two types of international liability:
a. civil liability: redress for damage suffered by victims, by holding states responsible [like echr]
b. criminal liability: v perpetrators of international crimes. victims cannot be parties, only can be witnesses
...thus, human rights courts/tribunals cannot replace the ICC jurisdiction against individual ecocide offenders
icc prosecutor’s office policy on its discretion in the selection/prioritisation of cases for investigation and prosecution….but the ICC prosecutor’s discretion is limited by the Rome Statute and the ICC Rules of Procedure and Evidence
<> cocoo to challenge icc prosecutor’s use of such discretion, on ground that failed to compl the romestatue and iccrulesprocevid.
Gravity is the predominant case selection criteria and is
embedded also into considerations of both the degree of responsibility
the goal of the Statute to combat impunity and prevent the
recurrence of violence, by combining the activities of the Court and nations
See Rule 45. Causing Serious Damage to the Natural Environment, ICRC
the ICC’s Preamble: ‘‘well-being of the world’’ , includes the
protection of the natural environment as one of the recognised protected values of
the Statute
Rule 43 clarifies that the international humanitarian law principles of distinction,
military necessity, and proportionality apply to attacks against the
natural environment resulting from military operations....Moreover, the destruction of the environment during hostilities in the absence of
any military objective, is criminal, just as the destruction of civilian
objects is criminal.
Yet even though serious environmental damage often accompanies armed conflicts , so far there have been very few prosecutions for
environmental damage since the Second World War......despite the serious environmental damage that are inflicted in the course of
armed conflicts, it is disappointing that Article 35 (3) of Additional Protocol I
has not been the subject of prosecutions in international tribunals
tribunal.60 Although those crimes which have an impact on one or
more States (including transboundary environmental crimes) ARE international crimes,
environmental crimes cannot be defined as international crimes because international criminal law
currently only recognises war crime, crimes against humanity, genocide, torture,
crimes of aggression, international terrorism and maritime piracy
- distinguish:
a. cross-boundary crimes:
egs: drug or human trafficking or illegal movement of hazardous waste,
b. international crimes (int.crime tribunal), such as the International Criminal Court,
the UN Security Council recognized in 2007 that climate change poses a threat to peace and security of
mankind. This view was shared by the Extinction Rebellion protest
group who have advocated recently for the ICC to play a role in
prosecuting climate change-related damage. Moreover, the Security
Council has recognised that attacks on the environment have consequences for
international peace and security.eg illegal fishing is not only an environmental concern, and should be
regarded as a maritime security concern of coastal states.
one of the challenges would be to establish the degree of [mens rea = the intention or
knowledge of wrongdoing/recklessness] to establish a crime of ecocide
accidental oil spills or nuclear accidents are not ecocides.
to prove an ecocide, most authors have argued that intention or recklessness would be required,
and that negligence and strict liability would be insufficient.
It is argued that the sheer harm caused by ecocide
justifies its application even during peacetime. In this vein, they have built the
case that peacetime ecocides should rise to the status of juscogens [=a peremptory norm],
similar to the prohibition on slavery, or the general prohibition on the use of force...
causing severe environmental harm should lead to the breach of an erga omnes duty of care arising from
international environmental law and human rights obligations and so
to the commission of an international delict
If the rationale for criminalisation at the international level based
on the seriousness of the harm or threat of harm to the environment
is correct, then some of the most serious incidents of environmental
damage could amount to acts of ‘‘ecocide’’...eg: the state failure to prevent a nuclear accident,
, significant oil spills, or a major industrial accident
when indigenous peoples are subject to serious human
rights violations, including dispossession and grabbing of their lands
and natural resources and the causing of environmental damage in
their lands, it is very likely that the high threshold for establishment
of an international crime of ecocide (or ‘‘ethnocide’’) would be met....
Yet, not every human right violation constitute an international crime.....
so human rights abuses [against indigenous peoples] are not necessarily international crimes
egs of recognised PEs [PEACETIME ecocides]: nited Nations Environment Programme’s (UNEP):
‘‘The State of Knowledge of Crimes that have Serious Impacts on the Environment’’ 2018...EGS:
-wildlife crime is a particularly persistent problem in Africa, Asia and
Latin America, where all kinds of species – mammals, birdlife, reptiles and amphibians, insects, and plants
-North America, and the European Union are common destinations for wildlife trafficking,
-the Gulf countries, for illegal charcoal and illegal gold from African countries
- countries in Asia are increasingly becoming major consumer markets of a wide
range of illegal wildlife resources and products including rare highly
valuable wood like rosewood
-the 600 tons of caustic soda and petroleum residues dumped in
open-air public waste sites in Abidjan, Ivory Coast, in August
2006
the difficulties in identifying and assigning
liability to individual offenders, is a very strong argument for a a change in law or policies,
to more easily assign State liability for environmental damage in the civil sphere to complement
the mechanisms under international criminal law for assigning individual criminal liability
<> cocoo will challenge govs' decisions not to change law/policies so that they can be more easily liable.
...specially the 9ANs.
the UN Committee on Economic, Social and Cultural Rights uncesc, regarded
the contamination of the areas inhabited by people by various toxic
wastes as a violation of fundamental social and economic rights.
case: Oneryildiz v Turkey: the European Court of Human Rights
established criminal offences for loss of life involving the disposal or treatment of hazardous waste.
case: M.C. v. Bulgaria: 2003, the Echr held that ‘‘effective protection against rape and sexual abuse requires
measures of a criminal-law nature
***growing cross-fertilization between human rights and the international criminal justice system
- prosecutions for incitement to genocide and hate speech as a crime against humanity at the International Criminal Tribunal for Rwanda raised
difficult issues concerning the scope of freedom of expression....intrusion in the freedom of the media.
-case: Center for Economic and Social Rights v Nigeria , before the African
Commission on Human Rights, concerned the negative health and
environmental impacts of oil exploration in Ogoniland due to the
contamination of water on indigenous land with lead and mercury
affecting community health, particularly that of the children. Nigeria
was found to have violated several articles of the African Charter and
the African Commission called on the government to ensure protection
of the environment, health and livelihood of the Ogoni people
Moreover, the Commission called for the compensation to victims of
human rights violations, and undertaking Comprehensive CleanUp Of Lands And Rivers Damaged By Oil Operators.
Yet the jurisdiction of international and regional human rights courts and tribunals is often
limited to a certain region or in scope – providing remedies against
the State rather than establishing individual (criminal) responsibility
– and States are not concerned with international criminal justice for serious environmental damage or illegal natural
resources exploitation
LIMITS OF ICC JURISDICTION OVER SERIOUS ENVIRONMENTAL DAMAGE, ILLEGAL NATURAL RESOURCE EXPLOITATION
AND LAND GRABBING
The ‘‘Environmental’’ War Crime Under the ICC Statute:
The war crime under Article 8(2)(b)(iv) of the ICC Statute:
requires an international attack with the knowledge that it would cause ‘‘widespread,
long-term and severe damage to the environment which would be
clearly excessive in relation to the concrete and direct overall military
advantage anticipated
it mirrors Article 20 (g) of the ILC Code of Offences against Peace and Security
Although the ICC statute does not define ‘‘damage to the environment,’’
Does the illegal exploitation of natural
resources in conflict situations (such as illegal logging or the
destruction and trafficking of endangered species) could amount to
‘‘pillage’’ and therefore to a war crime under Article 8 (2) (b) (xvi) ??
there are proven interconnections between the exploitation of natural
resources and armed conflicts, including in the contexts of the conflicts in Sierra Leone and the Democratic Republic of Congo
In the more recent ICC Trial Chamber case, Bosco Ntaganda was found guilty of 18
counts of war crimes and crimes against humanity committed in the
Democratic Republic of Congo in 2002–2003.156 In the proceedings it
was alleged that the UPC (Union Patriotic Congolose) entered into
agreements with private companies providing for exploitation of
natural resources in the territory under its control, in exchange for
payment. In fact, Ntaganda was not charged with
pillage of natural resources but that the UPC entered into agreements with private companies for the exploitation of natural resources
-in the Bemba case the icc Trial Chamber found the MLC soldiers committed the war crime of pillaging
throughout the 2002–2003
the Appeals Chamber found errors in the judgment and reversed all charges against the defendant
for war crimes and crimes against humanity... And as with the
Ntaganda case, Bemba was not charged for pillaging natural resources but for pillaging a number of goods and appliances such as
household items (such as furniture), business supplies, tools, money, vehicles and/or livestock
because icc statute: Article 8 (2)(b)(iv) and Article 8 (2) (b) (xvi) only apply
in cases where environmental damage occurs in the course of an
international conflict, they preclude cases where environmental damage occurs during peacetime
or in the course of domestic conflict
illegal natural resources exploitation and land grabbing to be prosecuted under the existing crimes
listed in Article 5 of the Rome Statute if within crimes of genocide and crimes against
humanity. .....so, the only other possible avenues for prosecution of environmental damage before the ICC would be in the
context of war crimes, genocide and crimes against humanity.
Like genocide, crimes against humanity do not need to occur in the context of an armed
conflict.
The Rome Statute defines crimes against humanity CAH:
‘‘widespread or systematic attack against any civilian population, with knowledge of the attack’’ and
includes murder, extermination, ‘‘or other inhumane acts intentionally causing great suffering or serious injury to body
or to mental or physical health,’ which could include for example: water contamination caused to kill a civilian population.
But to what extent could environmental damage, be a cah under the Rome Statute?
Article 7 (1) (k) of the Rome Statute says that only an attack to the environment that endangers human health, may be a CAH....thus,
when the continuous and foreseeable result of the extraction, produces severe environmental damage which kills local
populations, a policy to continue such extraction is a policy to carry out attacks against a civilian population. eg. indiginous in amazon.
According to Article 7 (2) (a) of the Rome State, this act must be ‘‘a State or organizational policy’’ to commit such attack.
The policy does not need to emanate from the State – non-State actors or private individuals who exercise de facto power can constitute the
entity behind such policy....eg. when a pipeline operated by Texaco Petroleum Company / Chevron in Ecuador continuously
discharged millions of gallons of toxic waste and oil over a period of twenty years, causing damage to the environment and indigenous
people...Texaco / Chevron started its oil extraction in Ecuador since 1964 and was only forced to cancel all operations in 1993.
The indigenous groups that inhabited the Ecuadorian Amazon region have been
deeply affected. A Communication representing several victims (the ÔLago Agrio Victims’ request’’) was brought before the ICC
prosecutor in October 2014, arguing that it as CAH under Article 7 of the Rome Statute, but that communication was dismissed
by the ICC prosecutor in 2015 based on evidentiary grounds.
A similar fate is looking set to happen to a Communication brought by Global Diligence LLP on behalf of the victims (‘‘Filing
Victims’’) before the OTP in October 2014. The Communication alleged that widespread and systematic large-scale land grabbing
conducted by the Cambodian ruling elite since 2000 by way of illegally seizing and re-allocating millions of hectares of valuable land
(and leading to the displacement of over 60,000 victims) for exploitation or speculation by its members and foreign investors
amounted to CAH as defined under Article 7 of the ICC Statute. The Communication alleges that the land grabbings amounted
to a ‘‘deportation or forcible transfer of the population’’ which is defined in the Rome Statute as the ‘‘forced displacement
of the persons concerned by expulsion or other coercive acts from the area that they are lawfully present, without grounds permitted
under international law.’’
land disputes in Cambodia had been highlighted previously by the UN Special Rapporteur on Cambodia....
However, to date no preliminary examinations have been initiated by the ICC prosecutor
<> cocoo will look at un special rapporteur reports...as a source for new cases
However, since the Cambodian government’s economic policy was
driven by the interests of foreign investors, the forced evictions may not amount to a ‘‘State or
organizational policy’’ as required under Article 7 (1) of the ICC Statute, and this may help to explain the reluctance of the OTP to allow the claim.
defining international environmental crimes as crimes against humanity has more chances to win, than under genocide
....the ability of the OTP to prosecute crimes against humanity cannot be using recklessness, because recklessness is not within the jurisdiction of the court.’’
-Another significant limitation of classifying environmental offences as genocide (or as CAH), is that these crimes require a
specific result (e.g. ‘‘killing members of the group’’), but not harm to environment or human health
-precedent in the ICC’s own practice: the Pre-Trial Chamber found a nexus between
the underlying environmental harm (water contamination) and the crime of genocide
-the main limitation is that the prohibited acts of ‘‘ecocide’’ would amount to a serious crimes against persons, committed
through environmental means......
icc should have a 'crime against the environment' but it does not... and also should have criminal liability of firms for international crimes,
but it does not....direct corporate accountability would necessitate an amendment to art 25 of the ICC Statute, which gives the ICC authority only over human actors
<> cocoo will claim that icc is failing to create such crime typology, and the amendment to art 25 icc.
- the icc 2016 OTP Policy Paper may encourage the prosecution of firms ceos
<> cocoo v firms/banks ceos...claiming corporate ‘‘aiding and abetting’’ v. firms/bank ceos,
for funding or directly violationing, international criminal law.
Under the ‘principles on protection of the environment in relation to armed conflicts, ’’:
- Principle 10 on ‘‘Corporate Due Diligence’’: States should take appropriate legislative and other
measures to ensure that their firms, exercise due diligence with respect to the protection of the environment, including in relation to
human health, when acting in an area of armed conflict, or in a postarmed conflict situation.
-Principle 11: States must ‘‘take appropriate legislative and other measures aimed at ensuring
that their firms can be held liable for harm caused to the environment, including in relation to human health, in an area of
armed conflict or in a post-armed conflict situation.’’
<> cocoo will claim v SNs for their failure to make and implement laws, as per principle 10 and 11....and v
because most SNs failure to make/enforce such laws, the accountability of corporations
should be recognized under the ICC Statute...but is not, because, as not all legal systems recognise the criminal liability of corporations
, it would be challenging for the ICC Statute to reconcile those differences in SNs' assignment of criminal responsibility to corps/banks.
