Prospects for Environmental Liability in the International Criminal Court
By Peter Sharp
INTRODUCTION
On July 17, 1998, the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court adopted the final statute for what may become the world's first International Criminal Court. The adoption of the Rome Statute signaled the beginning of the end of a fifty-year quest for an international criminal court which first was memorialized internationally with the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide in 1948. This convention provided that the crime of genocide may be tried ‘by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.‘ Indeed, the Rome Statute went beyond the international penal tribunal envisioned by the Genocide Convention to create a court with ‘jurisdiction over the most serious crimes of concern to the international community . . . .‘ Specifically, the Rome Statute gives the Court jurisdiction over crimes against humanity, war crimes, the crime of genocide, and the crime of aggression.
In defining these core crimes, however, the Court is primarily, if not exclusively, intended to address human rights abuses. The Rome Statute is not an environmental document. Nonetheless, current trends in the treatment of international environmental and human rights issues have begun to signal a convergence between the two bodies of law. Indeed, the fundamental connection between the sustainability of life and environmental degradation, between human rights and the human environment, should be obvious. Despite this, it has only been within the past twenty to thirty years that the international community has begun to address the potential for using human rights norms to achieve environmental protection. In the light of this growing trend, this paper seeks to evaluate the potential of the International Criminal Court to serve as a forum for vindicating grave environmental wrongs.
Among the myriad theories for synthesizing human rights with environmental protection is the simple suggestion that ‘existing substantive human rights be reinterpreted to incorporate standards of environmental quality.‘ Though it is true that the exact point at which environmental damage crosses the threshold of a human rights violation remains uncertain, it is difficult to imagine that conduct which otherwise qualifies as genocide, a war crime, or a crime against humanity would not have crossed that line, wherever it may ultimately be drawn. Indeed, this paper argues that it is not only appropriate but critical to the meaningful existence of the core crimes defined by the Rome Statute that their enforcement include the criminalization of intentional acts of environmental degradation which cause the injury or death of either individuals or populations.
It is important to clarify from the outset that, though this paper may be viewed as arguing for a ‘greening‘ of the International Criminal Court in some respects, it is done with several caveats. The International Criminal Court is a court of expressly limited jurisdiction. The Court has authority to prosecute the crime of genocide, war crimes, crimes against humanity, and, should a consensus be reached by the world community, the crime of aggression. As one commentator noted with brutal perception, ‘if Saddam Hussein is not brought to justice for murdering Kurdish babies, how much effort should governments expend attempting to try him for crimes against the environment? ‘ There is a compelling argument to be made for not pushing too far too fast in trying to turn the International Criminal Court into more than its language clearly states. One must conserve political capital for the most urgent battles. This paper by no means should be construed as urging a premature expansion of the Court's yet-unrealized jurisdiction. Though that day may come, indeed it should come, it is not yet at hand. Instead, this paper explores how the core crimes defined in the Rome Statute must already contemplate the most serious environmental crimes. Rather than arguing for an expanded jurisdiction, the paper will attempt to crystallize how the most egregious acts of environmental degradation are inherently inseverable from the core crimes defined in the Statute.
Section II of this paper discusses the fields on which the battle to define the jurisdiction of the court will continue to take place. Section III explores the growing nexus between international human rights and environmental protection. Section IV argues that the gravest cases of environmental degradation are within the scope of the core crime defined in the Rome Statute. Section V concludes that, although the Rome Statute is not framed as an environmental document, a meaningful vindication of its core crimes must include environmental dimensions.
On July 17, 1998, the United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court adopted the final statute for what may become the world's first International Criminal Court. The adoption of the Rome Statute signaled the beginning of the end of a fifty-year quest for an international criminal court which first was memorialized internationally with the adoption of the Convention on the Prevention and Punishment of the Crime of Genocide in 1948. This convention provided that the crime of genocide may be tried ‘by such international penal tribunal as may have jurisdiction with respect to those Contracting Parties which shall have accepted its jurisdiction.‘ Indeed, the Rome Statute went beyond the international penal tribunal envisioned by the Genocide Convention to create a court with ‘jurisdiction over the most serious crimes of concern to the international community . . . .‘ Specifically, the Rome Statute gives the Court jurisdiction over crimes against humanity, war crimes, the crime of genocide, and the crime of aggression.
In defining these core crimes, however, the Court is primarily, if not exclusively, intended to address human rights abuses. The Rome Statute is not an environmental document. Nonetheless, current trends in the treatment of international environmental and human rights issues have begun to signal a convergence between the two bodies of law. Indeed, the fundamental connection between the sustainability of life and environmental degradation, between human rights and the human environment, should be obvious. Despite this, it has only been within the past twenty to thirty years that the international community has begun to address the potential for using human rights norms to achieve environmental protection. In the light of this growing trend, this paper seeks to evaluate the potential of the International Criminal Court to serve as a forum for vindicating grave environmental wrongs.
Among the myriad theories for synthesizing human rights with environmental protection is the simple suggestion that ‘existing substantive human rights be reinterpreted to incorporate standards of environmental quality.‘ Though it is true that the exact point at which environmental damage crosses the threshold of a human rights violation remains uncertain, it is difficult to imagine that conduct which otherwise qualifies as genocide, a war crime, or a crime against humanity would not have crossed that line, wherever it may ultimately be drawn. Indeed, this paper argues that it is not only appropriate but critical to the meaningful existence of the core crimes defined by the Rome Statute that their enforcement include the criminalization of intentional acts of environmental degradation which cause the injury or death of either individuals or populations.
It is important to clarify from the outset that, though this paper may be viewed as arguing for a ‘greening‘ of the International Criminal Court in some respects, it is done with several caveats. The International Criminal Court is a court of expressly limited jurisdiction. The Court has authority to prosecute the crime of genocide, war crimes, crimes against humanity, and, should a consensus be reached by the world community, the crime of aggression. As one commentator noted with brutal perception, ‘if Saddam Hussein is not brought to justice for murdering Kurdish babies, how much effort should governments expend attempting to try him for crimes against the environment? ‘ There is a compelling argument to be made for not pushing too far too fast in trying to turn the International Criminal Court into more than its language clearly states. One must conserve political capital for the most urgent battles. This paper by no means should be construed as urging a premature expansion of the Court's yet-unrealized jurisdiction. Though that day may come, indeed it should come, it is not yet at hand. Instead, this paper explores how the core crimes defined in the Rome Statute must already contemplate the most serious environmental crimes. Rather than arguing for an expanded jurisdiction, the paper will attempt to crystallize how the most egregious acts of environmental degradation are inherently inseverable from the core crimes defined in the Statute.
Section II of this paper discusses the fields on which the battle to define the jurisdiction of the court will continue to take place. Section III explores the growing nexus between international human rights and environmental protection. Section IV argues that the gravest cases of environmental degradation are within the scope of the core crime defined in the Rome Statute. Section V concludes that, although the Rome Statute is not framed as an environmental document, a meaningful vindication of its core crimes must include environmental dimensions.
