Ius Gentium

University of Baltimore School of Law's Center for International and Comparative Law Fellows discuss international and comparative legal issues


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Shifting Focus: The ICC looks to Prosecute Environmental Crimes

Jasmine Pope

The International Criminal Court (ICC) was created as a result of the Rome Statute. The ICC was not set up to replace domestic court systems. Instead, the ICC serves to complement domestic criminal systems, only prosecuting cases when States, countries that are party to the Rome Statute, are unable or unwilling to do so.[i]

What does the ICC do? How does it work?

The Rome Statute grants the ICC jurisdiction over four crimes: genocide, crimes against humanity, war crimes, and crimes of aggression.[ii] Genocide requires “specific intent to destroy in whole or in part a national, ethnic, racial or religious group by killing its members or by other means.”[iii] Examples of genocide include the Rwandan Genocide, the Holocaust, and the Situation in Darfur. The ICC prosecutes fifteen forms of crimes against humanity, including sexual slavery, murder, enforced disappearances, apartheid, rape, and murder, which are “serious violations committed as part of a large-scale attack against any civilian population.”[iv] War crimes are considered to be violations of the Geneva conventions. Crimes of aggression are the “use of armed force by a State against the sovereignty, integrity or independence of another State.”[v] The ICC only prosecutes individuals that commit any of the crimes over which it has jurisdiction. The ICC does not prosecute States.

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A Landmark Policy Decision

On Thursday, September 15, 2016, the ICC made a huge announcement. The ICC will broaden its focus to include environmental crimes.[vi] In the policy paper published by the Office of the Prosecutor (OTP) of the ICC, the OTP stated that “the Office will seek to cooperate and provide assistance to States, upon request, with respect to conduct which constitutes a serious crime under national law, such as the illegal exploitation of natural resources, arms, trafficking, human terrorism, financial crimes, land grabbing or the destruction of the environment.”[vii] This is a big deal. For decades, the scientific community and activists have talked about climate and environmental change. But let’s be clear here: the ICC is not expanding its jurisdiction—it is simply assessing existing offences in a much broader context.[viii]

Environmental destruction and environmental issues have been a hot topic in recent years. Environmental issues and concerns deal with more than just cutting down trees in rainforests, since so much of our environment is affected by our daily actions. But it goes beyond the rainforest. Many of the situations currently under investigation by the ICC, where crimes against humanity and war crimes were committed, destruction of the environment is also an element. Warlords do not just magically come into a town or village, kill a few people, and then move on. No, they destroy the towns they come across. It is even possible that the actions of Royal Dutch Petroleum in the Niger Delta could be investigated by the ICC through their now broadened scope of jurisdiction.

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While the ICC usually prosecutes warlords, this decision opens the door for business executives, government officials, and heads of corporations to face the music, so to speak. No more outsourcing work to poor, undeveloped nations without a second thought as to the environmental consequences. The ICC can now start “holding corporate executives accountable for large-scale land grabbing and massive displacement happening during peace time.”[ix]

What Does it all Mean?

Can the ICC not only talk the talk: can it also walk the walk? That is the billion-dollar question. Instances of land-grabbing have plagued the world for decades, particularly in Africa, and in underdeveloped nations in Asia. Land grabbing deals with large-scale land acquisitions by governments and individuals, as well as domestic and international companies.[x] While land grabbing itself may not be a crime that the ICC can prosecute, the consequences of land-grabbing falls under the realm of crimes against humanity that the ICC can prosecute.

The international community is already speculating that Cambodia is the perfect place for the ICC to shift its focus.[xi] International lawyer with the international criminal law firm Global Diligence, Richard Rogers, has already filed a case with the ICC on behalf of ten Cambodian citizens. The complaint alleges that the country’s ruling elite “including government and military, has perpetuated mass rights violations since 2002 in pursuit of wealth and power by grabbing land and forcibly evicting up to 350,000 people.”[xii] If the ICC does choose to investigate the situation in Cambodia, it will be interesting to see who the ICC files charges against as having committed crimes against humanity. Does the ICC look to charge governmental officials? Does the ICC look to charge business executives? Who will the ICC deem responsible for the situation in Cambodia if they find they have jurisdiction?

 

This new expanding view of the ICC could open the door to prosecutions over climate change, in addition to land grabbing.[xiii]According to an ICC member who worked on the policy document, this decision allows for the ICC to “[exercise its] jurisdiction by looking at the context in which crimes are committed.”[xiv] Companies, government officials, business executives, and individuals must now think long and hard about their activities in certain countries, i.e. those that are party to and have accepted the jurisdiction the ICC. The ICC is watching, and so is the rest of the world.

Jasmine Pope is a second year law student at the University of Baltimore. She graduated from Towson University in 2015 with a Bachelor of Science in Political Science, with a minor in History. Jasmine is extremely interested in and passionate about international human rights, particular the rights of women and children. She also participated in the Summer Study Abroad Program in Aberdeen, Scotland. She has also studied abroad in Benalmádena, Spain. Currently, she serves as the Secretary for the International Law Society. Jasmine is currently a member of the Inter-American Human Rights Moot Court Team. Jasmine is also a Staff Editor for the Journal of International Law and works for the Law Office of Hayley Tamburello.

[i] https://www.icc-cpi.int/about/how-the-court-works.

[ii] Id.

[iii] Id.

[iv] Id.

[v] Id.

[vi] Brittany Felder, “ICC to focus on environmental crimes”, Jurist, September 16, 2016, http://www.jurist.org/paperchase/2016/09/icc-to-focus-on-environmental-crimes.php.

[vii] https://www.icc-cpi.int/itemsDocuments/20160915_OTP-Policy_Case-Selection_Eng.pdf.

[viii] John Vidal and Owen Bowcott, “ICC widens remit to include environmental destruction cases,” The Guardian, September 15, 2016, https://www.theguardian.com/global/2016/sep/15/hague-court-widens-remit-to-include-environmental-destruction-cases.

[ix] Chris Arsenault, “International court to prosecute environmental crimes in major shift,” Reuters, September 15, 2016, http://www.reuters.com/article/us-global-landrights-icc-idUSKCN11L2F9.

[x] Stop Africa Land Grab, http://www.stopafricalandgrab.com/.

[xi] Vidal and Bowcott, https://www.theguardian.com/global/2016/sep/15/hague-court-widens-remit-to-include-environmental-destruction-cases.

[xii] Id.

[xiii] Id.

[xiv] Id.

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