A Contested Nature: Protection of the Environment at International Criminal Law

Abstract

This paper analyses the issue of environmental protection at international criminal law. The first part of the paper gives an historical overview of how the environment has been affected by warfare, and specifically draws on two case studies: the Vietnam War, and the First Gulf War. The second part of the paper addresses how the law has responded to such environmental destruction throughout history, noting the influence of ethics and cultural norms. Early law is examined, and it is concluded that such law is primarily anthropocentric. The later law following the Vietnam War is then examined, including customary international law, and while it is noted that the environment was afforded more attention at this point in time, the author concludes that the reforms were not adequate due to enforceability issues. The third part of the paper assesses the Rome Statute, specifically the war crime under art 8(2)(b)(iv) which provides for environmental protection. The author concludes after an assessment of art 8(2)(b)(iv) that the Statute provides unreasonable thresholds for liability, and is thus inadequate. The fourth part of this paper assesses the new environmental risks facing humanity in 2011, namely climate change and planetary boundaries, and questions how these challenges will affect our cultural norms, and consequently our legal response. Lastly, the author proposes a fifth crime to be appended to the Rome Statute – crimes against the environment. This crime is based upon an ecopocentric value, yet appeals to realism in recognition of the dynamics of power and politics.