This Tribunal will not be judged by the number of convictions which it enters, or by the speed with which it concludes the Completion Strategy which the Security Council has endorsed, but by the fairness of its trials.
ICTY Judge David Hunt
Nor will the International Criminal Court (ICC) be judged by the number of policies issued by its Office of the Prosecution (OTP), but by the quality and quantity of cases it resolves fairly and justly. Policy papers without tangible efforts and results are a pretense, a veneer, a charade that unrealistically raise expectations and inevitably disappoint.
Not to sound even more curmudgeonly than usual but I find little to nothing of substance in the OTP’s 18 December 2024 Draft Policy on Environmental Crime Under the Rome Statute that is not already baked into the cake: the Rome Statute, the OTP’s overarching remit, prosecutorial best practices, and dust-collecting idle policy papers spawning the past couple of decades.
The core crimes under the Rome Statute provide for the prosecution of environmental crimes. Former ICC Prosecutor Fatou Bensouda acknowledged this inescapable fair reading of the Rome Statute in her 15 September 2016 Policy Paper on Case Selection and Prioritisation. At the time, having found that policy paper “long overdue”, I pondered in ICC-OTP sets out its vision: a look at the horizon:
But what if anything can be forecast from the Policy Paper? What sort of cases should we expect to see investigated? Who might end up in the dock? The OTP receives plenty of requests but, as it rightly notes, it needs to be selective and prioritize among the situations and cases to be investigated and prosecuted. As non-committal as the Policy Paper is, there are some tea leaves worth reading:
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- The manner of commission of the crimes may be assessed in light of, inter alia, the means employed to execute the crime, the extent to which the crimes were systematic or resulted from a plan or organised policy or otherwise resulted from the abuse of power or official capacity, the existence of elements of particular cruelty, including the vulnerability of the victims, any motives involving discrimination held by the direct perpetrators of the crimes, the use of rape and other sexual or gender-based violence or crimes committed by means of, or resulting in, the destruction of the environment or of protected objects. (emphasis added)
- The impact of the crimes may be assessed in light of, inter alia, the increased vulnerability of victims, the terror subsequently instilled, or the social, economic and environmental damage inflicted on the affected communities. In this context, the Office 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. (emphasis added)
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There you have it. A policy that promises to prosecute environmental crimes. That was in 2016.
No such prosecutions have occurred to date. Perhaps there were no cases warranting prosecution. Perhaps in prioritizing which types of cases to prosecute and in rationalizing its budget, the OTP did not see much value in charging environmental crimes – either as standalone crimes or as part and parcel of other crimes. Whatever the explanation or excuse, it’s irrelevant.
The point I am driving at is that the OTP already had a policy. When read with other policies and the OTP’s overarching mandate prescribed by the Rome Statute, the 2016 Bensouda policy unabashedly informs and clearly articulates the OTP’s jurisdictional authority and fortitude to prosecute crimes involving the destruction of the environment.
No lengthy exegesis was necessary to state the obvious, the incontestable, the requisite. So why this “new” Khan policy? Can it be that the Bensouda policy lacks the specificity needed to identify crimes involving environmental destruction – which may explain the lack of such prosecutions? Hardly. The if only we had guidance from detailed policy excuse is no excuse – or as the folksy Americanism goes, that dog won’t hunt.
The Khan policy, for all the seeming detail – until you distill it to its nub and strip it of throat-clearing phrases and flourishing verbiage – is mere retread, masquerading as something innovative, visionary, and incomparable.
It seems that with the constant banging of the drums for an “ecocide” crime to be added to the Rome Statute (another one of those “if only we had ecocide on the books”), Prosecutor Khan may have felt compelled to articulate the OTP’s policy by drafting another policy and circulating it for comment. Perhaps this might bridge some gap between what exists under the Rome Statute and what the yet-to-be-adopted crime of “ecocide” promises. I have expressed my sentiments on “ecocide” as drafted and rolled out in my post: Ecocide: the environmental crime of crimes or ill-conceived concept?
I am all for exploring the contours of crimes against the environment, and if necessary, drafting discrete crimes which are beyond the ken of existing national and international jurisprudence. I just happen to think that the “ecocide” draft proposal was a mere point of departure for a serious debate, not the final product as peddled without inclusive consultation and without commentary, and that coining the term “ecocide” for crimes against the environment was gimmicky, even misleading.
I suspect there will be a deluge of comments from civil society, special interest groups, academics, environmentalists, and what have you, chiming in to add everything including the kitchen sink into the policy. Since policies tend to also express aspirational goals, why not. Perhaps this exercise is necessary. It certainly fosters the perception that something is finally being done, finally. We’ll see.
At 30 pages, the draft policy expounds on what is already long-standing policy. Cogently, it could be put in one page; maximum three. For instance, does the draft policy need to stress that the OTP is guided by the principles of due diligence and complementarity? Even the longwindedly expressed principle of intersectionality (para. 56) is a staple factor that goes without saying, though for the sake of outreach, there is merit in transparently spelling out much of what may not be understood or appreciated by the public, in particular, victims. Even so, what can succinctly be said in two or three lines is expanded verbosely in 12.
Perhaps I’m missing something. Perhaps the draft policy is revolutionary, indispensable, the panacea that has thus far been missing, hence why crimes against the environment were not or could not have been pursued since the founding of the ICC. Or perhaps, as I suspect, this is just one of those feel-good like chicken soup can’t hurt undertakings that makes for good press – that something is being done. Anyway, I leave it to you to decide the merits of the draft policy, and to ponder whether but for it, the OTP with Prosecutor Khan at the helm cannot successfully prosecute crimes that damage the environment as articulated by his predecessor eight years ago.
In the past couple of years, the OTP is more into churning out policy papers and holding splashy press conferences than investigating and prosecuting cases. Thus far, the current leadership of the OTP seems disengaged from the line prosecutors who toil in the trenches while their bosses are globetrotting to high-profile events, conferences, and policy-conceptualizing meetings. Some of it necessary but so is leading the charge from the front.
As laudatory as this this initiative may be, I offer this cautionary refrain to the OTP: concentrate on doing the job at hand, and waste time not on unnecessary promotional policy papers.
While I’m at it, let me also re-suggest that the OTP rethink its approach to investigating and prosecuting cases. Experienced and wise and meticulous heads of prosecuting offices do not start at the very top (and likely to make the biggest splash) but somewhere in the middle, working the case from below and above. This classical or traditional approach is slow, tedious, unglamorous. Yet, any seasoned prosecutor in party-driven adversarial procedures (such as the ICC) worth his/her salt knows this is the winning formula to eventually get to the top and successfully secure convictions. But then it goes back to my thesis of this post: is it about self-serving induced perceptions of doing something when doing little to nothing is being done or is it about rolling up the sleeves and delivering what the ICC was/is essentially set up for. Just some friendly advice from a career defence counsel.
Happy Holidays!
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