators from committing crimes, international criminalisation “offers prospects of effective international action”15, promotes peace and justice by encouraging states to exercise jurisdictions over their nationals and facilitates judicial cooperation. In Colombia for example, the provisions of the Rome Statute influenced both the legislature and judiciary to act against the paramilitary
10 Halsey, Mark, and Rob White. "Crime, ecophilosophy and environmental harm." Theoretical criminology 2.3 (1998) p346, sea dumping and trading in endangered species often have a relatively negligible impact compared to using drift-nets to catch fish, which is legal 11 UN General Assembly, Rome Statute of the International Criminal Court (last amended 2010), 17 July 1998, ISBN No. 92-9227-227-6, in the preamble. P1 12 genocide, crimes against humanity, war crimes and aggression 13 O’Keede, Roger. International Criminal Law, Oxford International Law Library, 2015, P63
14 M. Cherif Bassiouni, Speech at Rome Ceremony (July 18, 1998). Mentionned in Bassiouni, M. Cherif. "Negotiating the Treaty of Rome on the Establishment of an International Criminal Court." Cornell Int'l LJ 32 (1999): p468
15 “Also against those who are immune from national proseuctions” McLaughlin, R. (2000). Improving
compliance: making non-state international actors responsible for environmental crimes. Colo. J. Int'l Envtl. L. & Pol'y, 11, p 389
forces16. The impact the qualification of an offense as a core crime has influenced legal scholars17 to advocate the recognition of environmental crimes as a crime under the Rome Statute.
Under current international criminal law, environmental offenses are only protected through the prohibition of war crimes. Article 8.2(b)(iv) of the Rome Statute prohibits the intentional “launching of an attack in the knowledge that such attack will cause … widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated“18. Many legal scholars consider this article to be an “ineffective and inadequate response to a persistent and growing problem”19 because it is excessively restrictive. Not only must the attack on the environment have widespread, long-term and severe consequences on the environment, but it must also occur within an international armed conflict and violate the principle of proportionality.
The absence of effective protection of the environment under international criminal law has led legal scholars to propose a wide range of remedies. Tara Smith, for example, advocates the expansion of the current definitions of the existing core crimes to include environmental damage20. In her view, just as there is an environmental war crime, there should be environmental crimes against humanity and genocide. Peter Sharp, in a similar fashion, supports an interpretation of the core crimes to include environmental harm21. For him, the current crimes do not need to be modified, but simply interpreted so as to include destruction of the environment. Whilst this proposition would be the simplest to implement, it seems to violate article 22 of the Rome Statute, which stipulates that the “definition of a crime shall be strictly construed and shall not extend by analogy”. Furthermore, Freeland argues that “the Court and Prosecutor should proceed in such a way as to avoid any claims that they are overreaching the
16 Moreno-Ocampo, Luis. "International Criminal Court: Seeking Global Justice, The." Case W. Res. J. Int'l L. 40 (2007): p 217 17 Higgins, Polly, Damien Short, and Nigel South. "Protecting the planet: A proposal for a law of ecocide." Crime, law and social change 59.3 (2013): 251-266 18 Ibid 11, p 6
19 Smith, Tara. "Creating a Framework for the Prosecution of Environmental Crimes in International Criminal Law." COMPANION TO INTERNATIONAL CRIMINAL LAW: CRITICAL PERSPECTIVES, William
Schabas, Yvonne McDermott, Niamh Hayes and Maria Varaki, eds., Ashgate Publishers (2012), p8 20 Ibid 19
21 Sharp, Peter. "Prospects for environmental liability in the International Criminal Court." Va. Envtl. LJ 18
boundaries of their respective powers, particularly given the highly political nature of the opposition to the court”22. An incorporation of environmental crimes into the Rome Statute without its modification may thus be problematic. Another proposal, made by Polly Higgins23 in 2012, consists of adding a new crime to the Rome Statute. In “the ecocide project” she contends that environmental crimes are the missing fifth crime against peace. Whilst agreeing with Polly Higgins on the importance of environmental crimes and its qualification as an international crime, Lynn Berat24 and the International Academy of Environmental Science25 have campaigned for the creation of a new International Environmental Criminal Court, distinct from the ICC. But before defending the inclusion of a new crime into the Rome Statute, an analysis of the coherence of such an action is required. This paper will thus focus on a more theoretical approach to international criminalisation of environmental crimes. The question posed here is not whether a new crime should be incorporated into the Rome Statute, or how this could be possible, but whether ‘environmental crimes’ are compatible with the concept of international criminalisation. By reviewing the drafting history of the Rome Statute, its wording and normative approaches to international criminal law, this paper will look to identify the underlying justification for the selection of the four core crimes. Do large-scale environmental crimes fit into the theoretical structure that justifies the international prosecution of certain crimes?
The first part of this paper will be devoted to defining the term ‘environmental crime’(I). The scope of what constitutes an environmental crime can have a great influence on ascertaining whether they should in theory be recognised as a core crime. Indeed, it is by determining the precise contours of the offense that one can assess whether it secures the fundamental values sought to be protected through the Statute of the ICC. The second part of this paper will then focus on analysing the drafting history as well as the body of the Rome Statute to determine
22 Freeland, Steven. "Human rights, the environment and conflict: addressing crimes against the
environment." Sur. Revista Internacional de Direitos Humanos 2.2 (2005), p132 23 Ibid 17 24 Berat, Lynn. "Defending the Right to a Healthy Environment: Toward a Crime of Geocide in International Law." BU Int'l LJ 11 (1993): 327 25 Abrami, Gruner, Proposition for the constitution of an International Environmental Criminal Court and of a European Environmental Criminal Court, International Academy of Environmental Sciences, 2010
whether there exists an apparent rationale for selecting the current four core crimes (II). Legal philosopher Larry May believes there is a coherent basis for concluding that certain offenses are deserving of international punishment. In his book “Crimes against humanity: a normative account”26, he argues that international crimes are those that violate both the security and the international harm principles. The last section of this paper will therefore try to ascertain whether large-scaled environmental crimes violate Larry May’s two principles (III).
I. Framing the contours of ‘environmental crimes’
There exists no commonly agreed upon definition of what constitutes an ‘environmental crime’. Legal scholars, international organisations and states seem to disagree both on the denomination such a crime should have and on the scope of protection ‘environmental crimes’ should accord. After analysing the existing definitions of ecocide, geocide and environmental crimes (A), this paper will study recent examples of environmental crimes falling under the given definition (B), before presenting the main challenges inherent to any prosecution of crimes against our planet (C).
A. The lack of consensus on a definition
The term used to qualify large-scale environmental crimes differs between legal scholars. The most commonly used, ecocide, was first employed in the late 1960s to describe damage made to the environment during the Vietnam War27. This appellation, created from the combination of the Greek word oikos, house and the Latin caedere, to destroy or kill, literally means a killing of ecology. The logic behind this crime seems to be the prosecution of significant harm to the natural environment which leads to the extinction of certain species or groups. Another term commonly referred to is that of geocide28, a combination of the Greek geo, the earth and the Latin caedere, to kill. For the purpose of this paper, the crime selected will be ‘environmental crimes’ rather than any other name commonly adopted. This choice stems from the will to start with a neutral definition of the crime, without any preconceptions. As both
26 May, Larry. Crimes against humanity: a normative account. Cambridge University Press, 2005
27 By professor Arthur Galston and Prime Minister Olafe Palme of Sweden. Meheta, Sailesh, and Prisca Merz. "Ecocide-A New Crime against Peace." Envtl. L. Rev. 17 (2015) p 4. And Teclaff, Ludwik A. "Beyond Restoration-The Case of Ecocide." Nat. Resources J. 34 (1994) p49
ecocide and geocide have been described as “the environmental counterpart of genocide”29, their use will be avoided. 1. Definitions from national legislations and International Organisations For primarily historical reasons, over ten countries30 have to this day codified ecocide, or large-scaled environmental crimes into their national legislation. In 1996 for example, after the fall of the Soviet Union, the Russian Federation adopted a definition of ecocide as « massive destruction of the animal or plant kingdoms, contamination of the atmosphere or water resources, and also commission of other actions capable of causing an ecological catastrophe »31. This definition, whilst interesting as an example of formulation of a prohibition both in times of war and peace, remains of little international value and leaves many questions as to the exact contours of what constitutes an ‘ecological catastrophe’. No International Convention has yet adopted a clear prohibition of the crimes against the environment. In 1973 however, Richard Falk prepared a Draft International Convention on the Crime of Ecocide, which was largely debated at the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities32. The proposition stated that “ecocide would include the use of weapons of mass destruction, whether nuclear, bacteriological or chemical; attempts to provoke natural disasters such as volcanoes, earthquakes, or floods; the military use of defoliants; the use of bombs to impair soil quality to enhance the prospects of disease, the bulldozing of forest or crops for military purposes, attempts to modify weather or climate as a hostile act; or to the forcible and permanent removal of humans or animals from their habitual place of habitation”. This definition, only focused on ecocide during war, is flawed for relying solely on an enumeration of activities33. As new means and methods of warfare and exploitation
29 Lay, Bronwyn, et al. "Timely and Necessary: Ecocide Law as Urgent and Emerging." J. Juris 28 (2015) p434, discussing Berat, ibid 24. P328
30 Georgia*, Armenia*, Belarus*, Ukraine*, Kazakhstan, Kyrgyzstan, Moldova*, Russia, Vietnam, Tajikistan,
Uzbekistan. Those with asterisk have recognised ecocide as a crime against peace. Discussed in Bronwyn, ibid 29
31 Article 58 Criminal Code of the Russian Federation, Russian-criminal-code.com
32 Lytton, Christopher H. "Environmental human rights: Emerging trends in international law and ecocide." Environmental Claims Journal 13.1 (2000): p83
33 As argued by Lytton, ibid 32, p82, “By enumerating the activities that would constitute ecocide, the
of the environment continuously emerge, a definition permitting to cover future damage should be sought out. The draft convention, though having received strong support, was never adopted. 2. Definitions offered by legal scholars
Legal scholars have advanced a great diversity of definitions for the crimes of ecocide, geocide and large-scale environmental crimes over the past decades, most of which excessively limit the scope of protection sought to be afforded. Marchisio, for example, construes an eco-crime to be “a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas”34. The issue with this definition is that it relies on previous treaties and international conventions that have limited scope in protecting the environment. Additionally, Brisman35 argues that ecocide is the term employed to describe state-sanctioned destruction of an ecosystem. In a world where most of environmental catastrophes can be traced back to private corporations, such a definition cannot be endorsed. Lynn Berat, on the other hand, interprets ecocide to be the “intentional destruction, in whole or in part, of any portion of the global ecosystem, via killing members of a species, inflicting on the species conditions of life that bring out its physical destruction in whole or in part, and imposing measures that prevent births within the group or lead to birth defects”36. By relying in great part on the definition of genocide found within the Rome Statute, this scholar unduly restricts environmental crimes to intentional destructions of an ecosystem. Should severe damage without intent to destroy an ecosystem as such then escape international scrutiny?
Sharp37, Whitaker38, Higgins39 and Al Moumin40 all limit environmental crimes to the destruction of the environment which has important effects on human populations. For Instance,
34 Conference: Rome, 29 October 2012- Environmental crimes- current and emerging threats, P.
Marchisio, p4 of transcript. 35 Brisman, Avi “Crime-Environment Relationships and Environmental Justice” 6 Seattle Journal For Social Justice, 2008, p 748 36 Ibid 24, Berat, p343 37 Ibid 21, Sharp, p 38 Whitaker, "Revised and Updated Report on the Question of the Prevention and the Punishment of the Crime of Genocide" UN Doc. E/CN.4/Sub.2/1985/6, 2 July 1985, p17 39 Ibid 17, Higgins, p251
Sharp argues that “international acts of environmental degradation which cause injury or death of human populations” constitute environmental crimes. In a similar manner, Higgins contends that “the extensive destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished” 41 are what characterise environmental crimes. But should environmental crimes be limited to offenses against individuals, without acknowledging the possibility of harm against animals and plants? John Fried42 argues for the protection of human life, animal life and plant life alike however this position remains highly controversial.43
3. Definition selected for the purpose of this paper
Through the analysis of suggested definitions, it seems that a thorough account of what constitutes an environmental crime should not consist of an enumeration of examples, focus solely on state-sanctioned crimes or those already protected by international conventions and should apply both in times of peace and of war. Ideally, the definition would protect the environment in itself, without requiring serious or damaging effects on human beings. For the purpose of this paper, the analysis will focus on environmental crimes defined as ‘the intentional commission of an act, whether in time of peace or war, regardless of the status of the act under national legislation44, which causes serious and extensive damage to the natural environment (constituted notably but not exclusively of the seas, soils, atmosphere, water sources, plants and living beings)’. Because the fauna and flora have been described as “the life support for the whole planet”45, environmental crimes should not be limited to those with adverse effects on
40 Mishkat Al Moumin, “Mesopotamian Marshlands: An Ecocide Case” 20 Georgial International Law
Review (2008), p259
41 Ibid 17, Higgins, p251
42 Fried, John H.E. (1972): ‘War by Ecocide’ in: Thee, Marek (ed.) (1973). Bulletin of Peace Proposals. 1973,
Vol.1. Universitetsforlaget, Olso, Bergen, Tromsö.
43 Other definitions such as Mark Allan Gray’s requirement of international consequences will not be
discussed in this paper for lack of space. This restriction should nevertheless be disregarded, as major catastrophes within one country, such as the deforestation of the Brazilian Amazon, might not have direct effects on the international community but only indirect effects. Similarly the poisoning of a river may affect entire ecosystems without extending to neighbouring countries. These should nevertheless be protected. Mark-Allan Gray, “The international crime of ecocide”, California Western International Law Journal, Volume 26, Num. 2, p215
44 Expression taken from McLauglin’s definition of the crime, ibid 15
human populations. This paper will thus focus on environmental crimes that protect the environment per se.
However, for the purpose of this analysis a second definition, an anthropocentric approach to environmental crimes, will be provided. Whilst it is not the definition this thesis will be based on, it will serve as a comparison with the biocentric definition previously adopted throughout this paper. The definition of human-oriented environmental crime is thus ‘the commission of an act, whether in time of peace or war, regardless of the statute under national legislations, which causes extensive and serious ecological damage, which causes injury or death to human populations’. This double approach can mainly be explained by a general belief that “although environmental destruction should be recognised for its independent devastation, the international community would more readily accept prosecution for environmental attacks when conducted to achieve a destructive humanitarian impact, as this has been the trend in international atrocity law”46.
B. Recent examples of environmental crimes falling under the selected definition
The selected definition of crimes against the environment is designed to cover both offenses occurring during times of armed conflict and of peace. During warfare, environmental damage is often an unsolicited consequence of armed combat. Sometimes however, belligerents have used the environment as a deliberate tool to gain a military advantage. During the Gulf war for example, over 732 oil wells were ignited in Kuwait, releasing into the air, soil, vegetation and groundwater dangerous chemicals which deeply damaged the local ecosystem47. Similarly, the draining of the Al Hawizch and Al Hammar Marshes by the Saddam regime during the Iraqi war in order to expel local inhabitants constitutes an environmental crime. The building of a canal to prevent water from reaching the Marshlands completely destroyed an ecosystem, and displaced
Envtl. L. & Pol'y 19 (2000): p 13 « This term became popularized by its use in the World Charter for Nature, U.N. GAOR, 37th Sess., 48th mtg., U.N. Doe. AIRES/37/7 (1982).
46 Weinstein, T. (2004). Prosecuting attacks that destroy the environment: Environmental crimes or
humanitarian atrocities. Geo. Int'l Envtl. L. Rev., 17,p
47 Ibid 32, Lytton, p83 based on the research of Feliciano, Florentino P. (1992). "Marine Pollution and
Spoilation of Natural Resources as War Measures: A Note On Some International Law Problems in the Gulf War," 14 Hous.J Intl L. 483, 486 (1992).
over 80,000 people48. Yet crimes against the environment are not limited to situations of armed conflict. For the past thirty years, international criminal networks comprised of businessmen and military have been illegally logging the Indonesian rainforest. As described by Tsing “something shocking started to happen in Indonesia’s rainforests during the last decades of the twentieth century. Species diversity that had taken millions of years to assemble were cleared, burned, and sacrificed to erosion”49.
Environmental crimes can occur as the consequence of a single event, or over long periods of time. Indeed, large-scaled oil spills and illegal dumping of toxic waste intentionally perpetrated can constitute single event environmental crimes. Yet most illegal environmental damage will be the consequence of a prolonged process. As pointed out by Martinez, “Ecuador has an oil production rate of 400,000 barrels per day, each year more than 32,000 barrels are spilt into the river systems. This means that every 2-3 years, a spill as big as the ‘Exxon Valdez’ takes place in the Amazon”50. Prolonged oil spills as well as long-term deforestation of the Amazonian rainforest51 fall under the definition of ‘large-scaled environmental crimes’. The definition selected for the purpose of this paper therefore intends to cover single events as well as long-term environmental crimes, committed during times of armed conflict or of peace, and affecting any aspect of the environment, be it the air, water, soil or living creatures.
C. Challenges inherent to the prosecution of environmental crimes
“The international communities’ concern for the environment faces a variety of economic, practical and political hurdles that have rendered the development of relevant international legislation very difficult”52. The unwillingness of states to enact statutes that will have strong consequences on multinational corporations, which provide wealth and development to nations, is thus not the only challenge inherent to the prosecution of
48 Ibid 46, Weinstein, p714
49 van Solinge, T. B. (2010). Deforestation crimes and conflicts in the Amazon. Critical Criminology, 18(4), p268 quoting Tsing, A. L. (2005). Friction. An ethnography of global connection. Princeton & Oxford: Princeton University Press.
50 Martinez, T. Oil Politics in the Amazon: From Ethnocide to Resistance and Survival p 8 quoting Martínez,
Esperanza. 2006. Petróleo, pueblos indígenas y biodiversidad. In Guillaume Fontaine (ed.),Petróleo y desarrollosostenible en el Ecuador: Las ganancias y pérdidas, p190
51Ibid 49, van Solinge, stresses that private cattle ranching have provoked some 70% of the Brazilian
Amazon deforestation.
environmental crimes. It is often very difficult to scientifically establish the impact between the human action and harmful effects on our planet. For example, it is near impossible to establish to what extent human activity can be said to have contributed to specific weather events, even those attributed to climate change.
Furthermore, harmful actions will sometimes only become evident years after the event. French nuclear testing in Fangataufa in 1968 lead to environmental destruction, genetic deformities and cancers that appeared over 30 years after the events occurred53. Similarly, soils poisoned may only become arid and toxic to plants and animals decades after the infiltration. It is often hard to estimate, with the passing of time, distance and cumulative environmental degradation to what extent one environmentally harmful event has contributed to the overall damage observed54. Most environmental damage will thus have to be predicted by scientists and experts if environmental crimes do become crimes under international criminal law.
II. Analysis of the subject matter jurisdiction of the International Criminal Court
through the drafting process and body of the Rome Statute
In order to determine whether large-scale environmental crimes could justifiably be integrated into the Rome Statute as a core crime, it is primordial to investigate the reasons why crimes against humanity, genocide, war crimes and aggression were selected by the drafters of the Statute. The second part of this thesis will thus study both the drafting history of the Rome Statute (A) and the body of the convention creating the International Criminal Court (B) to establish the underlying rationale for the selection of the existing four crimes against peace. A. The drafting process leading up to the adoption of the Rome Statute
As most of the drafting process of the Rome Statute was conducted through informal meetings, there exist to this day only very few official records of the negotiation process. Most of
53 Gilbert, Jérémie. "Environmental Degradation as a Threat to Life: A Question of Justice." Trinity CL Rev. 6 (2003): p86
54 Ibid 15, Mc Laughlin, p397 discussing Alexandre Kiss, Present Limits to the Enforcement of State
Responsibility for Environmental Damage, in INTERNATIONAL RESPONSIBILITY FOR ENVIRONMENTAL HARM 3, 14 (Francesco Francioni & Tullio Scovazzi eds., 1991).
the research within this section will thus be based on articles written a posteriori by actors involved in the negotiation process55.
1. The goal of the process
Since the late 1940s and the conclusion of the Nuremberg trials, there had been on-going talk about the creation of a permanent international criminal court. In 1947, the General Assembly of the United Nations assigned the International Law Commission to formulate “principles of international law recognised in the Charter of the Nuremberg Tribunal and in the judgement of the Tribunals and to prepare a draft code of offences against the peace and security of mankind”56. Whilst some expressed a clear preference for a broad jurisdiction of the court, in order to avoid the need to establish new courts in the future57, general consensus was to limit the court’s jurisdiction to the fewest crimes possible, in order not to overload the court with less serious offences. As explained by Cassesse, “were the ICC also to deal with all sorts of international crimes, including those of lesser gravity, it would soon be flooded with cases and become ineffective as a result of an excessive and disproportionate workload”58. The objective of the drafters was thus to provide the international community with a legal instrument to prosecute crimes which pose a great threat to the maintenance of peace and security.
2. Debate surrounding the inclusion within the Statute of acts harmful to the environment Between 1984 and 1996, the International Law Commission (ILC) was very active in the preparation of the Draft Code of Crimes Against Peace and Security of Mankind which eventually became the Rome Statute. Based on precedents in international law, a great majority59 of the members of the Commission elected to include acts harmful to the environment into the list of crimes against peace. Article 26 of the draft thus stipulated: “an individual who wilfully causes
55 Lee, Roy SK, ed. The International Criminal Court: the making of the Rome Statute: issues, negotiations and results. Martinus Nijhoff Publishers, 1999 56 General Assembly Resolution 177 (II) of 21 November 1947. 57 Opinion of Thia retraced in Schabas, William. “The International Criminal Court: a commentary on the Rome statute”. Oxford University Press, USA, 2010, p102
58 Borg Cardona, Yvette. "A critical analysis of the Rome Statute of the International Criminal Court."
(2013) from Robert Badinter, ‘International Criminal Justice: From Darkness to Light’ in Mark S Ellis and Richard J Goldstone (eds), The International Criminal Court: Challenges to Achieving Justice and Accountability in the 21st Century (IDebate Press 2008) 18.
59 Only few speakers cautioned against the new offence which, they felt, would not fit into a draft that was
or orders the causing of widespread, long-term and severe damage to the natural environment shall, on conviction thereof, be sentenced”60. Although most participants subscribed to the incorporation of environmental crimes into the Statute, intense controversy grew over the required intent for the crime. Indeed, most environmental damage is not wilfully caused by perpetrators, but results from the normal functioning of industries. In 1995, drastic cuts were made to the draft code, reducing the prohibited offences from 12 to 6. Without group discussion or debate, environmental crimes were thus deleted from the scope of the Statute. Many accounts establish that removal of article 26 came from a unilateral decision of Mr Mahiou61. Reasons given for this amendment centred on comments, made since 1993, by states which were reticent to have environmental crimes included within the statute62. But as disclosed by UN working group on environmental crimes’ rapporteur at the time, Christian Tomuschat, “one cannot escape the impression that nuclear arms played a decisive role in the minds of many of those who opted for the final text”63. Following wide criticism of this unilateral approach to the selection of crimes, the ILC decided to create a working group to examine the possibility of incorporating environmental crimes into other articles still included within the draft code. Its conclusion, in 1996, was that the injury to the environment should solely be incorporated into the prohibition of war crimes.
Can any inference be drawn by the unilateral removal of environmental crimes from the draft code? Could one interpret this event as a sign that the drafters considered article 26 to be a crime of the level of the core crimes finally selected? In my opinion no such inference should be drawn from the events that occurred. Although certain states complained about the removal of crimes against the environment, the subsequently created working group decided against the
60 Draft Code of Offences against the Peace and Security of Mankind, reprinted in: The Work of the
International Law Commission, 5th ed. New York 1996, p. 168.
61 Higgins, Polly, Damien Short, and Nigel South. "Protecting the planet: A proposal for a law of ecocide."
Crime, law and social change 59.3 (2013): p 261- this decision was not put to vote and was a procedural
irregularity, contrary to the mandate of the working group. Mr Mahiou was the chairman of the group.
62Draft Code of Offences Against the Peace and Security of Mankind until 1987; see: General Assembly
resolution 42/151 of 7 December 1987. §2, described in the University of London « The Ecocide project, », Gauger, Rabatel-Fernel, Kulbicki, Short and Higgins. « Special Rapporteur of the Code, Mr Thiam of Senegal, who stated in his 13th report that the removal was due to comments of a few governments from 199359 that Thiam describes as being largely opposed to any form of inclusion of Article 26. »
reincorporation of the crime into the statute. Furthermore, although six crimes were included into the draft presented to the preparatory committee of the Rome Conference, only four were finally selected. Whilst the discussion on environmental crimes at such a late stage in the preparation of the Rome Statute highlights the importance such a crime had in the eyes of the ILC, it remains impossible to ascertain that environmental crimes would have become the fifth crime against peace without Mr Mahiou’s intervention. During the conference, the final decision to remove treaty-based crimes such as international drug trafficking from the Statute seems to have been made in the interest of historical coherence. Would it have been in the continuity of the development of International criminal law to include environmental crimes? 3. Application to environmental crimes (i) Historical reasons for the selection of the core crimes The centre of the Rome Statute around the crimes of genocide, crimes against humanity, war crimes and aggression is often explained by a historical approach to international criminal law. Al Wattad argues that the choice of crimes was “an explicit manifestation of the Nuremberg experience”64. “The ICC did not create any new crimes under international law”65. The Nuremberg Charter included crimes against peace66, war crimes and crimes against humanity and the crime of genocide, recognised since the 1948 Genocide Convention, had already been incorporated into the International Criminal Tribunal for Rwanda at the time of the Rome Conference.
From a historical perspective, arguments for the inclusion of environmental crimes into the Rome Statute remain weak. Not recognised as a crime under international law during the Nuremberg trials, it has not since gained recognition through the ratification of an international treaty. If the restricted subject matter jurisdiction of the ICC rested solely on a will of historical coherence, crimes against the environment should not be included as a fifth crime against peace.
64 Saif-Alden Wattad, Mohammed. "Rome Statute & (and) Captain Planet: What Lies between Crime against Humanity and the Natural Environment, The." Fordham Envtl. L. Rev. 19 (2009): p273
65 M. Cherif Bassiouni, The Universal Model: The International Criminal Court, Post-Conflict Justice 814
(M. Cherif Bassiouni ed. Transnational Publishers, Inc., 2001) p815, 817
(ii) The maintenance of peace and security
After World War II, the fundamental idea behind the creation of a permanent international criminal court was the preservation of international peace and security. The question that can legitimately be posed is then: do large-scaled environmental crimes constitute a threat to global peace and security? In 1995, the UN Congress in Cairo concluded in its final report that “crimes against the environment should be viewed as a crime against the security of the community”67. Indeed, extensive environmental damage has, for years, been the cause of mass migrations. In 1995 already, it was estimated that over 25 Million people were environmental refugees68. Mass movements of population may be the source of tensions, violence and upheavals. Indeed, the fear populations have of undue burden on their natural resources has often lead to tensions and is linked to the rise of extremism in host states. It has even been argued that “the potential for violence in the third world over the issue of a habitable environment for a growing population is probable and, in some estimates, inevitable”69.
Furthermore, economic stress and crop failures from widespread environmental damage could lead to increased competition for shrinking resources such as drinking water and food. Lydia Polgreen70 contends that some of the violence occurring in Darfur could be linked to changes in climate. War over natural resources such as water has already occurred and escalation becomes an increasing risk when vital resources are at stake. From 1964 to 1967 for example, confrontations between Israel and neighbouring states over the control of water sources contributed to the six-day war. Serious and extensive damage to the environment leading to depletion of resources constitutes a real threat to peace and security of mankind. Jean Paul II recognised that “ there is a growing awareness that world peace is threatened not only by the arms race, regional conflicts, and continued injustices among people and nations, but also by
67 Ninth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Cairo, 29
April–8 May 1995 (United Nations publication, document A/CONF.169/16/Rev.1, paras. 355–369). §358
68 Myers, Norman. "Environmental refugees: a growing phenomenon of the 21st century." Philosophical
Transactions of the Royal Society of London B: Biological Sciences 357.1420 (2002): p 610
69 Ibid 32, Lytton, p74
70 Avi Brisman, Crime-Environment Relationships and Environmental Justice, 6(2) SEATTLE J. Soc. JUST.
the lack of due respect for nature, by the plundering of natural resources and by a progressive decline in quality of life”71.
However, is this threat sufficiently direct to warrant advocating the addition of a fifth core crime? The selected definition of environmental crimes focuses on the protection of the environment. Whilst extensive damage to our planet can lead to tensions and a breach of peace and security, the effect on human populations is only secondary to the destruction of natural resources. As previously indicated within this paper, some damage may only have adverse consequences decades after the perpetration of the crime. Are tensions between affected populations that arise years after the offense occurred sufficient to consider that crimes against the environment pose a threat to international peace and security?
Furthermore, not all crimes against the environment will lead to a breach of peace and security. Indeed, a serious and extensive dumping of toxic waste in the oceans, though falling under the selected definition of environmental crimes, might not directly or even indirectly lead to strains on global unity. Whereas the commission of crimes against humanity and genocide directly threaten the security of mankind, be it by the indiscriminate nature of the offense or its scale and organisation, environmental crimes only pose a risk of breaking peace and security, and one far more remote.
Nevertheless the intent of the drafters of the Rome Statute was to select crimes that ‘threaten’ international peace and security, not necessarily those that break it. In my opinion, the menace posed by environmental crimes to global security is therefore serious enough to conclude that this form of crime poses a threat to international peace and security. This is especially true considering the limitations of the crime to both extensive and serious damage inflicted upon our planet.
B. The wording of the Statute of the International Criminal Court 1. The preamble, article 1 and 5 of the Rome Statute
As highlighted by Judge Pikis, “the preamble declares the objectives sought to be achieved by its establishment”72. In accordance with this definition, the preamble of the Rome
Statute clearly demonstrates that “the spirit, objectives and intentions of the signatories”73 was to put an end to “unimaginable atrocities that deeply shock the conscience of humanity”, that the crimes selected were those that “threaten the peace, security and well-being of the world”, and that these were “the most serious crimes of concern to the international community as a whole”74. It has been argued that this introduction to the Statute of the ICC does not focus the gravity of the offense as such, but on the nature of the crime in itself and the international concern about it75. In a similar fashion, article 1 of the Rome Statute entitled ‘The Court”, provides that “the ICC will have jurisdiction over the most serious crimes of international concern”76. The subject matter jurisdiction of the ICC is then established in article 5 of the Rome Statute. The chapeau of the article, added during the Rome Conference, stipulates, “The jurisdiction of the court shall be limited to the most serious crimes of concern to the international committee as a whole”77. Whilst certain authors have described the chapeau of article 5 as “largely symbolic”78, “without legal significance and merely descriptive”79, others have argued that it sets a quasi-constitutional threshold for the addition of new crimes80. Whether the limitation to the most serious crime of concern to the international community is in fact a legal requirement is of little importance here. The drafter’s intent to restrict the jurisdiction of the court following these principles was clear. Only crimes that are ejusdem generis with the four existing core crimes could potentially be recognised as one of them. In order to determine whether environmental crimes have, in theory, the same characteristics as the four existing crimes against peace, it must be established that they respect the wording of the Rome Statute.
72 Georghios M Pikis, The Rome Statute for the International Criminal Court: Analysis of the Statute, the
Rules of Procedure and Evidence, the Regulations of the Court and Supplementary Instruments (MNP 2010) p12 73 Ibid 58, Cardona, p 29 74 Rome Statute, ibid 11, p1 75 Serious nature of the crime. Argued by Pikis, Ibid 72, p14 76 Ibid 11, Rome Statute, p2 77 Ibid 11, Rome Statute, p 3 78 Ibid 57, Schabas, p106-107 79 O’Keefe, Roger. International Criminal Law, Oxford International Law Library, 2015, p 65
80 Kotzé, Louis J. “Constitutional Conversations in the Anthropocene: in Search of Jus Cogens Norms”
2. Application to environmental crimes
As an analysis of the potential threat to peace and security posed by environmental crimes has already been completed, this section will focus on ascertaining whether such offenses towards nature deeply shock the conscience of humanity (i) and constitutes one of the most serious crimes of concern to the international community as a whole (ii).
(i) Crimes that deeply shock the conscience of humanity
Certain large-scaled environmental catastrophes can with certainty be described as having ‘shocked the conscience of humanity’. Though certain would not fall under the definition of environmental crime selected for the purpose of this paper because they were not intentionally committed, oil spills such as the sinking of the Erika in 199981 can positively be identified as events that shocked humanity. The images of beaches, sea mammals and birds covered in black oil deeply outraged a great part of the world. Similarly, the drainage of the Iraqi Marshlands by the Hussein Government, which lead to the destruction of an entire ecosystem, was greatly seen across the world as a horrific crime.
Yet many large-scaled environmental crimes may have much more subtly damaging effects than largely mediatised oil spills. When damage is only apparent years later, or when pollution affects air quality without any visible markers for humans, can it really be established that they shock humanity? As asserted by Mégret, “whether environmental crimes shock the conscience of mankind depends on the audience”82. The concept of shock to humanity is extremely subjective and its application to environmental crimes problematic in that they do not require human impact. If the anthropocentric definition of environmental crimes had been selected, the adverse effect environmental crimes have on humans could be said to disturb humanity. It seems to be the death of individuals which has consistently been considered to found moral indignation on behalf of the international community.
81 Votier, Stephen C., et al. "Oil pollution and climate have wide-scale impacts on seabird demographics."
Ecology Letters 8.11 (2005): p 1158, 1159
82 Megret, Frederic. "The Problem of an International Criminal Law of the Environment’(2011)." Columbia
Journal of Environmental Law 36, p208 discussing Ronald Inglehart, Public Support for Environmental Protection: Objective Problems and Subjective Values in 43 Societies, 28 POL. SCI. & POL. 57 (1995)
But it has been argued that the “shocking nature of an offence has never been conceived as an autonomous source of international criminalisation but rather serves as a way of rhetorically reinforcing the perceived gravity of those offenses”83. A close scrutiny of the gravity of environmental crimes is thus required.
(ii) Most serious crimes of concern to the international community as a whole
As stated throughout the Rome Statute, the court has jurisdiction over the most serious crimes of concern to the international community. As highlighted by Judge Pikis, “drafters actually rejected drug trafficking and terrorism, no doubt of international concern, thereby deciding that they were not the most serious crimes”84. Are environmental crimes merely of international concern, as drug trafficking, or are they as serious as crimes against humanity, war crimes and genocide?
The approach taken by the drafters of the Rome Statute in deciding what constitutes a core crime has been focused primarily on harm done to person’s health and wellbeing. The current human rights oriented approach to international criminal law seems persistently anthropocentric. Indeed, the common feature between all the existing core crimes appears to be that they directly attack human’s physical integrity or interests85. Is protection of the environment tantamount to the protection of human life? Considering the definition of environmental crimes selected for the purpose of this paper, protection of humans is merely indirect. Human beings are, on the long term, the ultimate beneficiaries of environmental protection, as securing the survival of biodiversity and ecosystems means securing survival of humankind. However the chosen definition recognises a right of the environment in itself. Does the seriousness of the offense necessarily have to be measured in terms of injury to human life?
83 Ibid 82, Megret, p208
84 Ibid 57, Schabas p108 discussion the opinion of Judge Pikis in dissent in Situation of the Democratic
Republic of Congo 13 July 2006, (ICC/01/04) §32
85 A slight nuance may be required regarding the crime of aggression. The crime of aggression is the
leading act for war and as such, will lead to attacks on the physical integrity of individuals. However not all acts of aggression will directly cause harm to individuals.
As argued by Tomuschat, “usually human life is the parameter against which gravity is measured”86.
Yet the crime of aggression does not automatically have human consequences. Aggression is the starting point of warfare, and, as such, has the potential for causing grave harm to human populations. However the act of aggression in itself can be without direct human consequences. It could therefore be argued that indirect effect on individuals suffices for a crime to be of most serious concern to the international community as a whole. As the changes which affect our planet have the potential of extinguishing human life or at least, of gravely affecting human populations, should all extensive and widespread crimes against the environment not be considered as the most serious? This question will remain partially unanswered. Whilst many would argue that respect for the fauna and flora of our planet should be equally as important as the protection of human life, this is not an approach accepted by all. As stated by Nordquist, “abstract arguments, even when true, that humanity will perish if it neglects the environment fade in value intensity when compared with the evil slaughter of innocent people now”87. As such it is probably most accurate to conclude that environmental crimes centred on the protection of the environment in itself would not, at this date, constitute one of the most serious crimes of concern to humanity. An anthropocentric approach to environmental offenses, might, on the other hand, fulfil this requirement.
3. Article 8 of the Rome Statute
Article 8.2(b)(iv) of the Rome Statute stipulates that “widespread, long-term and severe damage to the environment” can constitute a war crime. Whilst the application of this article is limited to situations of international armed conflict, can it not be argued that if such an act is criminalised during warfare, it should also be criminalised outside of warfare?88 The context of the crime should not influence the severity of the offense, or whether it constitutes one of the
86 ILC(XLVIII)/DC/CRD.3 “Document on crimes against the environment, prepared by Christian
Tomuschat, member of the Commission. Yearbook of the ILC, 1996, Vol.II (1)
87 Nordquist, Myron H. "Panel Discussion on International Environmental Crimes: Problems of
Enforceable Norms and Accountability." ILSA J. Int'l & Comp. L. 3 (1996), p700
most serious crimes of concern to the international community. If environmental crimes are recognised as core crime in times of war, they should similarly be recognised in times of peace. Furthermore, the absence of requirement of human consequences within the Statute plays in favour of the argument that biocentric environmental crimes could in theory be incorporated within the Rome Statute without disturbing the apparent coherence of the Statute.
III. Normative approach to core international crimes: do environmental crimes fill
Larry Mays’ security and international harm principle?
A. General overview of Larry Mays’ approach
As it has been argued: “we cannot prosecute on the basis of moral outrage alone”89. Consequently, legal scholars and philosophers have long searched for a normative international order, a set of principles, justifying the enforcement of criminal law at a supra-national level. In his publication “Crimes Against Humanity: a normative account”90, Larry May establishes a coherent basis, a common global ground, for selecting and prosecuting certain acts deemed to be international crimes. In his opinion the international prosecution of genocide, war crimes and crimes against humanity can be justified by normative philosophical arguments. Whilst the theorisation of international criminal law is not universally accepted91, Larry Mays’ approach provides a clear justification for the selection of the core crimes within the jurisdiction of the ICC. The last part of this paper will thus search to establish whether the international criminalisation of large-scaled environmental crimes could philosophically be justified. Following his approach, prosecution at a supra-national level can only be supported when crimes violate both the security principle and the international harm principle. Indeed, the violation by a state of the security principle justifies limitations of its sovereign power and allows prosecutions outside of national courts. The second branch of his theory, the international harm principle, then delineates which types of crime international tribunals can legitimately prosecute. As both principles must be violated to be prosecutable alongside the core
89 Ibid 26, May, p3
90 May, Larry. Crimes against humanity: a normative account. Cambridge University Press, 2005 91 Ibid 90, May, p64
crimes, this paper will analyse whether environmental crimes violate both the security principle (B) and the international harm principle (C).
B. The security principle
Larry Mays’ basic premise is that states have as mission the protection of their citizens and the maintenance of social order. In return, nations have a sovereign right to exclusive control over their internal affairs. When the security of a state’s citizens is not assured, and human rights are being abused, the state is deprived of its right to prevent an international body from intervening to protect the victims of such harm. The security principle thus legitimises limitations on a state’s sovereign powers.
The precise definition of the security principle coined by Larry May is as follows: “If a state deprives its subjects of physical security or subsistence, or is unable or unwilling to protect its subjects from harms to security or subsistence: (a) then that state has no right to prevent international bodies from crossing its borders in order to protect those subjects or remedy their harms, (b) and then international bodies may be justified in crossing the borders of a sovereign state when genuinely acting to protect those subjects”92.
Yet the security principle does not justify the infringement on a state’s sovereign right to self-regulation in all cases of infringement on human rights. Indeed, only the deprivation of basic rights to subsistence and physical security can be the basis for international criminal prosecutions. As individuals prosecuted by international tribunals risk serious deprivation of their liberty, only acts having caused a serious abuse of the victim’s human rights can justifiably be prosecuted at the international level. Egregious violations of fundamental human rights such as those that occur during the perpetration of genocides and crimes against humanity warrant international intervention.
The question that must then be posed is: what fundamental human rights can be said to have been violated when large-scaled environmental crimes are perpetrated? And do these fundamental rights protect the physical security and subsistence of populations? One of the most essential human rights, recognised through article 3 of the Universal Declaration of Human
Rights93 (UDHR) and protected through the prohibition of genocide and crimes against humanity, is the right to life. “The enjoyment of the right to life is a necessary condition of the enjoyment of all other Human Rights”94. In 1997, the International Court of Justice clearly concluded: “the protection of the environment is a vital part of contemporary human rights doctrine. It is sine qua non to numerous Human Rights such as the right to health and the right to life itself”95. It must be conceded that in most cases, when the environment suffers, people suffer96. However, the penalisation of widespread environmental offenses will most likely only be considered as protecting the right to life within an anthropocentric definition of the crime. Indeed, under a biocentric definition, the protection of human populations’ right to life will only be secondary. The right to life will thus most likely not be recognised as a right inherently protected by the selected definition of environmental crimes, even though such crimes can have potentially devastating consequences on human life.
A number of international instruments have begun to recognise the right to a healthy environment as a fundamental human right. Whilst some agreements such as the Additional Protocol to the American Convention on Human Rights97 have proclaimed the norm as an independent right, many only consider it to be an indispensable component of the right to life98. The ECHR, for example, has recognised that the right to a healthy environment is protected indirectly through the right to health and to life99. If the right to a healthy environment is considered part of right to life, the deliberate destruction of the natural environment can be said to infringe fundamental human rights of prime importance.
93 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A (III), article 3 94 Case Concerning the Gabcíkovo-Nagymaros Project (Hungary v Slovakia), 1997 I.C.J. 92. Cited in
Marchisio, ibid 34, p6 of transcript.
95 Przetacznick, "The Right to Life as a Basic Human Right" (1976) 9 Revue des Droits de l'Homme/Hunan
Rights Journal, 589, 603. See also General Comments of the Human rights Committee No. 6, U.N. Doc. CCPR/C/21/rev. 1.
96 Popovi6, "In pursuit of Environmental Human Rights: Commentary on the Draft Declaration of
Principles on Human Rights and the Environment" (1996) 27 Columbia Human Rights Law Review 387, p389 97 Organization of American States (OAS), Additional Protocol to the American Convention on Human Rights in the Area of Economic, Social and Cultural Rights, article 11, p 5 98 Marchisio, ibid 34, p6-7 transcript 99 Manual on human rights and the environment, Council of Europe Pubishing, 2006, 2012, ISBN 978-92-871-7319-5 p33,
The right to life protects the physical security and subsistence of individuals. Although the definition of environmental crimes selected for the purpose of this paper only indirectly protects human values, one could still argue that environmental crimes violate the security principle. As discussed earlier in this paper, the threat to security of mankind posed by environmental offenses is real. Yet despite these arguments, it cannot affirmatively be determined whether the indirect protection of human life afforded by the prohibition of crimes against the environment would be sufficient for Larry May to consider this type of crime to violate the security principle. The next question one must nevertheless ask is: do environmental crimes contravene the international harm principle?
C. The international harm principle
Once it has been established that a crime violates the security principle, and that state sovereignty may therefore be abridged, it remains necessary to ascertain whether the international harm principle is violated, in order to justify prosecution by an international tribunal. The international harm principle stipulates that only those crimes considered to be group-based warrant prosecution in front of international courts. Indeed, in Larry Mays’ view, group-based harms contravene paramount interests of the world community, and can even be said to harm humanity100. “To determine if harm to humanity has occurred, there will have to be one of two (and ideally both) of the following conditions met: either the individual is being harmed because of that person’s group membership or other non-individualised characteristic, or the harm occurs due to the involvement of a group such as a state”101.
1. Systematic attacks by group perpetrators
Crimes perpetrated by groups are considered to harm humanity because they are systematic acts, rather than random offences. This is especially true in cases where it is the state that is the victimizer. As there would be little logic in searching for national prosecutions, the international community, and therefore international courts, have a legitimate interest in the prosecution of such crimes. As described by Larry May, a crime will be “systematic in that it is
100 Ibid 90, May p80 101 Ibid 90, May, p83
