- Article
Criminalising Catastrophe
Environmental Destruction and the Limits of International Criminal Law
Recent years have seen efforts to “green” international criminal law (‘ICL’). Among them are proposals to insert ecocide as a fifth core crime under the Rome Statute, and informal policies constructed by the Office of the Prosecutor (‘OTP’) to address environmental harm. However, a recent proposal has joined these efforts to add “environmental destruction” as a twelfth crime against humanity (‘CAH’) in the advanced International Convention to Prevent and Punish Crimes Against Humanity. CAH are enumerated acts under Article 7 of the Rome Statute, committed as part of a widespread or systematic attack directed against a civilian population.
In 2019, the International Law Commission (ILC) transmitted Draft Articles on Crimes against Humanity to the UN General Assembly’s Sixth Committee, recommending treaty negotiations. The International Union for Conservation of Nature (‘IUCN’) and International Law Association American Branch (‘ABILA’) propose the insertion of environmental destruction as a CAH as Draft Article 2(1)(k). The CAH convention attempts to establish a Rome Statute construction across the board for treatment of such crimes, by replicating the language under Article 7. The primary driver for a specialized treaty is the glaring global impunity gap. While the ICC prosecutes CAH on an individual criminal basis, it is an under-resourced ‘court of last resort’ capable of taking on very few cases. A separate CAH convention creates a horizontal duty for states to prevent and prosecute such crimes domestically, bypassing complex jurisdictional issues that often plague the ICC.
In this context, the following paragraphs seek to examine the IUCN and ABILA proposals, revealing that while normatively laudable, they face operational and structural barriers due to their Rome Statute foundation.
Doctrinal Barriers Under the Rome Statute
The closest thing to an ‘environmental crime’ before the ICC is Article 8(2)(b)(iv) which is the war crime of ‘disproportionate, widespread, long term and severe damage to the natural environment resulting from military attack’. Since an essential contextual element is the existence of and association with an international armed conflict, this provision cannot address any destruction occurring in times of peace. Additionally, under Article 6 (genocide), ‘inflicting conditions of life calculated to bring physical destruction’, requires a specific intent to destroy a racial, ethnic, national or religious group. This provision was invoked by the ICC’s Pre-Trial Chamber (‘PTC’) in the Al Bashir case, wherein the defendant was accused of poisoning sources of water as part of a larger genocidal policy. As a result, there is nosingularsuitable provision to prosecute environmental damage occurring outside an armed conflict or genocidal policy, on the pretext of economic development that may still inflict human suffering or inhumane conditions.
Due to the ‘catch-all’ phraseology of Article 7(1)(k), referring to “other inhumane acts of a similar character…”, most have argued that environmental destruction may be housed here. While the opening is real, it comes with formidable burdens.
Prosecuting a CAH case before the ICC entails demonstrating the contextual elements of Article 7 – a “widespread or systematic attack directed against any civilian population, with knowledge of the attack”. The <a href="https://www.cambridge.org/core/journals/international-and-comparative-law-quarterly/article/abs/mass-deforestation-as-a-crime-against-humanity/B25FAE18D2F8224005B78F18D767D6D8″ rel=”nofollow noopener” target=”_blank”>critical difficulty arises in identifying the primary target of the attack. Mining, logging, and other forms of extraction ostensibly target the environment as a means to a commercial end, rather than qualifying as conduct directed against civilians per se. The prevailing interpretation of ‘attack’, as demonstrated by the Katanga case, is that the civilian population must be the primary target and not an incidental one. In a restricted construction, one may argue that the human suffering following environmental destruction is tangential. In response, scholars have suggested reading Article 7 ‘attack’ and ‘knowledge’ requirements together. The latter is an additional, lower threshold mensrea requirement (distinct from the Article 30) wherein only the perpetrator’s broader awareness of the attack needs to be demonstrated. Knowledge of all details or the fact that the attack rises to the level of a crime under Article 7 is not required. This assessment is objective and takes place based on what can be reasonably inferred from circumstances. It is possible to argue that an attackagainst a particular environment may constituteone on its dependents, since the perpetrator has a broader awareness of the objective dependency through material factors.
However, this line of argumentation can appear convoluted since the perpetrator’s awareness of downstream consequence does not change the ‘direction’ requirement and the fundamentally anthropocentric nature of this crime. This structural conundrum is precisely why scholars of ecocide literature and the Stop EcocideFoundation’s2021 Independent Expert Panel seek to criminalise “unlawful or wanton acts” causing severe, widespread or long-term damage to the environment. The focus is ecocentric, and the advocacy for a freestanding core crime protecting the environment as an independent entity under the Rome Statute. However, these proposals have been historically resisted due to their radical nature, absence of an anthropocentric locus, and scholarly disagreement with their suitability for an international criminal regime.
Other difficulties include satisfying the ‘widespread or systematic’requirement. ‘Widespread’ in the CAH context, focuses on number of victims, and is not to be confused with the requirement under Article 8(2)(b)(iv), which has a spatial connotation). ‘Systematic’ denotes organised conduct in pursuance of a preconceived state or organisational policy. The ICTY Appeals Chamber has interpreted ‘systematic’ to mean non-accidental repetitions of similar criminal conduct on a regular basis. Many environmental harms resulting from development projects like deforestation, dam construction, setting up industrial units and such occur as singular, economically motivated events, making it difficult to prove a pattern or plan.
The organisational-policy requirement can become a serious obstacle when dealing with corporate actors, who are most likely perpetrators of environmental damage. At the institutional level, under Article 25(1), the ICC’s personal jurisdiction is strictly limited to natural persons, excluding corporate legal entities entirely from direct international criminal prosecution. Consequently, accountability before the ICC hinges on prosecuting individual corporate officials as natural persons. When seeking to establish that individual corporate officials acted pursuant to an ‘organisational policy’ under Article 7(2)(a), further legal hurdles arise. The PTC has indicated several illustrative criteria to determine if a private ‘organisation’ fulfils the requirement. These include whether the group has a command or hierarchy, possesses the means to carry out a widespread attack, controls parts of State territory, and whether its primary purpose is criminal activities against civilians. Furthermore, the Elements of Crimes require proof that the organisation “actively promoted or encouraged” the attack or deliberately failed to take action. It may be challenging to prove that a particular corporation is an ‘organisation’ in the face of restrictive interpretation that requires such an organisation to be ‘State-like’. Even if satisfied, the principal difficulty is establishing the existence of an organisational policy, and its connection to environmental destruction directed against a civilian population. This becomes particularly significant where the corporation’s primary objective is commercial rather than criminal, even when environmental destruction is a foreseeable consequence.
Specific Enumerated Crimes and MensRea
Attempting to fit ‘environmental destruction’ within existing Article 7 enumerated crimes such as murder, extermination, and other inhumane acts requires the satisfaction of mensrea under Article 30, in addition to Article 7’s chapeau knowledge requirement.
Article 30 specifies that, for result-crimes, the accused must either intend to cause the consequence or be “aware that it will occur in the ordinary course of events”. This standard is interpreted as requiring virtual certainty rather than mere likelihood. Ascertaining ‘consequences’ in the context of environmental damage is challenging due to their layered and time-staggered nature. The application of this standard to later consequences, (such as a heatwave-related death arising due to deforestation) would be practically impossible. For instance, the CAH provision for extermination, which is defined as “infliction of conditions of life […] calculated to bring about destruction of part of a population”, has been used as a framework of analysis for the burning of Rohingya homes and farmland. The primary challenge remains the mensrea requirement of showing that there was an intention of large-scale human suffering. Intentional destruction of environmental resources can meet this definition if accompanied by other acts that show a policy of extermination. However, other polluting activities and extractive destruction that occur for commercial purposes may not meet these requirements. On this basis, the consequences of such destruction are difficult to accommodate within the individual result-crimes under Article 7(1)(a)–(j). Even where awareness of the associated risks can be established, such awareness would demonstrate only a likelihood of harm to the civilian population, rather than the ‘virtual certainty’ required to establish the requisite result.
Article 7(1)(k), which prohibits “other inhumane acts of a similar character intentionally causing great suffering”, has attracted the most scholarly attention as a vehicle for environmental prosecution due to its residual formulation. Extensive scientific deliberations would be required to attribute specific acts of mining or extensive contamination of rivers and soil to serious physical injury. The PTC in Muthaura, Kenyatta and Ali observed that property destruction can, if sufficiently evidenced, constitute an ‘other inhumane act’. However, they ultimately declined to infer great suffering without specific evidence of resulting mental harm.
A more fundamental obstacle in this route of prosecution is the requirement that the underlying conduct under Article 7(1)(k) must be of similar character to the other crimes enumerated in Article 7(1), like murder, enslavement, torture, and rape. This creates a structural difficulty, due to the predominantly violent nature of conduct carried out directly on human bodies. ICTY and ICTR jurisprudence has interpreted ‘other inhumane act’ to include sexual and physical violence on dead bodies, forceful undressing, prostitution, beatings, and so on. Some environmental harmsmaymeet this standard, like human-ignited wildfires, gas leaks, and mining explosions that cause death or serious injury. However, ‘environmental destruction’ is a heterogeneouscategory, affecting people through extended causal chains, making it difficult to interpret it within a provision modelled on acute harm to identifiable victims.
This difficulty is wound up with a broader debate over whether, and how, environmental harm should be criminalised internationally given competing economic and developmental interests. Critics warn that thresholds based on weighing and balancing conducted by courts are indeterminate. Therefore, they are ill-suited to a criminal regime, where restricted construction and concrete prohibitions are the norm. These difficulties cannot be resolved by creative interpretation. Article 22(2) of the Rome Statute requires that the definition of a crime be strictly construed, and any ambiguity resolved in favour of the accused. This is reinforced by the principle of nullumcrimen sinelege in Article 22(1). Therefore, while a development rationale does not negate the inhumane character of an act, Article 7(1)(k) is poorly equipped to assess this aspect.
The present IUCN and ABILA proposals simply advocate to insert a twelfth CAH in the 2019 ILC Draft, which replicates Article 7’s language. Both attempt to criminalise “widespread, long lasting or severe damage to the environment […] as a means of harming any civilian population”. Read together, the proposals are symbolically significant by recognising systematic attacks on ecological systems as an anthropocentric atrocity rather than a regrettable externality of development policy.
The proposals would remove three sets of difficulties. An express enumerated act ends the exercise of fitting environmental harm into existing provisions. The convention operates through domestic criminalisation, and states may provide for the liability of corporations or legal persons under national law. Further, the convention does not carry over Article 30 ‘virtual certainty’ threshold, which made attribution of layered and time-staggered consequences impossible.
However, as has been argued, this significance is qualified by the vehicle chosen. Preservation of the chapeau means that the new act is still subject to the difficulties discussed above. These shortcomings follow from a framework that is built on an anthropocentric premise, which attempts to separate cleanly the ‘civilian population’ from the environment. The proposals are thus best understood as a significant but partial solution. Whether the contextual elements themselves should be adapted is a question the negotiations will need to confront.
RohiniMehta
Tags
Crimes against Humanity, Environment, International Criminal Court, International Criminal Law
