Fifteen Eighty Four

The threat of severe anthropogenic harm to the environment continues to grow year-on-year. Military attacks, illegal resource extraction, exploiting endangered species, toxic dumping, and rampant deforestation are just some of the menaces facing the natural world. The International Criminal Court (ICC) has signaled its intent to prosecute the most serious incidents of environmental destruction. Experts have suggested adding the crime of ecocide to the court’s statute. However, the ICC has exacting jurisdictional limits. Within those parameters, its already-packed docket will only grow more crowded in light of the Russia’s recent full-scale invasion of Ukraine. Other institutions, such as the International Court of Justice, human rights bodies, and the United Nations Security Council and General Assembly, are not judicial institutions capable of imposing penal sanctions on transgressors. In this light, it is timely to seek additional international justice mechanisms to confront the communal threat of harm to the environment. An International Court for the Environment (ICE) would constitute a means of rendering justice against those who harm the environment, including corporations and other organisations exploiting the environment for their own unlawful ends.

Humanity’s capacity to existentially threaten the environment is not a recent discovery. In 2022, we observe the 50^th anniversary of the 1972 the Stockholm Declaration. That instrument noted that “man’s capability to transform his surroundings, if used wisely, can bring to all peoples the benefits of development and the opportunity to enhance the quality of life. Wrongly or heedlessly applied, the same power can do incalculable harm to human beings and the human environment.” As we pursue the Sustainable Development Goals with a view to transforming our world for the better by 2030, it is important to seek out and assess possible means of prevention and redress of environmental harm.

While domestic courts must constitute the first bulwark against environmental crimes, they will often struggle to address the most egregious threats to the environment. Large multi-national corporations often have resources dwarfing those of the States in which they operate. Domestic courts will struggle to counter such threats and may be subjected to interference by corrupt officials and organised criminal groups. International criminal law can provide a fall-back enforcement mechanism for States wracked by societal conflict, which are often the States also targeted by the perpetrators of environmental harms, such as trading endangered species and toxic dumping.

A range of potential policy options are available to facilitate the use of international criminal law to address environmental harm. There is one crime in the Rome Statute of the ICC which refers to environmental harm (article 8(2)(b)(iv)), but that is limited to international armed conflicts. Moreover, it is subject to exacting restrictions, including showing that the harm was widespread, long-term, and severe, and was perceived by the attacker to be disproportionate to the anticipated military advantage of the strike.

In lieu of relying on that provision, first, other offences, such as crimes against humanity could be used. Deportation and forcible transfer, for example, could be charged where deforestation and resource depletion were used as means to displace a population. However, this approach would see the underlying mischief focus on the harm to human beings rather than the environment per se. The harm to the environment may be side-lined as it would raise complicated questions of causation and the exacerbating impact of the displaced population itself. Second, efforts could be made to amend the Rome Statute to include a sui generis crime against the environment applicable at all times, such as ecocide, mooted above. However, the ICC’s lack of jurisdiction over corporations would continue to limit its ability to address some of the worst environmental damage. Third, a specialized environmental crimes court – the ICE – could be established with a purpose-designed jurisdiction and mandate. If imbued with personal jurisdiction over corporations as well as natural humans, this would send a clear and compelling message that the international community was serious about accountability for the most harmful acts against the environment.

Whichever of the policy-options outlined above is followed, there is legal and/or political work to be done in order to address environmental harm internationally. The matter is increasing in urgency not just because of the ongoing threat and occurrence of environmental harm in many quarters of the world, but also because of the opportunity cost (particularly symbolically) of not having a feasible framework for redressing environmental harm through the current framework of international criminal law.

• Dr. Matthew Gillett is an experienced international lawyer. He has investigated and prosecuted war crimes, crimes against humanity and genocide, as well as other serious human rights abuses, for the United Nations, the International Criminal Court, and other organisations. He is a Senior Lecturer (Associate Professor) at the University of Essex, specialising on against the environment, atrocity crimes, digital evidence, and terrorism. In 2022, he was appointed as a United Nations Human Rights Council Special Mandate Holder on the Working Group on Arbitrary Detention.