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Prosecuting Environmental Harm before the International Criminal Court, Matthew Gillett, CUP 2022, €110.87

… major adjustments to address environmental harm would provoke the fundamental question whether they constitute too great a departure from the Court’s conception, which is distinctly anthropocentric in orientation. Balancing human interests against environmental interests is a fraught exercise, particularly given that these interests frequently overlap and are inter-connected depending on the point of view of the person making the assessment. Nonetheless, the risk of environmental harm being ultimately de-prioritized in ICC proceedings would remain, even if amendments were made to the Rome Statute to add a form of environmental crime to the arsenal of prohibitions. (p. 337)

Sobering.

Tinkering with the Rome Statute to add more arrows in the International Criminal Court’s (ICC) prosecutorial quiver to combat serious environmental destruction seems simple, an elegantly attractive solution to an obvious although not entirely unintended lacuna. Also, query whether the tinkering could plausibly result in an ecocentric framework which would include, among other things, prosecuting corporations (not just individuals) and affording victim reparations beyond the expressed contours of the Rome Statute.

Considering what it took to include the crime of aggression, not to mention its lack of acceptance by all States Parties (opt-in /opt-out permutations), this is a virtual non-starter. And good luck finding consensus on defining ecocide and amending the Rome Statute to include lower standards of proof as argued by the proponents who find proof beyond reasonable excessively high for achieving desired convictions. Continue reading “BOOK REVIEW: Prosecuting Environmental Harm before the International Criminal Court, by Matthew Gillett”

Proving International Crimes, Yvonne McDermott, Oxford University Press 2024, 207 pages, £100.00

Fact-finding in the international criminal tribunals will always be probabilistic in nature, because the evidence is invariably incomplete, rarely conclusive, often ambiguous, frequently dissonant, and always with varying degrees of credibility and reliability.… Probabilistic reasoning often involves updating one’s prior beliefs in light of each new piece of information as it is presented. Under what is commonly called ‘relative plausibility theory’ or ‘inference to the best explanation,’ a fact-finder evaluates the different likely explanations of the evidence, and considers which of these explanations is most likely. (pp. 128-129)

If international criminal judgements cannot rigorously demonstrate the evidence and inference that led to particular conclusions … this could jeopardize their legitimacy and claim to authority to try and punish alleged perpetrators of international crimes. (p. 67)

A trial – reduced to its essence in so far as what a prosecutor or counsel can influence – is about having evidence admitted or excluded: getting good/favorable stuff in and keeping bad/unfavorable stuff out. The outcome rests on the evidence: what it is and how it was admitted, screened, assessed, connected, weighed, and applied to the law.

In national jurisdictions, how evidence is treated is ordinarily settled law and practice. All involved (judges, prosecutors, defence counsel, victims’ representatives) sing from the same music sheet. This cultivates uniform, consistent, and predictable procedure. Save for occasional deviations or lapses, criminal case resolutions at the appellate level are largely deemed just and accepted. If only judges at international criminal tribunals were as uniform and consistent and mindful and experienced and receptive to a set approach in admitting and assessing evidence.

With judges of different systems and disparate judicial experience (some don the judicial robe having no relevant experience), and with no detailed rules of evidence such as those found in common law traditions, and with no set approach on how evidence should be admitted, let alone assessed, how international criminal trials are conducted vary perceptibly, both procedurally and substantively. As such, it should come as no surprise that outcomes of trials at any of the international criminal tribunals are not always embraced as fair and just. Looking at some trial and appeal judgments and the attendant separate and dissenting opinion, one gets the sense that among the judges, to paraphrase from the classic film Cool Hand Luke:  What we’ve got here is failure to communicate. Continue reading “BOOK REVIEW: Proving International Crimes, by Yvonne McDermott”