The German reform of war crimes against the environment – A missed opportunity to live up to the principle of legality

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On June 6th, the German legislator, the Bundestag, adopted a new law reforming the German international criminal code (CCIAL / Völkerstrafgesetzbuch). The adoption of the reform law (Entwurf eines Gesetzes zur Fortentwicklung des Völkerstrafrechts) was preceded by a number of discussions initially not foreseen when the reform was first introduced in November 2023. The new reform law now touches upon a wide range of issues, among them sexual and gender-based violence, aspects of enforced disappearances as well as questions of immunity. This contribution will focus on the modification in the German international criminal code regarding environmental crimes in the newly inserted Section 11(1) no. 8 CCAIL (formerly Section 11(3) CCAIL).

At the intersection of international criminal law & international humanitarian law

The prohibition of war crimes against the environment was originally established in Section 11(3) CCAIL from 2002, which is based on Art.  8(2) lit. b(iv) of the Rome Statute. The Rome Statute takes up the wording of Art. 35(3) Additional Protocol I to the Geneva Conventions of 1977 (AP I) regulating international armed conflicts. In particular, the damage attributes “widespread”, “long-term” and “severe” as well as the object of protection, namely the “natural environment”, taken from Art. 35(3) AP I, are mirrored in the Rome Statute.

Remarkable development: Extension to non-international armed conflicts & clarification on proportionality

The German reform regarding environmental war crimes is quite remarkable in two aspects. First, by moving the prohibition into Section 11(1) CCAIL, Germany extends the prohibition of environmental war crimes to non-international armed conflicts which it understands as the codification of recent developments in customary international law. Consequently, Germany joins the practice and legal opinion of many other States by prohibiting war crimes against the environment in both kinds of armed conflicts, even though the Rome Statute from 2002 has not (yet) taken up this development and only criminalizes environmental war crimes in international armed conflicts.

Second, the Bundestag in the explanatory memorandum accompanying the adopted reform law stresses that “[w]hen applying the provision, it must be taken into account that far-reaching, long-term and severe damage to the natural environment is generally not proportionate.” This is extraordinary since the Rome Statute, in contrast to AP I, adds the criterion of proportionality by requiring damage that is “clearly excessive in relation to the concrete and direct overall military advantage anticipated”. The German Bundestag now explains that it understands environmental damage that is far-reaching, long-lasting and severe as disproportionate in most instances. One could hence state that once the admittedly high threshold (and we will come to this below) of environmental damage is fulfilled, the requirement of excessive damage is automatically realized.

While the codification regarding non-international armed conflicts as well as the proportionality explanation are to be welcomed, this reform also represents a missed opportunity to clarify other aspects with regard to the German regulation of war crimes against the environment. First, the German translation of the Rome Statute still differs from the German translation of Art. 35(3) AP I, even though the Rome Statute and Art. 35(3) AP I use identical wording in this regard in the authoritative languages. Second, Germany, who is sometimes described as “one of the most ardent supporters of the International Criminal Court, the Rome Statute and a global system of international criminal justice”, could have used the opportunity to clarify and define the threshold of “widespread, long-term and severe damage to the natural environment”. Both aspects raise serious questions regarding the principle of legality in international criminal law and under the rule of law.

Lost in translation – A missed opportunity to make up for an earlier redactional error

Many assumed that the initial wording of the German translation of the former version in Section 11(3) CCAIL was based on a redactional error when translating the Rome Statute without being aware of the German translation of Art. 35(3) AP I. While the German translation of Art. 35(3) AP I uses the terms ausgedehnt (widespread) and langanhaltend (long-term) as attributes of the damage threshold, the CCAIL uses weit reichend (far-reaching) and langfristig (long-lasting). Now that the Bundestag in the most recent reform did not address this criticism despite being aware of it, one can question the reasons for the omission of correcting the misunderstanding. The legislator apparently did not see a need to mainstream the wording. From a legal perspective, however, it is significant when a deviation from a uniform, recognized standard (as can be seen in the identical wording in the Rome Statute and AP I across all authoritative languages of both treaties) is confirmed; it raises questions on the reasoning. Academics and practitioners often seek for reasons and explore and assume them if they are not obvious, and the option of simple ignorance is rarely considered. Now, it stands to reason that there was ground for a differing wording in both related German texts, but the German legislator remains indebted to us still today for the motives, unfortunately.

Negligence for the principle of legality

As a (German) constitutional and international legal scholar, the negligence of the principle of legality raises questions on several levels and leaves a bad taste in the mouth. Not only do undefined terms in criminal law violate nullum crimen sine lege, missing definitions in the CCAIL also violate the German Basic Law and its Art. 103(2) and the related principle of clarity. How is a military commander to know what kind of behaviour is criminalized? When is damage to the natural environment widespread, long-term and severe? This is not a situation in which “you know it when you see it”. Neither the international level with the Rome Statute or AP I, nor the German prohibition contain definitions of the threshold. States discussed several options on how to define the threshold attributes, but in the end they were not able to agree on definitions when negotiating AP I. While it is more difficult to agree on definitions of widespread, long-term and severe damage of the natural environment currently on the international stage, Germany missed out on the opportunity to clarify the wording for its own purposes, which could have impacted international practice. Such a definition -which could still be given by the Ministry for Defence in its military manuals- could have been used on the international level to clarify what damage is prohibited. Germany did not chose not to do so, even though it could have played an important leading role in meaningfully strengthen international justice by clarifying unclear terminology and strengthening the rule of law.

Asking for action: The ICC OTP’s initiative on environmental crimes

The adoption of the reform law, however, is not the end of the story, the Bundestag asked the German government in the explanatory memorandum to “work to ensure that this development is also reflected in Article 8(2)(b)(iv) of the Rome Statute”. The German government is also asked to further engage with the OTP’s initiative from February 2024 to “advance accountability for environmental crimes under the Rome Statute” and to critically examine the threshold in Article 8(2)(b)(iv), which severely limits criminal accountability. Whether this is still possible after the deadline for submissions to the OTP has passed in March 2024 remains to be seen.

The author has published a piece on the topic with Verfassungsblog in February 2024 when deliberations were ongoing. She has also been commissioned by Greenpeace Deutschland e.V. afterwards to assess the further development of the former Section 11(3) CCAIL, which has been shared with members of the Legal Affairs Committee of the German parliament.

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