By Manoëlle Koninckx

Manoëlle Koninckx, Master of Laws, graduated from the University of Antwerpen having as main subject of interest International Criminal Law, Human Rights and Environmental Challenges. 

The environmental situation on Earth is extremely alarming. In this turmoil, a clear consensus has emerged as to the fact that action must be taken internationally to alleviate human’s destructive frenzy; the question however remains as to the means required. While it has been largely argued in literature that a new crime ‘ecocide’ should be added to the list of International Criminal Law (ICL)’s core crimes, in this post, I take the stand that international instability and the time required to amend an instrument like the Rome Statute on the International Criminal Court (ICC) renders such approach inefficient and unfitted to the environmental emergency. Rather, relying on the umbrella provision of Article 7(1)(k) of the Rome Statute, I argue that, even if limited to some extent, a more pragmatic solution may be found in the prosecution before the ICC of attacks on humans, directly perpetrated by means of harms to their environment.

1. How does the Crimes Against Humanity provision of the Rome Statute provide protection against Environmental destruction? 

Until now, Crimes Against Humanity (CAH) provisions find application in contexts of state repression or predation by armed groups. Environmental harm, on the other hand, is only explicitly prohibited under ICL in war contexts under Article 8 of the Rome Statute. This post nonetheless suggests a contemporary application of the Rome Statute provisions on CAH is possible based on a teleological interpretation of CAH’s definition.

Such interpretation finds its roots in the publication of the 2016 Office of the ICC Prosecutor Policy Paper on Case Selection and Prioritization, which insisted on giving particular attention to the ‘means employed to execute the crime (…) [focusing inter alia on] crimes committed by means of, or resulting in, the destruction of the environment or of protected objects (…) illegal exploitation of natural resources or the illegal dispossession of land’. Since the publication of this document, the interpretation of CAH as encompassing crimes against the environment was rendered foreseeable. 

Still, not any environmental harm may be interpreted as a CAH. It should fulfill the conditions required by Article 7 of the ICC Statute; hence 1. Be a prohibited act enlisted in the Statute; 2. Constitute an attack against a civilian population; 3. Be widespread or systematic; 4. Derive from a state or organizational policy; and 5. Be done with intent. 

Prohibited act:  Article 7(1) of the ICC Statute requires the commission of one of the acts it enlists. In this regard, the category of ‘other inhumane acts’ (Article 7(1)(k)) retains all our attention.  This umbrella provision creates an openness to the concept of CAH. As such, it acknowledges that no explicit provision can ever rival the imagination of criminals and opens the floor for environmental destruction as a means to perpetrate CAH. The destruction should be inherently grave as being the source of ‘great suffering, or serious injury to body or mental or physical health’ of the victims (Article 7 (1)(k)) and be of a ‘character similar to any other act’ referred to in Article 7(1)(a-j) of the Statute. Authors such as Amissi Melchiade Manirabona have in this matter argued that toxic waste poisoning could in some cases qualify as a CAH when causing a significant amount of direct harm.

Attack against a civilian population:  Established jurisprudence shows that the term ‘attack’ should be distinguished from the context of an armed conflict and is not limited to the use of armed force. Rather, it encompasses ‘any mistreatment of the civilian population’ (ICTY, Kunarac case, para. 86) or any ‘campaign or operation carried out against the civilian population’ (ICC, Bemba case, para. 149). Accordingly, attacks are conceptualized broadly by the ICC. They hence hold the potential to encompass massive environmental destruction because of its value for earthlings’ survival.

Widespread or systematic: Under the Rome Statute, any natural person, be a state official, a member of an armed group, or a civilian, may be prosecuted for CAH where his or her action is sufficiently connected to a widespread or systematic attack against a civilian population with the knowledge of the attack. The ‘widespread’ criterion mostly refers to a quantitative threshold, referring to the scale of the attack or, equivalently, to the substantial number of victims. In the context of environmental destruction, one could consider ‘widespread’ the act of dropping a considerable amount of hazardous waste on a residential area. The ‘systematic’ requirement, on the other hand, refers to the nature of an act of violence. As such it should imply a certain degree of organization and planning. The violation of individual rights should follow a pattern and involve the repetition of similar criminal conduct on a regular basis. This provision could, for example, encompass the constant dropping of untreated and unfiltered petroleum waste in the natural environment surrounding oil exploitations, considering their dramatic effects on human health.

Policy of a State or a Corporation: the attack should be committed ‘pursuant to or in furtherance of a State or organizational policy to commit such attack’; a consensus seems to emerge from literature and ICC’s jurisprudence (ICTY, Tadic case, para. 131) that under this formulation, any organized group of people with a particular purpose, such as a government department or even a corporation could qualify, hence recognizing that the purpose and motivation of such actors for capital and profit may be of a corruptive and tempting influence. When such deviance occurs, corporations contain a structure of authority, legitimized by the law, to facilitate the perpetration of crimes. For this matter, some authors have suggested that it might be possible to prosecute the corporation’s CEO or other high-ranking officers for their decision(s) in the management of the firm (the ongoing investigations on Colombia could be interesting in that matter as the file includes examinations of the corporate Chiquita for CAH alleges). Others have theorized that corporate officers could be held as accomplices in some form, be by the ‘aiding and abetting’ provision of Article 25(3)(c) of the ICC Statute; joint criminal enterprise or co-perpetration of Article 25(3)(d); or superior responsibility for crimes committed by their subordinates of Article 28(b). Those options all hold the potential to overcome the ‘corporation excuse’, according to which the fact that the corporate nature of the author could prevent any prosecution before the ICC. 

Intent: The final contextual element relates to the intention of the author. Some may argue that most of the time, environmental destruction is not committed for the purpose of harm and is rather profit-driven. Nonetheless, these motives do not prevent compliance with the mental requirement enshrined in Articles 30 and 7 of the ICC Statute. Indeed, it has been long established that the motives that inspired the perpetrator to take part in the attack are of little significance. The perpetrator’s knowledge that its actions amount to CAH does not matter either. However, the awareness that its act will, in the ordinary course of events, have as a consequence massive destruction of the environment and thereby a disastrous impact on the local population, is crucial. Therefore, ‘it is enough that the accused was aware of the environmental destruction’ to consider the intent requirement to be fulfilled. 

2. Limitations

Antropocentrism: The Rome Statute approach only evaluates environmental damages for their impact on humans, as such, it provides for an anthropocentric and somehow limited approach to environmental destruction. Yet, it does not mean that non-human environmental entities (i.e. ‘natural objects’ such as rivers, mountains oceans, or what comes under the definition of fauna and flora) may not be defended. Nonetheless, they will never be for their intrinsic value. Ecocentric considerations are non-receivable before the ICC. Which means that, for example, the destruction of the Amazon forest in Brazil may never be considered as a CAH as such, rather, it may be for its instrumental or utilitarian value for mankind (shelter, source of food, medicine, clean air, …). 

Foreseeability: The mandate of the current ICC prosecutor (and author of the 2016 Policy Paper), Fatou Bensouda, will end on 15 June 2021. As of March 2021, no investigations or prosecutions in which environmental damage or illegal natural resources were regarded to be aggravating circumstances in the case selection and investigation criterion. It remains to be seen whether the new prosecutor, Karim Khan, will pursue similar policy guidance on case selection and prioritization.

3. A call for pragmatism 

While limited to some extent, protecting earthlings from mass environmental destruction under Article 7(1)(k) of the Rome Statute is feasible and should not be overlooked. CAH, as known for their grave character of their prosecution tend to shine the spotlight on events that otherwise would be undermined or ignored before national courts. As such, the prosecution of few but massive environmental destructions may set an example and contribute to the fight against impunity. 

Considering the urgency of the present situation, no means of defense of the environment should be neglected. Especially those whose symbolism is likely to inspire the international community to more sustainable practices. To paraphrase the Irish author and philosopher Edmund Burke, more than ever, nobody will make a greater mistake than he who does nothing because he can only do a little.