Article 8(2)(b)(iv) of the Rome Statute: All Bark and No Bite?

I. Introduction

The Rome Statute marks a clear departure from the traditionalist view of environmental war crimes. Article 8 (2)(b)(iv) of the Rome Statute makes damage done to the environment, in the context of a war punishable under the aegis of the International Criminal Court. The liability of the individual does not depend on the consequent effects of the acts on the human population, but is instead based on the degree of harm done to the environment,² and its bearing on civilians is merely seen as an aggravating factor and not a sine qua non.

However, the degree of ‘damage’ contemplated under Article 8 (2)(b)(iv) is virtually impossible to meet. The conjunctive thresholds of ‘widespread, long term and severe’ places an onerous burden on the Prosecutor to establish his case.³ To make matters worse, neither the Travaux Preparatories nor the Rome Statute itself clarifies the interpretation of these terms.⁴ The Prosecutor would be further handicapped while bringing any indictment under this provision on the basis of Article 22, which mandates that any ambigutiy, with respect to the defintion of terms must be construed in the favour of the accused.⁵ This ambiguity coupled with such a high threshold reduces the provision to mere lip service, which is further reinforced by the absence of a single case filed under this section. In addition to the exalted thresholds of damage, prosecution under this Article can only be done in the context of an international armed conflict.⁶ This differentiation was created with respect to non-international and international armed conflicts, as the latter deals with a breach of territorial sovereignty,⁷ and any accruing acts are indisputably egregious in nature.

There exists no corresponding provision for prosecution of environmental damage in case of non-international armed conflicts, and it is unlikely that such a provision will ever come into effect. The drafters of the Rome Statute have deliberately excluded internal armed conflicts from the purview of the provision. It is contended that restricting environmental protection purely to the domain of international armed conflicts is a regressive step.⁸ The underlying Convention, that is, the United Nations Convention on the Prohibition of Military or Any Other Hostile use of Environmental Modification Techniques (hereinafter, ‘ENMOD Convention’), which forms the bedrock of Article 8(2)(b)(iv), does not differentiate beween intra-national and international armed conflicts.⁹ Moreover, the prosecutor is placed at the back foot as the provision creates an “intentional jurisdictional exemption”,¹⁰ which confines the liability only to high-ranking military commanders who enjoy a position of authority, which confers upon them the power to make decisions regarding the nature and scope of the attack.¹¹ Therefore, the provision conveniently excludes field officers or persons lower in the chain of command than the planning or decision-making authorities from any form of liability. Such an approach fails to take into consideration the role such officers could play in deterring environmental attacks; it provides lower-ranking officials with no incentive to prevent the occurrence of such crimes.

By way of overview, there are three principal components to the language of Article 8(2)(b)(iv): (1) the actual physical act, or actus reus, which consists of inflicting "widespread, long-term and severe damage" to the natural environment; (2) the mental element, or mens rea, namely that the infliction of this harm must be done intentionally and with knowledge that the attack will create "widespread, long-term and severe damage" to the natural environment; (3) and a safe harbour, whereby even if both the physical and mental elements are found, military advantage can operate as a defense to criminal wrongdoing.

The author, in Part I, investigates the peculiar thresholds under Article 8(2)(b)(iv), by placing reliance on international statutes and conventions that are geared towards war time environmental protection. While the former chapter examines the actus reus of the provision, the present part of the paper evaluates the element of ‘intention’ or mens rea prescribed under Article 8(2)(b)(iv). Part III investigates the link between Article 8 and customary laws of war. These pre-emptive norms have an inalienable connection to any wartime military attack and must be evaluated, as such. The author’s concluding remarks are presented in Part IV. The author advocates for a more lenient threshold in order to create a real threat of prosecution and deter individuals from carrying out such illegal acts.

II. An Evaluation of the contextual elements of Article 8(2)(b)(iv)

Article 8(2)(b)(iv) prescribes for a conjunctive test, that is, in order to establish criminal responsibility, all three elements of ‘widespread, long-term and severe’ need to be met.¹² However, these terms have not been defined under the Rome Statute or any allied documents,¹³ such as the Elements of Crime. Naturally, one must look to the travaux preparatories to better understand these terms. However, the travaux preparatories fails to clarify the meaning of these terms. Nonetheless, it does lend a certain degree of clarity as it makes a reference to corresponding terms under the ENMOD Convention.¹⁴ The author evaluates the terms ‘widespread, long term and severe’ using the ENMOD Convention as a benchmark. In addition to the Trauvax, an interpretation of the terms with respect to ENMOD Convention is also in keeping with Article 21(b) of the Rome Statute,¹⁵ which mandates that the Court must, in appropriate cases, apply the Law of Armed Conflict.

The ENMOD Convention forms one of the bedrocks of the Law of Armed Conflict, particularly with respect to wartime environment protection. Accordingly, these terms should be interpreted in light of Additional Protocol 1 and the ENMOD Convention given the absence of any definition under the Court's legal framework. The present statutory provision finds its roots in Article 35(3) and 55(1) of Additional Protocol-1.¹⁶ Article 35(3), while using these exact terms, envisages a categorically higher threshold than the disjunctive test set out under the ENMOD Convention.¹⁷ An evaluation of these conventions suggests that the term widespread necessarily has a geographic connotation. Additionally, the drafters of the Rome Statute intended to use the qualifications under the ENMOD Convention to denote only the lower threshold of damage. Thus, ‘widespread’ damage would be a minimum of a hundred square kilometers as prescribed under the ENMOD Convention.¹⁸

Long-term refers to a temporal element and refers to the continued presence and, or effects of the attack.¹⁹ Long-term under Additional Protocol-1 (hereinafter, ‘AP-1’) was interpreted to mean ‘at least a decade.’²⁰ It is unclear, whether the drafters intended to import this threshold de lege ferenda into the Rome Statute. However, once again the drafters referred to AP-1 as a benchmark. It is only prudent that the reference made to the definition of long term under AP-1, was to outline the maximum range. Any other inference would render this provision naught, given the heavy standard of damage prescribed under the Article. Moreover, this term indisputably calls for investigating authorities to carry out Environmental Impact Assessments in order to gauge the temporal effects of the attack. This places an additional burden on the authorities, as more often than not it is not possible to determine the effects of the attack at the time of the attack itself.²¹ The continuing effect of the attack and any consequent damage to the environment usually manifests over a period of time. Therefore, not only is it improbable to preempt the exact nature of such continuing damage, but the authorities are further handicapped where they simply lack the requisite technology to carry out proper Environmental Impact Assessments. Several scholars have criticized the high threshold of long-term under this provision due to the aforementioned concerns.

On the other hand, the term severe is used to denote the intensity of the damage²² on both the natural environment as well as the civilian population.²³ The threshold of this element is derived from the French version of AP-I. It makes a reference to the word 'graves' which entails 'serious' damage to environment.²⁴ At this juncture, the Rome Statute seems to revisit the traditionalist theories of environment protection,²⁵ in turn leading to fragmentation as the objective of the provision was to create a purely environment-centric war crime with no allegiance to its effects on humankind. Nonetheless, this is not the true hamartia of the provision, but is merely an oversight.

III. An Evaluation of elements of intention under Article 8(2)(b)(iv)

The Article also takes into account the necessity, or tactical need of the military in launching an attack against the environment, and their considerations thereof.²⁶ Accordingly, it includes an additional qualification that is the damage must be ‘clearly excessive to the concrete and direct overall military advantage anticipated.’ In a more positive light, these thresholds are comparatively easier to meet than the exacting ‘damage’ standards. The word ‘clearly’ has been incorporated into the Rome Statute to limit the applicability of the Article to cases where the excessiveness of damage is apparent.²⁷ The Court in its evaluation of ‘clearly excessive’ found that the term is not attracted to cases of ensuing collateral damage. However, collateral damage only transpires when there is relative proximity of military and civilian objects.²⁸ The International Criminal Tribunal of Yugoslavia in Martic²⁹ further evaluated this crucial element of proximity and found that in the absence of it, resulting damage to civilian or civilian objects is not justified, even if the attack is directed against a legitimate objective.³⁰ Therefore, in order to escape liability under the Article, the military objective must be closely located to the environmental object damaged in pursuance of such military attack.

Additionally, to satisfy the qualification of ‘concrete and direct military advantage anticipated’ there must exist a positive nexus between the attack and the accruing advantage.³¹ The Commentary published by the International Committee of the Red Cross clarifies that the terms ‘concrete and direct’ were included so as to disregard advantages that are hardly perceptible and would only materialize in the long term.³² It is only apposite that the advantage being considered is truly a military advantage and not merely a political or economic advantage.³³ Moreover, the military advantage needs simply to be "anticipated." It is unclear by whom and according to what standards the "anticipation" is to be adjudged.³⁴

An Article 8(2)(b)(iv) prosecution can only succeed if a commander knows what “widespread, long-term and severe damage” means, knows that his conduct will cause such damage, and knows that the damage will likely be disproportionate to the anticipated advantage of the military operation. As is clear, it is difficult for a defendant to know what “widespread, long-term and severe damage” means when there is no legal consensus on its meaning. A commander charged under Article 8(2)(b)(iv) could present a mistake of law defense by pleading that he misunderstood the scope of “widespread, long-term, and severe damage,” and, because the definition of that term comes from outside the Rome Statute, such a defense could likely win.

IV. Customary laws of war and article 8 (2)(b)(iv)

Customary laws of war must be adhered to when launching any wartime military attack. These are non-derogable norms and a contravention of any customary law would result in an illegal act, and would attract liability as such. The present chapter will discuss two fundamental principles of International Humanitarian Law and their observance, or lack thereof under Article 8 of the Rome Statute. In particular, Article 8(2)(b)(iv) requires proportionality between the military advantage achieved from an operation and the damage done to the environment.³⁵

The Principle of Distinction is a peremptory norm of International Humanitarian Law, which mandates distinguishing between military and civilian objectives.³⁶ The second core principle, that is, the Principle of Proportionality devolves from the primordial norm of Distinction.³⁷ The Trial Chamber of the International Criminal Tribunal of Yugoslavia, in the Kupreskic judgment, clarified that both principles are to be conjointly applied and cannot be viewed in isolation from one another.³⁸ This theme was revisited in Galic, wherein the Chamber ruled that the issue of proportionality is only to be entertained once the Principle of Distinction has been satisfactorily complied with.³⁹

Contravention of the Principle of Distinction is accentuated in cases of biological warfare. In the same vein, the Laws of War⁴⁰ specifically prohibit the use of certain methods of warfare that are incapable of being accurately directed towards an established military objective.⁴¹ The International Court of Justice in the Nuclear Weapons case reiterated this position of law and found the prohibition to be rooted in the cardinal Principle of Distinction.⁴² Biological weapons fall within the purview of indiscriminate weapons, as the release of a pathogen cannot be effectively pointed only towards a specific military objective.⁴³ Article 8(2)(b)(xx) of the Rome Statute codifies this rule. However, Article 8(2)(b)(iv) drastically differs from this provision on two fronts. While, the former only deals with instances of biological warfare the latter bears no such caveats. Most significantly, Article 8(2)(b)(xx) does not contemplate the use of the environment as a military objective, but the illegality stems from repercussions caused due to the pursuance of other tangible military objectives. Whereas, Article 8(2)(b)(iv) grounds the liability of the individual on the factum of the use of the environment as a military objective in itself.

The core tenet of the Principle of Distinction is to differentiate a military objective from a civilian object, such that only military objectives are open to attack.⁴⁴ In the same vein, international law has accorded natural environment status of a civilian object.⁴⁵ This has also been recognized under Article 55 of Additional Protocol-I, which deals with the natural environment and falls under the chapter of ‘civilian objects’ thus implicitly bringing natural environment under the protected status.⁴⁶ This is further reinforced in the context of the International Criminal Court as the drafters of the Rome Statute heavily drew from AP-1. The Protocol goes beyond such a preliminary protection and confers additional protection on environmental objects, which are indispensable to the survival of the civilian population.⁴⁷ Moreover, it is an essential prerequisite that the environment be transformed into a military objective to justify the targeting of a default civilian object.⁴⁸ In order for the environmental object to be transformed into a legitimate target, it should either be in, or have the potential to be of military use. An attack on the environment is unjustified where the basic transformational element that is military value is absent.

It is inappropriate to include non-traditional objectives such as psychological warfare, or tactical targets within the foray of military objectives,⁴⁹ particularly in the context of Article 8 (2)(b)(iv), as the terms ‘concrete and direct’ military advantage have an indisputably clear meaning. This marks a clear departure from the Western theory of indirect but effective contribution to military success.⁵⁰ The United States argues that indirect advantages also include damaging the morale of a nation to fight so that they retreat their troops⁵¹ and, or influencing the political will of the country so to cause significant military implications.⁵² Proponents of this theory also contend that a military advantage may materialize at a geographically different location from the object ,which is under attack.⁵³ A natural corollary of this theory is that incidental damage to civilian or civilian objects⁵⁴ is justified when the ultimate target is another object. This paper does not delve into the veracity or acceptance of this theory in international law, but is only concerned with whether it can be situated within Article 8(2)(b)(iv). As mentioned before, such an interpretation runs contrary to the plain words of the provision itself.

V. Conclusion

In the case of Article 8(2) (b) (iv), criminal sanction will only fall upon the most invidious offender: the individual who knows his or her behavior will cause "widespread, long-term and severe" damage to the environment and, notwithstanding proof of this knowledge, still commits the act with the full intention of causing the environmental damage. A failure to incorporate an objective element into the Rome Statute's environmental war crimes also represents a step backwards insofar as AP I had, as early as 1977, grounded responsibility not in intentional environmental harm, but simply when there was a reasonable expectation that environmental damage would occur. If direct knowledge is required, then behavior could no longer be sanctioned on an objective basis, and ignorance of the law could serve as a defense.

It comes as no surprise that even though the Rome Statute has been in existence since 2002, no prosecution has ever been launched under Article 8(2)(b)(iv). Not only has there never been a successful prosecution under this section, the Prosecutor has also neglected to open any investigation to determine any possible liability under this section. This reflects the woes of international law scholars who have sharply criticized this provision. The majority of legal scholars believe, and rightly so, that the thresholds under this provision are nearly impossible to meet. There is a great degree of separation between the words of the provision and its actual implementation. Therefore, through the course of this paper the author has put forward an alternative argument, which seeks to circumvent the exalted thresholds of damage.

The contextual elements of Article 8(2)(b)(iv) can be satisfied by proving a violation of the Principle of Distinction. As argued before, the Principle of Distinction is to be viewed in conjunction with the Principle of Proportionality, which is enshrined under the Article itself. Therefore, in such a peculiar manner the Prosecutor could skirt the exalted damage thresholds and still establish liability under the provision. However, this line of argument will only hold weight in those particular circumstances wherein the target in question is not a true military objective, or has not been converted into one as such. Nonetheless, this approach does not take away from the hamartia of this provision, which is the damage standard. In order to encourage prosecution under this section and make it a viable legal standard, the conjunctive thresholds of ‘widespread, long term and severe’ must be clarified and read down from the present stance.

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