David Krott joins JiC for this guest post on the nexus between international criminal law and international environmental law. David is as a research assistant at the FH Aachen (Germany) and am PhD candidate at the Vrije Universiteit Brussels, specialising in international environmental criminal law.
In the light of the growing threat of climate change, a rapidly burning rainforest in South America and South-East Asia, polluted rivers in the Arctic, and other environmental and ecological crises, international environmental law is searching for answers to condemn global environmental harm. Some of those answers might lie within the sphere of international criminal law.
The International Criminal Court (ICC) does not have a distinct legal mandate to look into international environmental harmful conducts. Nevertheless, the pressure to codify the connections between the environment and criminal conduct is growing. This post discusses the nexus between international criminal law and international environmental law, as well as the role that activism and institutions are playing in the developing interplay between these two regimes.
Why the relationship between international criminal law and international environmental law matters
Even though the areas of international criminal law and international environmental law are two distinct areas of international law, they do present close connections. Serious harm to the environment constituted by human action may result in “potential criminal conduct”, such as illegal logging or the illegal disposal of hazardous waste. The resulting destruction of local ecosystems can have major global consequences. This can be outlined by the deforestation of the world’s rainforests in Brazil and several countries across South-East Asia. This not only destroys one of the most vivid ecosystems on the planet but contributes to rising temperatures on a global level. Furthermore, the slash-and-burn method used causes health issues, not only for local inhabitants but also for citizens of neighbouring states.
The earth is constituted of a global net of interrelated ecosystems. Widespread environmental harm or the degradation of ecosystems is inherently transboundary/global. The most vivid example of this interconnectedness of the world’s ecosystems is climate change. The connectivity can be described with the following example: The emission of industrial CO2 in Europe leads to thawing permafrost in the Arctic. This in turn accelerates the release of climate gases into the atmosphere fuelling the melting of the polar ice caps, which results in the potential submersion of whole island nations in the Pacific. The planet’s natural systems are brought out of balance by human activity. These activities might not be criminal per se, but a number of the behaviours in question do bear the potential to be called a crime and even an international crime. An issue here is that the terms of ecocide or international environmental crimes do not have a universally agreed-upon definition. They therefore lack legal consensus. International environmental crimes are more of a collective term for transboundary environmental harm in general (e.g. illegal trade in wildlife, illegal logging, waste handling abuses, whaling or extraction of conflict minerals).
While a commonly agreed international framework governing this delicate area of international criminality remains elusive and there is no distinct “Convention on International Environmental Crime, a growing number of multilateral environmental agreements (MEAs) have come to life that are of relevance to thinking about the relationship between international criminal law and environmental law. Some of the existing MEAs refer to the connection between criminal actions and the environment. For example, the “Basel Convention on the control of transboundary movements of hazardous waste” describes in Article 9 certain transboundary movement of hazardous wastes as “illegal”. The implementation and enforcement of this and similar “criminal” provisions are thus left to the signing parties. Sufficient international oversight in this regard is missing.
During wartime, the nexus between international environmental and criminal law is manifested in Article 8(2)(b)(iv) of the Rome Statute, although the primary intention of this norm is to regulate war, not to protect the environment. On the whole, the connection can be described as fairly weak, as the threshold to convict an individual based on this provision is very high. Next to Article 8(2)(b)(iv) of the Rome Statute, it is highly debatable whether international environmental harm might already constitute a Rome Statute crime and that the ICC already has the mandate to adjudicate international environmental crimes or ecocide.
In 2016, the ICC’s Office of the Prosecutor issued a policy paper on case selection and prioritisation. The paper announced that the ICC will focus more closely on “prosecuting environmental damage, illegal natural resource exploitation and land grabbing committed in the context of the existing crimes under the Rome Statute of the ICC”, especially investigating crimes against humanity. Although this statement sent a message to all ICC member states and beyond, the status quo has not changed much since then. The important question, namely whether the ICC has jurisdiction over such crimes remains unanswered too. Whereas the realm of international human rights law is slowly finding its way into the decisions of the ICC, the same cannot yet be said about environmental law. Nevertheless, a close link between these important areas of justice on the international level is becoming increasingly evident.
The role of environmental activists and institutions in international criminal law
In recent years, the awareness of major environmental problems facing the planet is rising and with it activism condemning environmental and ecological destruction is growing. This can be exemplarily underlined by the “Friday for Future” movement or the “Extinction Rebellion” protests. Even though the pandemic has brought most of the physical protests to a halt, this mindset is still growing. Institutions such as the “Environmental Investigation Agency” investigate and campaign directly against environmental crime and environmental abuse. Their work is helping to dismantle transnational criminal networks involved in ivory smuggling and illegal logging, among other illicit trades.
The suggestion to include an international law of ecocide alongside the other four Rome Statute crimes under Article 5 of the Rome Statute has resurfaced thanks to the work of activists like Polly Higgins. The idea of ecocide is not entirely new and dates back to the Vietnam war. Unfortunately, it was taken off the agenda in the discussions leading up to the ICC. Higgins suggests defining ecocide as follows: “the extensive damage to, destruction of or loss of ecosystems(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished”. In this sense, ecocide would represent the most heinous of all international environmental crimes.
Alongside growing activist support, more states are expressing their approval for the promulgation of an international environmental crime. French President, Emmanuel Marcon, for example, has taken up the initiative and raised the possibility of incorporating ecocide into French domestic law in 2019. Belgian Minister of Foreign Affairs Sophie Wilmès issued a statement in favour of ecocide as the fifth Rome Statute crime in December 2020. This was the first time the idea was directly endorsed by a state government, a welcome development and another step towards the goal of an international oversight mechanism for cases of serious environmental harm. This endorsement was taken up by the European Parliament in 2021, which urges “the EU and the Member States to promote the recognition of ecocide as an international crime under the Rome Statute of the International Criminal Court.” Another famous supporter is Pope Francis, who has spoken of the “sins of ecology”.
The nexus between these two regimes of international law is evolving. International criminal and environmental law interact in many ways and on many levels. Similar to the connection between human rights law and international criminal law this interaction might help to establish a standard of environmental justice among other international courts and tribunals, strengthen institutional legitimacy, spur the development of international criminal law and international environmental law, and promote justice where there it might not otherwise be possible.
The interaction needs further harnessing and legal interpretation to grow further as a harmonised area of international law. To promote this interaction, an expert panel has been created with the aim of presenting a definition of ecocide as the fifth crime of the Rome Statute. This would establish a concrete and coherent link between both areas and might help to condemn the anthropogenic environmental (crime) crisis. Whether states buy into it will be another matter. There remains still a long and rocky path to go, but given the stakes, it is an essential road to travel.