PART 1
A. Introduction
In the tumult of war and grave international crimes, the environment often becomes an unassuming casualty, suffering silently amidst the chaos of conflict. Deliberate acts of environmental destruction, whether through deforestation, pollution, or the poisoning of water sources, can have devastating consequences that reverberate long after the guns fall silent and the perpetrators have left.
As the world grapples with the enduring consequences of environmental degradation resulting from conflicts and international crimes, the International Criminal Court’s (ICC) Prosecutor, Mr. Karim A.A. Khan KC, has taken a proactive step by launching a new policy initiative aimed at addressing environmental crimes that will culminate in a comprehensive policy paper (the ‘Policy Paper’). The aim is to create a systematic approach to dealing with crimes under the ICC’s jurisdiction that involve environmental damage. The announcement of this initiative was followed by an invitation for comments and input from stakeholders on the following issues:
- What specific crimes within the Court’s jurisdiction should be included in the policy paper?
- How should the Court understand and apply the applicable modes of participation in those crimes
- What are the best practices for investigating and prosecuting crimes that can be committed by means of or that result in environmental damage?
- How should the Court consider environmental crimes when putting into practice the principle of complementarity and engaging in international cooperation?
Recognising the significance of the issue , on 15 March 2024, members of the Asian Society of International Law, International Environmental Law Interest Group (IELIG) submitted their Early Comments to the ICC Prosecutor’s Policy Paper on Environmental Crimes (the ‘Early Comments’).
B. What Specific Crimes within the Court’s Jurisdiction should be Included in the Policy Paper?
In the Early Comments, it was recognised that the Rome Statute, designed to address grave international crimes, extends its protective reach to environmental concerns, both directly and indirectly. Direct safeguards are explicitly outlined in Article 8(2)(b)(iv), condemning acts that knowingly initiate attacks causing severe and disproportionate harm to the environment. Indirect protection is conferred through property rights provisions, labeling unwarranted destruction or appropriation as “pillage” (Article 8(2)(a)(iv)), and defining destruction or seizure of enemy property, unless absolutely necessary for military purposes, as grave violations (Article 8(2)(b)(xiii)).
Notably, looking at the jurisprudence from the International Court of Justice (ICJ), in the case of Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), the ICJ affirmed Uganda’s international responsibility for actions by its military personnel which included looting, plundering, and resource exploitation in the Congolese territory – conduct which violated the principles of jus in bello.
With further reference to prominent multilateral treaties governing the protection of the environment and building upon the foundation of the Rome Statute (Articles 8(2)(b)(iv), 8(2)(a)(iv) and 8(2)(b)(xiii)), it was proposed that the Policy Paper should address the crimes of:
- killing, harming, or removing protected flora or fauna;
- destroying or damaging ecosystems or wild animal habitats significantly/ on a large scale;
- 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 destruction of greenhouse gas sinks or reservoirs; and
- causing or contributing leakage of genetic or biological materials, leading to significant harm to genetic diversity and biosafety.
Beyond war crimes, emphasis was also placed on Article 6(b) of the Rome Statute which prohibits acts causing serious bodily or mental harm through environmental strategies, a crucial aspect in considering genocide charges. Examples, like the Bhopal Gas Tragedy and the Flint Water Crisis, demonstrate the disproportionate impact of environmental contamination on marginalised communities, a cause to raise genocide scrutiny under international law.
Additionally, Article 7 of the Rome Statute addresses crimes against humanity, encompassing environmental elements. Large-scale deforestation, land grabbing, and environmental pollution resulting in forced displacement align with the Statute’s definition of crimes against humanity, emphasising the interconnectedness of environmental harm and human rights violations. In cases like the Rohingya crisis and the Cambodian land grab crisis, environmental tactics alongside severe measures underscore the potential for ICC investigations into crimes against humanity orchestrated by states or corporate entities.
Consequently, the Policy Paper must consider the accountability of individuals within corporations for crimes against humanity, particularly those wielding authority and complicit in orchestrating such offenses. The interconnectedness of environmental degradation, human suffering, and systemic violations necessitates a holistic approach to legal frameworks, where environmental protection is integrated into the fabric of international justice.
C. How Should the Court Understand and Apply the Applicable Modes of Participation in Those Crimes?
In further advancing the above point on accountability of individuals within corporations for crimes against humanity, the Early Comments underscored the importance of a comprehensive examination of the most applicable forms of participation within the legal framework of the ICC. Specifically, it suggests considering two primary modes of liability: co-perpetration and complicity (Article 25 of the Rome Statute).
The critical aspect of co-perpetration is that the contribution must be significant and directly related to the commission of the offence. It is essential for the Policy Paper to outline clear guidelines for identifying acts that result in environmental damage and determining the extent of individuals’ contributions to these acts.
The Policy Paper should also address secondary modes of liability in Article 25(3)(c) and 25(3)(d) of the Rome Statute. Article 25(3)(c) includes aiding and abetting, which entails individuals carrying out acts or omissions with the purpose of facilitating the commission of a crime, thereby encouraging or supporting the principal offence. On the other hand, Article 25(3)(d) implies that individuals can be held accountable for their involvement in activities that contribute to criminal conduct, even if they did not directly commit the primary offence.
By clarifying the criteria for liability under co-perpetration and complicity, the Policy Paper can provide valuable guidance for prosecuting environmental crimes that fall within the ICC’s jurisdiction.
PART 2
A. What are the Best Practices for Investigating and Prosecuting Crimes that can be Committed by Means of or that Result in Environmental Damage?
The Early Comments delve into some of the best practices to be considered under two broad headings – Preliminary Examination and Investigation. Under the latter portion, emphasis was placed on in situ materials and witness testimony.
I. Preliminary Examination
The initial stage of the ICC’s involvement in a situation entails a preliminary examination by the Prosecutor. This phase aims to determine if there is a “reasonable basis to believe” a crime within the Court’s jurisdiction has occurred, signaling the need for a formal investigation (Article 53(1) of the Rome Statute).
The Policy Paper should address the Preliminary Examination procedure concerning environmental harm, as it crucially shapes subsequent investigations. Firstly, crimes identified during this phase influence the direction of the probe. Incorporating environmental harm early predisposes it to be included in eventual charges against a Defendant. Secondly, data collected during these examinations, sourced from entities like United Nations Environment Programme (UNEP) and the International Criminal Police Organization (INTERPOL), informs the extent and severity of environmental damage and potential criminality.
Given the complexity of environmental damage, entities involved in preliminary examinations are likely to continue providing information throughout the investigation. This ongoing data exchange enhances the Prosecutor’s understanding of the harm’s nature and origins, bridging the preliminary examination and investigation phases.
II. Investigation
During the investigative stage, the Prosecutor gathers evidence to meet the confirmation of charges standard, requiring “sufficient evidence demonstrating substantial grounds to believe” the accused committed crimes under the ICC’s jurisdiction (Article 61(7) of the Rome Statute).
The Policy Paper should address operational initiatives needed for environmental damage investigations, which are largely scientific and technical. This requires forming investigative teams with relevant expertise and utilising scientific laboratories to substantiate cases. Despite the investment of time and resources, this adaptation is crucial for the Court to effectively address environmental harm.
In this regard, there are two sources of information that are indispensable when investigating environmental crimes:
i. In Situ Materials
The Prosecutor’s ability to conduct on-site investigations is crucial for gathering evidence. In cases of environmental harm, samples from the site are essential for determining the extent of damage. International investigations face challenges like accessing crime scenes and preserving evidence. The Policy Paper should address guidelines for efficient on-site investigations to prevent evidence tampering. Utilising protocols for expedited evidence collection is vital. Additionally, establishing an emergency response task force can help address severe environmental damage promptly while preserving evidence.
ii. Witness Testimony
Witness testimony is crucial for prosecuting environmentally harmful acts, but unique practical considerations arise in environmental crimes. Given the complexity of these crimes, multiple witnesses may be needed, such as those observing wildlife trafficking or financial transactions. Testimony may also establish broader contextual elements for crimes against humanity. The inclusion of fact witnesses alongside experts may result in a considerable number of witnesses, impacting investigation efficiency. To ensure timely trial completion, a shift from a witness-centric to a document-centered approach was proposed in the Early Comments, similar to civil trials. The Policy Paper should address these considerations to streamline investigations and proceedings concerning environmental harm.
B. How Should the Court Consider Environmental Crimes when Putting into Practice the Principle of Complementarity and Engaging in International Cooperation?
In the Early Comments, it was emphasised that efforts to bolster legal recourse for environmental harm under the ICC should prioritise the principle of complementarity. This principle allows for coordination and collaboration between the ICC and domestic jurisdictions to prevent overlapping or conflicting investigations and prosecutions. Reference was made to the past Prosecutor’s statement (2016) of the willingness to cooperate with states on crimes like illegal exploitation of natural resources, emphasising collaboration on environmental issues.
Counteractive measures, including evidence collection and legal proceedings, may arise, alongside concerns such as witness protection and double jeopardy. To address these challenges and implement best practices, the ICC should adopt key suggestions from its 2023 draft policy on complementarity and cooperation.
The suggestions include establishing a Community of Practice to enhance understanding and collaboration with national authorities, embedding operations within local contexts to build trust and deepen ties with affected communities, and leveraging technology to efficiently handle vast amounts of data. Additionally, cooperation mechanisms should be enhanced through engagement with international and regional organisations.
Policies should recognise that regional approaches can complement international efforts, aligning with the principle of complementarity. Acknowledging regional efforts in the Policy Paper can enhance effectiveness in combating environmental destruction, emphasising concurrent regional and international approaches.
C. Conclusion
The world confronts an escalating threat of environmental degradation, occurring both in times of conflict and in periods of peace. It is imperative to explore innovative approaches to confront and mitigate severe environmental damage, aligning with the international community’s commitment to combat environmental harm. While it represents just one aspect of a
comprehensive strategy encompassing various political, legal, and social measures, the ICC presents a potential avenue for holding perpetrators of significant environmental harm accountable and deterring future offenders.
The present initiative by the Prosecutor has the potential to bring significant developments for International Environmental Law, for three primary reasons:
- due to the absence of specialised international courts dedicated to Environmental Law;
- the access of non-state actors, whether as plaintiffs or defendants, to existing international courts that deal with environmental matters in a non-exclusive manner, remains largely restricted; and
- it underscores the crucial importance of recognising international environmental protection as a shared concern of humanity, representing a cornerstone of fundamental values essential for societal cohesion.
The ICC’s announcement marks a notable advancement on all three fronts. As such, the IELIG remains committed to supporting this initiative in any way possible.
Author
Subash Jai Devaraj holds a Bachelor of Laws (LLB) from the University of London. Having taken an interest in the field of Public International Law, he is currently pursuing his Master of Laws (LLM) in International Law with the International Islamic University of Malaysia (IIUM). Subash is currently employed with the Malaysian Bar Council Secretariat as a Law, Policy and Special Projects Officer. His past employment and portfolio of duties include, an Analyst and Writer with the United Nations Development Programme (UNDP), internship with the Federal Court of Malaysia, paralegal to the lead Defense Counsel of Mr. Jakup Krasniqi before the Kosovo Specialist Chambers, ad hoc policy and legal research engagements.
The author expresses his gratitude to the following contributors of the Early Comments to the International Criminal Court (ICC) Prosecutor’s Policy Paper on Environmental Crimes:
1. Mostafa Naser 2. Amiel Ian Valdez 3. Jin Gu 4. Luciana Maulida 5. Stellina Jolly 6. SeungPyo (Espée) Hong 7. Tetsuya Toyoda 8. Zhang Qiyue
