Recent events, such as the 2023 destruction of the Kakhovka Dam in south-eastern Ukraine, have seen extensive damage inflicted on human settlements and the surrounding natural environment. This has prompted debates about the applicability of international criminal law and international environmental law, as well as other connected branches, such as international humanitarian law and international human rights law. Whereas ecocide has not yet been adopted as a crime at the international level, there are several existing provisions in the Rome Statute of the International Criminal Court (ICC) which could potentially be used to prosecute serious environmental harm. In this context, the Office of the Prosecutor (OTP) of the ICC launched a public consultation on 16 February 2024 with the purpose of drafting ‘a comprehensive policy paper on Environmental Crimes, aiming to ensure that the OTP takes a systematic approach to dealing with crimes within the Court’s jurisdiction committed by means of, or that result in, environmental damage’.
On 16 March 2024, Dr Matthew Gillett and Dr Marina Lostal, both members of the World Commission on Environmental Law (WCEL) of IUCN submitted their comments in response to the OTP’s call.
The OTP’s policy paper continues a trend of growing concern by the OTP with crimes harming the environment. A policy paper published in 2016 identified the destruction of the environment as a factor to take into account in the selection of cases to investigate and prosecute (paras 40-41). It is worth noting that the Office of the Prosecutor has an ongoing investigation of crimes committed in Ukraine, which could involve events leading to the destruction of the Nova Khakovka Dam in 2023 and the ensuing environmental damage that was reported. However, up to date, none of the suspects, accused or convicted individuals at the International Criminal Court have faced charges on account of the only crime under the Rome Statute that mentions the natural environment (Art. 8(2)(b)(iv)).
Outside of the Office of the Prosecutor, proposals to introduce ‘ecocide’ as a new core crime to the Rome Statute are gaining momentum, as the European Parliament passed a landmark directive on crimes against the environment, and several States have responded with legislative initiatives, including Belgium which has adopted a federal law criminalizing a form of ecocide (see e.g., here, here, and here). The adoption of such a crime could expand the focus of the Rome Statute towards a more ecocentric rationale.
In his comment, Dr Matthew Gillett argues that principles of international environmental law, including the precautionary principle, the preventive principle, the polluter pays principle, and the principle of intergenerational equity, can and should be applied under the Rome Statute framework in accordance with Article 21(1)(b). He posits that these principles can lead to an environmentally protective reading of the Rome Statute, including in relation to the interpretation of the mens rea elements of the war crime in Article 8(2)(b)(iv); delineating the range of organisational victims under Rule 85(b); and interpreting the term “property” in the Elements of Crimes of the war crime of pillaging. In accordance with this approach, he argues in favour of a broad definition of the “natural environment”, with a geographical reach extending to outer space and a temporal scope to cover the environment in which future generations will live.
At the operational level, Dr Gillett highlights the ground-breaking precedents from the Colombian Special Jurisdiction for Peace (JEP) in Macro Case No. 5. This jurisprudence provides a guide forenvironmental destruction being charged as war crimes and also as crimes against humanity (as part of the chapeau elements and part of the underlying act of persecution). To investigate these crimes, Dr Gillett describes the need to involve environmental experts in OTP investigations of environmental harm andsuggests that mechanisms such as Article 56 measures should be utilised to secure and preserve evidence for trials of crimes against nature.
In her comment, Dr Marina Lostal examines the environment within the ICC legal framework applicable to victims. She argues that, in accordance with the literal interpretation of Rule 85(b) ICC Rules of Procedure and Evidence, the environment can, indirectly, appear within the framework of victims through organisations and institutions dedicated to its protection. Moreover, the broad interpretation of Rule 85(b) put forward by the Lubanga/Ntaganda Reparations Principles, coupled with the growing trend of recognizing legal personhood to nature, opens the possibility to directly recognize the environment, or elements thereof, as a victim in ICC proceedings.
Moving to the concept of victimhood, Dr. Lostal points out that the concept of victimhood at the ICC encompasses natural and legal persons that have been harmed as a result of a crime within the jurisdiction of the Court, regardless of whether the person in question was the intended target of such crime. The disconnect between being the target of a crime and being considered a victim liberates the environment from the constraints of the elements of the crime against the environment (article 8(2)(b)(iv) of the Statute). This means that the environment, or an organisation tasked with its protection, could have a presence in the courtroom for participation and reparationspurposes if it had suffered harm as a result of any crime being tried before the ICC.
The ICC will publish a draft policy in the next months, before adopting the final version of this expected policy paper. IUCN will remain apprised of any developments in this regard.
ABOUT THE AUTHOR
Dr Matthew Gillett is a leading expert on the prosecution of environmental crimes in international criminal law. He has published extensively on topics including aggression, digital evidence, space law, environmental reprisals and crimes, and is author of Prosecuting Environmental Harm before the International Criminal Court(Cambridge University Press, 2022). He worked as a prosecutor at the International Criminal Court and for the United Nations for around 15 years and is the Chair-Rapporteur of the United Nations Working Group on Arbitrary Detention.
Dr Marina Lostal specializes in the rights of victims, and the protection of the non-human in international law. She has advised the International Criminal Court in matters relating to reparations, and has published widely in matters concerning victims, cultural property protection, animal rights, and crimes against humanity.
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