Documents of the 48th session, [1996] 2(1) Y.B. Int’l L. Comm’n 15–27, U.N. Doc. A/CN.4/SER.A/1996/Add.1

This paper was prepared by ILC member Prof. Christian Tomuschat “to facilitate the task of the working group” on whether causing damage to the environment as Article 26 (wilful and severe damage to the environment) should be included in the draft Code of Crimes against the Peace and Security of Mankind. The first half of the paper provides a brief historical overview since the Nuremberg trial, including the comments made by some states on the draft articles.  The second half of the paper discusses the constituent elements of a crime against the environment and the rationale behind it. The paper concludes with examples, some of which clarify the situations that would trigger the draft Code and others, illustrate its limits. The burning of fossil fuel, for example, does not fall within the scope of the draft Code because the environmental harm is “an infinite multitude of separate actions caus[ing] damage not individually, but conjunctively.” On the other hand, atmospheric testing of nuclear bombs or grenades could fall within the scope of crimes against the environment, provided all other relevant requirements are met, though in 1996 there was no scientific evidence to show atmospheric testing entails widespread, long-term and severe damage.