New Essay on SSRN

I have posted a new essay on SSRN, “The Limits of Article 8(2)(b)(iv) of the Rome Statute, the First Ecocentric Environmental War Crime.” The essay, which is forthcoming in the Georgetown International Environmental Law Review, is co-authored with Jessica Lawrence, who graduates from the University of Georgia School of Law next month. Here is the abstract:

Article 8(2)(b)(iv) of the Rome Statute prohibits “[i]ntentionally launching 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 non-human environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.” As the disjunctive “or” indicates, the Article is ecocentric, not anthropocentric: a clearly excessive attack is a war crime even if the resulting environmental damage harms only the non-human environment; additional harm to human interests is not required.

Because it is ecocentric, Article 8(2)(b)(iv) represents an important milestone in international law. Prior to the Vietnam War, military attacks that damaged only the non-human environment were an exclusively domestic concern; international law only prohibited environmentally-destructive attacks that directly threatened human survival. Since Vietnam, the international community has adopted a number of agreements that prohibit causing environmental damage during wartime even if that damage affects only the non-human environment, but those agreements either impose nothing more than State responsibility for violations or leave the decision to criminalize environmentally-destructive attacks to the States themselves – something they have proven exceedingly reluctant to do.

Article 8(2)(b)(iv), however, remains a work in progress. As this essay demonstrates, a number of problems substantially limit the Article’s ability to punish wartime environmental damage: its actus reus is excessively vague, particularly the requirement that damage be “widespread, long-term, and severe”; its proportionality standard is heavily weighted against finding an attack disproportionate; its mens rea is purely subjective, making it nearly impossible to find that a perpetrator “knew” her attack would be disproportionate; and it does not apply to internal armed conflicts.

Article (8)(2)(b)(iv)’s limitations have led one prominent scholar to question whether the ICC is an appropriate mechanism for addressing environmental war crimes. We believe that it is. Although significant revision is necessary, the Article could be re-drafted to provide real protection against the environmental damage that all too often accompanies war. The purpose of our essay is thus constructive as well as critical – not only to identify the limitations of Article 8(2)(b)(iv), but also to suggest ways in which those limitations could be addressed.

We have plenty of time for revisions, so comments would be welcome.