Perspective Chapter: The International Criminal Court in Service of Sustainable Global Society

Abstract

This chapter aims to analyze the working and understanding of the International Criminal Court, especially in the context of war crimes which specifically affect the preservation and protection of various natural and cultural heritage done so namely in the name of “self-defense.” These atrocities that have been committed by convicted criminals by the International Criminal Court allow a better understanding through the punishments which have been granted to prevent the said crimes from occurring again. Looking into the relevant statutes will allow highlight how even though theoretically natural ecosystems, wildlife and various heritages are protected practically many of these are ruined today and the biggest factor of them after a larger ecological footprint is war and destruction which has not only affected the natural environment but as well as its people.

1. Introduction

The idea of there being a more permanent Court in nature arose in 1998 when various countries throughout the world signed a treaty to legalize at an international level one of the most serious crimes known to mankind which led to the establishment of the International Criminal Court (ICC or the Court) [1]. ICC as we know it today was established in 2002 and is responsible for holding accountable those criminals for committing some of the heinous crimes commonly those fulfilling the elements of what is normally known as war crimes that promotes not only the rule of law but as well as offering justice to the victims of such crimes [2]. This led to the establishment of the Rome Statute of the International Criminal Court (the Rome Statute) that helped mark the milestone in developing international criminal law which was to surpass the ad hoc solutions previously provided by the Court before the establishment of ICC and help in building a Court with a much wider jurisdiction which could investigate, try and punish the perpetrators [1]. The reason why ICC should amend existing statutes to ensure that international criminal law has the ability to ensure sustainable development for the global society is that it would be able to meet the needs of resources of the present generation without impacting the ability of the future generations [3]. Through this interconnection, it will allow the environmental objectives amongst others to become the core principle of sustainable development by distinguishing it from other policy adaptation and decision making [3, 4, 5].

The protection of the natural environment and cultural heritages from war is necessary because these are considered crimes against future generations as the aim is to penalize such acts which have severe consequences on long-term health, safety and means of survival of individuals. The name ‘crime against future generations’ however does not mean that these are either future crimes or crimes that will be committed in the future rather they refer to such crimes that take place within the present time which has serious repercussions on the basic survival of those set of individuals. By making this a specific category of an offense in international law it will allow extending the application of international law by virtue of creating and establishing criminal liability for existing prohibitions in terms of both international human rights law and international environmental law. These specific crimes would allow the perpetrator to be held responsible under individual criminal responsibility for causing serious violations against severe harm not only to the environment but as well as against cultural heritages not only during peacetime but during wartime as well. The reason why such incorporations are of uttermost importance is that the current international legal concepts and mechanisms fail to prevent, punish and penalize such behavior as these conducts can only be prosecuted when there is a direct act of physical violence. This concept allows penalizing crimes against future generations of gross violations of not only basic human rights including but not limited to economic, social and cultural rights but as well as massive environmental destruction [6].

In terms of environmental crime, there are many sets of criteria that have yet to be met for proper international development by addressing the global threats the Millennium Development Goals (MDGs) have been able to identify environmental harm as one which affects the development, peace, security as well as human rights of individuals. Compared to the past these issues are slowly starting to show their significance by recognizing the role of how perpetrators are committing war crimes against the environment and are not being held accountable for it. However, slowly but surely environmental crimes are gaining attention and are becoming firmly established yet they have a long way to go to be able to firmly place their mark within international law [7]. In the light of crimes against cultural heritages, the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict [8] has laid down that any damage done against cultural heritages is an offense not only to that community but to mankind as well. The reason behind the inclusion of mankind is because the protection of cultural heritage is of such uttermost importance as to be able to preserve history for future generations as well [9]. It was only through the United Nations Educational, Scientific and Cultural Organization (UNESCO) that developed the subject that every present generation not only has the responsibility to protect but also safeguard cultural heritage for future generations to come [10]. It is slowly being recognized that the preservation and integration of cultural heritages is an essential element for sustainable development as it acts as a resource but also for regional development plans as well [8].

The objective of this chapter is not only to highlight the importance of the natural environment and cultural heritages but also how they are drastically affected by war and what the international criminal law specifically the ICC does to protect and penalize it. It also focuses on various inclusions that have yet to be fully recognized dealing with safeguarding these factors but the gaps that exist in ICC to ensure a sustainable global society by failing to incorporate them as an offense in its pre-existing statutes and by initiating new policy decisions to emphasize the devastating nature of damaging the environment and heritages for both the present community and the future generations as well.

1.1 Historical background

The working of the International Criminal Court can be dated back to the time of ancient Greeks as the brutality and nature of war crimes due to their severity can be observed from the fact that they have been prosecuted way before even the International Criminal Court came into existence as it conforms its beliefs from philosophy and religion about the basic fundamental values of the human spirit. However, history shows that when the ICC did not exist such crimes were prosecuted by the national courts and due to the lack of impartiality and balanced nature of such trials, the criminals were still in power and the victims were unfortunately defeated. The Hague Conventions of 1899 and 1907 were the first of their kind that represented the codification of laws of war which were to be applicable on a global level in the form of an international treaty. It included various elements of the protection of civilians, private property as well as but not limited to places of worship, convictions and practice. These conventions however were limited in their nature because they only focused on imposing obligations but failed to create any criminal liability due to the absence of any sanctions being mentioned in the case of breach of such violation [11].

After World War II it was the Allied powers that ended up launching the Tribunal of international war crimes which are popularly known as the Nuremberg Trails to be able to prosecute Nazi officials which eventually led to the idea of the establishment of a permanent court internationally to hold similar perpetrators to account for such heinous crimes. Before the creation of the ICC, the United Nations formulated the ad hoc criminal tribunals to prosecute war crimes in the former Yugoslavia and Rwanda due to its inadequacy, but under the request of Trinidad and Tobago the United Nations Commission created a more permanent international court in nature in 1989 [2].

1.1.1 Jurisdiction of the court

The jurisdiction of the Court can be understood as the perpetrators who have committed the crimes mentioned in the Rome Statute as well as those who were indirectly responsible which includes military commanders, political leaders and other superiors. There are four main types of jurisdictions, the firstly is the temporal jurisdiction or ratione temporis which states that the Court can only exercise its jurisdiction over crimes which were committed after the enforcement of the Court i.e., all the crimes which occurred in 2002 or the years following. Secondly, the personal jurisdiction or ratione persona which states that the Court has jurisdiction over nations who are State Parties of the Statute but also has the authority to prosecute nations of non-State parties if they accept the jurisdiction of the Court on an ad hoc basis either by the declaration of the individual being a national to the State party or as per the decision made by the United Nations Security Council [12]. Because of the severity of the crime, the concept of immunity does not exist before the Court and prevents both invoking such immunity or bringing it as a defense as the majority of the perpetrators are those in power of ruling or ensuring administration over the country regardless whether immunity arises from treaty or customary law.

Then comes the territorial jurisdiction or ratione loci which means that the Court has jurisdiction over the territory where the crime took place regardless of the fact that whether the individual was of the same nationality or not. ICC exercises jurisdiction when the State accepts its jurisdiction on ad hoc basis, conferred by the United Nations Security Council or in accordance with Chapter VII of the Charter of the United Nations. This jurisdiction not only extends towards the land but also includes registered board vessels or aircraft of the State party. Lastly, the subject matter or ratione materiae includes the four categories of what is said to be the most heinous international crimes including genocide, war crimes, crimes against humanity and crimes of aggression [13].

1.1.2 Working of the court

The Court functions in a way that it is initiated based on a referral from the United Nations Security Council which is pursuant to Chapter VII of the United Nations Charter [14] or when a State is party to the Rome Statute as mentioned earlier. The Office of the Prosecutor has the authority to initiate investigations independently or when it is subject to the authorization of the Court [15]. When it comes to the working of the Court there is one basic principle which is to be understood that is the principle of complementarity which means that ICC is the last resort when the State is either unable or unwilling to prosecute or conduct a credible investigation over the said offenses [13]. This principle is neither an alternative nor replaces the national Courts but rather complements it when the national Courts fail to properly hold an impartial trial against the perpetrator. Due to the absence of a police force, the Court is heavily dependent on the cooperation of member state authorities to apprehend the suspects. Similarly, the individuals cannot be tried in absentia and are only subject to the Courts’ warrant when they are in member-state territory [2].

To formally initiate an investigation it is upon the prosecutor to be able to prove after a preliminary examination that the alleged crimes are of sufficient gravity and once it is opened, the Office of the Prosecutor then sends their investigations and other relevant staff to be able to collect the said evidence and all the arrest warrants and/or summons shall be approved by the judiciary based on the information that is provided by the prosecutor after which the judges have to decide whether a case shall be brought forward to trial or not. The defendants have the option to seek outside counsel for their representation and the convictions as well as sentences are subject to at least two out of three judges that make up the trial bench and in case the defendant wants to appeal, the appellate bench of the ICC consists of five judges [2].

2. Understanding the crimes

As discussed earlier, four main types of crimes are considered heinous and fall under the subject matter jurisdiction of the Court as defined under Article 5 of the Rome Statute. Before understanding which crime affects vastly on natural heritage, it is of uttermost importance to know what these different crimes are in their nature as laid down by international criminal law.

2.1 Genocide

In simple terms, genocide under Article 6 of the Rome Statute is the concrete threat which exists for a targeted group of people, where the said conduct leads to the destruction of the said targeted group [16] as it was laid down by the Trial Chamber that genocide is the intention to destroy a considerable group of individuals that are part of the specific group [17]. Genocide throughout history has proven to be one of such nature where the crimes were designed to eradicate, incorporate and exploit members of certain ethnicities many children and women were spared but unfortunately not with good intentions as they were seen as a source of future physical resistance and the latter as sources for future offspring of the dominant group. The term is not exclusive to simple immediate destruction of the group unless it is accomplished by mass killings of members of that nation as the intention to solidify this crime is the coordinated plan to annihilate those specific individuals of a group. The distinguishment is made based on political institution or social institutions such as that of color, race, language, culture, national feelings, religion and economic existence of national groups that leads to the destruction of personal security, liberty, dignity as well as lives of those belonging to the targeted group as it is not the individuals’ capacity in which he is targeted rather its membership to that national group [18].

The two phases of genocide include the destruction of the national pattern and national imposition of the pattern of the perpetrator that either allows the oppressed population that remains on that territory to follow the new set of national imposition or after their ethnic cleansing colonization of the oppressors’ nations [19]. Through this, it includes enslavement, starvation, mass deportation, degradation and deprivation of basic human rights to be able to cause maximum inhumane suffering and torture similarly physical and mental torture, acts of rape and mutilation are also included within the meaning of genocide [20] and the actions taken to prevent births including but not limited to forced sterilization, separation of sexes, any kinds of sexual traumas and impregnation through rapes and/or gang rapes with the motive behind cleansing the oppressed group and having offspring of the dominant group [18].

2.2 Crimes against humanity

Article 7 of the Rome Statute deals with crimes against humanity which means when an act is committed as a part of a widespread or systematic attack against any civilian population where the knowledge and intent exist of carrying out such an act which includes crimes like murder, extermination, enslavement, deportation, forcible transfer, imprisonment, deprivation of physical liberty, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization or any kind of sexual violence. The persecution has to take place against such a group which is identified based on their political racial, national, ethnic, cultural, religious or gender affiliation [16].

Medical experimentations, mutilations, severe beating, food deprivation, sterilizations, violations of corpses, forced undressing and any other kinds of crime which severely affects an individual’s physical and/or mental health falls under crimes against humanity [20]. By keeping the nature of crimes and the elements of it in mind the name has been given because humanity refers to humankind as individuals as a whole suggesting that the offenses carried out are against a particular party in interest as the amount of damage that is done is not humane because it degrades the humanity of its victim without it implicating interests of entire human race as crimes against humanity is something which is not only carried out against the human kind but injures humanness as well. Because of the severity of the crimes, the perpetrators are referred to as hostis humani generis which means that they are an enemy of all mankind. Unlike genocide, these crimes can be committed pre- or during the war by civilians, soldiers, by the government against its people or adversary people as well [21].

By killing members of a group, it has allowed to impose such measures to prevent birth with the intention to destroy and avoid any future generation in terms of the particular group being targeted. The widespread or systematic nature of the offense with the knowledge is sufficient for an offense to be classified under crimes against humanity [22]. The concept of widespread is termed as massive and large-scale action collectively and directed against multiple victims associated with that particular group [23] which is a series of multiple inhumane acts of extraordinary magnitude [24, 25]. Similarly, systematic is termed as repetition of the criminal conduct but as well as its improbable nature at a random occurrence [26]. Similarly, it is necessary to take into account the element of there being a political objective as well as acknowledged policy by using public and private resources with the help of political or military authorities to carry out such criminal activities [26, 27, 28]. Lastly, in crimes against humanity the term attack has a different meaning as opposed to genocide, the existence of an armed conflict is not necessary as these crimes can be carried out before, during or after an armed conflict but is not necessary to be a part of the armed conflict in itself as per customary international law [29].

2.3 War crimes

Article 8 of the Rome Statute deals with war crimes are those that are associated with the nature of conflict as well. There are two main types of conflict international armed conflict (IAC) which means when two Member Parties or States are at war with each other and the second type is non-international armed conflict (NIAC) which is when a Member Party or State is internally at war against itself against an armed group. The Court has jurisdiction and the elements of international humanitarian law (IHL) are still applicable regardless of the type of conflict. War crimes can for easy understanding be divided into four major categories which include crimes relating to protected personnel such as civilians, journalists, and healthcare workers, related to protected goods such as private property, unlawful methods of warfare and lastly unlawful means of warfare.

Keeping these factors in mind, the Member States at all times are required to be able to distinguish between civilians and combatants including civilian objects and military objectives. It constitutes a war crime if there are indiscriminate attacks where in the name of eliminating threats, civilians and civilian objects are also targeted without proper distinction between the said two. However, this is where the principle of proportionality comes into play which requires that the balance between collateral damage caused amongst civilians and their objects is in balance and not excessive to the anticipated concrete and direct military advantage to be gained. As principle of proportionality is part of customary international law and applicable in any kind of war which is why it is criminalized if it causes any attack that causes incidental loss to civilians and/or widespread, long-term and severe damage to the natural environment or any damage to civilian objects which is why any military attack which is expected to cause more damage which is excessive to military advantage is prohibited [30].

War crimes because of their extensive nature have also been set with a certain set of requirements the violation must infringe the rule of IHL which must either be set by customary international law or under a treaty, and it should be serious meaning that tits breach causes grave consequences and the said violation should entail individual criminal responsibility. Because of the separate nature of IAC and NIAC, in the former it is referred to as ‘wilful killing’ and in the latter, it is known as ‘murder’ but the elements of the crime remain the same. Any kind of torture, inhumane treatment, mutilation, and biological, medical or scientific experiments are also prohibited and the reason behind such prohibition is that it endangers the physical and/or mental health of the person and there is no justification for such procedure to take place medically in the interest of the person or their treatment [31]. Any great suffering or serious injury to the body or health is forbidden because these deliberately cause long-lasting and serious harm even if it does not fulfill the elements of torture [23, 27, 32] these also include all kinds of sexual violence.

Prohibited targets exist to specially protect objects and interests which is why bombarding or attacking any undefended towns, villages, dwellings or buildings which are not military objectives is forbidden [30] going as far as protecting religion, education, art, science or charitable purposes, historic monuments, hospitals etc. [31] The protection of civilians even includes the use of starvation as a method of war, impeding relief supplies, and using acts of violence to spread terror amongst the population [33]. When it comes to environmental damage it is only considered a crime where the damage is widespread, long term and severe making it disproportionate to the military advantage including but not limited to destruction, appropriation, seizure and pillage in IAC but in NIAC it only includes the prohibition to pillage which is the extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly. Pillage in itself is a war crime because it is the seizure of property for private or personal use as opposed to taking it for any military purposes [31].

2.4 Crimes of aggression

Article 8 of the Rome Statute deals with crimes of aggression which engage with individual criminal responsibility because the conduct of the State is a serious violation of what is prohibited under the UN Charter. However, it is different from the other set of crimes because the jurisdiction cannot be invoked and no complaint can be brought forward unless it is directly related to an act of aggression which has to be determined by the Security Council that indeed a State has committed such a violent attack. It also varies when compared to other crimes because it deals with ius ad bellum which is the law governing recourse to conflict as a crime of aggression is a leadership crime and can be committed by those who are leaders and high-level policy makers. This means any individual who is in such a position to be able to effectively exercise control over in terms of directing any political and/or military action of a State. The act of committing the crime of aggression is proved if the perpetrator had the knowledge of the collective intent to be able to initiate and wage an aggressive war and continuously has the ability to participate in such an act and usually this participation is by a State against another State [31].

The term crime of aggression is to be able to ban the violation of Article 2(4) of the UN Charter by eliminating any threat or use of force against the territorial integrity or political independence of any state [34]. The meaning arises from the one set during the Nuremberg Trial which is the planning, perpetration, initiation or execution of such an aggression which is accumulated with evil as a whole. This allows to set an objective that the Court has the authority to exercise jurisdiction over such and to prevent any suffering caused by an armed conflict by preventing state actors from using any aggressive force not laid down by the UN Charter or in excess of the principles laid down under it [35]. It focuses on the actions taken by the state actors which is why states in crime of aggression are seen as weapons in the hands of leaders or state officials which can be used against another state [36].

Because of the threshold of such an aggravated crime, it is necessary that a certain criterion must be met firstly is that the alleged act of aggression in terms of its character, gravity and scale constitutes a manifest violation of the Charter of the UN. Secondly, the potential subjects must range to only a limited group of people who have the authority to effectively exercise control over or to be able to direct any political or military actions of the said State. Lastly, the perpetrator must have an affiliation and personal contribution towards the planning, preparation, initiation or execution which is why it is also known as a leadership crime as lower-ranking State agents do not have the power, authority or influence to be able to exercise the crime. It is also necessary to understand that when a non-state group manages to prepare such a large-scale armed attack against the property and persons of another State it can easily be considered that the host State had substantial involvement in terms of a minimum aiming and aiding towards it which suggests aggressive mens rea. From this, it can easily be concluded that a crime of aggression is of such a nature that the use of force must be so unlawful, violent, and devastating that its massive scale cumulates the benchmark of character gravity and scale as laid down in the manifest standard [37].

3. Effect on cultural and natural heritages

The crimes that destroy any cultural and/or natural heritage are of such a nature that they usually fall under war crimes or crimes against humanity as the notion of cultural heritage finds its origins in the Renaissance period and international law it was in the 1907 Hague Regulations concerning the Laws and Customs of War on Land which drafted the first instrument in terms of protecting cultural property especially to protect monuments [38]. It was through UNESCO that established a more concrete level of protection of cultural heritage whenever an armed conflict took place and after 1970 is when both cultural and natural heritage protection became more prominent. Generally, culture means the habits in which a certain community lives and behaves and for it to take that shape it has to meet the standard of settled practice and the practice is constituted as obligatory. The concept behind protecting cultural heritage is that it acts as an interest for all mankind as it acts as a dignity of universal good that further helps in the cooperation amongst the international community promoting mutual understanding. Because cultural property consists of both movable and immovable property ranging from architecture, art or history under Article 1 of the Hague Convention of 1954 it suggests that cultural property is a part of cultural heritage which is why attack on any protected objects and sites is a war crime [39].

Another historical concept that eventually made any cultural property and heritage fall under crimes listed in the Geneva Conventions was that during occupation most of the property consisted of religious, charitable, and educational institutions as well as of those of arts and sciences all of which are protected under private property with no link towards military necessity. This is why any seizure, destruction or wilful damage to any of these institutions is forbidden and the accused is made subject to legal proceedings. To determine the damage that has been done it is tested under the criteria of widespread and deliberate destruction of cultural property which is why all cultural property is referred to within cultural heritage that sheds light on its intergenerational importance as it is protected not only for those present today but the future generations as well. The importance of any cultural heritage is also determined by its extent towards the people as opposed to the location where it is situated [40].

Under Article 8(2)(a)(iv) of the Statute, it criminalizes during IAC any conduct which takes place against property by extensively using such power that aims at destroying property which has been protected under Geneva Conventions 1949 and has not been justified by military necessity [41]. The term destruction includes but is not limited to setting objects on fire, attacking or seriously damaging, appropriation taking, obtaining or withholding property, theft, requisition, plunder, spoliation or pillage [42]. When it comes to cultural and natural heritages an additional level of protection is granted to them under Article 8(2)(b)(ix) of the Statute, mirrored in Article 8(2)(e)(iv) applicable to NIACs. These provisions allow a better approach towards the 1954 Convention for the Protection of Cultural Property in the Event of Armed Conflict and its Protocol II by merging them into a similar level of gravity against offenses conducted against any cultural property. Similarly, the Rome Statute also lays down various degrees on protecting cultural property during armed conflicts depending on the importance of the said cultural property damaged [43] this allows a rather special degree of protection to those heritages by focusing on the principles of IHL during both peacetime and war [44]. The loophole that exists which fails to strengthen the aspect of protection is the necessity to be able to balance the weak level of protection as well as that of military necessity [45] this led the ILC in its Draft Principles lay down certain areas as protected zones regardless of the type of armed conflict [46]. An example of this can be highlighted by the delegation between Ecuador and Peru granting protection to special peace parks [47] and the 1994 peace agreement between Israel and Jordan in terms of water resources [48]. Aside from this, the ILC Draft Principle has also been able to prevent under IHL from disregarding environmental protection by shielding protected zones even if there exists a military objective as well as encouraging parties to ensure the protection of those areas even if there exists a military target [49].

The Office of the Prosecutor has constituted in the past about the importance of cultural heritage as it identifies with the culture and people of the community and its destruction whether it is tangible or not in nature is deemed as a great loss. The Office look for these alleged crimes which affect cultural heritage in terms of preliminary examination, investigation, prosecution and reparations and where evidence allows the Office then has the chance to incorporate any charges which are directed towards the attack against cultural heritage by highlighting all situations that affect it. This shows the commitment of the Office to respecting cultural rights by recognizing its importance towards culture and community by recalling and interpreting the Statute within international law. By incorporating this as a part of universal human rights principles it allows the Office towards the importance of penalizing activities against any cultural heritage [50] in the 2016 Policy Paper on Case Selection and Prioritization it was highlighted by the Office and its commitment towards “paying particular attention to attacks against cultural, religious, historical and other protected objects” as any harm done to them affects every nation in the world [51]. The limitation can be observed as the Office is bound to any harm done to the cultural heritage when it falls within the ambit of the Court’s jurisdiction but its reflection can be observed in the rules on the protection of cultural property in IHL and international human rights law. The protection of heritages can be understood from examples such as the right to take part in cultural life, the right of minorities to enjoy their own culture, and the right of indigenous peoples to self-determination and cultural heritage which further co-relates to basic rights like freedom of expression, freedom of thought, conscience and religion, the right to education, economic rights, and the right to development [50].

As attacks against cultural heritage can occur in either of the armed conflicts that are IAC or NIAC it is considered a serious violation of IHL as it has already been recognized that generally cultural heritage is granted the same level of protection as that of civilian property but during an armed conflict these heritages are granted an extra layer of protection [25, 52]. This category of protected cultural heritage enjoying enhanced protection can be observed as far as German Nazis being convicted for plunder as the first internationally enforced protection of cultural property [53]. It was held by the International Military Tribunal (IMT) at Nuremberg that unlawful destruction of any cultural property constituted not only a war crime but a crime against humanity as well [54] and this destruction has the power to entail individual criminal responsibility including applicable to non-state actors as well [55]. Aside from this, the ICTY grants Tribunal jurisdiction over those war crimes which deal with the seizure of institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science. The United Nations Transitional Administration in East Timor (UNTAET) Regulation 2000/15102 and the Iraqi Special Tribunal Statute also deal with the same matter but limitations can be observed when it is impossible in practical terms to predict a legitimate military rationale for seizing cultural property though formally it is observed that appropriation of cultural property does not constitute as a war crime if the necessity of war is observed [54]. Through this, it has now set deep roots and has been firmly established that any deliberate act against cultural heritage is a violation of customary international law [56] because of the great importance the sites hold to mankind and history [57].

3.1 Cases protecting cultural heritage

If cultural heritage is perceived from a human rights perspective, it has a great significance over individuals and their collective identity in a community as cultural heritage is perceived as:

“Encompassing the resources enabling the cultural identification and development processes of individuals and groups, which they, implicitly or explicitly, wish to transmit to future generations” [58].

Because of its nature, an attack on cultural property is contingent on to attack on cultural heritage. Throughout the history of the ICC, there has only been one such case where the perpetrator was declared guilty of the destruction of cultural heritage. It occurred in January 2012 when a newly formed Tuareg rebel group known as the National Movement for the Liberation of Azawad (MNLA) attacked military garrisons in Menaka, Aguelhok, and Tessalit and when MNLA declared independence various Islamist groups such as Ansar Dine, Al Qaeda in the Islamic Maghreb (AQIM), and the Movement for the Unicity and Jihad in West Africa (MUJAO) overpowered MNLA. Eventually, Al Mahdi was guilty of a war crime for attacking protected objects under Article 8(2)(e)(iv) of the Rome Statute as he was responsible for attacking ten buildings having a religious and historical character including mausoleums and a mosque all located in Timbuktu [59]. The Chamber also discovered the destruction of such sites that had been classified under UNESCO World Heritage as to be of such gravity that not only directly affected the victims of the crimes but as well as inhabitants of Timbuktu, the people of Mali and the international community [60]. Because of the importance of the destructed sites it was deemed to be breaking the soul of the people of Timbuktu due to their emotional attachment to the said site [59]. This eventually led to a reparation order for the victims who deserve compensation for the criminal activities conducted by Al-Mahdi [60]. Through this case, victims of the destruction of cultural heritage were laid down which includes direct victims including guardians responsible for maintenance of the sites and faithful inhabitants of Timbuktu whereas indirect victims included people of Mali and the international community [61].

The Jokic case also covers the aspect of protection granted to cultural heritage as the perpetrator was sentenced for the shelling of the Old Town of Dubrovnik and by testing the gravity of such acts and the reasons behind the kind of such attacks against a cultural heritage hold such an inherent gravity. The Old Town of Dubrovnik was a protected site under UNESCO World Cultural Heritage as it held at the given time a fundamental value and importance of being a world cultural heritage due to its marvelous architectural ensemble illustrating a significant stage in human history and by attacking such a site the crime was not only against the history and heritage of that particular region but as well as an attack against humankind [62] as the shelling wiped away an important part of history and restoration even though could be made possible however it can never return to its original status and this kind of loss is not only significant but also irreplaceable [63].

3.2 The victims

To understand the victims of cultural heritage aside from the protected sites that are ruined it needs to meet a certain criterion which includes destruction caused to a heritage object which is deemed as unambiguously identifiable, event forming the harmful impact, event not caused or controlled by the victim, event directly linking to the actions attributed by the offender and damage to the heritage which is universally criminalized. The destruction of heritage sites causes psychological and economic harm but not any physical injury which is why these crimes are classified as being non-violent and not falling within the scope of national compensation schemes. Due to which the restitution includes the return of property or payment for harm caused, reimbursement of expenses incurred as a result of the victimization and restoration of rights. Similarly, the United Nations General Assembly Resolution 60/147 of 2005 recognizes that victims of such gross violations benefit more from remedies and reparations which should be proportional to the harm suffered by them ensuring that they are appropriate and effective. These reparations include restitution which is restoring to the original victim as accurately as possible, compensation which is the monetary measure of the loss incurred, rehabilitation which is any medical and psychological care required and lastly guaranteeing non-repetition of the said crime by promoting codes of conduct and ethical norms. It is through these reparations which are considered moral imperative to amend the loss that has occurred by contributing to the aims of rehabilitation and restoration of law [61].

4. Effect on the natural environment

Alongside global warming one of the main other causes that are not discussed enough when it comes to the destruction of the natural environment is a military conflict due to its significance to human populations it has become a part of the conduct of an armed conflict and with the growing technology future warfare include a much wider scope for its destruction [64]. The definition of environmental crime is still not solidified but the most referred one is deemed as a collective term which is used to describe illegal activities that harm the environment but also exploits it causing loss to the community by trading or stealing natural resources [65]. However, despite its growing impact on the natural environment the Rome Statute does not contain any specific crime or element of the crime which deals with crimes against the environment that initiates the jurisdiction of the Court as it fails to lay down any circumstances in which any particular level of harm caused to the natural environment constitutes as a war crime [64]. This has led to many discussions as to whether the elements already somehow constitute obligations to protect the natural environment or need further amendments as there is currently no formal concept under which international criminal law deals with cultural or natural genocide [66]. When it comes to genocide, Article 69(c) in the Elements of Crimes contains a broader range that any acts which poison or affect water wells or destruction of forests do fall within its description. Proving dolus specialis is difficult which is why any destruction to the natural environment is rarely applied as the targeted group which is the subject of the natural environment destruction unfortunately fails to constitute an established group that makes it a crime of genocide. Due to its complex nature, it is necessary to prove the existence of dolus specialis as well as to show that there existed an intent to target the environment as a victim or that it was used as a weapon to be able to prove to the Court that the destruction was of genocidal. As of now, the deliberate destruction of a habitat as well as access to clean and safe water or food is without a doubt a breach of fundamental human rights of those that are affected as it causes environmental destruction in the longer run against the targeted individuals [64].

To better understand this, it is necessary to recognize that mother nature has a set of rights belonging to itself which can be observed in the 1997 Danube Dam case that land is something which has a spirit and life of its own and is directly linked to the welfare of the community as natural resources are collectively owned by the entire world. To codify these rights was done at the United Nations on Sustainable Development in 2012 to adopt the Universal Declaration of the Rights of Mother Earth (UDRME) by establishing a framework that sees nature as a subject matter having its rights [3]. The Stockholm Conference in 1972 also focused on finding an approach to deal with damage and destruction caused to the natural environment during war which led to the establishment of the United Nations Environment Program (UNEP) [67] and the Stockholm Declaration on the Human Environment (Stockholm Declaration) that introduced 26 non-binding principles of environmental protection in terms of issues regarding sustainability, conservation of wildlife and habitat, toxic substances, pollution of the seas, population growth, nuclear weapons and the ecological balance of the biosphere [68]. Later, the Vienna Convention for the Protection of the Ozone Layer also added aspects like carbon dioxide production, global warming, biological diversity, chemical and biological weapons and ozone depletion [69].

In general, IHL prosecutes crimes which damage the environment first in the aspect that it is necessary to protect civilian objects and prohibits attacks against civilians with the objective that targeted groups are not harmed in any manner which puts their survival at risk and secondly by addressing attacks which are directed specifically at the natural environment that causes widespread, long term, and severe environmental damage [70]. These aspects are protected even when there is no military attack or there does not exist a lack of proportionality between the damage and the military advantage expected to be achieved. According to Professor Mete Erdem the protection of the natural environment is necessary because it is directly linked to the survival of the civilian population and the other is the direct protection of the environment itself [71]. The natural environment is sacred for the growth of the entire population as a whole which is why the adoption of the Environmental Modification Convention (ENMOD) was introduced and then included as part of customary international law. Under Rules 43, 44 and 45 the prohibition of attacks directed against the natural environment was discussed where the latter deals with NIAC and Rules 43 and 44 grant protection via the application of the distinction and precautionary principles. It was these Rules that suggest that during any type of armed conflict directing an attack even if it lacks scientific certainty of environmental harm is prohibited. It was through this it was emphasized that the protection of the natural environment is a separate object instead of its importance to the civil population alone [70].

As the concerns grow regarding the impact of war on the natural environment the term known as ‘ecocide’ came into existence which dates back to the 1970s which according to Arthur Galston was the wilful destruction of the environment in which individuals can strive and live in their manner of choosing [72]. The Independent Expert Panel for the Legal Definition of Ecocide (IEPLDE’) and the Promise Institute for Human Rights started the very much-needed discussion on how the ICC must expand its jurisdiction to deal with crimes related to environmental degradation. Due human-centric fundaments of modern international criminal law limit ICC from exploring newer branches governing environmental law which is why it has been proposed to amend current statutory frameworks in a manner which maximizes the protection of the environment as this will allow a chance to reform statutory provisions from multiple perspectives. The reason why this is becoming a growing necessity is that the environment and heritage are continuously jeopardized during conflicts [73] and are left as a silent casualty of war affecting future generations [41]. The reason why discovering and improving this side of international criminal law is important is because aside from the direct toll on civilian life it has also led to many environmental abuses. After all, prohibiting mass environmental damage is becoming increasingly necessary but ICC has yet failed to incorporate environmental harm into any of its statutes. As environmental law in itself has its legislative gaps because of its unique nature in terms of technicalities, objectives, and narratives it is the job of the ICC to be able to strike the right balance between environmental protection and the integrity of international criminal law [74]. The power that ICC holds has the authority to influence individual States and draw policy attention to recognize these challenges by optimizing the potential of the safety of the environment by drawing policy attention. The lack of its inclusion is because the 1954 Draft Code of Offenses against the Peace and Security of Mankind [41] failed to include any new crimes which were not mentioned in the Nuremberg Principles [75] until later in 1995 when the Draft Code was revised the International Law Commission finally took the initiative in criminalizing any offense committed against the environment [41].

This led to the introduction of a fairly new concept which is known as the “green interpretation” of the Rome Statute refers to the construing provisions in a manner to form a legal basis to be able to prosecute and punish environmentally damaging conduct [76]. The introduction of the green approach was first initiated in 2016 when the Office of the Prosecutor (OP) published a policy paper on Case Selection and Prioritization that allows the investigation and prosecution of such crimes that meet the criteria of threshold in regards to any State that has committed such a crime which has caused the destruction of the environment as well as e illegal exploitation of natural resources or the illegal dispossession of land, however, it is not binding. As discussed earlier even though the provisions of genocide fail to mention any environmental destruction a green interpretation can allow a perpetrator to still be punished for genocide if the environmental damage is deliberate with the intent to bring about the physical destruction of the group [77] as this allows punishing such crimes which causes deprivation of resources necessary for survival [78]. Article 7(1)(k) of the Rome Statute allows for providing a basis of accountability where environmental damage constitutes inhumane acts leading to great suffering or serious injury to the physical and mental health of a civilian population [77]. Furthermore, the International Criminal Court has adopted a definition that allows to hold accountable any organization which can perform acts that infringe human values [79] further expanding the possibility that the provisions of crimes against humanity can be applicable if environmental damage is caused by a corporation but due to its limited nature it fails to mention any notion which guarantees protection of civilian population from environmental damage directly linked to the protection to the ecosystem on which survival of those individuals is dependent on. The recognition of environmental damage to be linked with war allows an eco-centric orientation to international criminal law [80].

When it comes to the gap between international criminal law and international environmental law the doctrines of mens rea and individual criminal responsibility causes complications as Article 30 of the Statute only lays down general subjective element in terms of the standard of crimes where it fails to regulate mens rea. The only explicit reference found in the Rome Statute regarding environmental harm is under Article 8(2)(b)(iv) which has to be met by a standard of knowledge of causation. This is the reason why the Office is responsible for proving that the accused knew when committing actus rea that it would lead to excessive environmental damage [41]. Another study by Heller and Lawrence highlights how the faulty standard in the Article arises by making it impossible to prove that the accused knew that the attack would be disproportionate [80] as it simply undermines viability in terms of enhancement of environmental protection through the framework of international criminal law as illegal exploitation intensifies during conflicts [41] as the prime example would be extraction of natural resources leading to rise in corruption [81] like allowing a chance to sign and forge import and export certificates, allowing the possibility to transport illicit goods etc. [7] Not only this but to be able to prove specific intent restricts the burden of proof on ICC Prosecutors as it has yet been unable to prosecute such an offense [41]. The damage caused to the environment can be observed from how in Ongwen, the pillaged objects were limited to foodstuffs, clothing, and households [82] in Katanga, the attackers seized mattresses, tables, chairs and kitchen equipment and took possession of livestock [83] and in Bemba, bicycles, motorcycles, money, 220 and household items such as beds and electrical generators were stolen [84]. Focusing on sustainable management of natural resources will allow the ICC to be able to take a more precautionary measure by not only prohibiting starvation but also illegalizing the destruction of objects indispensable to survival. Prohibition can be understood from examples like the destruction of crops and poisoning water resources that showcase a link between acts of depriving resources by harming the environment that affects the lives of civilians [41].

The nature of this crime is that they are aggravated in nature because of the impact it leaves on the environment that costs future generations to come which can be better understood from examples such as deforestation, dumping of chemicals, illegal fisheries [65], wildlife populations like elephants, rhinos and tigers to pangolins, reptiles, fish and rare birds and plants [85] that impacts the ecosystem and deprives it of clean air and clean water as well as weather mitigation, food security that results in their health being compromised. In terms of transnational organized crime, it includes illegal activities like hazardous waste and chemicals, forest products, pangolins, giant clams, minerals and illegally extracted gold. Within the last decade alone the rise in environmental crime has been estimated to be about 2–3 times of the global economy which shows that resources assigned to protect environmental crimes are not enough to not only contain, protect but also criminalize these offenses. Due to this natural resources are quickly declining which increases the risk of wars and for its early prevention the UN Security Council Resolution S/RES/2195 that aims to widen its scope by allowing State Parties to collect, analyze and exchange information, including law enforcement and intelligence information to be able to prevent terrorism and share relevant data to the Special Representatives of the Secretary-General, the Department of Peacekeeping Operations, the Department of Political Affairs, the Counter-Terrorism Executive Directorate, the UN Office on Drugs and Crime, the Counter-Terrorism Implementation Task Force and the United Nations Development Programme [65].

4.1 Cases protecting natural environment

Though there has not been any particular case held by the International Criminal Tribunal of Yugoslavia (ICTY), the International Criminal Tribunal of Rwanda (ICTR) [86] or the ICC in terms of environmental destruction under the provisions of Article 8(2)(b)(iv) the closest case is the one which was held against Omar Al-Bashir. When any environmental destruction is caused which leads to any harm to the national, religious, racial or ethnic group of people with the intent to destroy the group as a whole it could be charged as genocide. In regards to this, the accusation against Al-Bashir in the Court is of uttermost importance which was for carrying out genocide in Darfur by using such methods that led to the destruction of food, wells and water pumping machines, shelter, crops and livestock, as well as any physical structures capable of sustaining life or commerce [87]. Even though the Trial Chamber had rejected the prosecution’s application for a warrant of arrest based on the genocidal charges there existed an intent on behalf of the perpetrator based on reasonable inference based on evidence [88]. As it can be observed that the serious damage to the natural environment is linked to the harm caused to the Darfur population, the prosecution against Al-Bashir could stand as the one of crimes against humanity [87].

4.2 The victims

The “do not see” crime [89] or the “victimless crime” [90] is something which has been commonly referred to as environmental crime as its abstract nature lacks any concrete identifiable victims at first glance as any person or anything which is affected by the destruction of a natural environment destruction is a victim. In the light of violations of criminal and regulatory law, the victims include the general public and the environment but it faces challenges as to be able to understanding the extent to which the damage is accumulated over time as well as the number of acts [91, 92] or the victims which are directly affected may not be able to understand the severity of crime and fail to report the such or the victims which may include wildfire and their habitats is a tremendous task to be able to capture in surveys. These crimes can also be transnational as they often include wildlife trafficking and the illegal trade in ozone-depleting substances, the illegal dumping and transport of hazardous waste, illegal logging and timber trade and illegal, unreported and unregulated fishing as well as pollution of a river that crosses international boundaries. The severity of these crimes can also be reflected in that the harm caused to the natural environment can also be global contributing towards climate change [89].

Understanding who is the actual victim in this scenario of the environment being affected can also lead to the perpetrator also being a victim which is why criminal law must clarify which behavior affecting the natural environment is to be labeled as illegal as it cannot render the whole of society guilty of significant offenses without undermining itself [89]. It was laid down by the studies conducted by the UN Environmental Programme that women are the most vulnerable to environmental harm in terms of pregnant women, nursing women and any other women who plan on bearing children as the harm can lead to an excess mortality rate when it comes to heat waves [93]. Generally, the destruction of the environment can also lead to financial loss in the context of property value, loss of income, consequences to health, emotional distress and loss of quality of their environment. Not only this but it can also impact the health of individuals leading to an increased rate of illness and disease, such as cancer, heart disease, disease of the respiratory system, neurological damage, birth defects and genetic mutations, miscarriages, lowered sperm count, and sterility with exposure to environmental hazards and even causing death. It can also impact the crops because of the damage caused to farming or coastal communities that impacts the living conditions of environmental agents by causing the absence of environmental macro and micronutrients necessary for survival which can lead to malnutrition. Overall, the victims vary greatly when damage or destruction impacts the natural environment as many communities have certain cultures, beliefs and traditions that are scraped away due to environmental degradation [89].

4.3 The remedies

When understanding the remedies that can be provided in a crime against the natural environment the international framework includes certain criteria and standards that guarantee assistance, treatment and remediation to safeguard the human rights of those victims who have suffered the devastating consequences which is provided by the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. Strengthening the judicial and administrative mechanisms can give a chance to redress either through formal or informal procedures to obtain remedies. Restitutions can be available via return of property or payment for the harm or loss suffered and when monetary compensation cannot be fully availed from the offender it is the responsibility of the State to ensure financial compensation. Under the 1972 Stockholm Declaration when it comes to rights based on environmental protection it ensures freedom, equality and adequate conditions of life, in an environment that ensures and permits a life of dignity and well-being as well as bears a solemn responsibility to protect and improve the environment for present and future generations. Through this, the protection of an environment by guaranteeing it to be clean, healthy and fit for human survival is deemed to be a human right in itself as the UN Human Rights Council via resolutions has ensured that a healthy natural environment is a right that belongs to every individual [89].

Under the Rome Statute, the remedies have two different aspects firstly it is ensuring that the restitution for those victims that are present before the Court and secondly reparations from a Trust Fund that ensures redressal for a much wider population that is not physically present within the Court as the ICC has the right to provide reparation either individually or on a collective basis or both. The establishment of the Trust Fund for Victims (TFV) by the ICC State Parties has allowed a way to support the victims by implementing court-ordered reparation awards against a perpetrator via voluntary contributions that provide physical, and psychological rehabilitation as well as material and mental support. As it is flexible it allows equitable awards amongst all the victims and in the cases of environmental crimes it provides a chance for reparations as opposed to rigid court procedures [89].

5. Conclusion

From this, we can easily observe that the ICC by setting out various heinous crimes and their elements has allowed a better chance at holding a perpetrator responsible who cannot be tried by the national courts either due to their inability or unwillingness because of the higher status most of these perpetrators hold in their respective States. In terms of natural and cultural heritage, it is deemed to be an already set principle that causing harm to those is indeed a war crime because of not only the loss that is faced by mankind as a whole but especially to those to whom those heritages were of great importance due to its cultural or religious value. By trying Al-Mahdi it has already set down a principle as to the effectiveness that whoever seems to violate and/or destroy such sites shall be held responsible in front of the Court. However, when it comes to the natural environment it is still unfortunately a rather growing concept because of the vast nature of the victims of the crime against the environment and due to the lack of a proper case dealt with by the ICC in terms of crimes against natural environment it is more prone to constant challenges along the way. In short, it can easily be concluded that despite the road bumps faced in these aspects, the importance of cultural and natural heritages as well as the natural environment can be observed not only in the aspect of science but also in the world of national but as well as international law to ensure it applies equally to every country as a whole.

The future possibilities of ensuring more protection to not only cultural heritages but also to the natural environment is to ensure that the various Un Resolutions which have been passed throughout the years not only encourage but incorporate it as a part of their national law, allowing all State Parties to ensure maximum protection to their resources within their territory whether on land or in sea but also allow better accountability to the perpetrators who damage them. This will allow the ICC to charge them of offenses by including such actions as a part of their crimes by allowing them jurisdiction and better access to penalize it for a better future for upcoming generations.

Some policies for the protection of cultural heritage can indulge in amending the Rome Statute by referring to other Conventions dealing with cultural heritage to ensure better protection; by including the destruction of cultural heritage as a part of war crime which will highlight its destruction and/or damage as one with grave consequences; by creating a special tribunal to not only keep a check and balance on those protected sites but also ensuring that those tribunals have the expertise to deal with any kind of illegal activity committed against any cultural artifact; and lastly promoting preventing measures by encouraging State Parties to ratify it for the better protection of these sites during peacetime and especially during any kind of armed conflict. In terms of policies regarding the protection of the natural environment it can include officially recognizing ecocide as a new kind of crime by amending it within the Statute especially in the category of genocide which will allow a steady and protected jurisdiction granting the ICC to try these atrocious crimes; incorporating environmental elements within existing crimes which falls within the ambit of the Court by making it a part of the provisions laid down in the Rome Statute; similarly establishing a specialized environmental chamber allowing ICC to exercise its jurisdiction to handle cases dealing with the destruction of the natural environment by linking it as a direct violation of the basic fundamental human rights granted to humans by making it fall within the ambit of crimes against humanity; and lastly collaborating with environmental organizations by leveraging it with the expertise of the UNEP to investigate and prosecute these cases by granting a special layer of protection and recognizing environmental defenders by linking harm to the environment to those defenders as they act as front line soldiers for the natural environment.

6. Recommendations

The expansion of the Court can play a greater role in creating a sustainable global society for mankind by making it more efficient in a manner that it can strengthen the information collection by analyzing and sharing the peacekeeping missions, Sanctions Committees and across the UN for the protection of natural resources as well as heritages to prevent its destruction during hostility by informing the relevant sub-tribunals created by the Court to ensure sustainable development which can include integrating and supporting inter-government organizations such as INTERPOL liaison officers in peacekeeping missions, United Nations Office on Drugs and Crime (UNODC) and World Customs Organization (WCO). By focusing on mechanisms, the ICC can introduce newer organizations by developing synergy which monitors international liaisons and the Convention’s institutions, national enforcement agencies, and existing intergovernmental bodies.

It can also help in creating a rule of law amongst the international community by addressing these crimes as a severe threat to peace and maintaining development by the disruption of overseas tax havens, improving legislation at international and national levels, implementing dissuasive penalties, substantial sanctions and punishments, capacity building and technological support through inter-agency collaborations especially in developing and under-developed states. By creating new institutions and amending the pre-existing Statutes, the Court can focus on gathering the international development community to address these crimes as a severe threat to sustainable development by cooperating with the judicial sector reforms to set a precedent of combating and penalizing these crimes for its prevention.