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.
The negotiators and drafters of the Rome Statute were aware of the various reasons militating against adopting a broad, overly inclusive crime to prosecute individuals causing or contributing to grave environmental destruction, whether in wartime or in peace time, whether during international or non-international armed conflict, whether intentional or incidental. No sudden epiphany or profound awakening since the adoption of the Rome Statute. The various proposals, scholarly papers, or the principles promoted by the Independent Expert Panel for the Legal Definition of Ecocide (IEP) (for my critique see here) were known, if not mused to some degree. And yes, the consequences for deliberately curtailing the scope, breadth and nature of the ICC’s jurisdiction when it came to prosecuting environmental crimes were well appreciated. In negotiating a treaty to establish a court with jurisdiction over the agreeing states – and others as well, a bone of contention of non-States Parties – reaching a consensus often requires sacrificing strongly held principles and coveted results.
But let’s face it, even under the ICC’s existing jurisdictional authority to prosecute environmental crimes – as former ICC Prosecutor Fatou Bensouda made clear in her 2016 Policy Paper on Case Selection and Prioritisation (see my take here) – the ICC Office of the Prosecutor (OTP) has demonstrated zero willingness to reach for, let alone pluck, even the lowest hanging fruit, opting instead for policy-drafting and platitudinal media-savvy rollout events.
Presented with a communication to open a situation proprio motu under Article 15 for alleged widespread and systematic land grabbing campaign and associated deforestation in Cambodia, resulting in crimes against a civilian population, including murder, forcible transfer of populations, illegal imprisonment, persecution, and other inhumane acts, to date, the OTP has done nothing. Cambodia is a State Party. The allegations, seemingly grounded in prima facie evidence, touch on environmental crimes, albeit tangential to the human rights violations. Which begs the question: should the OTP have made a modicum of effort to bring clarity and attention and forewarning for acts and conduct alleged in the communication, even if the communication proved to be jurisdictionally wanting?
Conceivably, the OTP had meritorious reasons for its uncommunicated inaction. Yet, the communication provided an exquisite opportunity for the OTP to prove its bona fides in tackling environmental crimes under its jurisdiction. It could have, for instance, conveyed the legal parameters and factual circumstances – as it understands them to be or to test the outer limits of them – that would trigger an earnest preliminary examination. The communication was an apropos opening – a hook to articulate transparently why the communication was not worth considering in view of Prosecutor Bensouda’s 2016 policy paper.
Delighting in issuing feel-good and expectation-raising policies, the OTP is more into making pronouncements and less into acting. While policy papers may lend clarity and focus, without concrete follow-up action, they come off as public relations gimmicks, masquerading as hollow declarations of prosecutorial success. For more on my thoughts on the recent OTP’s recent policy proposal see here.
Before I get to Dr. Matthew Gillett’s impressive and insightful gem Prosecuting Environmental Harm before the International Criminal Court, let me put a button on the issues I raised concerning the above communication. Gillette fittingly points to an example of similar circumstances where the African Court on Human and Peoples’ Rights dealt with human rights breaches by the Kenyan Government against the Mau Ogiek peoples, a community of about 20,000, who were given a thirty-day eviction notice to clear out from their ancestral lands (a form of forceable transfer) to accommodate logging concessions. See the postscript below on how such activity has the potential to unintentionally result in genocide.
While not directly on point concerning environmental crimes, these examples are instructive and cautionary, illustrating the reality, complexity, and (im)possibilities of prosecuting acts where environmental harm is alleged either as a crime or a contributing factor.
In Gillett’s own words:
In assessing the occurrence of displacement crimes through environmentally harmful activities such as illegal logging, a potential tension may arise with the development and economic interests of a State permitting or participating in these activities. The Court would face the exacting task of applying the provisions of the Rome Statute in such a manner as to take account of the potential legality of these acts as a matter of domestic law or non-criminal public international law. In this respect, the motivation behind the Government’s efforts (or similar entity behind the destruction) would be a key factor, as would the existence of any indications of bad faith, improper personal, or other corrupt motives or interest on the part of the authorities in supporting the environmental harm. (pp. 82-3)
Therein lies the rub. And perhaps why the OTP may have been fanciful (and continues to be) in claiming in Policy Paper on Case Selection and Prioritisation that it would “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.”(para. 41)
In Prosecuting Environmental Harm before the International Criminal Court, Gillet cuts the gordian knot. In six well developed chapters, he unravels and unveils and uncomplicates the various issues related to crafting a workable definition with implementational possibilities for expansive, inclusive, and realizable prosecutions for grave environmental harm.
The first chapter sets the groundwork, giving the reader a broad overview. Aside from defining key terms, Gillett devotes meaningful ink contextualizing environment harm and the various avenues available for “cosmopolitan justice” as he puts it.
The second chapter measuredly explains the inherent ICC jurisdictional limitations, namely, its anthropocentrically centered nature, and the limitations of Article 8(2)(b)(iv) applying only to international arm conflict, though also acknowledging (in line with what I was alluding in the vignettes above) that there are other crimes under the Rome Statute “that range from war crimes to crimes against humanity to genocide, which could be used to provide protection to the environment.”
The third chapter provides uncanny analysis with logical conclusions on the numerous fact-finding, procedural, and evidentiary issues at the ICC concerning environmental harm, effectively showing that even if the impracticability of amending the Rome Statue is surmounted (no mean feat), it would remain anthropocentric and inadequate.
The fourth chapter addresses victim participation and reparations. The fifth chapter examines three cases studies with an astute exposition on the available policy options, persuasively illustrating and contextualizing much of what was previously presented. The sixth and final chapter Gillett provides a lucid conclusion with perceptive and sensible recommendations.
Having dissected the various issues involved, efforts made, proposals offered, challenges identified, and limitations envisaged, with the ICC as the presumed and preferred vanguard to champion prosecutions of grave environmental harm, Gillett offers convincing reasons why “there are highly limited prospects for successfully prosecuting environmental harm under the current framework of international criminal law.” He suggests that the wisest option may be to establish an International Court for the Environment (ICE). To his credit, Gillett does not equivocate or obfuscate when recognizing and addressing the acute challenges to establishing an ICE – just as he did not when discussing the various proposals and permutations to amending the Rome Statute.
As he sees it, the ICE would not supplant the ICC. Rather, it would complement it, picking up the slack for crimes committed against the environment by individuals and corporate entities that are currently (and likely to remain) beyond the reach of the ICC – thus maximizing the jurisdictional contours. Its existence might also moderate the unceasing cascade of unworkable proposals for incorporating a crime of ecocide (anthropomorphically-limited as it would likely be) with varying standards of proof.
Gillett proposes his own definition for the ICC or the ICE or some other judicial institution to adopt. It is chimerical to imagine that the ICC States Parties would agree to considerable alterations to the Rome Statute and adopt, among other things, a lower standard of proof for an added core crime designed to encompass ecocentric crimes? Nonetheless, Gillett generously allows for this possibility, despite having convincingly shown the improbability of this occurring.
Establishing an ICE has merit. As does Gillett’s proposed definition of ecocide, though I would dump this beguiling but inexact moniker for something like crimes against the environment. Sagaciously, he provides the bases for the various elements he incorporates, much like a truncated commentary. Effectively, he coherently bundles much of what states have already agreed to through various international legal instruments. This added authority lends weight and acceptability for the substance, scope and validity of the proposed definition:
Proposed Definition of Ecocide
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- Ecocide means willfully committing any of the following acts and thereby causing severe damage to the natural environment that is also widespread or long-term:
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- killing, harming, or removing protected flora or fauna;
- destroying or damaging ecosystems or wild animal habitats;
- destroying or damaging natural heritage;
- trafficking or dumping hazardous substances;
- releasing, emitting, or introducing harmful quantities of substances or energy into the air, water, or soil;
- causing or contributing to the large-scale emissions of greenhouse gases or the destruction of greenhouse gas sinks or reservoirs;
- any other acts of a similar character, where those acts involve unsustainable harm to the natural environment.
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- Irrespective of whether it qualifies as any of the acts listed in paragraphs 1, conduct shall not be considered ecocide if it is both (a) strictly in accordance with international law, particularly international environmental law, and (b) authorized by a competent national authority.
- In order to fulfill the definition in paragraph 1, the damage to the natural environment must severe, while also being either widespread or long-term (or both). Consequently, in all cases the anticipated damage must be severe, but no one of the qualifiers can be significant enough on its own to satisfy the definition of ecocide. Moreover, the severe, widespread, and/or long-term nature of the harm may be established on the totality of the conduct at issue, which may include multiple underlying acts.
- The terms in paragraph 1 shall be interpreted in accordance with international law, particularly environmental law.
- Ecocide means willfully committing any of the following acts and thereby causing severe damage to the natural environment that is also widespread or long-term:
Gillett’s definition is grounded in solid authority. It makes for an exceptional point of departure for continuing efforts in crafting the most workable and acceptable definition that would garner the necessary support to comprehensively deal with grave environmental harm. I certainly find it more thought-out than the much celebrated (and criticized) definition (and attendant amendment proposals) offered by the IEP in their Commentary and Core Text roll-out pamphlet.
Granted, Gillett’s version is just as unsuitable for the ICC when considering the improbability of the States Parties agreeing to making significant alterations to the Rome Statute. And granted, the IEP’s proposed amendment Article 8 ter was tailored solely for the ICC. This may account for the brevity of the text and attendant comments on the necessary alterations needed to harmonize the Rome Statute with their proposal. Much praise is owed to the IEP. It elevating awareness and discussion and interest in dealing with grave environmental crimes beyond what the contours of the Rome Statute. Yet, as I’ve previously noted, I found the proposal half-baked. For instance, the mens rea for its proposed Article 8 ter was confusingly conflating and mixing different mental elements.
I agree with Gillett that if an ICE is established, it should by the UN Security Council, as the ad hoc tribunals were established. With a roster of highly qualified judges and a prosecuting office well equipped with the expertise to tackle complex cases of gross environmental harm, the mechanism template seems most promising. There are lots of possibilities, with Gillett providing considerable grist for the mill. Realistically, however, there is fat chance of anything being done under the current geopolitical environment.
As promising as an ICE seems, and while doing nothing is not a rational option, I am not optimistic. I predict more analysis-paralysis inertia and no appreciable action that results in deliverables. Some states that are signatories to many of the international instruments designed to protect the environment against gross harm may be amenable to becoming a state party to an ICE.
Considering how costly the ICC is and how little it has produced in concrete results (trials resulting in convictions), and how vulnerable it is to the whims and vicissitudes of State and non-States Parties (e.g., the looming US sanctions because of the Netanyahu and Gallant arrest warrants), the prospects of establishing a boutique international court dedicated to the environment in the foreseeable future are highly unlikely. Even if established, it would not have support from states whose citizens and corporate entities and policies are responsible for some of the gravest environmental harms – often encouraged and sponsored by their governmental policies, internal politics, and economic interests.
Gillett offers much to consider. His practical proposals – although not within immediate reach – are sound and valuable to the continuing search for a way forward in protecting our environment from grave harm. As Darryl Robinson elegantly reminds us in his brilliant post Ecocide: A Call to Discuss Some Hard Conundrums:
It is deeply uncomfortable to acknowledge that human survival entails environmental impacts, and this unfortunate fact certainly muddies the simplest prescriptions. But these complexities should not be avoided; the discussion will benefit from having many sharp minds ponder the challenges and how to address them.
For those advocating adding to the Rome Statute a crime against nature/environment, formulating other imaginative amending solutions to the existing text of ICC core crimes, proposing or searching for possible alternatives or just interested in learning about the possibilities and challenges to adjudicating serious environment harm under international criminal law, should carefully examine Gillett’s compelling scholarship.
I highly recommend Prosecuting Environmental Harm before the International Criminal Court.
Postscript
Thinking about grave environment harm, and hearing all the nonsense from anti-anthropogenic climate-change deniers, as I was reading this book, I was reminded of a passage from another excellent book which I also unreservedly recommend, A Short History of Philosophy, by Robert C. Solomon and Kathleen M. Higgins.
Drawing from sources as diverse as Native Americans and African belief systems and those of the ancient Greeks, the field of philosophy has discovered new kinds of problems, which has led, for example, to the development of environmental philosophy. Environmental philosophy is concerned with global problems of sustaining good life for the world’s people in the present while preserving enough of the planet’s resources to support the life (both human and nonhuman) of the future. Some philosophers within (and many outside) this movement have urged that humanity extend its senses of moral responsibility not only to the entire human population but animals as well. They advocate respect for animal rights and the adoption of political policies that reflect this respect. On an even larger scale, many “New Age” and other environmentally sensitive philosophers are pressing the importance of an all-embracing organic “Gaia” philosophy (from the Greek, for “earth”). Instead of conceiving of ourselves as isolated individuals, communities, or societies, instead of thinking of humanity as something distinct and “in dominion” over the creatures and resources of the earth, this philosophy insists that the world be considered as a living whole.
Worth ruminating over – a foreshadowing of how grave environmental harm (ecocide, if you prefer) can (un)intentionally lead to genocide. And not just in the realm of philosophy – this is what genocide studies scholars focusing on the colonial genocide of Indigenous peoples have written about in the past. Land and the environment are essential to a group’s identity and survival, understood in Indigenous worldviews as ‘kin-centric’ ecology – an interdependent view of the world where everything is a relative, forming a community with Indigenous peoples” (Enrique Salmon). Within Indigenous groups, there are sacred links between humans and their environment – rocks, plants, land, “equal, interconnected, mutually dependent, and embracing a sacred relationship with the world.” (Lisa Monchalin) Or as Blair Stonechild (Nêhiyaw-Saulteaux Knowledge Keeper) puts it, for many Indigenous people “all entities – whether animal, plant, reptile, insect, and even what others consider to be inanimate objects – have life, energy, and supernal significance” and as such are “purposeful beings in their own right.” For more on this, I highly recommend Genocide of Indigenous peoples in North America (David MacDonald), in Handbook of Genocide Studies (reviewed here).
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