Common use of Development of International Criminal Law addressing Environmental Harm Clause in Contracts

Development of International Criminal Law addressing Environmental Harm. There is a long history of environmental damage during armed conflict, both as a deliberate tactic of war and as an off-shoot of lawful military operations, as well as during times of social upheaval.259 According to the Book of Kings in the Old Testament of the Bible, during the Ninth Century Before Xxxxxx, the Israelites engaged in tactics of altering the local environment in an attack against the Moabites.260 Likewise, the prohibition of environmental damage has a long pedigree. Restrictions on harming the natural environment were set out in the Old Testament.261 Similarly, Xxxxxxxx’s companion, the first Caliph Xxx Xxxx, is said to have instructed his Muslim army to avoid burning or harming trees in the Seventh Century Anno Domini.262 Despite these early developments and examples of environmental harm being used as a tactic of war, international laws concerning environmental damage have been slow to develop. It was not until war broke out in Vietnam in the 1960s, that a greater awareness of the need to collectively take measures to protect the environment emerged, particular during times of armed conflict.263 This fed the impetus for the development of treaties specifically protecting the environment, particularly under the rubric of international humanitarian law, and included calls for the fifth Geneva Convention on the protection of the environment. The term ecocide was first widely used by a plant biologist, Xxxxxx Xxxxxxx, to encapsulate what he described as ‘willful, permanent destruction of environments in which people can live 258 Peacetime environmental law remains effective during times of armed conflict to extent that it is compatible with international humanitarian law; International Law Commission, Draft Articles on the Effects of Armed Conflicts on Treaties (2011), Annex - Indicative list of treaties referred to in article 7. See also Xxxxxx Xxxxxxx Xxxx “Le droit international humanitaire et l’avis consultatif de la Cour internationale de Justice sur la licéité de la menace ou de l’emploi x’xxxxx nucléaires” (1997) 823 RICR 37; cited in Xxxxxxx (1997), p.32, 37. 259 Xxxxxxxxx (2005), p.700. 260 See Bible: Revised Standard Version, 2 Kings 3:24-25. 261 Bible: Revised Standard Version, Deuteronomy 20:19 (“[i]f you besiege a town for a long time, making war against it in order to take it, you must not destroy its trees by wielding an axe against them. Although you may take food from them, you must not cut them down. Are trees in the field human beings that they should come under siege from you?”). See also Xxxxx (2002), p.500. 262 See Aboul-Xxxxx, X. Yousuf and Zuhur, Sherifa, Islamic Rulings on Warfare, Strategic Studies Institute, US Army War College (Xxxxx Publishing Co.: Darby Pennsylvania, 2004), p.22 (“Stop, O people, that I may give you ten rules for your guidance in the battlefield. Do not commit treachery or deviate from the right path. You must not mutilate dead bodies. Neither kill a child, nor a woman, nor an aged man. Bring no harm to the trees, nor burn them with fire, especially those which are fruitful. Slay not any of the enemy's flock, save for your food. You are likely to pass by people who have devoted their lives to monastic services; leave them alone.”) 263 Xxxxxxxxx (2011), para.6. in a manner of their choosing’.264 Xxxxxxx and others condemned the American operations in Vietnam, particularly Operation Ranch Hand, and sought to enshrine a prohibition against serious harm to the environment in the same way that genocide was prohibited by Convention after World War Two.265 In 1973, Xxxxxxx Xxxx sought the enactment of an International Convention on the Crime of Ecocide and a Draft Protocol on Environmental Warfare.266 He defined ecocide as ‘acts committed with intent to destroy, in whole or in part, a human ecosystem’, committed in peacetime or wartime,267 and suggested that conducting warfare in an environmentally deleterious way, such as through the use of chemicals, bulldozers, bombs, be prohibited in the Draft Protocol on Environmental Warfare. Partly as a result of the events in Vietnam, the abstract ideals concerning environmental protection set forth in the Stockholm Declaration from 1972 were thereafter codified into specific prohibitions of international humanitarian law, which hitherto had featured prohibitions on certain means and methods of war in The Hague Regulations, but no prohibitions specifically protecting the environment. Most prominent were articles 35(3) and 55(1) of the 1977 Additional Protocols to the Geneva Conventions and the Convention on the Prohibition of Military or Any Hostile Use of Environmental Modification Techniques (ENMOD).268 These prohibitions would provide the basis for the subsequent introduction of provisions of international criminal law penalising destruction of the environment.269 The issue of environmental destruction and the need to protect the environment during armed conflict was brought to the forefront of international consciousness in 1990-1991, when Xxxxxx Xxxxxxx set fire to Kuwaiti oil xxxxx.270 The UN Secretary-General issued reports on the protection of the environment in times of armed conflict in 1992 and 1993,271 and the ICRC issued a report on the same subject in 1994.272

Development of International Criminal Law addressing Environmental Harm. There is a long history of environmental damage during armed conflict, both as a deliberate tactic of war and as an off-shoot of lawful military operations, as well as during times of social upheaval.259 According to the Book of Kings in the Old Testament of the Bible, during the Ninth Century Before Xxxxxx, the Israelites engaged in tactics of altering the local environment in an attack against the Moabites.260 Likewise, the prohibition of environmental damage has a long pedigree. Restrictions on harming the natural environment were set out in the Old Testament.261 Similarly, Xxxxxxxx’s companion, the first Caliph Xxx Xxxx, is said to have instructed his Muslim army to avoid burning or harming trees in the Seventh Century Anno Domini.262 Despite these early developments and examples of environmental harm being used as a tactic of war, international laws concerning environmental damage have been slow to develop. It was not until war broke out in Vietnam in the 1960s, that a greater awareness of the need to collectively take measures to protect the environment emerged, particular during times of armed conflict.263 This fed the impetus for the development of treaties specifically protecting the environment, particularly under the rubric of international humanitarian law, and included calls for the fifth Geneva Convention on the protection of the environment. The term ecocide was first widely used by a plant biologist, Xxxxxx Xxxxxxx, to encapsulate what he described as ‘willful, permanent destruction of environments in which people can live 258 Peacetime environmental law remains effective during times of armed conflict to extent that it is compatible with international humanitarian law; International Law Commission, Draft Articles on the Effects of Armed Conflicts on Treaties (2011), Annex - Indicative list of treaties referred to in article 7. See also Xxxxxx Xxxxxxx Xxxx “Le droit international humanitaire et l’avis consultatif de la Cour internationale de Justice sur la licéité de la menace ou de l’emploi x’xxxxx nucléaires” (1997) 823 RICR 37; cited in Xxxxxxx (1997), p.32, 37. 259 Xxxxxxxxx (2005), p.700. 260 See Bible: Revised Standard Version, 2 Kings 3:24-25. 261 Bible: Revised Standard Version, Deuteronomy 20:19 (“[i]f you besiege a town for a long time, making war against it in order to take it, you must not destroy its trees by wielding an axe against them. Although you may take food from them, you must not cut them down. Are trees in the field human beings that they should come under siege from you?”). See also Xxxxx (2002), p.500. 262 See Aboul-Xxxxx, X. Yousuf and Zuhur, Sherifa, Islamic Rulings on Warfare, Strategic Studies Institute, US Army War College (Xxxxx Publishing Co.: Darby Pennsylvania, 2004), p.22 (“Stop, O people, that I may give you ten rules for your guidance in the battlefield. Do not commit treachery or deviate from the right path. You must not mutilate dead bodies. Neither kill a child, nor a woman, nor an aged man. Bring no harm to the trees, nor burn them with fire, especially those which are fruitful. Slay not any of the enemy's flock, save for your food. You are likely to pass by people who have devoted their lives to monastic services; leave them alone.”) 263 Xxxxxxxxx (2011), para.6. in a manner of their choosing’.264 Xxxxxxx and others condemned the American operations in Vietnam, particularly Operation Ranch Hand, and sought to enshrine a prohibition against serious harm to the environment in the same way that genocide was prohibited by Convention after World War Two.265 In 1973, Xxxxxxx Xxxx sought the enactment of an International Convention on the Crime of Ecocide and a Draft Protocol on Environmental Warfare.266 He defined ecocide as ‘acts committed with intent to destroy, in whole or in part, a human ecosystem’, committed in peacetime or wartime,267 and suggested that conducting warfare in an environmentally deleterious way, such as through the use of chemicals, bulldozers, bombs, be prohibited in the Draft Protocol on Environmental Warfare. Partly as a result of the events in Vietnam, the abstract ideals concerning environmental protection set forth in the Stockholm Declaration from 1972 were thereafter codified into specific prohibitions of international humanitarian law, which hitherto had featured prohibitions on certain means and methods of war in The Hague Regulations, but no prohibitions specifically protecting the environment. Most prominent were articles 35(3) and 55(1) of the 1977 Additional Protocols to the Geneva Conventions and the Convention on the Prohibition of Military or Any Hostile Use of Environmental Modification Techniques (ENMOD).268 These prohibitions would provide the basis for the subsequent introduction of provisions of international criminal law penalising destruction of the environment.269 The issue of environmental destruction and the need to protect the environment during armed conflict was brought to the forefront of international consciousness in 1990-1991, when Xxxxxx Xxxxxxx set fire to Kuwaiti oil xxxxx.270 The UN Secretary-General issued reports on the protection of the environment in times of armed conflict in 1992 and 1993,271 and the ICRC issued a report on the same subject in 1994.2721994.272 264 Xxxxx Xxxxxxx, Invention of Ecocide: Agent Orange, Vietnam, and the Scientists Who Changed the Way We Think About the Environment (University of Georgia Press 2011), at 15. 265 Xxxxxxx Xxxxxx, ‘Scorched Earth: Environmental War Crimes and International Justice’, 12(4) Perspectives on Politics (2014) 770, at 777. (1) Bulletin of Peace Proposals (1973), (“Xxxx (1973)”), p.80. 267 Xxxx (1973), p.93. 268 See infra Chapter 2(D)(i)(a) (describing elements of articles 35 and 55 of AP1 in relation to article 8(2)(b)(iv) of the Rome Statute). 269 Xxxxx et. al. (2010), pp.572-573. 270 Secretary-General Report 1993, p.11. 271 Secretary-General Report 1993. 272 ICRC Guidelines for military manuals and instructions on the protection of the environment in times of armed conflict (1994) (30 April 1996 Article, International Review of the Red Cross, No. 311). The possibility of international prosecutions for serious atrocity crimes, which had been dormant since the post-World War Two trials, became a reality with the creation of the modern international and hybrid courts in the 1990s and beyond. In 1993, the International Criminal Tribunal for the former Yugoslavia (ICTY) was established, with jurisdiction over genocide, crimes against humanity, and war crimes, the latter of which was broadly framed and could potentially encompass serious environmental harm caused during armed conflict. The International Criminal Tribunal for Rwanda (ICTR), set up in 1994, had essentially the same substantive jurisdiction. Whereas other international or quasi-international courts were set up for countries including Sierra Leone, Cambodia, Lebanon, and East Timor,273 the most significant development was the creation of the Rome Statute of the ICC in 1998, which entered into force in 2002.274 The Rome Statute has a provision that specifically refers to harm to the environment (the war crime in article 8(2)(b)(iv)),275 along with several provisions that could indirectly address destruction of the environment.276 Despite the well-known examples of environmental damage during times of armed conflicts and in weak regulatory contexts, there has not yet been any conviction for environmental crimes (meaning eco-centrically framed crimes) before an international tribunal.277 Although the crime of causing environmental harm during armed conflict was not explicitly listed in the ICTY statute, it may have fallen under article 3 as a law or custom of war.278 However, aside from the ICTY Office of the Prosecutor’s examination of the potential liability of NATO personnel in connection with the 1999 bombing of Serbian sites, and the ICC’s occasional reference to environmental implications, there have been no cases concentrating on charges of environmental harm under modern international criminal law, and the ICTY Office of the 273 The prohibition on military attacks causing excessive environmental harm under article 8(2)(b)(iv) of the Rome Statute is partly reflected in regulation 6(1)(b)(iv) of the provisions governing the work of the East Timor tribunals. United Nations Transitional Authority for East Timor Regulation No. 2000/15 establishes panels with exclusive jurisdiction over serious criminal offences, including war crimes. According to Section 6(1)(b)(iv), “[i]ntentionally launching an attack in the knowledge that such attack will cause … 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” constitutes a war crime in international armed conflicts. 274 The Rome Statute was signed in 1998 but only entered into force after the instruments of ratification, acceptance, approval or accession of 60 States had been submitted to the Secretary-General; in accordance with Article 126 of the Statute. 275 The war crime set out in article 8(2)(b)(iv). 276 See infra Chapter II(C). 277 Xxxxxxxxx (2005), p.698; Xxxxxxxx (2009), p.55; UNEP Study (2009), p.24. 278 ICTY Statute, article 3. Prosecutor questioned whether the international humanitarian law prohibitions against excessive environmental harm would even apply before the Tribunal.279 The Iraqi Special Tribunal has jurisdiction over crimes of serious environmental harm but has not undertaken prosecutions for this provision.280 The remaining major international tribunals (the ECCC, STL and SCSL) would not appear to have direct jurisdiction over crimes of serious environmental harm and so unsurprisingly have not undertaken prosecutions for these offences.281 The lack of provisions and prosecutions for environmental harm before the international criminal tribunals indicates the embryonic nature of the prosecution of environmental harm under international criminal law. 279 Final Report on NATO (2000), para.15 (“Consequently, it would appear extremely difficult to develop a prima facie case upon the basis of these provisions, even assuming they were applicable.”). 280 Statute of the Iraqi Special Tribunal, Article 13(b)(5) (“Intentionally launching an attack in the knowledge that such attack will cause 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”); Xxxxxxxxx (2005), p.705. 281 See Statute of Special Court for Sierra Leone, Article 4 (limiting other war crimes to those enumerated); Law of the Extraordinary Criminal Xxxxxxxx of Cambodia (only including grave breaches of the Geneva Conventions in its jurisdiction); Statute of the Special Tribunal for Lebanon, Article 2 (limiting crimes in the jurisdiction to terrorism and life and personal integrity).

Development of International Criminal Law addressing Environmental Harm. There is a long history of environmental damage during armed conflict, both as a deliberate tactic of war and as an off-shoot of lawful military operations, as well as during times of social upheaval.259 According to the Book of Kings in the Old Testament of the Bible, during the Ninth Century Before Xxxxxx, the Israelites engaged in tactics of altering the local environment in an attack against the Moabites.260 Likewise, the prohibition of environmental damage has a long pedigree. Restrictions on harming the natural environment were set out in the Old Testament.261 Similarly, Xxxxxxxx’s companion, the first Caliph Xxx Xxxx, is said to have instructed his Muslim army to avoid burning or harming trees in the Seventh Century Anno Domini.262 Despite these early developments and examples of environmental harm being used as a tactic of war, international laws concerning environmental damage have been slow to develop. It was not until war broke out in Vietnam in the 1960s, that a greater awareness of the need to collectively take measures to protect the environment emerged, particular during times of armed conflict.263 This fed the impetus for the development of treaties specifically protecting the environment, particularly under the rubric of international humanitarian law, and included calls for the fifth Geneva Convention on the protection of the environment. The term ecocide was first widely used by a plant biologist, Xxxxxx Xxxxxxx, to encapsulate what he described as ‘willful, permanent destruction of environments in which people can live 258 Peacetime environmental law remains effective during times of armed conflict to extent that it is compatible with international humanitarian law; International Law Commission, Draft Articles on the Effects of Armed Conflicts on Treaties (2011), Annex - Indicative list of treaties referred to in article 7. See also Xxxxxx Xxxxxxx Xxxx “Le droit international humanitaire et l’avis consultatif de la Cour internationale de Justice sur la licéité de la menace ou de l’emploi x’xxxxx nucléaires” (1997) 823 RICR 37; cited in Xxxxxxx (1997), p.32, 37. 259 Xxxxxxxxx (2005), p.700. 260 See Bible: Revised Standard Version, 2 Kings 3:24-25. 261 Bible: Revised Standard Version, Deuteronomy 20:19 (“[i]f you besiege a town for a long time, making war against it in order to take it, you must not destroy its trees by wielding an axe against them. Although you may take food from them, you must not cut them down. Are trees in the field human beings that they should come under siege from you?”). See also Xxxxx (2002), p.500. 262 See AboulXxxxx-Xxxxx, X. Yousuf and Zuhur, Sherifa, Islamic Rulings on Warfare, Strategic Studies Institute, US Army War College (Xxxxx Publishing Co.: Darby Pennsylvania, 2004), p.22 (“Stop, O people, that I may give you ten rules for your guidance in the battlefield. Do not commit treachery or deviate from the right path. You must not mutilate dead bodies. Neither kill a child, nor a woman, nor an aged man. Bring no harm to the trees, nor burn them with fire, especially those which are fruitful. Slay not any of the enemy's flock, save for your food. You are likely to pass by people who have devoted their lives to monastic services; leave them alone.”) 263 Xxxxxxxxx (2011), para.6. in a manner of their choosing’.264 Xxxxxxx and others condemned the American operations in Vietnam, particularly Operation Ranch Hand, and sought to enshrine a prohibition against serious harm to the environment in the same way that genocide was prohibited by Convention after World War Two.265 In 1973, Xxxxxxx Xxxx sought the enactment of an International Convention on the Crime of Ecocide and a Draft Protocol on Environmental Warfare.266 He defined ecocide as ‘acts committed with intent to destroy, in whole or in part, a human ecosystem’, committed in peacetime or wartime,267 and suggested that conducting warfare in an environmentally deleterious way, such as through the use of chemicals, bulldozers, bombs, be prohibited in the Draft Protocol on Environmental Warfare. Partly as a result of the events in Vietnam, the abstract ideals concerning environmental protection set forth in the Stockholm Declaration from 1972 were thereafter codified into specific prohibitions of international humanitarian law, which hitherto had featured prohibitions on certain means and methods of war in The Hague Regulations, but no prohibitions specifically protecting the environment. Most prominent were articles 35(3) and 55(1) of the 1977 Additional Protocols to the Geneva Conventions and the Convention on the Prohibition of Military or Any Hostile Use of Environmental Modification Techniques (ENMOD).268 These prohibitions would provide the basis for the subsequent introduction of provisions of international criminal law penalising destruction of the environment.269 The issue of environmental destruction and the need to protect the environment during armed conflict was brought to the forefront of international consciousness in 1990-1991, when Xxxxxx Xxxxxxx set fire to Kuwaiti oil xxxxx.270 The UN Secretary-General issued reports on the protection of the environment in times of armed conflict in 1992 and 1993,271 and the ICRC issued a report on the same subject in 1994.272