An international criminal environmental law

Having recalled some basic tenets of existing international criminal law in the context of our car-free day and environmental harm, having examined the possible rationale for the existence of an international criminal environmental law, today some aspects of this new branch of international law will be analysed.

Is there any space for environmental protection within the broad scheme of international law? There is only one area where international law includes individual penal responsibility for violations of environmental law - this being international humanitarian law, namely Articles 35 and 55 of the 1977 Protocol to the August 1949 Geneva Conventions.

These provide that it is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment, and therefore prejudice the health or survival of the population.

Moreover, the 1977 UN Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques prohibits techniques "having widespread, long-term or severe effects" on the natural environment.

The International Law Commission, in its work on a draft code of crimes against the peace and security of mankind, envisaged a much broader incorporation of penal repression of environmental harm.

It, however, eventually retreated in the face of opposition by states and doctrinal critiques. Moreover, the proliferation of domestic legislation criminally sanctioning the violation of environmental norms raises the possibility of a general principle of international law relating to environmental criminality.

The International Criminal Tribunal for the Former Yugoslavia (ICTFY) Appeals Chamber, in the case Prosecutor v Dusko Tadic (judgment of October 2, 1995), expanded the role of criminal law in the enforcement of international humanitarian law when it found that, in addition to the grave treaty breaches, the violation of any provision of a humanitarian treaty could constitute a "serious violation" of humanitarian law or, in other words, a war crime.

There seems to be no reason to exclude either Article 35 or 55 of Protocol I from the group of provisions the breach of which might be a serious violation calling for international criminal responsibility.

The single International Criminal Court (ICC) Statute provision relating to the environment likewise relates to war crimes. In creating "for the sake of present and future generations", a court "with jurisdiction over the most serious crimes of concern to the international community as a whole", the ICC Statute makes a brief reference to the need to enhance environmental protection by virtue of Article 8 (2) (b) (iv) which states that it is a war crime to "internationally launch 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."

This provision however suffers from many of the defects of Protocol I and the ILC Draft Code, in being vague, applicable exclusively to international (not internal) armed conflicts, homocentric (in that it does not protect the environment per se, but instead protects combatants and civilians), and conditioned on the absence of an overall anticipated military advantage.

The ICC omits any mention of the environment in the definition of the other crimes falling under the ICC's jurisdiction. The contribution of the ICC statute is its stating explicitly, for the first time in a treaty, that internationally causing widespread, long-term, and severe damage to the environment can indeed constitute a crime under international law, albeit only during an international armed conflict.

A number of recent studies carried out by the UN Commission on Crime Prevention and Criminal Justice and by the Association Internationale de Droit Penal show that an ever-increasing number of states have enacted criminal provisions to protect the environment (for example, Austria, Finland, Japan and Mexico), or have added penal liability provisions to environmental laws (for example, Canada, Israel, Paraguay and the USA).

There is thus a clear trend, present in a large number of states representing the various components of the international community, to impose penal responsibility for severe environmental harm.

A possible impact on international law of this fact could take the form of a general principle of law recognised by civilised nations. Can we speak of a general principle tending towards the criminalisation of crimes against the environment?

We must first discard the possibility that the accumulation of criminal environmental norms in diverse and representative domestic legal systems might indicate the existence of a similar principle in international environmental law.

The repetition of a specific crime in many, or even all, national legal systems, does not betray any clear intention by the international community to create a corresponding crime under international law.

A large number of acts constitute crimes under practically every legal system, for instance, murder or sexual assault, and yet there is clearly no accepted crime under international law corresponding to murder or sexual assault.

Therefore, even if it could be shown that many states now criminalise severe environmental harm, it would not allow the conclusion that there is now an equivalent international criminal norm.

A second possibility is that the general practice of states in criminalising environmental offences may lead to the creation, not of a principle of individual criminal responsibility, but rather of a state obligation to enact national laws to criminalise severe harm to the environment.

However, generally, the repetition of similar rules in the legal systems of a great number of states has not been found to crystallise in a general principle which would require states to adopt or maintain such a rule.

The fact that an increasing number of states criminalise severe harm against the environment cannot be taken as an indication that there is a duty to do so.

A subsidiary principle of international law requiring states to enact national legislation to criminalise harm to the environment is buttressed by the handful of environmental treaties which explicitly impose such an obligation. These include:

The Paris Convention on the Prevention of Marine Pollution from Land-based Sources; the Convention on the Prevention of Marine Pollution by Ships; the Basle Convention on the Control of Transboundary Movement of Hazardous Waste; the Bamako Convention on the Control of Transboundary Movement and Management of Hazardous Waste in Africa; the Convention on the International Trade in Endangered Species of Wild Fauna and Flora and the Council of Europe Convention on the Protection of the Environment through Criminal Law.

The latter convention lays down a core of environmental offences, both intentional and negligent, which signatory states must criminalise in their national legal systems.

Further support for the existence of a general principle of international law imposing a state obligation to criminalise severe harm to the environment can be found in resolutions of the UN General Assembly, ECOSOC, and successive UN Congresses on the Prevention of Crimes and the Treatment of Offenders.

These resolutions, and the European Convention, as well as the Rio resolution of the Association Internationale de Droit Penal also call on states to adopt statutes subjecting moral/artificial persons to the same criminal liabilities and to give extraterritorial application to these statutes.

Although it is still premature to speak of an international criminal environmental law, the ICC's jurisdiction and competence, and the convergence of state practice in adopting statutes providing for the penal repression of environmental damage, suggest that the emergence of a crime against the environment under international law may arise in the not too distant future.