Although environmental crimes have not yet reached prominence in development of international criminal law, should deliberate destruction of the environment in order to achieve strategic goals be a future focus for the ICC?

There are a number of interpretations of what is an environmental crime which will hinder the process of prosecuting an environmental crime. Steven Freeland regards environmental crime as “a deliberate action committed with intent to cause significant harm to the environment, including ecological, biological and natural resource systems, in order to promote a particular military, strategic or other aim, and which in fact causes such damage.” 

This definition of an environmental crime is predominately for large scale environmental damage and is ambiguous with the possibilities of interpretation to favour those who are committing these crimes. Scholars argue that this definition of an environmental crime makes prosecution of perpetrators almost impossible. Yet, environmental crime takes on a number of forms which include: poaching, trafficking in ozone-depleting substances (ODSs), trafficking and use of illegal pesticides, illegal diversion of rivers, trafficking of endangered species, and illegal dumping of hazardous waste onto land or in water.

A modern example of an environmental crime that is so devastating that it falls under the jurisidiction of the ICC is the drainage of the Iraq/Iran marshes by Saddam Hussein. The Haigh Report prepared in 1951 described a series of sluices, embankments and canals on the lower ends of the Tigris and Euphrates that the controlled water could be used for irrigation to increase Iraq's agriculture. British engineers came up with the first important plans to drain the marshes that border Iraq/Iran while working with the Iraqi government. Unfortunately, these plans where used by Saddam Hussein as strategic weapon against Shi’ite "ma'dan," (the people that live in the marshes). In 1953, the construction of a large canal, called the Third River, commenced. This work would continue for the next 30 years. Yet the actual drainage of the marshes which has destroyed ninety per cent of the marshes took two years to carry out.

One Iraqi engineer captured by the Shiite resistance had a document which detailed Saddam's order for the marshes and the Marsh Arabs. All foodstuffs were ordered taken away and the sale of fish was forbidden. Troops prohibited travel to and from the marshes. The document also described orders for mass arrests, assassinations, poisoning the water and burning of the villages.  

Azzam Alwash is an Iraqi exile and civil engineer. He is also a leading advocate for restoration of the marshes, and sits on the board of the Iraq Foundation, a nonprofit nongovernmental organisation that is working for democracy and human rights in Iraq. In the San Francisco Chronicle he discusses the draining of the marshes as a strategic military plot against Shi’ite "ma'dan," "Everyone is harping about Saddam's chemical, biological and nuclear weapons of mass destruction," said Alwash, "but here he used water as a mass destruction weapon. He used it to destroy a culture that has lasted 5,000 years. And I'm afraid it has made me somewhat cynical that the international community stood by and did nothing while it was happening."

Obstacles to Environmental Law

The World Trade Organisation (WTO) makes environmental protection difficult due to its policy and importance in favour of economic development instead of protection of the environment. Apposers of the WTO believe that more emphasis should be to development sustainable industries in third world and developing countries in order to protect the environment. Also, countries that have strict domestic laws protecting the environment, in particular the protection of endangered species, should be allowed to include these laws within WTO treaties and negotiations. For example in the Shrimp-Turtle case India et al Vs United States, it is demonstrated how the WTO argues non-discrimination to try and avoid cases that deal with environmental protection. It states that:

“Non-discrimination is the main principle on which the rules of the multilateral trading system are founded. The principle prevents the abuse of environmental polices and their use as protectionism in disguise. It ensures that national environmental protection policies cannot arbitrarily discriminate between foreign and domestically made products, or between products imported from different trading partners.”

The case outlines US stating that it would not allow certain types of shrimps unless they complied with US guidelines and the use of TED (Turtle Excluder Devises) which would assure that their fishing methods would reduce the accidental capture and death of sea turtles. The WTO based their arguments of non-discrimination to overturn US guidelines and allow the importation of shrimp products to their market that have not taken sufficient measures to protect an endangered species.

I would like to further investigate the relationship between domestic laws and international laws that could support my argument. I would also like to further my investigations on obstacles to environmental law as I think this would concrete my argument for the creation of tough environmental protection laws.