Jessica C. Lawrence & Kevin Jon Heller, The First Ecocentric Environmental War Crime: The Limits of Article 8(2)(b)(iv) of the Rome Statute, 20(1) Geo. Int’l Envtl. L. Rev. 72 (2007)
More optimistic than Drumbl’s chapter annotated above, this article identifies the limitations of Article 8(2)(b)(iv) of the Rome Statute and suggests some ways in which those limitations could be addressed. Lawrence and Heller highlight five issues they take with the structure of the provision:
- Vagueness in defining the actus reus;
- Proportionality standard being heavily weighed against a finding of disproportionate attack;
- Subjectivity of mens rea for the purposes of determining if the perpetrator “knew” about the attack being disproportionate;
- Lack of application to internal armed conflicts; and,
- The possibility that transboundary harm and prosecutions thereof may threaten ICC’s voluntary jurisdiction principle.
Drawing on the Geneva Convention, IMT Charter, and decisions of the ICC, Lawrence and Heller analyze each issue. They then explore potential solutions of interpretation, demonstrating that they are relatively simple, though not politically easy.