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AN ASSESSMENT OF THE APPLICABLE DEFINITION AND

STANDARDS OF ARTICLE 8(2)(B)(IV) OF THE ROME


STATUTE TO MAXIMIZE ITS APPLICATION TO
ENVIRONMENTAL WAR CRIMES

I.

INTRODUCTION
a. Modern Military Activity and its Effect on the
Environment
i. Effects of Traditional Weapons
1. Weapons of Modern Warfare
2. NATO Campaign in the Kosovo Conflict
3. Iraqi Campaign the Second Gulf War
ii. Effects of Nuclear Weapons
1. Beginnings of Nuclear Weapons
2. Use of Nuclear Weapons: Hiroshima and Nagasaki
3. Post-Pacific War Nuclear Weapons Development
iii. Situations Involving Environmental Modification Weapons
1. Beginnings of Environmental Modification Weapons
2. The Malayan Emergency
3. Agent Orange in Vietnam
b. Military Activity Within Philippine Jurisdiction
II.

INTERNATIONAL OBLIGATIONS ARISING FROM


ENVIRONMENTAL TREATIES PERTAINING TO
ENVIRONMENTAL PROTECTION FROM MILITARY ACTIVITY
i. Treaties and Agreements Pertaining to Traditional Weapons
ii. Treaties and Agreements Pertaining to Nuclear Weapons
iii. Treaties and Agreements Pertaining to Environmental
Modification Weapons

iv. Other Treaties and Agreements Pertaining to Environmental


Protection during Armed Conflict
III.

ANTECEDENTS AND ORIGINS OF ARTICLE 8(2)(b)(iv) AS SEEN


THROUGH THE INTENT OF THE FRAMERS IN THE PREPARATORY
DOCUMENTS OF THE ROME STATUTE
a. Two Approaches: Anthropocentric and Ecocentric
i. The Antropocentric Approach
ii. The Ecocentric Approach
b. Historical Antecedents of Article 8(2)(b)(iv)
i. ENMOD
1. Environmental Modification Prohibitions
2. Have ENMOD Provisions Become Customary Norms?
ii. Additional Protocol I
1. Intent of the Framers of Additional Protocol I
2. The Severity Threshold of Additional Protocol I
c. The Intent of the Framers as Seen Through the Preparatory
Documents of the Rome Statute
i. Rapporteurs of the International Law Commission
ii. Report of the Preparatory Committee on the Establishment
of an International Criminal Court

IV.

DISSECTING ARTICLE 8(2)(b)(iv) AND AN ASSEMESNT OF ITS


STANDARDS IN ORDER TO ACHIEVE THE MAXIMUM EXTENT OF
LIABILITY PROVIDED BY THE ROME STATUTE
a. Inherent Limitations of Article 8(2)(b)(iv) of the Rome
Statute
i. Mandate of the Court from Consensus of State Parties
1. Applicability to State Parties and Limited Application
to Non-State Parties
2. Acts Must Have Occurred in the Territory of a State
Party
ii. General Principles of Criminal Law
1. Legality Principle
2. Criminal Provisions Strictly Construed
iii. Indispensability of Nexus to an International Armed Conflict

1. Presence of an Armed Conflict


2. Parties to the Armed Conflict Must be States
b. Ambiguity Limitations and Plausible Standards of
Application of the Elements of the Crime in Article 8(2)(b)
(iv)
i. Interpreting the Elements of Article 8(2)(b)(iv)
1. Recourse to Subsidiary Sources of Law Outside the
Rome Statute
ii. Element of Disproportionate Injury or Damage
1. Incidental Death or Injury to Civilians or Civilian
Objects or Damage to the Natural Environment
a. Incidental Death or Injury to Civilians or Civilian
Objects
b. Widespread, Longterm, Severe Damage to the
Natural Environment
i. Widespread
ii. Longterm
iii. Severe
2. Clearly Excessive to the Concrete and Direct Overall
Military Advantage Anticipated
a. Military Proportionality
b. Concrete
c. Direct
iii. Mental Elements: Knowledge of the Perpetrator
1. Knowledge of Excessiveness
2. Knowledge of an Armed Conflict
V.

EXPLORATION OF RECOMMENDATIONS
a. Establishing An International Court on the Environment
i. Prior Efforts to Establish
ii. Treaty-based Tribunals
b. Amendment of the Rome Statute
i. Amendment Process
ii. Proposed Amendment
c. Judicial Application of Standards Interpreted from
Antecedents of Article 8(2)(b)(iv) and Subsidiary Sources
of Law

i. Why Judicial Application of Standards Interpreted from


Antecedents and Subsidiary Sources of Law is the Most
Feasible Recommendation.
ii. Illustrative Case Applying Standards Interpreted from
Antecedents and Subsidiary Sources of Law