Creating a Framework for the Prosecution of Environmental Crimes in International Criminal Law

COMPANION TO INTERNATIONAL CRIMINAL LAW: CRITICAL PERSPECTIVES, William Schabas, Yvonne McDermott, Niamh Hayes and Maria Varaki, eds., Ashgate Publishers, 2012

19 Pages Posted: 10 Nov 2011 Last revised: 23 Nov 2011

Tara Smith

Law Reform Commission of Ireland; Irish Aid, Department of Foreign Affairs and Trade; Bangor Law School; Irish Centre for Human Rights, NUI Galway

Date Written: August 25, 2011

Abstract

International criminal law does not attempt, as such, to attach criminal liability to environmental damage at present. Although the number of areas of international law concerned with environmental issues has grown significantly over the past three to four decades, such an accommodation has yet to be properly made within international criminal law. Indeed, there is still considerable debate as to whether criminal sanctions are an appropriate form of responsibility for environmental damage at all.

Nonetheless, the objective of international criminal law is to provide a means of individual accountability for the most serious atrocities that occur on planet earth. There is no doubt that, whether as a result of naturally occurring phenomena or deliberately induced environmental effects, rapidly changing environmental conditions can cause catastrophic consequences for both human and natural life. As a result, it is certainly possible to discern situations where environmental conditions can or ought to give rise to individual criminal liability. However, given the nature of some environmental damage, international criminal law may not always provide an appropriate or adequate means to account for or remedy the harm caused.

The first step in ascertaining the potential for international criminal law to prosecute individuals for environmental damage is a detailed examination of the current framework. This chapter will therefore begin by critically investigating the potential of existing international criminal law to give rise to liability for environmental damage. However, as will be seen, there is a distinct absence of environment-specific provisions in international criminal law at present. As such, there is considerable scope for the amendment of existing ‘core’ crimes, not to mention international criminal law as a whole, to include explicit proscriptions on environmental harm. Therefore, the second part of this chapter will examine possible ameliorations that could be made to existing crimes; the specific example of war crimes will be used to illustrate this point. However, there is always the possibility that international criminal law could expand its scope to accommodate environment-only damage. This chapter will therefore conclude with an appraisal of the proposals that call for the establishment of a separate and distinct category of environmental crimes - often called ‘ecocide’ or ‘geocide’ - within the structure of international criminal law.

Keywords: international criminal law, environmental protection, environmental war crimes, crimes against humanity, genocide, international criminal court

Suggested Citation

Smith, Tara, Creating a Framework for the Prosecution of Environmental Crimes in International Criminal Law (August 25, 2011). COMPANION TO INTERNATIONAL CRIMINAL LAW: CRITICAL PERSPECTIVES, William Schabas, Yvonne McDermott, Niamh Hayes and Maria Varaki, eds., Ashgate Publishers, 2012 . Available at SSRN: https://ssrn.com/abstract=1957644

Tara Smith (Contact Author)

Law Reform Commission of Ireland ( email )

35-39 Shelbourne Road
Ballsbridge
Dublin, D4
Ireland

Irish Aid, Department of Foreign Affairs and Trade ( email )

Limerick City
Ireland

Bangor Law School ( email )

Bangor, Gwynedd, Wales LL57 2DG
United Kingdom

Irish Centre for Human Rights, NUI Galway ( email )

Galway
Ireland

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