Addressing the intentional destruction of the environment during warfare under the Rome Statute of the International Criminal Court / Steven Freeland.
2015
KZ6405.E68 F876 2015 (Map It)
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Details
Author
Title
Addressing the intentional destruction of the environment during warfare under the Rome Statute of the International Criminal Court / Steven Freeland.
Published
Cambridge, United Kingdom : Intersentia, [2015]
Copyright
©2015
Call Number
KZ6405.E68 F876 2015
ISBN
9781780683140 (pbk.)
1780683146 (pbk.)
1780683146 (pbk.)
Description
viii, 353 pages ; 24 cm.
Other Standard Identifiers
9781780683140
System Control No.
(OCoLC)911265781
Summary
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 book therefore examines the current international legal regime 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. It also suggests a framework within the Rome Statute of the International Criminal Court as to how this might be achieved.
Note
Revision of the author's thesis (Ph. D.) - University of Maastricht.
Bibliography, etc. Note
Includes bibliographical references (pages 297-351).
Record Appears in
Table of Contents
Introduction
1
ch. One
Imperative to Regulate the Intentional Destruction of the Environment during Warfare under International Criminal Law
5
1.1.
Introduction - Intentional Environmental Destruction as a part of Warfare
5
1.2.
Impact of Environmental Destruction on Human Security and Conflict
8
1.3.
Intentional Targeting of the Environment during Warfare and the Development of International Criminal Justice
14
1.4.
Need for Legal Regulation
23
1.4.1.
National Law
25
1.4.2.
Regional Law
27
1.4.3.
International Law, Armed Conflict and the Environment
29
1.5.
International Criminal Law as a Regulatory Mechanism
34
1.6.
Could State Criminal Responsibility Apply?
36
1.6.1.
State Criminal Responsibility?
37
1.6.2.
Individual Criminal Responsibility
43
1.7.
Key Questions
45
ch. Two
Regulation of the Intentional Destruction of the Environment during Warfare under Treaty Law
47
2.1.
Introduction - Treaties under International Law
47
2.2.
International Humanitarian Law (Jus in Bello) - Relevant Treaty Provisions
49
2.2.1.
1868 St. Petersburg Declaration
59
2.2.2.
1899 Hague Conference Conventions and Declarations
60
2.2.3.
1907 Hague Convention IV Respecting the Laws and Customs of War on Land
62
2.2.4.
1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous and Other Gases, and of Bacteriological Methods of Warfare
65
2.2.5.
1949 Geneva Conventions
68
2.2.6.
1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict
73
2.2.7.
1972 Biological Weapons Convention
74
2.2.8.
1976 Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques
76
2.2.9.
1977 Additional Protocol I
81
2.2.10.
1981 Certain Conventional Weapons Convention
92
2.2.11.
1993 Chemical Weapons Convention
96
2.2.12.
1997 Ottawa Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of Anti-Personnel Mines and on Their Destruction
98
2.2.13.
1999 Second Protocol to the Hague Convention of 1954 for the Protection of Cultural Property in the Event of Armed Conflict
100
2.3.
Applicability of International Environmental Law Treaties
101
2.3.1.
Development of International Environmental Law Treaties
102
2.3.2.
Applicability during Warfare?
105
2.3.3.
Liability and State Responsibility rather than Criminal Responsibility
111
2.4.
Conclusion
115
ch. Three
Regulation of the Intentional Destruction of the Environment during Warfare under Customary International Law
119
3.1.
Introduction - Customary International Law within International Law
119
3.2.
Fundamental Customary Rules of the Jus in Bello
130
3.2.1.
Principle of Military Necessity
131
3.2.2.
Principle of Distinction
141
3.2.3.
Principle of Proportionality
150
3.2.4.
Fundamental Customary Jus in Bello Rules are Important but Insufficient
159
3.3.
Additional Protection? ICRC Study - Rules Relating to "The Natural Environment'
160
3.3.1.
ICRC Study - Rule 43
163
3.3.2.
ICRC Study - Rule 44
164
3.3.3.
ICRC Study - Rule 45
168
3.4.
General Customary Obligation to Take Account of the Environment during Armed Conflict?
171
3.5.
Conclusion
175
ch. Four
Regulation of the Intentional Destruction of the Environment during Warfare under the Existing Rome Statute Regime
177
4.1.
Introduction - The Core International Crimes in the Rome Statute
177
4.2.
Finalization of the Rome Statute and Establishment of the ICC
180
4.3.
Jurisdiction of the Court - A Brief Overview
185
4.4.
Applicability of the Rome Statute to the Intentional Destruction of the Environment during Warfare
189
4.4.1.
Intentional Destruction of the Environment as Genocide?
190
4.4.2.
Intentional Destruction of the Environment as a Crime against Humanity?
199
4.4.3.
Intentional Destruction of the Environment as a War Crime?
204
4.4.3.1.
Article 8(2)(b)(iv)
204
4.4.3.2.
Other War Crimes within Article 8 of the Rome Statute
213
4.5.
Conclusion
215
ch. Five
Incorporating Crimes against the Environment into the Rome Statute
219
5.1.
Need for a Sui Generis Crime of Crimes against the Environment
219
5.1.1.
Revisiting the Imperative to more effectively Address the Intentional Destruction of the Environment during Warfare under International Criminal Law
219
5.1.2.
Sui Generis Crime - Crimes against the Environment
226
5.1.2.1.
Why a Stand-Alone Crime?
226
5.1.2.2.
Why 'During Armed Conflict'?
228
5.2.
Crimes against the Environment - An International Crime?
234
5.3.
Crimes against the Environment - A Definition for the Rome Statute
239
5.3.1.
Applicable Approach to Defining Crimes against the Environment
239
5.3.2.
Definition of Crimes against the Environment
245
5.3.2.1.
Proposed article 8 ter of the Rome Statute
245
5.3.2.1.1.
Discussion
246
5.3.2.1.1.1.
Paragraph 1 (article 8 ter(1))
246
5.3.2.1.1.2.
Paragraph 2 (article 8 ter(2))
274
5.3.2.2.
Associated Amendments to the Rome Statute
279
5.3.2.3.
Associated Amendments to the Elements of Crimes
279
5.3.2.3.1.
Amendment to the Explanatory Note
279
5.3.2.3.1.1.
Discussion
280
5.3.2.3.2.
Proposed Elements of Crimes for Crimes against the Environment
280
5.3.2.3.2.1.
Discussion
281
5.4.
Comparison with article 8(2)(b)(iv) - 'Righting the Wrongs'
282
5.5.
Procedure for Amending the Rome Statute and the Elements of Crimes
283
5.6.
Final Reflections - A 'Work in Progress'
285
Appendix I
289
5.3.2.2.
Associated Amendments to the Rome Statute
289
5.3.2.2.1.
Amendment to article 5(1)
289
5.3.2.2.2.
Amendment to article 8(2)(b)(iv) and the Associated Elements of Crimes
289
5.3.2.2.3.
Amendment to article 9(1)
290
5.3.2.2.4.
Inclusion of article 15 quater
290
5.3.2.2.5.
Amendment to article 20(3)
291
Appendix II
293
5.3.3.
Paragraph 3 - Not Included in Final Version of article 8 ter
293
5.3.3.1.
Discussion
293
Bibliography
297
Curriculum Vitae
353