International Criminal Court (ICC)

Background
Criminalizing harms to the environment is a legal strategy that has received a growing audience internationally. Prosecution can take place either at a national level, or at an international level in front of the International Criminal Court.

What is the ICC
The International Criminal Court, ICC, was formally established on July 1st, 2002, following 60 ratifications of the Rome Statute. The Rome Statute is the Court's founding treaty and grants the ICC jurisdiction to prosecute individuals for four major crimes: genocide, crimes against humanity, war crimes, and aggression crimes. The Court is set up as a permanent court to ‘investigate, prosecute and try individuals accused of committing the most serious crimes known to the international community’ .‘The ICC prosecutes individuals, not groups or states’, corporations, political parties or revel movements and it is irrelevant whether those individuals are in positions of power, are members of the military or government. No immunity will be granted in that case.

Members and Enforcement
The ICC has 123 member states who have become party to the Rome Statute. While this is a large number of countries, the ICC still lacks universal jurisdiction and can only prosecute crimes committed within or by citizens of a member state or cases referred to the Court by the United Nations Security Council. The ICC also lacks the ability to enforce its rulings without the cooperation of states. The ICC will consider proceedings ‘if the state concerned does not, cannot or is unwilling to do so. This might occur where proceedings are unduly delayed or are intended to shield individuals from their criminal responsibility.’ The ICC judges can impose ‘a prison sentence, to which may be added a fine or forfeiture of the proceeds, property and assets derived directly or indirectly from the crime committed’.

Who can bring cases
‘Any state party to the Rome Statute can request the Office of the Prosecutor to carry out an investigation.’ The office of the prosecutor can start an investigation if they have a reasonable basis to do so based on reliable ‘information provided by individuals, intergovernmental or non-governmental organisations.’ One example of a case being investigated that has been brought by NGOs is one on landgrabbing by the government in Cambodia. Anyone, if they meet the above criteria. However, due to resource constraints, the ICC only investigates a few of the cases that are submitted every year.

Current Environmental Law
As the ICC is limited to prosecution of war crimes, genocide, crimes against humanity, and crimes of aggression, any environmental crimes must fall under one of these categories to prosecute. The only one of these categories that lists an environmental crime is War Crimes Article 8(2)(b)(iv) which prohibits "intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the non-human environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated". Nevertheless, this article has several problems that limit the article's ability to prosecute wartime environmental damage. For instance, the requirement that the damage must be widespread, long-term, and severe is an excessively vague and high standard for criminality. Another issue with the article is the requirement that the perpetrator must be intentionally and knowingly causing environmental damage, which is purely subjective. Finally, as this is under war crimes, the article's jurisdiction is limited to acts committed during war times.

Joint Criminal Enterprise (JEC) is a concept that has been developed in regards to criminal liability, and allows for the prosecution in situations where more than one person was involved in the crime. ‘The rationale of JEC is that anyone who takes part in a common criminal act with an awareness of its purpose and who shares its requisite criminal intent must share the criminal liability.’ The idea of aiding and abetting ecocide, might allow for the prosecution of third parties.

Future Environmental Law
While Article 8(2)(b)(iv) is limited in its scope, the ICC published a policy paper in September 2016 that suggests a positive shift in focus towards environmental crimes. The ICC stated that it would "seek to cooperate and provide assistance to States, upon request, with respect to conduct which constitutes a serious crime under national law, such as the illegal exploitation of natural resources, arms trafficking, human trafficking, terrorism, financial crimes, land grabbing or the destruction of the environment" and that it "will give particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land".

There is also the possibility that this shift in focus could lead to a future amendment to the Rome Statute to include ecocide as a fifth crime under the jurisdiction of the ICC and to establish an international criminal protection for the environment. This avenue, however, is not free of challenges and obstacles: The first is that international criminal law, is – with very few exceptions – anthropocentric, concerned with the situation of people, and not ecocentric or concerned with our planet; The second conceptual challenge is the contrast between the individual focus of international criminal law and the systemic character of climate change.

There is a concept in international law that is called ‘superior responsibility’ and it focussed on those who ‘command and control’, meaning heads of states, ministers, chief executives, heads of banks etc. It would impose superior responsibility on those who have the ability to make decisions that will impact millions of lives. The idea of criminalizing certain activities would put the focus on those in positions of power with superior responsibility.

Challenges in the way of criminalizing environmental harms
The criminal standard of proof is a lot higher than in civil cases, that means that the conviction would have to be beyond reasonable doubt. The prosecution will have to lead strong evidence proving that the accused is guilty.

Environmental crimes are often emission-based activities; there are several tricky challenges to overcome. Can liability be extended to historic emissions? ‘The jurisdiction of the Court is limited to crimes committed after the entry into force of the Statute’. Is it possible to develop something similar to the ‘common but differentiated responsibilities’ standard as existent within the United Nations Framework Convention on Climate Change UNFCCC https://unfccc.int/.

Organizations working on ICC & Climate

 * https://www.climatecounsel.org/
 * https://www.stopecocide.earth/