A Potential Avenue for Justice: The Possibility of International Criminal Responsibility for Gender-Based Violence caused by Climate Change

by | Nov 27, 2023

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About Shirin Asgari

Shirin is an Institute for International Law and Justice Scholar at NYU School of Law. Her research interests include international human rights law, environmental law, criminal justice reform, and digital rights. She is also passionate about government and corporate accountability, civil rights, and constitutional law. 

Climate change is leading to the rapid degradation of land, forcing communities to abandon their homes in search of habitable land. This forced migration disproportionately affects women, resulting in increased incidents of sexual and gender-based violence (SGBV) due to structural shortcomings and cultural perpetuations of gendered discrimination.

The Committee on the Elimination of Discrimination Against Women (CEDAW) define SGBV as “violence which is directed against a woman because she is a woman or that affects women disproportionately”, and as such, is a violation of her human rights. Environmental violence, defined by CEDAW to be any “form of environmental harm, degradation, pollution, or State failures to prevent foreseeable harm connected to climate change,” poses as a significant and unique form of SGBV and violation of women’s rights. The catalysts for this violence often arise from the failure of states to address climate change impacts or state and corporate actions that cause environmental degradation, revealing shortcomings in international and domestic law to hold perpetrators accountable. Government-authorised degradation of the environment through contracts with corporations is one major form of environmental violence that results in gendered harm. This harm triggers mass migration due to the destruction of land and forced removals, leading to increases in SGBV.

This form of environmental violence can be critically assessed through the evaluation of the impact that the East African Crude Oil Pipeline (the Pipeline) has had and will have on incidences of SGBV in Uganda. To date, this has led to an exponential increase in SGBV against Ugandan women. The harm they face is two-fold: a large influx of unregulated male workers increases SGBV risk for local women and forced migration due to environmental degradation amplify SGBV among women in ad hoc shelters. Accountability extends to both government officials and corporate actors who facilitate and perpetuate these harms to women through their actions.

The harms of SGBV created by active environmental degradation can arguably be prosecuted under international criminal law. The International Criminal Court (ICC)’s jurisdiction under the Rome Statute extends to SBGV, which is recognized as a crime against humanity under Article 7. More specifically, such actions are in violation of: 7(d) “deportation or forcible transfer of population”, 7(g) “rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity”, and 7(h) “persecution against any identifiable group or collectivity on…gender” grounds. The ICC has jurisdiction to prosecute nationals of a State that have accepted the jurisdiction of the Court, as well as crimes committed in the territory of States parties or in a State that has accepted jurisdiction. Although the ICC does not prosecute States or corporations, it may prosecute individuals responsible for the perpetuation or facilitation of such violations. Article 25 of the Rome Statute indicates that individuals can be held individually criminally liable “for the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission…, including providing the means for its commission.”

To begin with, to prosecute individuals under Article 7(d), it must be proven that: “the perpetrator deported or forcibly transferred … one or more [lawfully present] persons to another State or location,” that the perpetrator was aware of this, and that it was conducted as “part of a widespread or systematic attack.” In the context of the Pipeline Project, government officials forcibly removing communities from construction areas, as well as individual corporate actors assisting and facilitating in these removals, provides evidence of the necessary intent and conduct under Article 25. Moreover, prosecutors can readily find facilitation of Articles 7(g) and (h) by specific State officials and corporate heads involved in the Pipeline Project. Article 25 therefore provides the ICC with the power to prosecute corporate actors and heads of State who are responsible for the formulation of the Pipeline. Although such prosecutions are legally possible, the current practice and policy of ICC prosecutors is to avoid taking up such cases.

Prosecuting individual state and corporate actors for environmental harm, though unprecedented, would pose a vital international and domestic role in holding major human rights violators criminally accountable. This would assist with addressing the current gap in corporate accountability for climate change and environmental degradation, forcing corporate actors to consider the environmental consequences of their actions. Additionally, the ICC’s role in setting this precedent could inspire and stimulate more domestic legal action against corporate actors. Therefore, an important avenue to addressing the gendered harms of environmental violence is the utilisation of existing international legal frameworks to hold corporate and government actors accountable.

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