The Article ushers clear authority to the prosecutor under ICC’s mandatory jurisdiction to make probe into politically sensitive circumstances which have paved the way for investigation without assistance from other agencies. Thus, this Article can be employed to prosecute environmental war crimes that are unleashed in any part of the world since Article 12 of the Rome Statute to International Criminal Law permits non-state parties to give assent to ICC jurisdiction over specific scenarios.
Under ICC’s system of voluntary jurisdiction, a state party or a prosecutor may refer the case or the Prosecutor may voluntarily initiate an investigation or proprio motu or sue motu. In the both the situation , ICC court can only implement its jurisdictional authority over the situation if the state of active nationality or territorial state is either party to the Rome Statute under such case the jurisdiction is automatic or in case of nonparty , it should give its consent to accept the Court’s jurisdiction.
However, it is be noted that the Article still remain as a work-in-progress. Despite of its salient features, it has major concerns that restrict the Article capability to punish wartime environmental damage. It is to be noted that its actus reus is distinctively blurred, especially the requirement that injury may be “severe, long-term and widespread” as it also raises the specter of the rule of lenity. For example, the Rome Statute’s Article 22 states that “the elucidation of a crime shall be strictly construeed and shall not be held by analogy.
Thus, in case of imprecision, the definition shall be interpretd in favor of the person being accused. Thus, in case, if the Assembly of States Parties [ASP] adopts the meaning of “long-term, widespread and severe damage”, the rule of lenity may well dominate the Court’s early efforts to give effect to Article 8(2) (b) (iv). It is almost impracticable to foresee what kinds of environmental damage that the ICC will reckon adequately devastating to justify condemnation.
This ambiguity is ushering more concerns in the criminal context, where the code of legality demands crimes to be “as specific and detailed as possible, so as to clearly demonstrate to their addressees the conduct forbidden, explicitly both the intention aspects of the crime and the necessary mens rea. In other words, it can be criticized that this Article lacks accuracy and is too vague to offer a secure yardstick for the work of the Court. Its proportionality criterion is to a great extent weighed against finding an attack as out of proportion.
Further, this Article does not extend adequate safeguard against the likelihood that the transboundary nature of damage to environment may result to prosecutions that threaten the ICC’s system of voluntary jurisdiction. We have already seen that Article 8(2) (b) (iv) is applicable only to international conflicts and does not apply to internal armed conflicts. However, in the real scenario, internal armed conflicts in the recent past have damaged the environment extensively.
It is to be noted that about 103 armed conflicts have occurred between 1989 and 1997 and just only 6 of them were international. Internal conflict can cause as much of damage to environment and can be unleashed with just as much blameworthiness as international conflicts. For example, the Rwandan civil war, has paved to the land-mining of its national parks, annihilation of its agricultural lands and poaching of rare species like mountain gorillas.
Further, Colombian rebels initiated war against the Colombian government by obliterating oil pipelines which resulted in spillage of millions of barrels of oil into rivers-spills that had destroyed vast population of fish and annihilated major areas of ecosystem, besides poisoning of potable water supplies. It is distressing note that how the framers of Article 8(2) (b) (iv) has completely ignored the environmental destruction caused during the internal conflicts.