ICC to focus on environmental crimes: a landmark move for International Environmental Law

Alessandra Lehmen*

Last Thursday, September 15, 2016, the International Criminal Court announced it will work to prosecute and adjudicate environmental crimes. In an 18-page policy paper setting out guidelines for the selection and prioritization of cases for investigation and prosecution,[1] the Office of the Prosecutor stated it will give particular consideration to crimes involving the destruction of the environment, the illegal exploitation of natural resources, or the illegal dispossession of land.

This is exciting news for International Environmental Law, for three main reasons: first, because there are currently no international courts with special jurisdiction in Environmental Law; second, because the access of non-state actors - either as plaintiffs or defendants - to existing international courts that address environmental issues non-exclusively is still significantly limited; and third, because it is vital that the international protection of the environment is understood as a common concern of humanity,[2] that is, as part of a set of fundamental values upon which the cohesion of society depends.

The ICC announcement is an important step forward in these three fronts. In accordance with the Rome Statute, the court has a mandate to prosecute and try crimes of genocide, crimes against humanity, war crimes, and, depending on ratification, crimes of aggression. The expansion of its focus to include environmental crimes among prioritized cases signals that the international community will be able to rely on a permanent international court to try, albeit non-exclusively, environmental crimes.

The court mandate to prosecute and try individuals is also noteworthy, as well the fact that, under the Rome Statute, prosecution may be initiated by “a decision of the Prosecutor, taking into consideration any information on crimes under the jurisdiction of the Court, including information sent by individuals or groups, States, intergovernmental or non‐governmental organizations.”[3] In a globalized world, and also considering that environmental harms often transcend geographic boundaries, is it vital that non-state actors have access to international environmental justice. It is also essential that they may be compelled to redress the environmental harms they cause, as well as be tried for the corresponding criminal offenses.[4]

The ICC announcement should be hailed as a landmark advancement with regard to these issues. Indeed, it opens the door for the prosecution of crimes that affect whole communities, - such as land grabbing -, as well as of crimes which are transboundary in nature and affect the global population as a whole - such as those related to climate change. Given, however, that more often than not these crimes are committed by corporations, the ICC mandate has a notable shortcoming inasmuch as, under the principle of individual criminal responsibility set forth on Article 25 of the Rome Statute, legal entities are not subject to its jurisdiction. A French proposal to grant the ICC jurisdiction over corporations and other legal entities was rejected on the grounds that it would contradict the ICC principle of complementarity to domestic jurisdiction.[5] Indeed, while it is true that countries - such as, notably, Brazil, in which a corporation may be criminally prosecuted jointly with, or independently of, its directors - recognize that legal entities may be criminally liable for environmental crimes, this possibility is still rejected by several ICC State Parties.

With regard to climate change-related crimes, it should be noted that the ICC can take action if the crime happens in any of the countries that have ratified the Rome Statute, but there are notable absences among State Parties - namely big GHG emitters such as the United States, China, India, and Russia. Furthermore, to fall under ICC jurisdiction, crimes must have taken place after the Rome Statute came into force on 1 July 2002, which limits the court’s ability to prosecute crimes related to historical emissions.

These constraints aside, the main significance of the ICC announcement may lie not on a practical aspect, but on the reinforcement of the notion that the environment constitutes a common concern of humanity; that norms aiming at its protection are jus cogens; and that the interest in their compliance and enforcement is erga omnes.[6] We draw this conclusion from the fact that the ICC policy paper did not operate the inclusion of a new competence under the Rome Statute: the announced prioritization of environmental crimes is part of the already existing competence to prosecute and adjudicate crimes against humanity.

The task at hand for contemporary International Environmental Law is to assess the effectiveness of existing international adjudication fora with regard to environmental issues, as well as to consider and actively design new alternatives to foster it. The addition of the ICC to the roster of “non-environmental” international courts with an explicit environmental mandate, alongside the recognition that environmental crimes may be tried as crimes against humanity, should undoubtedly be welcomed as a resolute step towards that goal.

*Alessandra Lehmen is a lawyer admitted in Brazil and in New York and a partner of Juchem Advocacia, a Brazilian law firm. She holds an LL.M. degree in Environmental Law and Policy from Stanford Law School, where she was a Woods Institute Rising Environmental Leaders Fellow, the winner of the Olaus and Adolph Murie Award for best written work in Environmental Law, and a member of the board of the International Law Society. She also holds LL.B., LL.M., and Ph.D. degrees in International Law from the Federal University of Rio Grande do Sul and an M.B.A. from the Getulio Vargas Foundation of Brazil.

[1] International Criminal Court. Office of the Prosecutor. Policy Paper on Case Selection and Prioritization, available at https://www.icc-cpi.int/itemsDocuments/20160915_OTP-Policy_Case-Selection_Eng.pdf. Retrieved on: Sep 16, 2016.  

[2] Alexandre Kiss, Economic Globalization and the Common Concern of Humanity, in ECONOMIC GLOBALIZATION AND COMPLIANCE WITH INTERNATIONAL ENVIRONMENTAL AGREEMENTS (Alexandre Kiss et al. eds., 2003).

[3] Rome Statute of The International Criminal Court, Article 15 (2).

[4] See our contention in The Case for the Creation of an International Environmental Court: Non-State Actors and International Environmental Dispute Resolution. Colo. Nat. Resources, Energy & Envtl. L. Rev. [Vol. 26:2.

[5] Donald K. Anton and Dinah L. Shelton, ENVIRONMENTAL PROTECTION AND HUMAN RIGHTS (2011, p. 944).

[6]See generally M. Cherif Bassiouni, International Crimes: Jus Cogens and Obligatio Erga Omnes, 59 LAW & CONTEMP. PROBS. 63 (Winter 1996); Jutta Brunnée, “Common Interest” – Echoes from an Empty Shell? Some Thoughts on Common Interest and International Environmental Law, 49 Zeitschrift für ausl?ndisches ?ffentliches Recht und V?lkerrecht (Za?RV) 791, 800–07 (1989); Alexander Orakhelashvili, YJIL Symposium - Observations on a Fiduciary Theory of Jus Cogens, OPINIO JURIS BLOG (Oct. 19, 2009; 1:01 PM), https://opiniojuris.org/2009/10/19/yjil-symposium-observations-on-a-fiduciary-theory-of-jus-cogens.