I.

COVER PAGE
II. TABLE OF CONTENTS
III.INDEX OF AUTHORITIES
IV.SUMMARY OF FACTS
The Republic of Araguaia, Kingdom of Inia and Republic of Risso are bordering the
Middle Sea. Risso is a highly industrialized country while Araguaia was ruled by a
military government with Admiral Blas as the chairman of the Crisis Military
Commission which acted as the de facto government of the country. The Yukule lies
about 200km east of Risso, 300km south of Inia and 100km from Araguaia's west coast.
It is the largest island of Yukon and is the only one inhabited. It was under Risson control
until 2008 with the Risson government stationing naval forces in Yukon and islets on
Yukule. Yukule's oil and tourism are its main source of revenue.
Since 1980, Araguaia has been contesting Risson sovereignty over Yukule based on
the proximity of Yukule to their coast and the unlawful annexation of Yukule after WW2.
By 2006, Risso began to experience energy crisis and on the same year, a financial crisis
led to a decline in demand for their commodities and as a result its economy contracted
significantly which led to Risso granting permission to RECO for hydrocarbon reserve
exploration within Yukule using 20-gun arrays.
Ecofin in July 2008 then reported that the sounds associated with such airguns were
causing short-beaked dolphins and pilot whales to avoid areas were such activities were
being conducted. On the 28th of August, a diplomatic note from Araguaia was forwarded
to the Government of Risso stating that it wanted to enter into consultations regarding the
effect on of noise pollution of RECO's hyrdrocarbon activities as it was having a
significant adverse impact on a number of marines species. The Government of Araguaia
was concerned about the economic impact of these activities on its eco-tourism industry
while asserting that RECOs activities fall within the category of Espoos requirement for
an environmental impact assessment to be conducted by Risso.

However, it was Rissos submission that these are not activities listed in Appendix 1
of the Espoo Convention and that marine seismic activities are exploration activities not
hydrocarbon production and that mainly as Risso was unable to import sufficient
quantities of oil and natural gas, it was committed to energy independence. While the
correspondence between Risso and Araguaia did not reach a settlement, RECO continued
to conduct marine seismic surveys.
Sometime January 2009, a mass stranding of short beaked dolphins and a pilot whale
occurred in Rissos territory approximately twenty kilometers away from Araguaia. On
the 20th o January, Araguaia provided Risso with a demarche which stated in sum that
Risso failed to abide by its treaty obligations and that it is a clear breach of the
precautionary principle. In an attempt to alleviate the concerns, Risso has taken the step
of requiring survey vessels have an on board observer as well as airguns not to beused
when a whale is spotted within 500 meters. Unconvinced, Araguaia reads into the
enshrined principle 15 of the Rio Declaration as nonexistent.
On February 2009, Risso and Araguaia submitted to an inquiry commission
regarding RECOs activities in Yukule and whether or not it resulted or will result to a
significant adverse transboundary impacts. By April 2009, the commission presented its
final opinion with one member finding RECOs activities to cause adverse impacts,
another member finding no such cause from RECOs activities and the last to have found
that it might have caused significant transboundary impacts in the last but were mitigated
by the measures it has enforced that would unlikely cause the same effects to occur in the
future.
By January 2008, Araguaia was amidst a political crisis which resulted in civil
unrests. To divert this, the Crisis Military Commission took control of the Yukule
Archipelago. However, inhabitants and the remaining members of the Ression armed and
police forces in Yukule formed a resistance militia with Risso as the main source of
military supply to the resistance. Because of this, Military Adminsitration established
checkpoints in key areas of yukule and on several occasions, fishing boats were caught

transporting weapons and explosive devices to Yukule. In order to secure Yukule, Military
Administration enforced that all foreign vessels entering Yukule had to request
permission from the administration. One incident of this was the death of a fisherman
upon entering Yukules maritime control zone. Hostilities escalated wich prompted
Araguia to tighten control over Yukule, shooting unauthorized movement along the coasts
and as a result, a group of fishermen were stranded without food. By 2010, the Divinity
Fighters a collation of ten NGOs served as a humanitarian group . On May 2010, it had
chartered Nirvana, a vessel to deliver humanitarian packages to civilians stranded in
Yukule. Meanwhile, Blas received that Nirvana was also carrying an arsenal of various
weapons and soon established a commando of 60 marines to deal with this threat under
the operation name Maelstrom. When Nirvana was 40 nautical miles away, it was
warned not to approach any nearer but kept its course, when it was 24 nautical miles
away, a final warning was issued and warning shots were fired towards it resulting to
Nirvana turning around. The Risson President as a result of such circumstances
condemned Maelstrom as a serious violation of international humanitarian law for
preventing humanitarian aid.

V.ISSUES PRESENTED
I. Whether or not Risso violated international law with respect to the seismic surveys.
II. Whether or not Pnfilo Blas is criminally responsible for the war crime of intentionally launching
an attack in the knowledge that such attack will cause widespread, long-term and severe damage to the
natural environment which would be clearly excessive in relation to the concrete and direct overall
military advantage anticipated relative to the oil spills.

VI.SUMMARY OF ARGUMENTS

VII.DISCUSSION/ARGUMENTS

I. RISSO VIOLATED INTERNATIONAL LAW BY CONDUCTING SEISMIC

SURVEYS THAT CAUSED ENVIRONMENTAL AND ECONOMIC HARM
WITHIN THE YUKULE.
Risso harmed Araquaias marine ecosystem and economic security when it conducted
harmful seismic surveys in Yukule. Though States possess sovereignty over their natural
resources, international law requires them to be responsible sovereigns and to temper this
right with the corresponding duty to prevent harm to the marine environment and to the
environments of other States. This dualistic principle is reiterated in numerous treaties,
customary international law, and this Courts past decisions.
A. Risso Is Responsible for the Harm Caused by RECOs Activities Because It
Encouraged and Approved the Seismic Surveys.
States are required to ensure that activities occurring within their jurisdiction do not harm
other States.UNCLOS requires States to prevent the spread of pollution from activities
within its control into the territory of other States. In addition, international law generally
forbids a State to allow knowingly its territory to be used contrary to the rights of other
States.
Risso was therefore required to ensure that RECOs seismic surveys did not cause harm
outside its territory. RECO is a state-owned power company,and Risso explicitly and
knowingly sanctioned its seismic surveys. Because these surveys created harmful noise
pollution that spread beyond Rissos boundaries and harmed Araguaias marine
environment, Risso may be held responsible for the resulting harm.
B. Risso Violated Its Duty to Protect the Marine Environment as Mandated by
UNCLOS, the CBD, and Customary International Law.
As a party to UNCLOS, the CBD, the ICRW, and the Vienna Convention on the Law of
Treaties, Risso is obligated to carry out the provisions of these treaties in good faith.

UNCLOS prescribes a States rights and responsibilities in relation to the oceans and the
law of the sea. Its provisions have achieved the status of customary international law, and
obligate Risso to prevent harmful pollution of the marine environment. The CBD requires
Risso to conserve global biodiversity, and the ICRW extends this duty to cetaceans.
These treaty provisions are especially relevant given the current exponential increase in
oceanic noise levels, and the corresponding consequences for sensitive marine mammals.
Therefore, by emitting noise pollution within the Yukule, Mersenne harmed the beaked
whale population and its neighboring State in violation of the aforementioned duties.
1. The Noise Pollution Generated by Rissos Seismic Surveys Harmed the Beaked
Whale Population in Contravention of International Law.
Rissos disregard of the potentially harmful consequences its seismic surveys have on
marine life violates the customary international obligation that all States have to protect
the marine environment. Rissos seismic surveys create unacceptable levels of underwater
noise that harm migratory beaked whales traveling between Risso and Araguaia. This has
negative implications for Araguaias eco-tourism industry, and for the interconnected
oceanic network that depends on the whale as a primary regulator of the food chain. The
obligation to refrain from such harmful conduct is made clear in UNCLOS.
Risso is required to cease its seismic surveys because the noise generated constitutes
pollution sufficient to trigger UNCLOSs protective mechanisms. Article 194(1) requires
parties to take all measures necessary to prevent, reduce and control pollution of the
marine environment . . . . This duty may be extended to anthropogenic noise. Article 1(4)
explicitly states that pollution of the marine environment means the introduction by
man . . . of substances or energy into the marine environment . . . which results or is
likely to result in such deleterious effects as harm to living resources and marine
life . . . . (emphasis added). This wording extends to noise pollution because sound
waves transfer energy from one region of space to another. As such, Article 194(1)

encompasses underwater noise as a type of pollution. Such a reading also comports with
UNCLOSs Preamble and overarching goal of marine protection.
UNCLOS also requires that Risso prevent pollution in accordance with international
standards,29 and that it protect its marine environment.30 Furthermore, UNCLOS
tempers a States right to exploit its natural resources with the duty to conserve living
marine resources and to consider the best scientific evidence available. 31 These
preservationist provisions specifically extend to cetaceans.32 Beaked whales use sound to
communicate and navigate, and are therefore especially susceptible to the noise generated
by the seismic surveys. 33 By thus creating noise that pollutes the marine environment
and harms beaked whales, Risso is violating its duty to protect marine biodiversity under
UNCLOS.
Risso errs in claiming that its activities are not subject to regulation because they are
exploratory.34 Section XIII extends UNCLOSs general mandate of marine preservation
to exploratory and research activities.35 Article 240 allows States to conduct scientific
research in the ocean as long as the research conforms with the duty to preserve the
marine environment.36 This duty to protect is expansive.37 As a result, States cannot
carry out even scientific research or exploration if it harms marine biodiversity.38
Rissos actions violate this principle.
2. Risso Failed to Apply the Precautionary Principle Before Commencing Its Seismic
Surveys.
Rissos failure to apply the precautionary principle is a breach of customary international
law.39 The precautionary principle establishes that a State may not use a lack of scientific
certainty to continue an activity that will potentially harm the environment, instead of
taking measures to prevent environmental degradation.40 Several international tribunals
have also recognized the precautionary principle as customary international law.41 This
principle extends to the marine environment.42 Given the ubiquity of this principle, the

potential for harm in this case, and the lack of knowledge surrounding marine mammals
and ocean acoustics, Risso should have applied the precautionary principle.
Risso violated the precautionary principle when it decided to conduct seismic surveys
without considering the effect of the resultant noise on beaked whales. A State is not
required to be certain that a harmful consequence will occur, it merely needs to take
precautionary measures to address potential harm before it occurs.43 Absent more
information about the effect of noise on beaked whales, Risso was therefore required to
be cautious when introducing potentially harmful levels of noise within the Yukule.44
Here, harm has already occurred,45 indicating that Risso failed to apply the precautionary
principle in contravention to international law.
C. Risso Violated Its Duty to Prevent Transboundary Harm as Mandated by
UNCLOS, the CBD, the Espoo Convention, and Customary International Law.
Risso breached its affirmative duty to avoid transboundary harm when it caused damage
to Araguaias marine ecosystem and economic well-being.46 Sic utere tuo ut alienum non
laedus, or the duty to not cause transboundary harm,47 has achieved the status of
customary international law.48 Risso was therefore required to avoid harming Araguaias
environment and economy. It breached this duty when it caused the aforementioned harm
to the beaked whale population.
1. Risso Harmed Araquaia When It Allowed the Pollution Generated by Its Seismic
Surveys to Injure the Marine Environment.
Risso signed three treaties that explicitly prohibit it from causing transboundary harm.49
UNCLOS requires States to prevent pollution created in their territory from entering
neighboring States. 50 The CBD reiterates this duty.51 The Espoo Convention requires
States to take all appropriate and effective measures to prevent, reduce, and control
significant adverse transboundary environmental impact from proposed activities.52
This Court also recognized that the duty to avoid transboundary harm has achieved

customary law status and become part of the corpus of international law relating to the
environment.53 By allowing its seismic surveys to harm Araguaia, Risso has violated
this duty.
Araguaia does not need to show that Risso intended to cause harm; it must only
demonstrate that Risso violated an international obligation that resulted in harm.54 Risso
violated its duties to prevent transboundary harm and protect the marine environment.
The resultant reduction in the beaked whale population harms Araguaia.55 Rissos claim
that Araguaias whale watching activities may be responsible is belied by the fact that the
noise generated by whale watching is not comparable to that of airguns,56 and the whale
watching industry is well-regulated by the International Whaling Committee and the
ICRW.57 Thus, it is apparent that Rissos seismic surveys harmed the beaked whales and
Araguaia.
2. Harming a Migratory Species Is an Inherent Violation of the Duty to Avoid
Transboundary Harm. Rissos counterclaim that the whales died on its territory,
therefore negating a transboundary effect, is inaccurate as whales are migratory
animals.58
Beaked whales travel between both countries.59 Thus, the location of the strandings in
Risso60 does not negate their transboundary impact. The CBD prohibits causing harm to
a migratory species,61 and proscribes any State action that severely harms biological
diversity.62 Whales are a key species in the marine food chain, regulating levels of large
predators such as squid, and smaller prey species like krill.63 As such, a threat to the
whale species likely causes overall habitat degradation.64 Araguaia has specifically
established an MPA to prevent such degradation,65 and the transboundary harm caused
by the seismic surveys impedes this goal.
Risso is required to prevent the transboundary harm caused by its seismic surveys.66 The
international community already recognizes that noise pollution negatively affects the
marine ecosystem.67 Noise naturally occurs as a boundary-traversing pollutant,68 further

suggesting that the seismic surveys caused damage outside of Risso. This inherently
transboundary nature of both sound and whales suggests that Rissos seismic surveys
should be regulated as a cause of marine pollution.
D. Risso Violated Its Duty to Cooperate in the International Protection of Cetacean
Species as Mandated by the ICRW, UNCLOS, and the CBD.
1. Risso Failed to Notify Araguaia Before Commencing Its Seismic Surveys.
Risso violated the customary international duty to notify a neighboring State before
embarking on a potentially harmful activity.69 The Rio Declaration applies this duty to
transboundary pollution.70 Risso violated this duty when it began seismic surveys with
no attempt to notify Araguaia of the consequences thereof.71
Under its binding treaty obligations, Risso is required to notify a State if it thinks that its
actions may negatively impact the marine environment of that State.72 Moreover, the
CBD extends this duty to activities that may adversely affect the biodiversity of
neighboring States.73 If an injury does occur, the CBD requires a State to immediately
notify the potentially affected States and to initiate action to minimize the damage
caused.74 Risso failed to notify Araguaia before commencing its surveys.75 Araguaia
also initiated all negotiations between the parties.76 This demonstrates a failure on
Rissos part to properly carry out its notification duty. Even if Risso believed that it was
not initially required to notify Araguaia upon initiating seismic surveys within 250
nautical miles of Araquaias MPA, the mass strandings triggered Rissos duty to notify
and to mitigate any harm caused.77
2. Rissos Refusal to Cooperate with Araquaia to Alleviate the Harm It Caused the
Beaked Whales is a Violation of Its Duty to Protect Cetacean Species.
Rissos actions directly contravene the ICRWs goal of international cooperation with
regards to cetacean species, resulting in harm to Araquaia. The ICRW works in

conjunction with UNCLOS and the CBD to extend protection to marine mammals
beyond the reach of a States EEZ.78 As the oceans are a global common resource, true
biodiversity preservation is not possible without State cooperation.79 Moreover, the duty
to cooperate is the basis of international law.80 The international community indicated its
desire to engage in cooperative preservation with the passage of numerous treaties and
agreements.81 Rissos ratification of these agreements82 indicates its commitment to the
same ideal. Therefore, Risso should not be allowed to harm a common resource without
excuse or consequence if the underlying treaties designed to protect the environment are
to retain efficacy.83
II. RISSOS REFUSAL TO PREPARE AN EIA VIOLATES ARAQUAIAS
PROCEDURAL AND SUBSTANTIVE RIGHTS UNDER INTERNATIONAL LAW.
Risso has a legal obligation to conduct an EIA before carrying out any further seismic
surveys in its northern EEZ. This obligation flows from Rissos treaty obligations and
customary international law.84 The noise produced by the seismic surveys is likely to
cause transboundary and environmental harm, in contravention of Araquaias substantive
rights under those same treaties. Furthermore, as a contracting party to the Espoo
Convention,85 Araquaia has certain procedural rights86 that Risso has violated by
refusing to conduct an EIA.
A. Rissos Binding Treaty Obligations and Customary International Law Require It
to Conduct an EIA for Actions That Cause Transboundary Harm.
1. Rissos Seismic Surveys Cause an Adverse Transboundary Effect That Triggers
the Need for an EIA Under the Espoo Convention.
As a contracting party to the Espoo Convention,87 Risso is required to conduct an EIA
for proposed activities that are likely to cause a significant adverse transboundary
impact . . . .88 Appendix III provides three general criteria for parties to consider when
determining whether an activity is likely to have such an impact.89 They are: (1) whether

the size of the proposed activity is large for the type of activity; (2) whether the proposed
activity is located close to an area of special environmental sensitivity; and, (3) whether
the proposed activity has potentially adverse effects on valued species or organisms.90
Because the size, location, and effects of Rissos seismic surveys all indicate that they
will have a significant adverse transboundary effect, Risso is required to conduct an EIA.
First, even in instances where seismic surveys are conducted by two vessels,91 the noise
produced is detectable in the water thousands of kilometers from the source.92 Therefore,
the size of Rissos seismic surveys is large for the type of activity. Second, Risso is
conducting its seismic surveys close enough to Araquaias EEZ that the noise produced
can be heard by marine mammals, and specifically beaked whales, within Araquaias
MPA.93
Therefore, Rissos seismic surveys are close to an area of special environmental
sensitivity. Third, Rissos seismic surveys adversely affect beaked whales, 94 a species
that Araquaia highly values.95 Because these three criteria indicate that Rissos seismic
surveys are likely to have a significant adverse transboundary impact, Risso must conduct
an EIA.
Risso is also required to conduct an EIA for its seismic surveys because they constitute an
activity listed in Appendix I.96 Specifically, the seismic surveys constitute offshore
hydrocarbon production97 because they are a necessary first step in locating possible
sites where Risso can extract oil and natural gas.98 Risso errs in contending that, under
the proposed Amendment to Appendix I, offshore hydrocarbon production only refers
to extraction activities.99 Although Araquaia has ratified the first and second
amendments to the Espoo Convention,100 these amendments have not yet entered into
force.101 Therefore, neither party is bound by either amendment102 and Risso must
assess the environmental impact of its seismic surveys.
2. Customary International Law Requires Risso to Conduct an EIA Because Its
Seismic Surveys Cause an Adverse Transboundary Effect.

The duty to conduct an EIA when a proposed activity is likely to cause transboundary
harm has attained customary international law status. 103 The 1978 UNEP Draft
Principles on Shared Natural Resources proposes that States should make environmental
assessments before engaging in any activity with respect to a shared natural resource
which may create a risk of significantly affecting the environment of another State or
States sharing that resource.104 This concept was subsequently developed in a number
of non-binding instruments105 and treaty arrangements.106 These treaties are evidence
of an emerging rule of customary law that is separate from their binding character qua
treaty.107 Members of this Court have also recognized the importance of transboundary
EIAs,108 further demonstrating that EIAs directed at transboundary harm are now
customary international law.
An increasing number of States are assessing transboundary impacts as part of their EIA
regime.109 For example, case law in much of North America and Europe applies national
EIA requirements to transboundary impacts.110 EIA legislation in some States explicitly
covers extraterritorial effects.111 Therefore, because States widely and consistently
conduct EIAs in order to assess possible transboundary impacts and do so out of a sense
of legal obligation, transboundary EIAs have attained the status of customary
international law.
Risso has failed to follow this custom by refusing to prepare an EIA that considers the
transboundary impacts of its seismic surveys. Therefore, Araquaia asks this Court to
declare that Risso cease conducting its surveys within the Yukule until it prepares an EIA.
B. Rissos Binding Treaty Obligations Under UNCLOS and the CBD Require It to
Conduct an EIA Because Its Seismic Surveys Harm the Environment.
As a contracting party to UNCLOS,112 Risso is required to assess the potential effects of
planned activities under its jurisdiction or control that may cause substantial pollution of
or significant or harmful changes to the marine environment.113 Anthropogenic noise
constitutes pollution within the meaning of UNCLOS.114 Furthermore, UNCLOS only

requires that a planned activity may cause harm.115 Under this low threshold, the
scientific evidence that anthropogenic noise may be harmful to whales116 is enough to
trigger the need for an EIA under UNCLOS. Therefore, UNCLOS requires Risso to
conduct an EIA with respect to its seismic surveys.
Similarly, as a contracting party to the CBD,117 Risso is required to conduct an EIA with
respect to proposed projects that are likely to have significant adverse effects on
biological diversity . . . .118 Although the CBD requires that harm be likely rather
than merely possible,119 Risso is still required to conduct an EIA. Rissos seismic
surveys produce underwater noise at significant volumes120 and this noise causes
physical damage to whales.121 Because the seismic surveys are likely to thus harm
biological diversity, the CBD also requires risso to conduct an EIA.122
C. Rissos Mitigation Measures Do Not Relieve It of Its Duty to Conduct an EIA.
Rissos mitigation measures do not relieve it of its duty to conduct an EIA because those
measures have not reduced the impacts of its seismic surveys below the significant123
level. Less than a year after Risso undertook its first mitigation measureramping up the
intensity of the airguns124twelve whales were stranded and ultimately died on Rissos
shoreline.125 In the week prior to this incident, Risso had conducted seismic surveys in
the area where the strandings occurred.126 Given the proximity in time and space
between the surveys and the strandings, and the fact that anthropogenic noise harms
whales,127 it is likely that the surveys caused the incident. Therefore, because the harm is
still significant, risso must conduct an EIA.
Rissos second mitigation measurevisual monitoring128is also not likely to reduce
the impact of its seismic surveys below the significant level. Although visual
monitoring may reduce the harm to whales when they are at or just below the surface,
received levels of airgun pulses are lower just below the surface than at deeper
depths.129 Therefore, Rissos mitigation measure does not reduce the impact to whales
located at deeper depths, which are more likely to be harmed. As such, Risso must

conduct an EIA. Finally, the split inquiry commissions finding that Rissos seismic
surveys are not likely to cause significant adverse transboundary impact130 is not
binding on either party. Decisions by the inquiry commission under the Espoo
Convention are only advisory in nature,131 and are therefore not dispositive of whether
Rissos seismic surveys are likely to cause significant adverse transboundary impact
III. THE DOCTRINE OF NECESSITY DOES NOT EXCUSE RISSOS FAILURE
TO COMPLY WITH ITS INTERNATIONAL OBLIGATIONS.
Under international law, Risso was required to protect the marine environment, prevent
transboundary harm, and conduct an EIA.132 Rissos failure to comply with these
obligations is not excused by necessity. Article 25 of the Draft Articles on Responsibility
of States for Internationally Wrongful Acts (Article 25) provides that a State may only
invoke a necessity argument when its action: (a) is the only way for the State to
safeguard an essential interest against a grave and imminent peril; and (b) does not
seriously impair an essential interest of the State or States toward which the obligation
exists, or of the international community as a whole.133 Risso cannot invoke the excuse
of necessity because it fails to meet these requirements.
Risso has not shown that its seismic surveys are the only way for it to safeguard its
national security against an energy shortage. The first prong of necessity requires a State
to prove that its chosen course of action is the only way to safeguard an essential
interest.134 Risso has not met this requirement as there is no evidence that it considered
any alternative sources of energy. Furthermore, Rissos seismic surveys seriously damage
Araquaias economic and environmental interests by harming beaked whales. This harm
also impairs the international communitys interest in protecting global biodiversity.135
Thus, Risso is unable to meet the second requirement for necessity. Because it fails to
meet either requirement, Risso may not invoke necessity to excuse its violations of
international law.
IV. Pnfilo Blas is not criminally responsible for the war crime of intentionally launching an
attack in the knowledge that such attack will cause widespread, long-term and severe damage to

the natural environment which would be clearly excessive in relation to the concrete and direct
overall military advantage anticipated relative to the oil spills.

A. (Not a war crime)

3C The ICC and the Introduction of Article 8(2)(b)(iv) of the Rome Statute: Eventually
in 1998, the international community has made progress into contemplating the
prosecution of those who are responsible for environmental damage in times of conflict.
The Rome Statute, the founding treaty of the ICC inserted a provision that allows for the
direct prosecution of environmental war crimes.75
Article 8(2)(b)(iv) of the Statute prohibits: Intentionally launching an attack in the
knowledge that such an attack will cause..........or widespread, long term and severe
damage to the natural environment which would be clearly in excessive in relation to the
concrete and direct overall military advantage anticipated.77
Even though the article is more than welcome within ICL, it is difficult to avoid the
conclusion that the article is far less groundbreaking than what was hoped for from an
environmental perspective. Not only is it highly questionable that this single provision is
enough for the Court to focus on environmental damage in times of war. As Mark Drumbl
correctly points out; the protection of the environment is only explicitly mentioned once
in the RS. Therefore it is not unlikely that the article ends up peripheral given the broad
array of other crimes to which the energy of the Court will be directed.81 Such a
proposition is backed by the knowledge that the primary basis of the RS is
anthropocentric rather than ecocentric. Making environmental interests clearly
subordinate to human interests.82 Moreover, by applying the article it is hard to get
around several practical concerns.
As will later be discussed more profoundly in chapter 4, the article is, most likely, limited
in the ability to prosecute, and remains a lot of work in process. First of all the article,
like the earlier provisions from the ENMOD and AP/I, adopted a rather vague actus
reus. In particularly the troika requirement of widespread, longterm and severe
damage to the natural environment seems highly problematic. In any attempt to
prosecute, these elements of the damage threshold trigger numerous of interpretative
concerns for the Court to overcome.83

Secondly, the article requires a strict intentionality of the conduct. A perpetrator may only
be liable when the damage is inflicted with the intention and knowledge of its disastrous
effects. Not only does this leave no room for negligence, it is a rather difficult criterion
for the prosecutor to prove.84 Thirdly, on top of the latter, the RS introduced an excuse to
the inflicted damage in the form of a proportionality test. However as will become
visible, this test only further complicates the article and must not be trivialized.85 At last,
the article only applies to those attacks in an international armed conflict. This limits the
article's scope substantially, especially considering that most recent attacks on the
environment are the result of internal armed conflicts, as later will be revealed.86
4. APLLICATION OF ARTICLE 8(2)(B)(IV) ROME STATUTE: 4A The Damage
Threshold: In order to successfully prosecute an alleged individual perpetrator of
environmental war crimes, the conduct needs to consist out of the following physical
elements. The crime is an attack that results in widespread, longterm and severe
damage to the environment.87
From the article it becomes clear that the drafters of the RS, like the earlier discussed
AP/I and ENMOD, related the assessment of environmental damage to a geographical,
temporal and intensity dimension.88 Nevertheless these characteristics are rather vague in
wording and, as later revealed more extensively, unspecified in meaning. If the ICC
wishes to prosecute any alleged perpetrator, these terms are in need of specification
and/or interpretation.
To begin with, such ambiguity of the terms is highly unwanted and problematic in the
context of criminal law, and raises two important issues. First of all the principle of
legality requires that all crimes are construed as specific and detailed as possible. The
addressee of the crime needs to have a clear understanding of what conduct is
prohibited.91 However with no guidance to the meaning of the troika, it is rather difficult
to predict what kind of environmental damage the Court will consider as of such gravity
to justify a conviction. Secondly, the rule of lenity as stipulated under article 22(2) RS
provides that in case of ambiguity, any definition shall be interpreted in favor of the
person being investigated, prosecuted or convicted.
However, next to the problem of ambiguity of the terms there is another major problem
attached to the assessment of the damage threshold. As Tara Weinstein pointed out

regarding the conduct by the Iraqi's in the Gulf war; the ambiguity of the terms is
compounded

by

scientific

difficulties

inherent

in

measuring

environmental

destruction.118
For example, in the case the burning of Kuwait's oil wells, the initial reports reported
extreme and longlasting air, soil and water pollution.119 However as Weinstein correctly
states: it not only takes time and close monitoring to determine these long term effects to
the environment, the effects eventually could also be less severe than anticipated
initially.120 Assessing the damage closely after the conduct took place might give an
incorrect conclusion. Moreover it is rather unreliable, taking in account nature's own
ability to heal itself.121 A logical following question however is; how long does the
Court need to wait? Who knows! There are no guidelines what so ever. A second matter
of scientific difficulties may be the fact that is not always easy to attribute the exact
amount of damage to a particular party in war. Such is especially the case in the Gulf war.
Obviously Iraq's had the biggest hand in the environmental damage caused in Kuwait,
however the devastating effect of the unprecedented bombing of the coalitions to force
Iraq's retreat should not be underestimated and overlooked. It is still highly disputable for
how much environmental damage Iraq/Saddam Hussein is exactly responsible.122 Hence
it will be,in some cases, really difficult for the prosecutor to prove for what an exact
amount of damage a perpetrator is responsible.
Something that the threshold of the article clearly is requires. There needs to be a clear
relationship between the attack and the damage done.123
Next to earlier discussed ambiguity of the terms, these scientific problems create a major
problem in the assessment of the damage by the Court. Consequently, like is the case with
ambiguity of the terms, if the Court cannot reliably quantify and identify the damage, any
perpetrator will likely be acquitted based on the principle of legality. How extreme and
devastating the damage to the environment might be.124
4B The Concept of Proportionality: 4B1 The concept: Even if the Court finds proof of
widespread, longterm and severe damage to the natural environment, something that is
already a big hurdle to overcome, criminal liability will be denied if such damage to the
environment is not clearly excessive in the relation to the concrete and direct overall
military advantage anticipated.126

The ICC hereby introduced a proportionality concept that requires the Court to weigh the
inflicted environmental damage of the attack against the foreseen military advantage,
thereby showing the need for destruction.127
As a result of this test, not all inflicted environmental damage by means of warfare is
prohibited. The article only covers disproportionate damage. Proportionate damage to
environment does not fall under the scope of article 8(2)(b)(iv) RS.
4B4 Proportionality concept weighed in favour of finding the attack proportional:
Despite the discussion above, the drafters eventually chose to incorporate a
proportionality test. Hence, allowing for an excuse of liability. The ultimate choice of
concept is that stipulated in the second alternative of the drafttext.141 The second
alternative is a rather complex set of words, which requires the Court to prove that the
environmental damage is clearly excessive in the relation to the concrete and military
advantage anticipated.142 Words that are directly borrowed from article 51(5)(b) AP/I,
the protection of civilian population. A legal concept that finds its roots in both the
principle of military necessity and proportionality.143
B. (Law is weak)

VIII. CONCLUSIONS/PRAYER