Tag: Rome Statute

If War Were To Doom Us All Tomorrow, The ICJ Would Still Plant A Tree

Posted in International Environmental Law, International Humanitarian LawTagged , , , , , , 1 Comment

By Moises A Montiel M

Moisés Montiel is a Venezuelan lawyer advising individuals and governments in matters of International Law at Lotus Soluciones Legales. He holds an LLM from the Fletcher School of Law and Diplomacy at Tufts University and teaches IHL and Treaty Law at Universidad Panamericana and Universidad Iberoamericana in Mexico.

The ICJ is no stranger to the growing concern about the environment. In fact, the existence (albeit brief) of an Environmental Chamber credits the importance attributed by the Court to this global common good. Directly or indirectly, the bench has been faced with opportunities to deal with the subject and has done its share to advance the cause of environmental protection, even during armed conflict as exceptional situations.

Before any further comments are made, it should be recalled that article 59 of the Court’s Statute contains a prohibition to generate binding precedent. However, these are not any 15 Johns and Janes Doe issuing a sentence, the compliance pull emitted by any ruling of the ICJ (or its legitimacy, if the New Haven School is brought to bear) demands attention and even persuades into compliance.

In this intelligence, this piece aims to highlight relevant dicta of the ICJ in asserting that there exists, without need for juggling or licentious interpretation, international obligations protecting the environment (almost) completely applicable during armed conflicts. 

The ICJ has advanced the conversation to a point where it is not unreasonable to assert that environmental protections during armed conflict should not be a by-product of the respect owed to protected categories, but an end in and of itself.

The Nuclear Weapons Opinion

In parallel to the main goal of the opinion, the Court drew attention to the impact that nuclear weapons could have on the environment and how their use is brutally incompatible with the protections stemming from the principles of precaution, military necessity, and distinction not just towards people, but to the environment itself (see paras. 27-33).

The Court acknowledged that a number of States expressed their conviction that the use of nuclear weapons both in armed conflict and outside of violates existing regulations. It reasserted the existence of a general obligation (untouched in the context of IHL) of States to make sure that activities within their jurisdiction respect the environmental rights of other States and the environment itself. A conclusion later supported by the Paper Mills case ruling.

In the Nuclear Weapons Opinion, the Court took note of the objections of some States which claimed that, for instance, obligations arising out of the ENMOD Convention would become inapplicable during armed conflicts. The Court answered by rephrasing the question and assumed from the start that the obligations were binding during conflict and, instead, analyzed whether they were absolute restrictions.

It answered the new question by subordinating the absolute prohibition to the logic of military necessity and the balancing act it demands. It concluded that the environment is an element to be weighed in assessing if the principles of necessity and proportionality permit attack. In supporting this conclusion, the Court recalled principle 24 of the 1992 Rio Declaration which recalled the duty of States to comply with the seminal principles of IHL with due regard to the environment and the effect of hostilities on it. 

In its Opinion, the Court also recalled UNGA Resolution 47/37 concerning the protection of the environment during armed conflicts. This instrument reaffirms the duty to consider the impact of military operations on the environment. It could be assumed that the Court found an indication of opinio juris under customary IHL in this document.

Nuclear Weapons is the most important jurisprudential contribution towards the goal of demonstrating the existence of a solid normative regime protecting the environment during armed conflict and, also, the necessary starting point for any proposition grounded in blackletter law about responsibility for crimes against the environment during armed conflicts.

Gabcikovo-Nagymaros Project (Hungary/Slovakia)

In the ‘pocket guide for the casual conventional delinquent’, also dubbed by the Court as the Gabcikovo-Nagymaros Project case the bench held that the ‘ecological state of necessity’ would theoretically justify the failure to comply with conventional obligations, only that it was not satisfied that such a state of necessity existed in this case. Moreover, the Court entertained the notion that environmental concerns constitute an essential interest of the State, thus opening the door for it to give way to the invocation of rebus sic stantibus (the doctrine of the fundamental change of circumstances). Both of these substantially raise the entity of the environment as an object of special protection under general international law.

The Court also found that the deviation of the waters of the Danube by Slovakia was in breach of international obligations, a conclusion which warrants no further explanation if extrapolated to the realm of IHL, especially if understood in line with protections of basic essential goods for human populations.

While it is true that this case did not directly touch upon environmental protection during armed conflict, it is no less valuable a contribution since it highlights the importance of the environment and furthers the notion that it constitutes a global common good, both protected by general international law and (consequentially) by IHL.

This ruling also serves as a reminder that the control and enjoyment of natural resources is a direct function of the right to self-determination under both the ICCPR and the ICESCR. The conclusion being that no attempt against it is legal if not warranted by strict military necessity.

Pulp Mills on the River Uruguay Case (Argentina v. Uruguay)

The fundamental holding of this case is that environmental damage is equivalent to patrimonial damage under the law of international responsibility, and in acknowledging it the Court confirms an expansion of the jus standi (judicial standing) of States to demand reparation for environmental damages. 

The takeaway for IHL, even if the Court did not point it out explicitly, is that in assessing damages derived from armed conflict, environmental damage can and should be taken into account when not strictly justified by necessity and proportionality, otherwise, the delinquent State or party will incur in responsibility and subsequent duty to repair.

This case is also relevant because it advanced and consolidated the notion that there is an international obligation to abstain from carrying out activities that may have an adverse impact on the environment. This obligation, naturally, cannot be held as extraneous to IHL because it does not forcibly, automatically, or singlehandedly hinder the legal conduct of hostilities. 

The arguments on sustainable economic development considered in this case also have major implications for environmental protection during armed conflict. The Court noted that there can be no development without environmental protection. Consequentially, it would not elicit any blushing to consider that the obligation to respect the environment/development duo would still hold during armed conflict, even if terms and conditions do apply. 

This rings even truer when the ILC Draft Articles on State Responsibility are brought in the mix, since -as codified by the articles- the existence of a state of war between States does not suspend duties owed, except when directly affected by hostilities. Since environmental protection in this context is mostly a duty of abstention, it stands to reason that unwarranted environmental damage not allowed by strict military necessity would suddenly become permissible without the need to prove that compliance with the obligation is directly affected by the state of hostilities.

Whaling in the Antarctic case (Australia v. Japan)

In this case, the Court availed itself of both the CITES and the Convention on Biological Diversity, among other treaties, in assessing the legality of Japanese whaling activities. Even if it is not directly concerned with IHL, some conclusions are worth noting.

The foremost takeaway is that both of these conventions entail duties of the State to be observed mainly within its territory. If the duty to honour obligations is not disrupted by a state of war, it seems plausible to suggest that the environmental duties incumbent upon the State in its own territory should not be suspended in the context of armed conflict not of an international character.

Most revealing in this particular case are – as they tend to be – the separate and dissenting opinions. Judge Yusuf’s dissent points toward the need to consider the shift in attitudes and societal values towards the interpretation of duties of preservation of environmental goods  (paras. 25-26). Could the same necessity be derived from the increasing societal concern about the protection of the environment? And more so in contexts of armed conflict? There seems to be nothing barring an answer in the affirmative. Also enlightening – and in abundant detail, as is his custom- is judge Cançado Trindade’s opinion, in it, he insists in the need to understand the increasing multilateralization of environmental protection regimes as a function of a desire for more robust protections for the environment (paras. 7, 12, 22-24). This would come to support the notion of the environment as a global common good.

As hinted at the beginning of this piece, the Court is no stranger to the concern for the protection of the environment (during hostilities or outside of them) and it has time after time reaffirmed its place of honour among internationally protected common goods. Therefore, to say that environmental protection becomes secondary when the clash of swords is heard is to make the effet utile (effectiveness) of environmental protection treaties the first casualty of war, and the Court’s jurisprudence certainly seems to support this conclusion.

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

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

Posted in International Criminal Law, Public International LawTagged , , , , , , , 2 Comments

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

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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.]