Document:- ILC(XLVIII)/DC/CRD.3 Document on crimes against the environment, prepared by Mr. Christian Tomuschat, member of the Commission Topic: Draft code of crimes against the peace and security of mankind (Part II)- including the draft statute for an international criminal court Extract from the Yearbook of the International Law Commission:- 1996,vol. II(1) Downloaded from the web site of the International Law Commission (http://www.un.org/law/ilc/index.htm) Copyright © United Nations DRAFT CODE OF CRIMES AGAINST THE PEACE AND SECURITY OF MANKIND [Agenda item 3] DOCUMENT ILC(XLVIII)/DC/CRD.3 Document on crimes against the environment, prepared by Mr. Christian Tomuschat, member of the Commission [Original: English] [27 March 1996] CONTENTS Page Multilateral instruments cited in the present report ...................................................................................... 16 Paragraphs INTRODUCTION ....................................................................................................................... 1 16 Chapter I. HISTORICAL REVIEW ......................................................................................................... 2−13 17 A. The Nürnberg trial ................................................................................................... 3 17 B. The work done by the International Law Commission ........................................... 4–10 17 C. Work done by other United Nations bodies ............................................................ 11–12 20 D. Work done by private bodies (learned societies) .................................................... 13 20 II. THE CONSTITUENT ELEMENTS OF A CRIME AGAINST THE ENVIRONMENT ............................ 14−50 21 A. General features of crimes against the peace and security of mankind .................. 14−19 21 B. Need for inclusion in the draft Code of Crimes against the Peace and Security of Mankind ................................................................................................................... 20−23 22 C. The issue of protection: the environment ................................................................ 24–30 23 D. Harm........................................................................................................................ 31 24 E. The characterization of harm: international concern ............................................... 32 24 F. The characterization of harm: the requirement of seriousness ................................ 33 24 G. The crime against the environment: an autonomous crime .................................... 34–36 25 H. Mens rea .................................................................................................................. 37–42 25 I. Scope of application ratione personae .................................................................... 43 26 J. Examples .................................................................................................................. 44–50 26 15 16 Documents of the forty-eighth session Multilateral instruments cited in the present report Source Convention respecting the Laws and Customs of War on Land J. B. Scott, ed., The (The Hague, 18 October 1907) Hague Conventions and Declarations of 1899 and 1907, 3rd edition (New York, Oxford University Press, 1918), p. 100. International Convention for the Regulation of Whaling (Washington, United Nations, Treaty D.C., 2 December 1946) Series, vol. 161, p. 72. Geneva Conventions for the protection of war victims (Geneva, Ibid., vol. 75, pp. 31 12 August 1949) et seq. Geneva Convention for the Amelioration of the Condition of the Ibid., p. 31. Wounded and Sick in Armed Forces in the Field Geneva Convention for the Amelioration of the Condition of Ibid., p. 85. Wounded, Sick and Shipwrecked Members of Armed Forces at Sea Geneva Convention relative to the Treatment of Prisoners of War Ibid., p. 135. Geneva Convention relative to the Protection of Civilian Persons in Ibid., p. 287. Time of War Protocol Additional to the Geneva Conventions of Ibid., vol. 1125, pp. 3 12 August 1949, and relating to the protection of victims of and 609. international armed conflicts (Protocol I) and Protocol Additional to the Geneva Conventions of 12 August 1949 relating to the protection of victims of non-international armed conflicts (Protocol II) (Geneva, 8 June 1977) International Convention for the Prevention of Pollution of the Sea Ibid., vol. 327, p. 3. by Oil (London, 12 May 1954) Treaty Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space Ibid., vol. 480, p. 43. and under Water (Moscow, 5 August 1963) (Partial Test Ban Treaty) Convention on International Trade in Endangered Species of Wild Ibid., vol. 993, p. 243. Fauna and Flora (Washington, D.C., 3 March 1973) Convention on the Prohibition of Military or any Other Hostile Use of Ibid., vol. 1108, p. 151. Environmental Modification Techniques (New York, 10 December 1976) Convention on Long-Range Transboundary Air Pollution (Geneva, Ibid., vol. 1302, 13 November 1979) p. 217. United Nations Convention on the Law of the Sea (Montego Bay, Ibid., vol. 1833, p. 3. 10 December 1982) Protocol to the Antarctic Treaty on Environmental Protection (Madrid, International Legal 4 October 1991) Materials (Washington, D.C.), vol. XXX, No. 6 (November 1991), p. 1461. United Nations Framework Convention on Climate Change (New York, United Nations, Treaty 9 May 1992) Series, vol. 1771, p. 107. Introduction 1. The Commission decided, in 1995, at its forty-seventh of the draft Code at that session in any event.1 The present session, to establish a working group that would meet at paper has been prepared to facilitate the task of the work- the beginning of the forty-eighth session to examine the ing group. possibility of covering in the draft Code of Crimes against the Peace and Security of Mankind the issue of wilful and severe damage to the environment, while reaffirming the Commission’s intention to complete the second reading 1 See Yearbook … 1995, vol. II (Part Two), p. 32, para. 141. Draft Code of Crimes against the Peace and Security of Mankind 17 CHA P TER I Historical review 2. The Commission intends to complete its work on the B. The work done by the International draft Code of Crimes against the Peace and Security of Law Commission Mankind at its forty-eighth session in 1996. One of the issues that requires particular attention before the text can 4. It is not astonishing, therefore, that the Commission be finalized is whether causing damage to the environ- did not address the issue of environmental protection ment should be included in the draft Code. Article 26 of when it was asked by the General Assembly to draw the the text adopted on first reading in 1991 provides: general lessons from the Nürnberg trial. The codifica- tion of the Nürnberg Principles5 reproduces faithfully the An individual who wilfully causes or orders the causing of widespread, three categories of crimes over which the International long-term and severe damage to the natural environment shall, on con- 2 Military Tribunal had jurisdiction, namely crimes against viction thereof, be sentenced ... 1 peace, war crimes and crimes against humanity. Like- At the forty-seventh session in 1995, however, the Special wise, the first draft Code of Offences against the Peace and Security of Mankind, adopted by the Commission in Rapporteur, Mr. Doudou Thiam, expressed doubts as to 6 whether it was advisable to go beyond the framework de- 1954, draws heavily on the Nürnberg precedent and does 3 lineated at Nürnberg, 2 which is now reflected in the pro- not attempt to explore new ground. This is all the more visions determining the jurisdiction of the International understandable since not even in the 1950s did there ex- Tribunal for the Prosecution of Persons Responsible for ist a general awareness of the necessity to take care of Serious Violations of International Humanitarian Law in the natural environment. Nobody fully realized that such the Territory of the Former Yugoslavia since 1991.3 He felt seemingly abundant goods as water, air and soil might be that the time was not yet ripe for a provision like article severely and perhaps even irreparably prejudiced by cer- 26, given a definite lack of support by Governments for tain human activities. the proposal of the Commission.4 Before taking a decision 5. A new stage was reached in 1986 when the Special on that issue, the Commission deemed it useful to hold a Rapporteur suggested complementing the list of crimes discussion in a small working group to be convened dur- against humanity with a provision making breaches of ing the forty-eighth session. rules for the protection of the environment a punishable act. His proposed draft article 12 (Acts constituting crimes 7 A. The Nürnberg trial against humanity), in his fourth report, read as follows: 3. At the Nürnberg trial against the major war crimi- The following constitute crimes against humanity: nals of Nazi Germany, no charges were brought against the accused on account of the damages which the natural … environment had suffered during the Second World War. 4. Any serious breach of an international obligation of essential Indeed, the law regarding the conduct of hostilities, as it importance for the safeguarding and preservation of the human envi- stood in the period between 1939 and 1945, did not con- ronment. tain any rules concerning the environment as such. Gen- erally, the objective of humanitarian law was to protect In his commentary, the Special