Millennium Project

Environmental Crimes in Military Actions and the International Criminal Court (ICC)
- UN Perspectives
by Joe Sills, Jerome C. Glenn, Elizabeth Florescu, and Theodore J. Gordon
for the U.S. Army Environmental Policy Institute


The full report is included in the State of the Future reports after 2001.

Free copies of this study can be ordered from the U.S. Army Environmental Policy Institute. The report is available full-text on the AEPI website, http://www.aepi.army.mil/pubs-overseas.html or for more information contact John J.Fittipaldi <John.Fittipaldi@hqda.army.mil>.

Table of Contents

Executive Summary

1. Introduction and Background

2. Analysis of the likelihood of environmental damage during military actions becoming crimes before the ICC

3. International Perceptions of Environmental Crimes During Military Actions

4. A range of views on Short Scenarios (vignettes) about Potential Environmental Crimes and the ICC

5. Conclusions

Appendices:

Appendix A: Excerpts from the Rome Statute and the UN Charter that would be relevant to Environmental Crime
Appendix B: UN Press Release - Preparatory Commission for the International Criminal Court
Appendix C: Countries that signed and/or ratified the Rome Statute as of July 2001
Appendix D: Views concerning the ICC
Appendix E: International Organizations on combating Environmental Crime

Executive Summary

This report examines a range of perceptions within the UN Secretariat, selected UN Missions and relevant academic and non-governmental organizations (NGO) communities about the possibilities of environmental damage during military action becoming a criminal liability for military personnel and/or their contractors in the impending International Criminal Court (ICC).

As of this writing, the Rome Statute of the International Criminal Court adopted by the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court (Doc. UN/A/CONF.183/9, 17 July 1998) has 139 signatories and 29 ratifications. Sixty ratifications are necessary to bring the Statute into force.  This is expected to occur within two years. The International Criminal Court will be a permanent Court that will investigate and bring to justice individuals, not countries, who commit the most serious crimes of concern to the international community, such as genocide, war crimes, and crimes against humanity -- including widespread murder of civilians, torture, and mass rape. The ICC will be a global judicial institution with international jurisdiction complementing national legal systems.

Crimes against the environment were given very little attention in the negotiations which led to the ICC Statute.  Although the concept of “environmental crime” is becoming increasingly understood, in the short-term it clearly has not been given high priority.

Two definitions of environmental crime are suggested by Mary Clifford [1] :

1. A broad philosophical definition: An environmental crime is an act committed with the intent to harm or with a potential to cause harm to ecological and/or biological systems and for the purpose of securing business or personal advantage. [The authors consider that addition of political gain should also be included in such a definition.]

2. A practitioners’ definition for a legal framework: An environmental crime is any act that violates an environmental protection statute.

There are 240 environmentally-related international treaties, conventions, and protocols [2].   Most of these were written in the last 20 years. The notion of environmental crime is more and more often used in official literature by NGOs, international organizations, and investigating organizations [3].  In the last several years, environmental crime was mentioned on several occasions in relation to military actions [4].  Also, there is consensus that more enforcement is needed in most environmental related treaties, conventions, and protocols in order to make them efficient.

The Rome Statute has one paragraph that refers to environmental damages as war crimes: Article 8(2)(b)(iv):

Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated;
There are three ways a case may come before the Court: referral by a State Party to the Statute; referral by the UN Security Council; or initiation of an investigation by the Prosecutor of the ICC.

For the court to have jurisdiction, several stringent conditions must be met.  The act must be:

1.  Among “the most serious crimes of concern to the international community as a whole” (Preamble, par. 4, Doc. UN/A/CONF.183/9, 17 July 1998;
2.  The result of an attack specifically intended to create that damage; “collateral” damage would not come under the Court’s jurisdiction (in the words of one of the interviewees, the Statute “is about war crimes, not mistakes”);
3.  Launched with the knowledge that it would cause “long-term and severe damage to the natural environment” which would be “clearly excessive” to anticipated military gains; and
4.   If the above three conditions were met, the principle of “complementarity” would come into play. The ICC will complement national procedures, not replace them. If a country has legal mechanisms to address the crime, and they are functioning properly, the ICC would not have jurisdiction.
All cases are filtered by a three-judge panel. If a series of frivolous cases flooded the court, they would not pass the panel.

These stringent requirements to hear a case for environmental crimes committed during military action make it extremely unlikely that this would occur in respect to multilateral UN peace-keeping and/or peace making operations, though more likely following unilateral actions, since there would be fewer parties to decisions.

This was the unanimous conclusion of some twenty individuals, all participants involved in and/or very knowledgeable of the process that created the ICC, who were interviewed (not for attribution) or were referenced in this study. This conclusion is borne out by an analysis of the process by which such a case would have to come before the Court and tested through commentary on five scenarios of potential cases.

1. Mary Clifford. 1998. Environmental Crime: Enforcement, Policy, and Social Responsibility. Gaithersburg, MD: Aspen Publishers. pp 26.
2. State of the World 2001. 2001. The Worldwatch Institute, Washington, DC. pp. 167
3. Worldwatch Institute, NATO, UNEP, Interpol, USEPA, and observations in NGO meetings.
4. Kosovo bombing debate and the Lebanese House Speaker Nabih Berri who asked the Lebanese government and international monitoring bodies to launch an official inquiry into Israel's reported use of depleted uranium weapons.



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