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Resisting the tide of populist environmental neglect

"The threat of serious harm to the environment from human-made causes is undeniable and increasing. Military attacks, illegal resource extraction, exploitation of endangered species, toxic dumping, and a range of other activities jeopardize the natural world. While, the spectre of humanitarian and environmental disaster looms large, such as the collapse of the Mosul Dam, ongoing practices are already having a devastating impact, such as the poaching and exploitation of endangered species, and rampant unlawful deforestation. [...] It is timely to examine the possibility of using international criminal law as a complementary means to repress and redress grave environmental harm" writes Matthew Gillett.

July 7, 2017 | GPF

Resisting the tide of populist environmental neglect: International criminal law as a tool to prosecute serious harm to the environment

By Matthew Gillett

The threat of serious harm to the environment from human-made causes is undeniable and increasing. Military attacks, illegal resource extraction, exploitation of endangered species, toxic dumping, and a range of other activities jeopardize the natural world. While, the spectre of humanitarian and environmental disaster looms large, such as the collapse of the Mosul Dam, ongoing practices are already having a devastating impact, such as the poaching and exploitation of endangered species, and rampant unlawful deforestation.

Humanity’s capacity to destroy the environment is not a recent discovery. Already in 1972, the Stockholm Declaration 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.  

In these circumstances, it is timely to examine the possibility of using international criminal law as a complementary means to repress and redress grave environmental harm. While domestic courts must constitute the first bulwark against environmental crimes, 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. At the International Criminal Court, the Office of the Prosecutor has signaled an increased focus on environmental harm in its 2016 case selection guidelines; it stated that it would give “particular consideration to crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.”[1] In practice, international criminal law has been used to prosecute the types of powerful individuals that can significantly influence widespread crimes, such as political, military, and administrative leaders.  

However, at the moment, significant restrictions entrenched in the International Criminal Court’s framing documents impede the likelihood and likely impact of any prosecutions focusing on environmental harm. There is only one crime in the Rome Statute which refers to environmental harm, and that is limited to international armed conflicts and subject to exacting restrictions, including showing that the harm was widespread, long-term, and severe.

A range of potential policy options are available to facilitate the use of international criminal law to address environmental harm. First, environmental harm could be prosecuted under other labels. Crimes against humanity of deportation and forcible transfer, for example, could be charged where deforestation and resource depletion were used as means to displace a population. Second, efforts could be made to amend the Rome Statute to include a sui generis crime against the environment applicable at all times. Third, a specialized environmental crimes court could be established with a purpose-designed mandate.

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. 

*Matthew Gillett is an experienced international prosecutor working for the United Nations on cases of war crimes, crimes against humanity and genocide. He previously worked in Afghanistan as a Human Rights Officer. He publishes and teaches on several topics, including crimes against the environment, international criminal law, and terrorism.



[1] ICC, Office of The Prosecutor Policy Paper On Case Selection And Prioritisation, 15 September 2016 para.41

 

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