Abstract
Acts perpetrated during the course of warfare have, through the ages, led to significant environmental destruction. These have included situations where the natural environment has intentionally been targeted as a ‘victim’ or has somehow been manipulated to serve as a ‘weapon’ of warfare. Until recently, such acts were generally regarded as an unfortunate but unavoidable element of armed conflict, despite their potentially disastrous impacts. The existing international rules have largely been ineffective and inappropriate and have in practical terms done little to deter deliberate environmental destruction, particularly when measured against perceived military advantages. However, as the significance of the environment has come to be more widely understood and recognised, this is no longer acceptable, particularly given the ongoing development of weapons capable of widespread and significant damage. This chapter examines the current legal regime under international criminal law relevant to the intentional destruction of the environment during warfare, and argues that such acts should, in appropriate circumstances, be recognised as an international crime and should be subject to more effective rules giving rise to international criminal responsibility within the framework of the Rome Statute of the International Criminal Court.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Similar content being viewed by others
Notes
- 1.
It has been estimated that Operation Ranch Hand destroyed 8% Vietnam’s croplands, 14% of its forests, and 50% of its swamp areas: Yuzon 1996, pp. 795–6.
- 2.
Shortly afterwards, the Parliamentary Assembly of the Council of Europe called for the establishment of a war crimes tribunal to prosecute those responsible for ‘this disgraceful attack on the environment’: Leibler 1992, p. 68.
- 3.
Helmut Kohl, Statement by the German Chancellor, Bulletin (Bonn), 9 April 1991, 255.
- 4.
Haavisto 2005, p. 581.
- 5.
Depleted uranium is a by-product of the process of ‘uranium enrichment’, which involves the separation of the three different uranium isotopes (uranium-238, uranium-235 and uranium-234) as a preliminary step towards the use of nuclear fission as a source of energy (uranium-235 is the most suitable for nuclear fission): Koppe 2006, p. 18.
- 6.
See United Nations Commission on Human Rights ‘Report of the United Nations High Commissioner for Human Rights and Follow-Up to the World Conference on Human Rights: Situation of Human Rights in Darfur Region of the Sudan’ (7 May 2004) E/CN.4/2005/3, paras 50 and 73.
- 7.
The United Nations ad hoc Tribunals are the International Criminal Tribunal for the Former Yugoslavia (ICTY)—established by United Nations Security Council Resolution 827, UN Doc. S/RES/827 (1993); and the International Criminal Tribunal for Rwanda—established by United Nations Security Council Resolution 955, UN Doc. S/RES/955 (1994) (ICTR). In December 2010, the Mechanism for International Criminal Tribunals (MICT) was established to continue the ‘obligations and essential functions’ of the ICTR and the ICTY: United Nations Security Council Resolution 1966, UN Doc. S/RES/1966 (2010). The ‘hybrid’ or ‘internationalised’ criminal tribunals include those that operate or have operated in East Timor—established in 2000 by the United Nations Transitional Administration in East Timor (UNTAET), pursuant to UNTAET Regulations 2000/11 and 2000/15 (6 March 2000 and 6 June 2000 respectively); Sierra Leone—established by an agreement between the United Nations and the Government of Sierra Leone dated 16 January 2002, pursuant to United Nations Security Council Resolution 1315, UN Doc. S/RES/1315 (2000); and Cambodia—established by an agreement between the United Nations and the Government of Cambodia dated 6 June 2003, pursuant to United Nations General Assembly Resolution 57/228 B, UN Doc. A/RES/72/228(B) (2003). There is also the Special Tribunal for Lebanon, which operates in the Netherlands and was established by United Nations Security Council Resolution 1757, UN Doc. S/RES/1757 (2007).
- 8.
Jessberger and Geneuss 2013, p. 501.
- 9.
The ILC had in 1948 already been invited by the United Nations General Assembly to ‘study the desirability and possibility of establishing an international judicial organ for the trial of persons charged with genocide and other crimes’: United Nations General Assembly Resolution 260 (III) B, UN Doc. A/RES/260(III) (1948). However, the political realities associated with the Cold War meant that, in 1954, the United Nations General Assembly halted work on the drafting of any statute for such a proposed court: see United Nations General Assembly Resolution 897 (IX), UN Doc. A/RES/897(IX) (1954), and United Nations General Assembly Resolution 898 (IX), UN Doc. A/RES/898(IX) (1954). For a description of the evolution of a system of international criminal justice leading up to the establishment of the ICC, see Freeland 2010, pp. 195–210.
- 10.
United Nations General Assembly Resolution 44/39, UN Doc. A/RES/44/39 (1989), para 1.
- 11.
Draft Statute for an International Criminal Court, Report of the International Law Commission on Its Forty-sixth session, United Nations General Assembly Official Records 49th Sess., Supp. No. 10, (1994) (ILC Draft Statute).
- 12.
United Nations General Assembly Resolution 52/160, UN Doc. A/RES/52/160 (1997), para 3.
- 13.
Of those represented at the Rome Conference, 120 states voted to adopt the Rome Statute. There were 21 abstentions and seven states (China, Iraq, Israel, Libya, Qatar, Yemen and the USA) voted against the resolution.
- 14.
McCormack and Robertson 1999, p. 636.
- 15.
For example, several states had argued that the definition of war crimes should include a provision prohibiting the use of nuclear weapons. As the Rome Conference was drawing to a close, these states largely agreed to compromise on this point—with the result that such a provision was not included in the Rome Statute—since they were prepared to ‘put the larger goal of achieving an international criminal court first’: see Kalivretakis 2001, p. 702.
- 16.
Williams 2000, p. 546.
- 17.
See Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS 3, entered into force 1 July 2002 (Rome Statute), preamble.
- 18.
Sarooshi 1999, p. 389.
- 19.
See inter alia United Nations Security Council Resolution 1503 UN Doc. S/RES/1503 (2003); United Nations Security Council Resolution 1534, UN Doc. S/RES/1534 (2004); United Nations Security Council Resolution 1966, UN Doc. S/RES/1966 (2010).
- 20.
There is a Negotiated Relationship Agreement between the International Criminal Court and the United Nations (4 October 2004), whose purpose is to ‘define […] the terms on which the United Nations and the Court shall be brought into relationship’ (Article 1(1)). In addition, there are a number of provisions in the Rome Statute that formalize various aspects of the specific relationship between the Court and the United Nations Security Council: see, for example, Rome Statute, above n 17, Articles 13(b), 16, 53(2)(c), 53(3)(a), 87(5), 87(7) and 115(b).
- 21.
Rome Statute, above n 17, preamble, para 4.
- 22.
See Rome Statute, above n 17, chapeau, Article 6.
- 23.
Ibid., Article 7(1).
- 24.
Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31, entered into force 21 October 1950; Geneva Convention for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85, entered into force 21 October 1950; Geneva Convention Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135, entered into force 21 October 1950; Geneva Convention Relative to the Protection of Civilian Persons in Time of War, 12 August 1949, 75 UNTS 287, entered into force 21 October 1950.
- 25.
See Rome Statute, above n 17, Article 8(1).
- 26.
See ibid., Article 8 bis.
- 27.
For the purposes of the discussion that follows in this chapter, these three crimes are referred as the ‘core international crimes’.
- 28.
ICTY Trial Chamber, Prosecutor v Furundzjia, Judgment, 10 December 1998, Case No. IT-95-17/1, para 227.
- 29.
Kalivretakis 2001, p. 684.
- 30.
See, for example, Cassese 2003, pp. 91–94. See also ICTY Trial Chamber, Prosecutor v Kupreskic et al, Judgment, 14 January 2000, Case No. IT-95-16-T, where the Trial Chamber (at para 545) noted that ‘[b]y requiring that crimes against humanity be committed in either internal or international armed conflict, the [United Nations] Security Council, in establishing the [ICTY], may have defined the crime in Article 5 [of the Statute of the ICTY] more narrowly than is necessary under customary international law’.
- 31.
This was partly due to the fact that such an idea ‘regrettably’ failed to gain support in the deliberations leading to the finalization of the Rome Statute: Rest 2004, p. 18.
- 32.
See, for example, Schabas 2000, chapters 4 and 5.
- 33.
Rome Statute, above n 17, Article 30(1).
- 34.
There are specific provisions relating to the exercise by the Court of its jurisdiction over the crime of aggression: see ibid, Article 15 bis and 15 ter.
- 35.
Ibid., Article 25(1).
- 36.
Ibid., Article 12(2)(a).
- 37.
Ibid., Article 12(2)(b).
- 38.
Ibid., Article 13(b).
- 39.
- 40.
It should be noted, however, that if a state becomes a State Party to the Rome Statute after 1 July 2002, the Court may exercise its jurisdiction only with respect to crimes committed after the entry into force of the Rome Statute for that state, unless that state has made a declaration as a non-state party under Article 12(3) of the Rome Statute: see Rome Statute, above n 17, Article 11(2).
- 41.
Sands 2003, p. 72.
- 42.
Rome Statute, above n 17, Article 17(1). The Appeals Chamber of the ICC considered the meaning of the words ‘is being investigated’ in Article 17(1)(a) of the Rome Statute in Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled ‘Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute’: Appeals Chamber, Prosecutor v Ruto, Kosgey and Sang, 30 August 2011, Case No. ICC-01/09-01/11 OA, and Judgment on the appeal of the Republic of Kenya against the decision of Pre-Trial Chamber II of 30 May 2011 entitled ‘Decision on the Application by the Government of Kenya Challenging the Admissibility of the Case Pursuant to Article 19(2)(b) of the Statute’: Appeals Chamber, Prosecutor v Muthaura, Kenyatta and Ali, 30 August 2011, Case No. ICC-01/09-02/11 OA.
- 43.
Sarooshi 1999, p. 395.
- 44.
See Articles 9(1) and 9(2) of the Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991, 32 ILM 1159 (ICTY Statute). The Appeals Chamber of the ICTY confirmed the legitimacy of its primacy in Decision on Defence Motion for Interlocutory Appeal on Jurisdiction: ICTY Appeals Chamber, Prosecutor v Duško Tadić, 2 October 1995, Case No. IT-94-1, paras 49–64. See also Articles 8(1) and 8(2) of the Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, between 1 January 1994 and 31 December 1994, 33 ILM 1598 (ICTR Statute), which is in slightly wider terms.
- 45.
Rome Statute, above n 17, Article 17(2).
- 46.
Ibid.
- 47.
Ibid., Article 17(3).
- 48.
Ibid., Article 22(2). In May 2008, the ICC Appeals Chamber endorsed its earlier finding when considering its methodology for the interpretation of the Rome Statute, where it had stated: ‘The rule governing the interpretation of a section of the law is its wording read in context and in light of its object and purpose. The context of a given legislative provision is defined by the particular sub-section of the law read as a whole in conjunction with the section of an enactment in its entirety. Its objects may be gathered from the chapter of the law in which the particular section is included and its purposes from the wider aims of the law as may be gathered from its preamble and general tenor of the treaty’: Judgment on the appeal of Mr. Germain Katanga against the decision of Pre-Trial Chamber 1 entitled ‘Decision on the Defence Request Concerning Languages’: Appeals Chamber, Prosecutor v Germain Katanga, 27 May 2008, Case No. ICC-01/04-01/07 (OA3), para 39.
- 49.
Some commentators consider that acts of genocide had in fact been included within the concept of ‘crimes against humanity’ as applied in the indictments brought under the Charter of the Nuremberg International Military Tribunal, annexed to the 1945 London Agreement for the Establishment of an International Military Tribunal (8 August 1945) 82 UNTS 279 (Nuremberg Charter): see, for example, Restatement of the Law: Third Restatement of U.S. Foreign Relations Law, Volume 2 (1987), 165, ss 702, Reporters’ comments, para 3. However, it is now accepted that, even though they have some common elements, what distinguishes genocide from crimes against humanity is that the crime of genocide is a ‘crime of intent’ in which a specific ‘group’ is targeted, and not merely specific individuals within that group; or put another way, ‘the ultimate victim of genocide is the group’: Judgment on Defence Motions to Acquit: Trial Chamber, Prosecutor v Sikirica, Dosen and Kolundzjia, 3 September 2001, Case No. IT-95-8-T, para 89.
- 50.
See, for example, United Nations General Assembly Resolution 96(I), UN Doc. A/RES/96(1) (1946).
- 51.
Convention on the Prevention and Punishment of the Crime of Genocide, 9 December 1948, 78 UNTS 277, entered into force 12 June 1951 (Genocide Convention).
- 52.
ICJ, Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, Advisory Opinion, 28 May 2951, ICJ Reports 1951, p. 23.
- 53.
There are, however, some differences between the ICTY and ICTR Statutes on the one hand and the Rome Statute on the other. For example, Article 4(3) of the ICTY Statute, above n 44, and Article 2(3) of the ICTR Statute, above n 44, respectively specify that the following acts are punishable: ‘(a) Genocide; (b) Conspiracy to commit genocide; (c) Direct and public incitement to commit genocide; (d) Attempt to commit genocide; (e) Complicity in genocide’.
By contrast, these acts are not included in Article 6 of the Rome Statute, above n 17, but are instead incorporated into Article 25(3), which deals with individual criminal responsibility and applies to each of the crimes within the jurisdiction of the Court. The act of ‘directly and publicly incit[ing] others to commit genocide’ is, however, specifically referred to in Article 25(3)(e) of the Rome Statute.
- 54.
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, above n 51, preamble, para 2.
- 55.
ICTR Trial Chamber, Prosecutor v Akayesu, Judgment, 2 September 1998, Case No. ICTR-96-4-T, para 16.
- 56.
de Vito et al. 2009, p. 37.
- 57.
Ibid., p. 36.
- 58.
Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, above n 51, Article II. See also, for example, Rome Statute, chapeau Article 6.
- 59.
Bassiouni 2000, p. 9.
- 60.
See, for example, ibid., where Bassiouni suggests that the Genocide Convention, above n 51, was drafted with the Nazi Germany experience in mind, which left behind a very detailed paper trail, but that this is a ‘situation [that] never has been repeated’.
- 61.
See, for example, Second Warrant of Arrest for Omar Hassan Ahmad Al Bashir, ICC Pre-Trial Chamber I, Prosecutor v. Al Bashir (‘Omar Al Bashir’), 12 July 2010, Case No. ICC-02/05-01/09. This accused was also charged with five counts of crimes against humanity and two counts of war crimes.
- 62.
See United Nations General Assembly Resolution 96(I), UN Doc. A/RES/96(I) (1946), para 4.
- 63.
See Werle 2005, p. 191.
- 64.
See, however, ibid. where the author suggests that Article 6(e) of the Rome Statute (‘Forcibly transferring children of the group to another group’) ‘defines a form of cultural genocide’.
- 65.
Rome Statute, above n 17, Article 6(c).
- 66.
Article 9(1) of the Rome Statute provides for the adoption of the ‘Elements of Crimes’ by a two-thirds majority of the Assembly of States Parties to the Rome Statute, and specifies that their function is to ‘assist the Court in the interpretation and application of Articles 6, 7 and 8’ of the Rome Statute. See also Elements of Crimes (9 September 2002), Article 6(c).
- 67.
Rückert and Witschel 2001, p. 68.
- 68.
This footnote provides that: ‘[t]he ‘conditions of life’ may include, but is not necessarily restricted to, deliberate deprivation of resources indispensable for survival, such as food or medical services, or systematic expulsion from homes’. See also Prosecutor v Akayesu, above n 55, para 506.
- 69.
ICTY Trial Chamber, Prosecutor v Jelesić, Judgment, 14 December 1999, Case No. IT-95-10-I, paras 78–83. It has been held by the ICTY Appeals Chamber that the ‘in part’ requirement refers to a ‘substantial part of that group’: see ICTY Appeals Chamber, Prosecutor v Krstić, Judgment, 19 April 2004, Case No. IT-98-33-A, para 8 and the various references made in paras 8–13.
- 70.
Schabas 2000, p. 109. See also Prosecutor v Akayesu, above n 55.
- 71.
See Elements of Crimes, Articles 6(a)(4), 6(b)(4), 6(c)(5), 6(d)(5) and 6(e)(7).
- 72.
See ICTR Trial Chamber, Prosecutor v Akayesu, above n 55, para 565 and the corresponding footnote.
- 73.
See Nuremberg Charter, above n 49, Article 6(c).
- 74.
See Law No. 10 of the Control Council for Germany, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity (20 December 1945) 36 ILR 31, Article II. This law was enacted to establish a legal basis in Germany for the trial of war criminals who were not prosecuted by the Nuremberg Military Tribunal: Jørgensen 2000, p. 20.
- 75.
See Charter of the International Military Tribunal for the trial of the major war criminals in the Far East (19 January 1946) TIAS 1589; 4 Bevans 20 (Tokyo Charter), Article 5(c).
- 76.
District Court of Jerusalem, Attorney-General of the Government of Israel v Eichmann, Judgement, 11 December 1961, Criminal Case No 40/61, 36 ILR 5. Eichmann was prosecuted under Israeli law (1951 Nazi and Nazi Collaborators (Punishment) Law) for war crimes, crimes against the Jewish people (the definition of which was modelled on the definition of genocide in the 1948 Genocide Convention) and crimes against humanity. He was convicted by the District Court of Jerusalem and sentenced to death. His appeal to the Supreme Court of Israel was dismissed: Supreme Court of Israel, Eichmann v Attorney-General of the Government of Israel, Judgment, 29 May 1962, Criminal Appeal 336/61, 36 ILR 277.
- 77.
In 1987, Klaus Barbie, who had been the head of the Gestapo in Lyon from November 1942 to August 1943 and was known as the ‘Butcher of Lyon’, was convicted by the Rhone Cour d’assises of 17 counts of crimes against humanity. His appeal was dismissed by the French Court of Cassation: Féderation National des Déportés et Internés Résistants et Patriotes and Others v. Barbie, Judgement, 20 December 1985, Case No 85-95166, 100 ILR 330.
- 78.
Article 3 of the ICTR Statute, above n 44, defines crimes against humanity as any one of a number of enumerated acts ‘… when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds’. Article 5 of the ICTY, above n 44, Statute defines crimes against humanity to include the same acts, but ‘… when committed in armed conflict, whether international or internal in character, and directed against any civilian population’. However, in practice, the ICTY has adopted the criteria mentioned in the chapeau of Article 3 of the ICTR Statute: see, for example, ICTY Appeals Chamber, Prosecutor v Kupreskic & Ors, above n 30, para 544; ICTY Appeals Chamber, Prosecutor v Blaskic, Judgment, 29 July 2004, Case No. IT-95-14-A, paras 96-126. This practice has been criticised by some commentators: see, for example, Lattanzi 2001, pp. 478–82.
- 79.
Rome Statute, above n 17, chapeau Article 7(1).
- 80.
Ibid., Article 7(1)(h).
- 81.
Ibid., Article 7(1)(k).
- 82.
Rome Statute, above n 17, Article 7(2)(g).
- 83.
Conservation regimes such as those specified in the European Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora are not expressly designed, nor appropriate to deal with the intentional destruction of the environment during armed conflict.
- 84.
International Covenant on Economic, Social and Cultural Rights, 16 December 1966, 993 UNTS 3, entered into force 3 January 1976 (ICESCR).
- 85.
The other two instruments that, together with the ICESCR make up the ‘International Bill of Human Rights’, are the Universal Declaration of Human Rights, adopted by United Nations General Assembly Resolution 217A (III), UN Doc. A/RES/217A (1948), and the International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171, entered into force 23 March 1976.
- 86.
See Convention on the Rights of the Child, 20 November 1989, 1577 UNTS 3, entered into force 2 September 1990, Article 24(2)(c).
- 87.
See Convention on the Elimination of All Forms of Discrimination against Women, 18 December 1979, 19 ILM 33, entered into force 3 September 1981, Article 14(h).
- 88.
United Nations Committee on Economic, Social and Cultural Rights, ‘Substantive Issues arising in the Implementation of the International Covenant on Economic, Social and Cultural Rights: General Comment No. 15 (2002)—The right to water (Articles 11 and 12 of the International Covenant on Economic, Social and Cultural Rights)’ (November 2002), paras 1 and 3. See also Horn and Freeland 2009, p. 101.
- 89.
Prosecutor v Blaskic, above n 78, para 101, referring to ICTY Appeals Chamber, Prosecutor v Kunarac & Ors, Judgment, 12 June 2002, Case No. IT-96-23 and IT-96-23/1-A, para 94.
- 90.
Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, Prosecutor v Al Bashir (‘Omar Al Bashir’), above n 61, para 81.
- 91.
Rome Statute, Article 7(2)(a) (emphasis added).
- 92.
Prosecutor v Blaskic, above n 78, para 101, referring to ICTY Appeals Chamber, Prosecutor v Kunarac & Ors, above n 89, para 96.
- 93.
Prosecutor v Kunarac & Ors, above n 89, para 91.
- 94.
Prosecutor v Blaskic, above n 78, para 107.
- 95.
Prosecutor v Kunarac & Ors, above n 89, para 91; see also Prosecutor v Blaskic, above n 78, para 106.
- 96.
Of course, other ‘war crimes’ defined in Article 8 of the Rome Statute may also relate to conduct that might indirectly involve damage to the natural environment.
- 97.
Rome Statute, above n 17, Article 8(1).
- 98.
Ibid., Article 8(2)(b)(iv).
- 99.
Werle and Jessberger 2014, p. 493.
- 100.
See Report of the International Law Commission to the General Assembly on its work of the thirty-second session, [1980] 2 Yearbook of the International Law Commission Part II, 32. Draft Article 19 of the ‘Draft Articles on State Responsibility for International Wrongful Acts’ had provided that an ‘international crime’ included: ‘[a]n internationally wrongful act which results from the breach by a State of an international obligation so essential for the protection of fundamental interests of the international community that its breach is recognized as a crime by that community as a whole constitutes an international crime’, and included (draft Article 19(3)(d)) ‘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’.
- 101.
[1991] 1 Yearbook of the International Law Commission 234. See draft Article 26 of the Draft Code of Crimes Against the Peace and Security of Mankind.
- 102.
Cassese et al. 2002, pp. 522–523.
- 103.
See Draft Statute for the International Criminal Court (14 April 1998) Part 2 ‘War Crimes’, ss B(b), as quoted in Drumbl 2000, pp. 622–3.
- 104.
Drumbl 2000, p. 623.
- 105.
Protocol I Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, 1125 UNTS 3, 16 ILM 1391 (Additional Protocol I).
- 106.
Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, entered into force 10 December 1976, 1108 UNTS 151; 16 ILM 88, entered into force 5 October 1978 (ENMOD Convention).
- 107.
Drumbl 2000, p. 624.
- 108.
Werle and Jessberger 2014, p. 493.
- 109.
See Werle and Jessberger 2014, p. 492 and the references in the corresponding footnote.
- 110.
Final Report to the Prosecutor of the International Criminal Tribunal for the former Yugoslavia by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia, 13 June 2000, 39 ILM 1257 (Committee Report).
- 111.
1976 CCD Understanding Relating to Article I of ENMOD, 31 United Nations General Assembly Official Records Supp. No. 27 (A/31/27), Annex I.
- 112.
Fenrick has suggested, for example, that the threshold would probably not be reached even by ‘the sort of damage caused by heavy shelling during World War I battles on the Western Front’: Fenrick 1999, p. 197.
- 113.
United Nations Secretary-General, ‘Report of the Secretary-General on the Protection of the Environment in Times of Armed Conflict’ (29 July 1993) para 34 (emphasis added).
- 114.
Werle and Jessberger 2014, p. 493.
- 115.
One possibility might be for the Judges to require that specific information relating to the relevant environmental concerns be presented, pursuant to Article 64(6)(d) of the Rome Statute, which empowers a Trial Chamber to ‘[o]rder the production of evidence in addition to that already collected prior to the trial or presented during the trial by the parties’.
- 116.
Elements of Crimes, Article 8(2)(b)(iv), footnote 36.
- 117.
Dörmann 2004, p. 173.
- 118.
Elements of Crimes, Article 8(2)(b)(iv), footnote 37 (emphasis added).
- 119.
Dörmann 2001, p. 127.
- 120.
Okowa 2009, p. 248.
- 121.
Werle and Jessberger 2014, p. 494.
- 122.
Committee Report, para 23 (emphasis added).
- 123.
Drumbl 2000, p. 631.
- 124.
See Rome Statute, above n 17, Article 8(2)(f). See also Decision on the Prosecution’s Application for a Warrant of Arrest against Omar Hassan Ahmad Al Bashir, Prosecutor v. Omar Hassan Ahmad Al Bashir (‘Omar Al Bashir’), above n 61, para 59.
- 125.
See, for example, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, Prosecutor v Duško Tadić, above n 44, para 73.
- 126.
Drumbl 2000, p. 631.
- 127.
Ibid., 632.
- 128.
See Rome Statute, above n 17, chapeau of Articles 8(2)(a), 8(2)(b), 8(2)(c) and 8(2)(e) respectively.
- 129.
- 130.
Rome Statute, Article 21(1)(b).
- 131.
See, for example, Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous and Other Gases, and of Bacteriological Methods of Warfare, 26 Martens (3rd) 643; Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxic Weapons and on their Destruction, 10 April 1972, 1015 UNTS 163, entered into force 26 March 1975; Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects, 10 October 1980, 1342 UNTS 137, entered into force 2 December 1983; Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction, 3 September 1992, 32 ILM 800 entered into force 29 April 1997.
- 132.
See, for example, Ezekiel 2007, pp. 237–9.
- 133.
Rome Statute, above n 17, preamble para 3.
- 134.
See ‘Vulnerable Nations Call for Ecocide to be Recognized as an International Crime’ https://www.climateliabilitynews.org/2019/12/06/ecocide-international-criminal-court-vanuatu/. Accessed 10 February 2020.
- 135.
ICC Office of the Prosecutor 2016, p. 14. Policy paper on case selection and prioritisation (15 September 2016).
- 136.
For a more detailed discussion, including this author’s suggestion for the terms of the crime of ‘crimes against the environment’ to be included into the Rome Statute, see Freeland 2015.
References
Bassiouni MC (2000) The Normative Framework of International Humanitarian Law: Overlaps, Gaps, and Ambiguities. In: Schmitt M (ed) International Law Studies Volume 75: International Law Across the Spectrum of Conflict. Naval War College, pp 1–55
Bruch CE (2001) All’s Not Fair in (Civil) War: Criminal Liability for Environmental Damage in Internal Armed Conflict. Vermont Law Review 25:695
Cassese A (2003) International Criminal Law. Oxford University Press, Oxford
Cassese A, Eser A, Gaja G, Kirsch P, Pellet A, Swart B (eds) (2002) The Rome Statute of the International Criminal Court: A Commentary. Oxford University Press, Oxford
de Vito D, Gill A, Short D (2009) Rape characterized as genocide. SUR International Journal on Human Rights 10:29
Dörmann K (2001) War Crimes in the Elements of Crimes. In: Fischer H, Kress C, Lüder S R (eds) International and National Prosecution of Crimes Under International Law: Current Developments. Verlag Arno Spitz, Berlin, pp 461–488
Dörmann K (2004) Elements of War Crimes under the Rome Statute of the International Criminal Court: Sources and Commentary. Cambridge University Press, Cambridge
Drumbl M (2000) Waging War against the World: The Need to Move from War Crimes to Environmental Crimes. In: Austin J E, Bruch C E (eds) The Environmental Consequences of War: Legal, Economic, and Scientific Perspectives. Cambridge University Press, pp 620–646
Ezekiel A (2007) The Application of International Criminal Law to Resource Exploitation: Ituri, Democratic Republic of the Congo. Natural Resources Journal 47:225
Fenrick W J (1999) Article 8: War Crimes – article 8(2)(b)(iv). In: Triffterer O (ed) Commentary on the Rome Statute of the International Criminal Court: Observers’ Notes, Article by Article. Hart Publishing, London
Fischer H, Kress C, Lüder S R (eds) (2001) International and National Prosecution of Crimes Under International Law: Current Developments. Verlag Arno Spitz, Berlin
Freeland S (2006) How Open Should the Door Be? - Declarations by Non-states Parties under Article 12(3) of the Rome Statute of the International Criminal Court. Nordic Journal of International Law 752:211
Freeland S (2010) International Criminal Justice and the Death Penalty. In: Yorke J (ed) The Right to Life and the Value of Life: Orientations in Law, Politics and Ethics. Routledge
Freeland S (2015) Addressing the Intentional Destruction of the Environment during Warfare under the Rome Statute of the International Criminal Court. Intersentia, Cambridge
Haavisto P (2005) The International Responses to the Environmental Impacts of War. Symposium. Georgetown International Environmental Law Review 17:565
Horn L, Freeland S (2009) More than Hot Air: Reflections on the Relationship between Climate Change and Human Rights. University of Western Sydney Law Review 13:101
Jessberger F, Geneuss J (2013) Down the Drain or Down to Earth? International Criminal Justice under Pressure. Journal of International Criminal Justice 11:501
Jørgensen N (2000) The Responsibility of States for International Crimes. Oxford University Press, Oxford
Kalivretakis EI (2001) Are Nuclear Weapons Above the Law? A Look at the International Criminal Court and the Prohibited Weapons Category. Emory International Law Review 15:683
Koppe E (2006) The Use of Nuclear Weapons and the Protection of the Environment During International Armed Conflict. Hart Publishing
Lattanzi F (2001) Crimes Against Humanity in the Jurisprudence of the International Criminal Tribunals for the Former Yugoslavia and Rwanda. In: Fischer H, Kress C, Lüder S R (eds) International and National Prosecution of Crimes Under International Law: Current Developments. Verlag Arno Spitz, Berlin
Leibler A (1992) Deliberate Wartime Environmental Damage: New Challenges for International Law. California Western International Law Journal 23:67
McCormack T, Robertson S (1999) Jurisdictional Aspects of the Rome Statute for the New International Criminal Court. Melbourne University Law Review 23:635
Okowa P (2009) Environmental Justice in Situations of Armed Conflict. In: Ebbesson J, Okawa P (eds) Environmental Law and Justice in Context. Cambridge University Press
Rest A (2004) Enhanced Implementation of International Environmental Treaties by Judiciary – Access to Justice in International Environmental Law for Individuals and NGOs: Efficacious Enforcement by the Permanent Court of Arbitration. Macquarie Journal of International and Comparative Environmental Law 1:1
Rückert W, Witschel G (2001) Genocide and Crimes Against Humanity in the Elements of Crimes. In: Fischer H, Kress C, Lüder SR (eds) International and National Prosecution of Crimes Under International Law: Current Developments 59:68
Restatement of the Law: Third Restatement of U.S. Foreign Relations Law, Volume 2 (1987), 165, ss 702. Reporters’ Comments
Sands Ph (2003) After Pinochet: The Role of National Courts. In: Sands Ph (ed) From Nuremberg to The Hague: The Future of International Criminal Justice. Cambridge University Press, pp 68–108
Sarooshi D (1999) The Statute of the International Criminal Court. International and Comparative Law Quarterly 48:387
Schabas W (2000) Genocide in International Law. Cambridge University Press, Cambridge
Stahn C (2006) Why some Doors may be Closed Already: Second Thoughts on a ‘Case-by-Case’ Treatment of Article 12(3) Declarations. Nordic Journal of International Law 75:243
United Nations Commission on Human Rights (2004) Report of the United Nations High Commissioner for Human Rights and Follow-Up to the World Conference on Human Rights: Situation of Human Rights in Darfur Region of the Sudan. E/CN.4/2005/3 (7 May 2004)
United Nations Secretary General (1993) Report of the Secretary-General on the Protection of the Environment in Times of Armed Conflict. A/48/269 (29 July 1993)
UNTAET Regulations 2000/11 (2000a) (6 March 2000)
UNTAET Regulations 2000/15 (2000b) (6 June 2000)
Werle G (2005) Principles of International Criminal Law. Oxford University Press, Oxford
Werle G, Jessberger F (2014) Principles of International Criminal Law. Oxford University Press, Oxford.
Williams S (2000) The Rome Statute on the International Criminal Court – Universal Jurisdiction or State Consent – To Make or Break the Package Deal. In: Schmitt M (ed) International Law Studies Volume 75: International Law Across the Spectrum of Conflict. Naval War College
Yuzon EF (1996) Deliberate Environmental Modification Through the Use of Chemical and Biological Weapons: “Greening” the Environmental Laws of Armed Conflict to Establish an Environmentally Protective Regime. American University Journal of International Law and Policy 11:793
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2022 T.M.C. Asser Press and the authors
About this chapter
Cite this chapter
Freeland, S. (2022). Crimes Against the Environment: What Role for the International Criminal Court?. In: Sobenes, E., Mead, S., Samson, B. (eds) The Environment Through the Lens of International Courts and Tribunals. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-507-2_6
Download citation
DOI: https://doi.org/10.1007/978-94-6265-507-2_6
Published:
Publisher Name: T.M.C. Asser Press, The Hague
Print ISBN: 978-94-6265-506-5
Online ISBN: 978-94-6265-507-2
eBook Packages: Law and CriminologyLaw and Criminology (R0)