How the Inclusion of Ecocide among the Rome Statute’s Crimes Could Counter Neo-Colonial Criticisms

By Christine Carpenter

[Christine Carpenter is a lawyer and researcher in international law interested in Human Rights Law, International Criminal Law, and Counterterrorism Policy. She holds a J.D. from the University of Pennsylvania Law School and a master’s in International Relations and Politics from the University of Cambridge]

Introduction

The recent proposal to include ecocide as an international crime contained in the Rome Statute—alongside crimes against humanity, war crimes, acts of aggression, and genocide—has sparked conversation celebrating both this new means of using international legal tools to confront global warning and the validation the prosecution of such crimes would bring to those harmed by environmental atrocities (see here, here, and here for samples of this discussion). In addition to these important commendations, adopting ecocide among the Rome Statute’s crimes poses an intriguing counterweight to one of the International Criminal Court’s greatest criticisms. 

The ICC has been denounced as a neo-colonial institution nearly since its founding. Scholars, international lawyers, heads of state, and directors of international organizations have all chimed in, adding to this criticism. As evidence, many cite (1) the ICC’s virtually exclusive convictions of African nationals, (2) the disproportionate number of investigations into situations on the African continent, and (3) the access issue implicit in the unpaid employment structure of many ICC positions—which bar highly qualified candidates from less privileged backgrounds from participating in the institution. The weight of these critiques is heavy because, in many instances, they are true. The ICC has consciously worked to counter this reproach in recent years, through opening investigations into the conduct of Western Countries; and in the last few years, more discussion has been focused on labor compensation in international courts. In spite of these efforts, however, the Court has not been able to escape the justifiably large shadow cast by the accusation of serving colonial ends—or at least, of upholding remnants of the colonial infrastructure. 

The criminalization of ecocide—which would target the kind of environmental destruction and pollution often committed by developed countries in developing nations—holds the potential to reverse the trend behind this criticism, and avail the ICC to new methods for forming solid jurisdictional hooks in states that have historically evaded its grasp. Furthermore, the international nature of the ICC means it is uniquely poised to prosecute bad acts by transnational corporations (TNCs) that have likewise evaded responsibility in both their countries of origin and the states in which they operate.

Is the ICC a Neo-Colonial Institution?

The best answer I have found for this question is: not intentionally, but still quite possibly. At the very least—the ICC has validly been perceived as neo-colonial in nature by those who feel uniquely pursued by its efforts. The African Union has claimed the ICC disproportionately targets African states. This claim is bolstered by the fact that, while the crimes contained in the Rome Statute are being committed around the world, the ICC’s focus—ranging from open investigations to completed convictions—has been on the African Continent. Earning the ICC the insult of the “International Caucasian Court,” this criticism of neo-colonial bias has led multiple states (see here, here, and here) to leave the Rome Statute.

In response to the criticism that the numbers reflect a neo-colonial bias, others are quick to emphasize that this is not the product of deliberate targeting, but rather one of convenience. Namely, African states lack the economic and political prowess of many states guilty of international crimes that have avoided prosecution—namely, the U.S., Russia, and China. 

The ICC has attempted to confront this criticism—expanding its investigations into other continents and into subjects previously reserved for hegemonic oversight and proxy-conflicts. However, critics are quick to point out the limited bandwidth of these efforts, citing as an example the unanimous decision by the ICC’s Pre-Trial Chamber II that an investigation into crimes against humanity and war crimes committed by the CIA and US military officials in Afghanistan would be against “interests of justice.”

Arguably one of the greatest risks of neo-colonial flavor in its prosecution decisions is influenced by the same colonial history at the backbone of the ICC’s parent-body—the UN Security Council. The relationship between the ICC and the UNSC is explicitly contained in Rome Statute Article 13(b), which grants the UNSC referral power over ICC investigations through its Chapter VII authority. Due to the veto power afforded to each permanent member of the UNSC, several flagrant violations of the Rome Statute have gone un-referred and—lacking any other jurisdictional hook—uninvestigated. 

Thus, one can reasonably conclude that, while the ICC does not have the intent to exercise its authority in a neo-colonial manner, in effect, this may still be what has happened.   

Notable Positives to Including Ecocide among the Rome Statute’s Crimes

The proposed addition of ecocide to our canon of international crimes brings with it a number of positives. At the international level, it prompts a cohesion around a global concern for the future of our planet. As we’ve seen in the past, this widespread attention can develop into international conventions that outlaw certain condemned behaviors—such as torture, uses of certain weapons, and certain forms of discrimination. The codification in international treaty law has the ability to ascend into custom. It furthermore can provide a clear and accessible template, through which states may adopt domestic legislation criminalizing the same conduct. To the extent the law and social change form a cyclical relationship, the more drastic environmental harms are discussed in such extreme and criminal terms, the more public opinion may shift to viewing it as such.  All of these benefits are significant, and more importantly, they begin to manifest the moment ecocide becomes criminalized—they are not necessarily tied to the performance of the crime in the ICC’s docket.

This being said, it is also important to address concerns with the proposed language of the ecocide definition—namely the actus reus and mens rea elements of the crime vis-à-vis the principle of legality and principle of sovereignty concerns. As to the former, nullum crimen sine lege undoubtedly dictates that ecocide cannot be enforced against perpetrators ex post, and thus it may take time before the incorporation of ecocide into the Rome Statute has the chance to be utilized by the OTP. However, the other benefits to ecocide’s inclusion—such as those discussed above—are not affected by this principle, and face no delay in taking effect. As to the latter, Maud Sarlieve notes, the vagueness of the mens rea requirement, and a lack of instruction as to how it ought to be applied where the conduct of corporate entities is at issue, make the application of the crime a bit dubious.  While this concern represents a significant deviation from the ICC’s mode of operating up to this point, it could (distantly, optimistically) present a benefit to how the mens rea in the definition is construed. 

Countering the Neo-Colonial Criticism: New Jurisdictional Hooks and Better Fishing Equipment

The Court has jurisdiction over both crimes committed on the territory of a state party and jurisdiction over a person who has the nationality of any state party (Art. 15). About half of the twenty largest energy companies (by gross revenue) are headquartered in states that are party to the Rome Statute—namely Brazil, Britain, Canada, France, Italy, Norway, and The Netherlands. These are also states who, outwardly, are highly supportive of environmental action, so although the ICC’s amendment system means the new crime of ecocide would only apply to consenting state parties, it is still likely some of these states will formally accept the newest international crime. This would expose a number of major actors committing ecocide around the world ICC jurisdiction. 

A challenge to extradition, present where state officials are concerned, is more easily overcome in the case of TNCs. While it is fairly easy for officials in non-party-countries that are under ICC investigation to simply not travel to states where they may be extradited, this is not the case for members of a TNC. It cannot simply discontinue operation in any country that submits to ICC jurisdiction, especially as many TNCs’ business models are tied to natural resources and other assets connected to the territory in which they are operating. 

Furthermore, this novel jurisdictional strategy enabled by ecocides’ criminalization may serve as an incentive for many states that have long felt targeted, or at least underserved, by the ICC to remain signatories to the Rome Statute.  Contrary to underserving these states, membership to the ICC could include the benefit of offering states a new and sound mechanism for opposing environmental abuse committed by TNCs on their territory that many of these countries have historically lacked the sufficient legal systems to prosecute.  

Addressing the Hurdles to the ICC’s Use of Ecocide to Hold Corporate Actors Accountable  

A challenge to effectively using the criminalization of ecocide under the Rome Statute to achieve these ends, which cannot be understated, is that the provisions of the Rome Statute exclude corporate criminal responsibility. Thus, exercising ICC jurisdiction over corporations themselves, to investigate and prosecute their culpability in international crimes as juridical persons, is not made easier by the addition of ecocide to the Rome Statute. While the lowered mens rea requirements would make it easier to attribute criminal responsibility to TNCs in spite of their frequently attenuated operation in foreign states, the jurisdictional hook over the corporation itself remains elusive. Furthermore, overcoming this is unlikely, as it would require a series of complicated amendments to the Rome Statute, and ones likely to face heavy resistance.

However, the corporations’ officers may still be held liable, where they are nationals of state parties or they are operating on the territory of state parties. There is precedent for this in the prosecution of Joshua Arap Sang, a former corporate executive from Nairobi, Kenya, who was investigated and subsequently tried at the ICC as an “indirect co-perpetrator of three counts of crimes against humanity.” Furthermore, in light of substantial lobbying efforts and other financial cross-pollination between these major corporate actors and politicians, the expansive nature of TNC’s actions works to a jurisdictional advantage, casting a very wide net for individuals who might bear responsibility for ecocide committed by a TNC.

Conclusion

In summary, the potential inclusion of ecocide in the Rome Statute poses a lot of potential good for both the individual communities that bear the brunt of gross environmental mistreatment and for the future of our planet. While the specific proposed definition of ecocide included is vague and difficult to operationalize, as many have discussed, it also holds substantial promise. One of these benefits is the potential use of the ecocide offense to combat the neo-colonial flavor of ICC investigations and prosecutions, and using international criminal law to target pervasive bad actors in states that may not have the domestic tools available to hold such actors accountable for harms against their citizens and the environment. This use would not be without complication—and further challenges presented by corporate immunity in the Rome Statute cannot be ignored here. But, this provision offers some creative jurisdictional hooks for officers and other actors complicit in the ecocide committed by TNCs, which is an enormous positive of ecocide’s inclusion in the Rome Statute that warrants recognition. In our ongoing struggle to both improve the health of our planet and defend the rights of marginalized populations, this effort is a tentative but mighty win.   

The ICC as an Instrument of Lawfare: Sophisticated or Sophistical Insight?

By Anh Nguyen

[Anh Nguyen is a law graduate of the University of Vienna and trainee in international dispute resolution at Knoetzl Haugeneder Netal, currently completing her judicial clerkship in the Vienna Circuit. She tweets at @mikanguyen27Her previous articles on Jus Cogens can be found here and here]

Every so often buzzwords, like “hybrid” or “asymmetric” warfare, from the foreign policy and international security scene enter into the realm of public international law. In recent years the term “lawfare” has been invoked in the discourse on the function and legitimacy of law in armed conflicts. The latest iteration of “lawfare” is ubiquitously invoked by both the Israeli and Palestinian side to frame the other side’s unlawful conduct. Most notably, scholars and pundits have advanced the argument that the Palestinian Authority and Hamas are using the ICC as a tool to undermine and delegitimise Israeli military conduct.

Is “lawfare” a valid critique of the ICC or is it meant as a sophisticated – or rather sophistical – “political slur”? This post will delve into the charge of the ICC being used as an instrument of “lawfare” to launch investigations into the conduct of individuals, whose home state is not a member of the ICC. The post will focus on the investigations in Israel/Palestine, as well as touch upon the Afghanistan investigation. 

The traditional form of “battlefield lawfare”

The concept of “lawfare” was popularized by Charles Dunlap, a former Major General of the US Air Force, and refers to the use or rather misuse of the law, as a substitute for traditional military means to achieve a military objective. For public international lawyers this translates to exploiting jus in bello rules of conduct: Belligerent parties capitalize on their adversary being compelled to respect IHL, which does not depend on reciprocity. Any violation of IHL principles by one party does not release the adversaries from their own legal obligations under IHL (Art 51 (8) AP I Geneva Conventions). This is referred to as “battlefield lawfare” or “compliance leverage lawfare”. One of the classic example is the war crime of using human shields (Art 8 (2)(b)(xxiii) Rome Statute). It is therefore not surprising that the language of lawfare in the Israel-Palestine discourse started with instances of Hamas’ human shielding, i.e. strategically locating military assets near civilian or protected objects (cf UNHRC Report, para 478). We need look no further than the recent bombings of the AP and Al Jareeza building

Palestine joining the ICC as a disputed form of lawfare

The charge that the Palestinian Authority’s (PA) decision to accede to the Rome Statute as a form of lawfare is encountered across the board in formal legal discourse (former OTP Investigations and Prosecutions Coordinator, Alex Whiting’s reserved welcome here, former ICC Chief Prosecutor Luis Moreno Ocampo’s “good faith” take here, which was critiqued by Alan Dershowitz for not recognising the “lawfare” dimension here) academic blogosphere (for instance this Just Security post and rebuttal on Opinio Juris), punditry, and activism. This charge of lawfare is thoroughly discussed in Orde Kittrie’s book Lawfare: Law as a Weapon of War. Kittrie opens the chapter on PA’s lawfare against Israel by discussing a New York Times op-ed by PA President Mahmoud Abbas, who asserted that the UN’s recognition of Palestine as an observer state “would […] pave the way for us to pursue claims against Israel at the UN, human rights treaty bodies and the ICJ.” 

Kittrie, thus, sees the PA’s decision to obtain UN observer status, mobilisation of the GA to request the ICJ’s Wall Advisory Opinion and membership of international organisations, such as UNESCO, as a build-up to its deployment of “the most powerful” lawfare weapon against Israel: joining the ICC (Kittrie, 2016, p. 200 et seq). He highlights that the PA submitted itself to the ICC’s jurisdiction, even at the risk of making its side vulnerable to criminal investigations due to (1) the possibility of a conviction or mere opening of investigations against Israel, which would vindicate the Palestinian narrative, tarnish Israel’s standing and deter its military and settlement actions and (2). the PA’s own belief that it could “retain at least some measure of control over ICC proceedings” (p. 211). 

A further point of contention is Palestine’s acceptance of the ICC’s jurisdiction from 13th June 2014. Kittrie and many commentators have observed that this date appeared to have been selected because on the day before (12th June) alleged Hamas-affiliated Palestinians kidnapped and murdered three Israeli teenagers. Kittrie notes that the PA seems to have arranged for ICC jurisdiction to apply to Israel’s response to the kidnapping, but not to the kidnapping itself. The response in question was Operation Brother’s Keeper (the military operation to find the teenagers, resulting in the arrest of 350 Palestinians and Hamas’ West Bank members), which was met by Hamas firing of rockets and responded with Operation Protective Edge, i.e. the start of the 2014 Gaza War (see this timeline). 

In the above-mentioned Opinio Juris rebuttal Kevin John Heller, however, notes that 13th June 2014 was not “plucked out of thin air”, explaining it was the same date that the Human Rights Committee selected for the beginning of the Schabas Commission’s mandate. Heller takes issue with the premise of taking a dispute to an international criminal tribunal as “lawfare”, referring to term as short-hand for “I disagree with X’s legal actions”. This observation is also made in a paper by Alana Tiemessen. She observes that the contemporary use of Dunlap’s intended “ideologically neutral” concept is often pejorative and ideological. In relation to Israel Tiemessen notes lawfare as aimed at discrediting claims of its war crimes and questioning the credibility of international criminal justice (Tiemessen, 2015, p. 413). She elaborates that the concept is used to describe “weapon of the weak” for insurgents engaged in asymmetric warfare, which is heavily implied by Kittrie regarding the PA and Hamas’ consorting to use of lawfare: “The PA cannot seem to win from Israel through the negotiations process, or militarily, it is thus trying to win through “internationalisation of the conflict as a legal matter.””(Kittrie, 2016, p. 297). 

The ICC’s jurisdiction clause as a gift to lawfare practitioners?

When the Appeals Chamber held that there was a sufficient nexus between the US armed forces and the CIA’s operations of black site” detention facilities in Romania, Lithuania and Poland and the armed conflict in Afghanistan to establish the Court’s jurisdiction over US nationals (para 76, 78) former Secretary of State Mike Pompeo deemed the Court to be a “political institution masquerading as a legal body”. This stance is often echoed in commentators’ protests against the ICC being instrumentalized by “the enemy” to go after alleged criminal conduct of nationals of even non-member states. 

As Monique Cormier discusses in her recent article this, however, is due to the jurisdiction conferred by member states to the ICC. Since Art 12 Rome Statute enables the ICC to prosecute individuals accused of committing Statute crimes, if they either are nationals of the state or if their conduct is in the territory of the state, which have consented to the jurisdiction of the Court, it may exercise jurisdiction over nationals from a state not party to the Rome Statute, even if they have committed crimes on the territory of a state party. The ICC’s seemingly expansive jurisdiction, as Cormier argues, is within the parameters of its jurisdictional framework, which was conceived such that the Court could investigate and prosecute the most serious of crimes “on behalf of the international community” (Prosecutor v Al Bashir (Joint Concurring Opinion of Judges Eboe-Osuji, Morrison, Hofmański and Bossa) para 54). 

Despite the ICC’s expansive jurisdictional framework and high-minded international criminal justice ideals, Alex Whiting, in his article mentioned above, notes that in relation to implicated Israeli war crimes in Palestinian (occupied) territories, the OTP would act cautiously because it relies on “sustained support for its work” from either within the country where the cases arose or from the international community at large, which is by a long shot not given in the Israel-Palestine conflict. Whiting highlights a glossed over, but critical aspect within the lawfare discourse: Art 17 Rome Statute, pursuant to which, if Israel and Palestine undertake genuine investigations and prosecutions of alleged crimes on each of their respective sides, the ICC will no longer have jurisdiction. Whiting cites the Georgia investigation as a precedent for the OTP giving parties considerable time to initiate such efforts. Kittrie also concedes that Israel can “avoid” the ICC’s prosecution because of the inadmissibility criteria in Art 17 (p. 223). This, however, is due to how the ICC’s jurisdiction operates on a legal plane – not because of any strategy designed to outmanoeuvre any supposed “lawfare” in the ICC’s or the enemy’s arsenal. 

Concluding remarks

The ICC’s decision to open investigations in jurisdictionally multifaceted situations, such as in Israel-Palestine or Afghanistan, does not inevitably mean it is wielding lawfare powers to commit jurisdictional overreach. However, charges of “lawfare” reveal where the work of  the ICC and international criminal justice strikes a nerve. This forces those of us thinking primarily on a legal plane to critically and deftly cut through rough political currents, which surround the practice of international law.

Call-For-Submissions: International Criminal Law Series

We happily invite authors to send in their submissions for our new series in which we focus on the International Criminal Court (ICC) and general international criminal law.

Examples of topics which can be discussed include:

  • The ICC’s relationship with specific states, such as the US.
  • The Israel and Palestine investigation.
  • The Afghanistan investigation.
  • The impact of international relations on impartiality in ICC proceedings.
  • Criticisms on the culture within the ICC.
  • Recent developments in international criminal law.

Submissions should be no longer than 1500 words and contain hyperlinked sources. Submissions can be sent to juscogensblog@gmail.com.

The deadline for this call-for-submissions is 25 June 2021. For our full guidelines please check our submission guidelines page.

The Scope of Proprio Motu Investigations at the International Criminal Court and Why We Should Care

By Andrés Morales

Andrés Morales is a Colombian lawyer holding an Advanced LLM in Public International Law (cum laude) from Leiden University. Before joining the IRMCT as a Legal Reviewer for the OTP, Andrés worked at the ICC, the ICTY, the Special Jurisdiction for Peace in Colombia as a legal officer and the Kalshoven-Gieskes Forum on IHL as a researcher.

Introduction

In the Context of the International Criminal Court (“ICC”), the concept of ‘situation’ “denotes the confines within which the Court determines whether there is a reasonable basis to initiate an investigation” (Rastan, 2011). This seemingly simple concept becomes more complex when considering that the confines of situations include “seldom well-defined events [that] stop and restart, have precursors and encounter periods of low intensity and resurgence” (Rastan, 2011). 

Adding to that complexity is the fact that some situations are not defined in the referral of a State Party or the Security Council, but rather depend on the Prosecutor and the Pre-trial Chamber. This is the case when the Prosecutor decides to initiate an investigation when she has reasonable basis to believe that a crime under the jurisdiction of the Court was committed. These are called proprio motu investigations. This writing will only focus on this type of investigations in order to shed light on  the problems that derive from the delimitation of its scope. In essence, it is argued that when defining the scope of proprio motu investigations, the Pre-Trial Chamber does so based on arbitrary criteria resulting in unnecessarily stricter scopes of investigations compared to other situations. 

  1. The scope of proprio motu investigations

Situations that have emerged from proprio motu investigations have been defined in detail by the Pre-Trial Chamber. As the jurisprudence of Article 15 (authorization of proprio motu investigations) decisions shows, from the Situation in Kenya to the Situation in Afghanistan, the investigative powers of the Prosecutor have been defined more strictly than in the cases of State Party referrals or ad hoc declarations by States pursuant to Articles 14 and 12 of the Statute. Besides this commonality, Article 15 decisions have undergone many variations.

Today, it is the understanding of the Pre-Trial Chamber that a situation derived from proprio motu investigations is not only delimited by the Prosecutor’s request, but also by crimes that are sufficiently linked to those referred to in the request. “Sufficiently linked” crimes, in this context, means that the additional crimes must be part of the same attack (in case of crimes against humanity) or committed within the same armed conflict (in case of war crimes) as the crimes contained in the Prosecutor’s request. This approach, followed in Georgia, Burundi, Bangladesh/Myanmar and the appeal against the Afghanistan decision, remains stricter than that of State referral and ad hoc declaration situations. While this represents the current understanding of situations in the context of proprio motu investigations, the jurisprudence is not evidence of a settled view.

  1. Why should we care about proprio motu investigations?

The Pre-Trial Chamber does not have the power to define the scope of an investigation

While it is clear that Article 15 of the Rome Statute grants the Pre-Trial Chamber the power to exercise judicial review of proprio motu investigations, it has been established through the above-mentioned jurisprudence that the Chamber has claimed the power to additionally define the scope of the investigations it authorizes. The Chamber has done so even in the absence of a statutory provision. 

This point was raised by Judge Fernández de Gurmendi’s separate and partly dissenting opinion to the Côte d’Ivoire Article 15 decision. Here, Judge Fernández argues that the role of the Pre-Trial Chamber in article 15 decisions is limited to the underlying purpose of preventing “unwarranted, frivolous, or politically motivated investigations” and as such, 

“The Chamber is only mandated (and indeed, only permitted) to review the Prosecutor’s conclusions (as contained in the request) in order to confirm: (i) that the statement of facts is accurate, and (ii) that the legal reasoning applied to establish that there is a reasonable basis to believe that the facts may constitute crimes within the jurisdiction of the Court and that cases would be admissible, is correct under the ICC legal texts and the jurisprudence of the Court” (emphasis added).

In this decision, however,  the Pre-Trial Chamber not only assessed the scope of proprio motu investigations when it lacked the power to do so, but it also defined these situations in a much stricter manner in comparison with State referrals and ad hoc declaration situations. By claiming a power that is not given by law, the Pre-Trial Chamber’s approach may be questionable from a rule of law perspective and could in principle be challenged by the parties in the proceedings. Additionally, it is not explained how defining the scope of an investigation would help determine whether the investigations are unwarranted, frivolous or politically motivated; this being the sole purpose of article 15 authorizations.  

The Pre-Trial Chamber’s role in defining the scope of investigations has led to an arbitrary categorization of situations 

The meaning and scope of situations change dramatically depending on the triggering mechanism of the ICC’s jurisdiction. Such difference in the meaning and scope of situations is justified in cases of Security Council referrals where the scope is strictly defined because the source of jurisdiction is not State consent but rather the binding power of Security Council resolutions.

However, it is open to question whether a difference in the meaning and scope between  proprio motu investigations, and investigations that originated from State Party referral or ad hoc declarations is equally justified. In other words, is there a reason as to why the scope of proprio motu investigations is stricter than the scope of investigations that stem from State Party referrals or ad hoc declarations? 

One could try to justify this difference by stating that proprio motu investigations must be stricter in scope to prevent unwarranted, frivolous or politically motivated investigations. However, that role allows the Chamber to authorize an investigation, not to define its scope. Aside from this, no other argument seems to justify why different triggering mechanisms result in different scopes of investigations. 

On the contrary, reasons could be given in favour of maintaining the same scope of situations, regardless of the ICC’s triggering mechanism. Perhaps the most apparent reason is associated with the fact that an investigation is preliminary in nature and thus it should remain wide in scope in order to allow for the procurement of evidence into all possible cases under the jurisdiction of the Court. This fact does not depend on how the jurisdiction of the ICC was triggered and therefore should not affect the scope of investigations.  

The over-reliance on Prosecutor’s requests in proprio motu investigations

Thus far, it has been argued that proprio motu investigations are the result of the non-existing power of the Pre-Trial Chamber and that they have been arbitrarily delimited in stricter terms than other situations have. Along the same lines, this section argues in favour of consistency when determining the scope of all situations by showing why the stricter delimitation of proprio motu investigations t is illogical. 

The scope of these situations has been defined on the basis of the Prosecutor’s request and the crimes that are sufficiently linked to them. These requests, as that very same jurisprudence states, are “inherently based on limited information” (Article 15 Decision in the Situation of Georgia, 2016, para. 63). With that said, how could it be justified that the Prosecutor’s requests have constituted the basis for defining the scope of proprio motu situations?

The Office of the Prosecutor argued in its appeal to the Article 15 decision in Afghanistan that the Prosecutor’s requests should not be taken into account as a guide to define the scope of situations. In them, “the prosecutor may choose to identify multiple examples. [However,] this is merely illustrative of a threshold that is already met and may be motivated by practical considerations or a desire for an appropriate degree of public transparency. But such examples cannot, and do not, constitute the outer parameters of the situation” (OTP Appeal brief Afghanistan. Para 79). 

In the same vein, as noted by Judge Fernández in her dissenting opinion in Côte d’Ivoire, the information presented by the Prosecutor in her request is meant to be illustrative and, as such, is necessarily non-exhaustive.

The excessively restrictive understanding of “sufficiently linked” crimes in proprio motu investigations 

What the Article 15 jurisprudence shows is that “sufficiently linked” crimes refer to crimes that are part of the same attack against the civilian population (in case of crimes against humanity) or crimes occurring within the same armed conflict (in case of war crimes). This idea is problematic. First, it excludes crimes from situations. In the case of a Prosecutor’s request that lists only crimes against humanity, arguably no war crimes or genocide could be included as they would not fulfil the criteria to be considered sufficiently linked crimes: the same attack against the civilian population. By the same token, in a Prosecutor’s request including only war crimes, crimes against humanity or genocide may not be considered sufficiently linked crimes as they may not be linked to the same armed conflict. 

A second problem with this understanding of the term “sufficiently linked crimes” is that it assumes that one situation equates to one single and static armed conflict or attack against the civilian population. A situation may encompass war crimes in the context of both an international armed conflict (“IAC”) and a non-international armed conflict (“NIAC”). If in this example the Prosecutor’s request only covers war crimes committed in a NIAC, the Prosecutor would not be authorized to consider other war crimes in an IAC as sufficiently linked crimes, simply because the existence of an IAC was not mentioned in the Prosecutor’s request. 

From this, it becomes evident that the possibility to enlarge the Prosecutor’s request so as to include “sufficiently linked” crimes may not be appropriate to capture the full extent of a situation. This may lead to the undesired effect of initiating separate situations for those crimes that cannot be sufficiently linked, which in turn leads to unnecessary fragmentation of situations or “mini-cases” (Jacobs, 2019).

  1. Concluding remarks

Proprio motu investigations are strictly defined to the scope mentioned in the Prosecutor’s request and the crimes “sufficiently linked” to that situation. This is crimes that share the same contextual elements as those contained in the Prosecutor’s request.

A critical look at these situations brings to light a series of problems including granting the Pre-Trial Chamber a power it does not have and setting arbitrary limitations to investigations necessarily based on the inherently limited information provided by the Prosecutor in her request. 

While these problems will become evident in the future, some have already manifested in cases before the Court; most notably in the Myanmar/Bangladesh situation. In the Article 15 decision, the Pre-Trial Chamber decided to define the scope of that situation based on the Prosecutor’s request and the sufficiently linked crimes. By applying these criteria, the Pre-Trial Chamber made it impossible for the Prosecutor to charge the crime of genocide in a future case within this situation even if there is sufficient evidence to support it simply because this crime does not share the same contextual elements as the war crimes and crimes against humanity identified in the initial request, and therefore it cannot be considered as a sufficiently linked crime to this situation. This may negatively impact the Prosecutor’s duty to establish the truth under article 54 of the Rome Statute. To conclude, by shedding light on the problems that derive from the Pre-Trial Chamber’s practice of delimiting the scope of proprio motu investigations, this piece presented an argument in favour of investigations with a wide scope, regardless of the triggering mechanism of the ICC’s jurisdiction, which would go in line with the duties of the Prosecutor; in particular, that of establishing the truth. 

The Attacks against the Brazilian Amazon and its Native Populations: Are We Witnessing Crimes that Fall under the Jurisdiction of the ICC?

By Melina Lima, Gabriela Silva, and Maria Clara Pontes.

[Melina Lima is an International Law Professor at IBMEC in Brazil. She leads a research group on International Law and the Amazon. Gabriela Silva and Maria Clara Pontes are undergraduate law students and researchers at International Law and the Amazon research group.]

The Amazon and its native populations have been under attack since the beginning of the European colonization, which means that they have endured invasions, diseases, and deforestation, among many other threats for centuries. Nowadays, however, their situation is deteriorating rapidly, as the current Brazilian administration shows literally no concern for the environment or for the indigenous populations. This article intends to analyze this situation through the lens of international law, but before doing it we shall present some of the facts and numbers concerning the Brazilian Amazon and its autochthonous populations.  

Addressing the deforestation topic, the Brazilian Amazon has lost 34% more of its forest in 2019 than in the year before, according to INPE (country’s space agency). From 2005 on, deforestation had decreased significantly, but since 2015 it has been on the rise again. Soybean production for world markets and industrial-scale cattle ranching are two of the main reasons for the deforestation of the Amazon. The deforestation in indigenous lands has increased 64% during the first months of 2020, which is the biggest rate in the last 4 years according to INPE. Federal policies that weakened monitoring institutions and stimulate the invasion of lands that are still in process of demarcation contributed to this exponential growth. 

When it comes to demarcation of indigenous land, which is a constitutional provision in Brazil, the current demarcation figures show a significant setback. Although this constitutional norm has never been a guarantee that the demarcation would happen as it should, the situation has become even more alarming in the last two years. The former and the current administrations have not demarcated any new indigenous land. The Brazilian President, Jair Bolsonaro, stated right before being elected ‘I will not demarcate one square centimeter of indigenous land. Period’. He not only has been fulfilling his campaign promise; he is also paralyzing demarcation processes that were in the final stage. 

Other facts and figures also show that the Brazilian native peoples’ safety is in serious jeopardy. According to CIMI, out of 19 categories of systemic violence, there has been an increase in 16 of them. The cases of invasions and illegal exploitation rose from 109 to 256 in 2019. With respect to the COVID pandemic, the numbers are also disproportionate when compared with the non-native population. For instance, the mortality rate is 150% higher among indigenous. 

The facts and statistics presented above are only a portion of what is happening daily in the Brazilian Amazon and they engender many issues that relate directly to the international law field. In this text we will analyze the repercussions on the realm of International Criminal Law by examining the claim that the Amazon destruction constitutes ecocide and the possibility of describing the recent attacks against the Brazilian indigenous peoples as genocide. The analysis will reveal that the attacks against the native population is more likely to fall under the International Criminal Court’s (ICC) jurisdiction than the ecocide situation.     

The destruction of the Amazon and Ecocide

According to Polly Higgins, the crime of ecocide was supposed to be the fifth crime foreseen in the Rome Statute, along with war crimes, genocide, crimes against humanity (CAH) and crime of aggression. Although 50 out of 54 countries negotiating the treaty supported its inclusion, the crime of ecocide was removed in 1996 without much explanation. From then on until she died, Higgins dedicated her life to the endeavor of including this crime in the Rome Statute. To this end, the environmental lawyer and advocate proposed an amendment to the Rome Statute in 2010, which was submitted to the UN’s International Law Commission (ILC), but the same has not been added to the Rome Statute up until now. 

Without an express provision of the crime of ecocide in the Rome Statute and taking into consideration the principle of strict legality—which is one of the foundations of criminal law—it becomes controversial to affirm that ICC could have jurisdiction over a case whose foundation rests on actions and facts that have not been typified. The only explicit reference to environmental crimes in the Rome Statute is in the war crimes section, in Article 8(2)(b)(iv), which reads ‘[…] long-term and severe damage to the natural environment […]’. Given that the situation related to the Amazon is not connected with an armed conflict, this provision cannot be applied.   

Therefore, the best scenario in the context of the Amazon deforestation would be for the Rome Statute to adopt a text that expressly addresses environmental issues in peacetime. The concept of ecocide that Higgins suggested to the ILC—‘The extensive damage to, destruction of or loss of ecosystems of a given territory, whether by human agency or by any other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished’— would describe well what is happening now in the Brazilian Amazon and could be pertinent to other situations in the world where entire ecosystems may also be deliberately destroyed. 

In practice, it takes only one signatory country to propose such an amendment to the Secretary-General of the UN and, if the proposal is accepted, two thirds of the State parties have to vote in favor in order for the text to be added to the Rome Statute. Vanuatu has already expressed the intent to present the ecocide amendment and it is possible that it will become the fifth crime in the short to medium term. While it does not happen, the deforestation alone will probably not be the basis for a complaint before the ICC, but it can certainly make the genocide case undermentioned stronger.   

The attacks against the Amazonian indigenous peoples and the crime of genocide

The situation is different regarding the attacks against the Brazilian indigenous peoples and the crime of genocide, for it is clearly typified in Article 6 of the Rome Statute as an act ‘committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group’. As the data presented in the first section of this text shows, the attacks against the Brazilian indigenous populations have increased significantly in the last two years. The word attack, in this context, may include many acts, such as the murder of indigenous leaders, government’s encouragement of mining in indigenous lands, encouragement of religious missions targeting even isolated indigenous populations and the deliberate neglect of this population during the COVID crisis. It is worth mentioning that the destruction of the rainforest analyzed before also counts as an attack against indigenous peoples because it affects them disproportionally, as it represents not only the dismantling of their home and way of life, but it also seriously endanger the preservation of their own identity as an ethnic group.

These facts among many others are the foundation of an Informative Note to the Prosecutor against the Brazilian President Bolsonaro before the ICC. The document addresses a supposed ‘incitement to genocide and widespread systematic attacks against indigenous peoples’, laying its basis both in articles 6 (genocide) and 7 (CAH) of the Rome Statute. Regarding the COVID-19 pandemic and the indigenous people, even a Judge from the Brazilian Supreme Court—Gilmar Mendes—mentioned the word genocide to describe what was happening with this population. 

It normally takes long for the Prosecutor of the ICC to decide whether or not an informative note or a complaint will actually become a case and go into trial. Regardless the time it may take for it to reach the ICC’s Chambers, many relevant elements for admissibility are apparently present in the situation of the indigenous. Firstly, Brazil is a State party of the ICC and the facts that support the informative note have been happening mainly in the last two years in the Brazilian territory. This means that the Court would have temporal, territorial and personal jurisdiction to analyze the case. Secondly, although one could argue that the ICC should be guided by the complementary principle and that states parties should have priority in judging cases under their national jurisdiction, there is no current investigation taking place in Brazil or any other state party regarding the indigenous situation in the Amazon. Finally, as for the merits, it would require a careful investigation, but the murders, the increased systemic violence, the land invasions and forced evangelization at unprecedented levels indicate that there might be grounds for a CAH and/or genocide trial before the ICC. 

Conclusion

On the one hand, the international environmental regime becomes stronger with every passing year, with institutions and rules biding an increasing number of countries; on the other hand, it is difficult to hold accountable a violator, as these same rules often do not come with enforcement mechanisms. In this context, international criminal law and its main institution (ICC) appear as a potential path, despite indirect, to accountability, since the Amazon deforestation will be a powerful reinforcement for the genocide case if charges are confirmed before trial. Ecological conscience is constantly growing and there might come a time when the destruction of an ecosystem will be considered as horrifying as genocide. But right now the fact is that it is not typified in the Rome Statute and the ICC would have to be quite audacious to try a case on this basis. As far as for the indigenous situation, the most uncertain issue is to determine if the acts against the indigenous and the forest fit in the criminal description of genocide and/or CAH as foreseen in the Rome Statute. Only a detailed investigation can tell if the facts brought into light in this text, among others not mentioned, meet the requirements in the Rome Statute. If the answer is yes, it would set a historical precedent, as the ICC has never tried a case involving autochthonous populations and environmental issues.    

[None of the views and opinions represented in this article are necessarily representative of the official views and opinions of Jus Cogens, or any institutes the author may be affiliated with.] 

The Push and Pull between “Systematic” as a Characteristic of an Attack and the Pursuance of a Policy Criterion in Crimes against Humanity in the Rome Statute

By Haneen Shadeed

The Rome Statute of the International Criminal Court stipulates in Article 7, in order for an act to constitute a crime against humanity it must be part of a widespread or systematic attack. When looking into Art. 7(2)(a), it also stipulates that the aforementioned attack must be carried out in pursuance of a state or organisational policy. At first glance, one may perceive that the provision of systematicity and a pursuance of policy to be one and the same. That is, if the attack occurs at a number of times and is organised according to a certain pattern, we could render the existence of an authority carrying out these actions in order to achieve a perceived agenda. 

Such a conclusion has been reached when we carefully study the jurisprudence of the International Criminal Tribunals of Rwanda and Yugoslavia, in addition to the International Criminal Court. The chambers of such tribunals and the ICC, at instances, accorded an attack’s pursuance of a policy to be characteristic of the systematic aspect of an attack. However, other cases have held separate stances on what might qualify an attack to be independently systematic.

For example, The Prosecutor in the Blaskić case when defining “systematic”, related it to the following of a plan or policy as  it would “include the existence of a political objective[…]or an ideology,[in addition to] the implication of high level political and or military authority in the definition and establishment of the methodical plan” (at paragraphs 191 and 203). Whilst in the Kordić case, it was referred to as “a pattern or methodical plan” (at paragraph 174). What is worthy of noting is that the International Law Commission also associated systematicity with following a policy or plan. 

Nevertheless, the associations made by the chambers of the ICC between systematicity and a pursuance of policy holds systematic at a higher threshold than the Statute may have intended for it to hold. 

The logic upheld in the previous cases is that any systematic attack requires an extent of organisation and, as such, calls for the existence of an entity following a policy to implement it (See Ambos and Wirth, page 30). However, this is not the stance taken in all cases or situations at the ICC. As the Pre-Trial Chamber, in the Situation in the Republic of Kenya held, ‘systematic’ reflects an “organised nature of the acts of violence and the improbability of their random occurrence” and, accordingly, did not attach it to a policy (at paragraph 79). As was the chamber’s opinion in the Situation in the Democratic Republic of Congo, as it referred to systematic to entail a “pattern of incidents” (at paragraph 47).

An example of the coexistence of systematicity and a pursuance of state policy is in the Kenya case. At one end, local leaders and ODM supporters had planned to organise, facilitate and direct violence- the systematic aspect. At the other end, the planning was carried out through encouragement of the ODM and PNU (political organisations) and in turn reflected a furtherance of policy (see Situation in the Republic of Kenya above, at paragraph 83). More so, the PTC in the Bemba case opined that the systematic nature of an attack may be inferred and implicated through the state or organisation’s pursuance of a policy (at paragraph 33).

Furthermore, the content of the policy is to commit crimes against humanity. Taking this into consideration, a deliberate plan may be devised or organised for various purposes not pertaining specifically to committing crimes against humanity. Whilst also noting that the acts constituting an attack could be furthering a policy without them being systematic in essence; as multiple acts constituting an attack could take place in an extremely unorganized and random manner. This would not negate the existence of a policy but only demonstrates that the perpetrator may be of a reckless disposition and did not devise a manner through which they intended to further their agenda. Hence, a pursuance of policy manifests in the absence of systematicity.

Furthermore, it is important to note that Art. 7 of the Statute presents a disjunctive test to be applied to the attack. That is, the attack may either be widespread or systematic and is not obliged to subscribe to both characteristics. However, when taking into account previous jurisprudence in considering that the systematic characteristic entails an existence of a state or organisational policy, the need for the policy criterion in the Statute would be rendered void and its existence would not be justified.  

However, if we do bear in mind that the systematic characteristic does equate to a pursuance of a policy, this would imply that any act or acts qualified as widespread would not need to meet the policy criterion- due to the disjunction presented between widespread and systematic. Consequently, this would mean that any attack that targets a large multiplicity of individuals would render it to be a crime against humanity and fall within the jurisdiction of the Court (see Bergsmo and Song). In turn, a multitude of ordinary crimes that have targeted a high scale of individuals would fall within the jurisdiction of the Court. Accordingly, the UN Commission of Experts notes that, “the ensuing upsurge in crimes […] does not qualify as crimes against humanity” (at paragraph 85). 

However, this urges the question, if an attack targeting a plethora of individuals has not been organised, how can the policy of a state or organisation be reflected?

It is now established that an attack must either be widespread and in furtherance of a state or organisational policy or systematic and further such policy. Following this, proving the existence of systematicity would not hold much difficulty when a policy exists since the policy may imply such characteristics in the first place, much like the aforementioned Bemba case.  As addressed by Ambos and Wirth, “the policy in the case of a systematic attack would be to provide at least certain guidance […] in order to coordinate the activities of the single perpetrators.” and, in accordance, would require active encouragement by the state or organisation (See Ambos and Wirth, at page 34). 

However, proving a widespread attack pursuing a policy may be relatively more difficult. As such, it has been concluded that a toleration of committed acts without actively furthering them can reflect a state or organisational policy. As presented in the Kordić case, the chamber inferred that “a policy need not be formalized and can be deduced from the way in which the acts occur.” (Bergsmo and Song, at page 122). Therefore, when assimilating the provisions of systematicity and a preconceived policy as one, the disjunctive test would prove to be fruitless and void. 

In light of the existence of the abovementioned literature, it shall be the Court’s duty to differentiate between an attack that is systematic and that which furthers a state or organisational policy; as it has been demonstrated, there is a possibility for each to present itself without the other.

[None of the views and opinions represented in this article are necessarily representative of the official views and opinions of Jus Cogens, or any institutes the author may be affiliated with.]