A recent policy document announced by the International Criminal Court (ICC)’s Chief Prosecutor Fatou Bensouda has reiterated the importance of focusing on the prosecution of individuals who have committed atrocities by causing environmental destruction. The ICC policy stated that it would prioritise for prosecution crimes that result in the “destruction of the environment”, “exploitation of natural resources” and “illegal dispossession of land”.
The policy document comes in the wake of the South China Sea dispute judgments which were given in July 2016 by the International Tribunal of the Permanent Court of Arbitration. The Tribunal gave two rulings in this case. The first was regarding the claim made by China for sovereignty over the South China Sea, which was rejected by the Court. The second was that China had violated its obligations under the United Nations Convention on the Law of the Sea (UNCLOS) by building various artificial islands causing severe environmental damage to the coral reefs.
In past cases, the ICC has tried to apply its laws to situations of environmental destruction. One such case was against the President of Sudan, Omar Al-Bashir. In 2009 arrest warrants were issued against Bashir for crimes against humanity, war crimes and genocide. Among these were acts of contamination of wells and water pumps in Darfur.
What the South China Sea case demonstrates is that the ICC is not adding more crimes and extending its jurisdiction, but is assessing the existing offences in a broader context. This new emphasis on environmental based crimes is a shift from the previous cases where it primarily focused on acts of violence.
It is great to see the ICC taking up environmental crime, however this alone is not enough. In 2006 there was a bombing in Lebanon which caused an oil spill over the Mediterranean Sea. The Bichhri village case concerned toxic sludge which had percolated deep into the ground, polluting the groundwater. While both of these cases would have come within the definition of environmental destruction and would have been tried in front of the ICC, these situations remain outside the Court’s jurisdiction. This is the case for two reasons. First, the ICC can only take up cases which occurred after the Rome Statute came into force, on the 1st of July, 2002. Second, the ICC’s jurisdiction remains restricted to the nations that have ratified the Rome Statute.
However, even where a country has not ratified the Rome Statute, their citizens can still be tried in front of the ICC. Under Article 13(b) of the Rome Statute, read along with Chapter VII of the UN Charter, the United Nations Security Council (UNSC) may refer any situation to the ICC, and this can involve any individual from any State even if it has not ratified the Rome Statute. Chapter VII is binding on all States party to the UN Charter and hence the ICC can exercise its jurisdiction on States which have not signed the Rome Statute.
The ICC’s policy will now also deal with organizations and corporations. However, since an entire body cannot be held responsible, only individuals such as the CEO or the owner of a company could be held liable.
While this policy may be welcomed by the global community, we still need to look at what can be done by the ICC. It can convict perpetrators for their crimes, however what is at stake is the lives of people affected by environmental destruction. What they require is reparation and restitution of the environment to its condition prior to the destruction.
An example of such a practice comes from the 1991 Gulf War, during which there were oil fires and oil spills within and outside the Gulf region. To compensate the victims and pay for environmental reparations, the UNSC established the United Nations Compensation Commission as a fact finding body to assess and award compensation.
The focus on environmental destruction may serve a symbolic purpose for the ICC and its development in the 21st century. However, the success of this approach depends on the impact it will have on the lives of people living in the communities impacted by environmental destruction.