Tara Smith, Creating a Framework for the Prosecution of Environmental Crimes in International Criminal Law, in The Ashgate Research Companion to International Criminal Law (William A. Schabas et al. eds., 2013)

This chapter assesses the value of individual criminal responsibility for environmental damage by first critically examining the environmental dimension of international criminal law.  Smith considers both possibilities of enhancing an existing crime in the Rome Statute (environmental war crimes) and of adding to it a new environmental crime (ecocide). In the former, she offers two suggestions for war crimes triggering individual criminal liability for environmental damage caused in armed conflict: (1) lower the threshold from conjunctive “widespread, long-term and severe” damage to disjunctive; (2) make a provision for non-international armed conflict. In the latter, Smith explains that “[t]he very essence of ecocide” would criminalize serious environmental damage caused intentionally, recklessly or negligently, so that those most responsible for such damage can be held criminally accountable in an effort to deter recurrence. While some define ecocide based on the right to a healthy environment and others as an extension of genocide, Smith suggests that a “more useful definition could be modelled on existing limitations of environmental harm in international criminal law’s war crimes provisions.” Notwithstanding that the types of remedy required by environmental damage are not currently offered by international criminal law, Smith predicts that “international criminal law will most certainly eventually evolve to recognise specific environmental crimes.”

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