North Carolina Journal of International Law

"Connecting North Carolina to the World of International Law"

Report: Will the ICC’s Shift in Focus to Environmental Atrocities Be Effective?

By: Charlotte Smith 

After nearly two decades of almost exclusively hearing cases associated with crimes committed during war and crimes against humanity, the International Criminal Court (ICC) has turned its attention to environmental atrocities committed during peacetime.[1]  For the first time since the inception of the ICC,[2]  the court has decided to prioritize complaints of environmental abuse that constitute serious crimes under national law, including illegal exploitation of natural resources, land grabbing, and the destruction of the environment.[3]  Specifically, the Office of the Prosecutor will consider the impact of the crimes on the community.[4]  Factors that go into this consideration include “increased vulnerability of victims, the terror subsequently instilled, or the social, economic and environmental damage inflicted on the affected communities.”[5]

One specific example of a potentially prosecutable activity is land grabbing.[6]  Generally, land grabbing involves the large scale buying or taking of farmland or resource-rich land by private investors.[7]  By prosecuting perpetrators of land grabbing, the ICC will address the violence that often follows such conduct.[8]  Additionally, the ICC will attempt to ameliorate the other negative consequences of this activity, such as the displacement of indigenous people and the resulting loss of fertile fields; as well as their primary source of income.[9]  Some professionals in this field speculate that the millions of people in developing countries evicted from their land through these takings motivated the court to prioritize prosecution of this type of behavior. [10]

As a result of the ICC transitioning its priorities towards environmental destruction, corporate persons may now be susceptible to prosecution by the ICC for international crimes.[11]  Specifically, CEOs of the businesses that the ICC finds to be complicit in razing tropical rainforests, poisoning water supplies, or seizing lands may now be tried under criminal law at The Hague.[12]  Significantly, Article 25 of the Rome Statute, which established the ICC, clearly grants the court jurisdiction over natural persons, which is distinct from legal entities such as corporations.[13]  “In major consumer blocs like the [European Union] and the [United States], traders or investors are under no legal obligation to check that products like palm oil, rubber or gold were legally or ethically sourced.”[14]  Inferentially, CEOs have little legal incentive to see that their companies ethically source products in the supply chain. By investigating and adjudicating complaints formally filed, and addressing environmentally destructive activities, the ICC could fill the impunity gap that exists between individuals committing egregious human rights violations and CEOs acting on behalf of businesses committing environmental destruction that tends to lead to human rights abuses.

rainforest-loggingCurrently, with a pending case specifically involving land grabbing, the ICC has an opportunity to apply this new focus of viewing environmental destruction as a human rights abuse case.  On October 7, 2014, an official communication requesting the ICC investigate the systematic seizure of land in Cambodia since July of 2002 was filed.[15]  Allegedly, the Cambodian government and government-connected business leaders have forced evictions and displaced large portions of the population to such a substantial degree that these actions equate to crimes against humanity.[16]  Specifically, the communication emphatically noted the mass human rights abuses taking place as a result of business leaders committing these crimes with the support of the country’s government.[17]  The complaint alleges that, as a result of these investors’ actions, an estimated 830,000 civilians have been negatively affected by the environmental destruction, with some hundreds of thousands forced away from their land.[18]  While this complaint was technically filed on behalf of Cambodian victims against Cambodia’s ruling government,[19] a thorough investigation could lead to the ICC further investigating the CEOs of businesses that perpetrated the land grabbing.  Combined with the ICC’s recent decision to include environmental destruction by corporate CEOs in prosecutable crimes, this case has the potential to set a significant legal precedent for how the ICC intends to treat land grabbers and other entities that commit human abuses through environmental destruction.[20]

On the surface, attempting to hold corporations and businesses accountable for mass harm created by the widespread taking of natural resources seems like a progressive step in a just direction.  Primarily, activists in this field view the ICC’s shift in focus to environmental protection as a progressive change.[21]  Richard Rogers, the legal counsel responsible for the communication filed on behalf of the aforementioned Cambodian victims, praised the ICC’s decision to include environmental destruction in prosecutable crimes.[22]

The new ICC prosecution policy confirms the need to tackle the mass violence and brutality of kleptocratic regimes who have stayed under the radar for too long. The systematic crimes committed under the guise of “development” are no less damaging to victims than many wartime atrocities.  Forced population displacement destroys entire communities and leads to instability or even war.  The ICC Prosecutor has sent a clear message that such offences may amount to crimes against humanity and can no longer be tolerated.[23]

 

Still, several potential barriers to serving this new priority could halt the ICC’s progress in trying perpetrators of environmental crimes.

The primary obstacle to the ICC’s decision to prioritize environmental abuse, thus opening the doors to trying businesses and CEOs, is the ICC’s limited jurisdiction.[24]  If the CEO of a land-grabbing corporation resides outside of ICC jurisdiction, how real is the threat of criminal prosecution at The Hague?  In practice, most land grabbing occurs in Africa and China.[25]  Of the total land grabbing that occurred between 2000 and 2013, forty-four percent of it has occurred in Africa and thirty-seven percent in Asia.[26]  Yet, the majority of land grabbers do not reside on those continents.[27]  Between 2000 and 2013, companies based in the United States grabbed roughly 777 million acres.[28]  The top five countries harboring land grabbing entities since 2000 are the United States, Malaysia, the United Kingdom, China, and the United Arab Emirates.[29]  Notably, the United Sates and China are not parties to the Rome Statute.[30]  However, the ICC necessarily relies on the cooperation of states expressly party to the Rome Statute to actually bring any of the suspects to trial.[31]  Hypothetically, if the ICC wanted to prosecute a CEO who happens to be an American resident and operates one of the companies that partook in the grabbing of those 777 million acres, it is unlikely that the United States would comply with requests to bring the CEO to trial.[32]  Expressly, the United States has reiterated it has no legal obligation to comply with requests made by the ICC.[33]  Similarly, even in countries that do have a legal obligation to comply with requests made by the ICC, the state’s government may be complicit in the actions of the land-grabbing CEOs and thus hesitant to surrender CEOs for prosecution.[34]  Generally, “investors rely on corrupt politicians to gain land concessions and use local security forces to illegally evict residents, often violently.”[35]  With weak state governments often accused of aiding the corporations with land grabbing, an ICC investigation into the CEOs could implicate these state governments, decreasing the government’s interest in aiding the ICC with the investigation and prosecution of land grabbers.

Additionally, the threat of more African states to withdraw from the Rome Statute, thus placing them outside the jurisdiction of the ICC, could prevent the ICC from effectively pursuing these types of crimes in certain countries.  Because investors usually rely on cooperation from local governments,[36] the ICC would have a difficult time investigating claims in a country that has no obligation under the Rome Statute to cooperate with the investigation.  As of November 11, 2016, Burundi, South Africa and Gambia have all announced their intent to withdraw, stating the potential bias of the ICC against African countries and even going so far as to condemn the tribunal as “an instrument of colonial justice.”[37]  Overwhelmingly, political analysts expect more African countries to announce similar intentions to withdraw.[38]  The primary goals of the ICC include fighting to end impunity and to hold those responsible accountable for the crimes they commit against humanity.[39]  Ultimately, the ICC’s decision to prioritize crimes that include environmental abuse furthers these goals by extending the ICC’s focus to include the actions of CEOs of corporations that have caused significant damage and widespread detriment to native communities.  With a significant portion of land grabbing occurring in African countries and with more African states choosing to withdraw from the Rome Statute and the jurisdiction of the ICC, the ICC may find itself one step behind in finally addressing the atrocities committed during peacetime.


[1] Press Release, Global Witness, Company Executives Could Now be Tried for Land Grabs and Environmental Destruction (Sept. 15, 2016), available at https://www.globalwitness.org/en/press-releases/company-executives-could-now-be-tried-land-grabbing-and-environmental-destruction-historic-move-international-criminal-court-prosecutor/ [https://perma.cc/C37V-YHRS] [hereinafter Global Witness]. Global Witness is an international nongovernmental agency that campaigns to end environmental and human rights abuses, specifically those involving the exploitation of natural resources. About Us, Global Witness (last visited November 11, 2016), https://www.globalwitness.org/en/about-us/ [https://perma.cc/SH92-YS6V].

[2] Rome Statute of the International Criminal Court, Jul. 17, 1998, 2187 U.N.T.S. 90 (Crimes against humanity, which include inhumane acts that cause great suffering, fall within the jurisdiction of the court but the Rome Statute does not make it readily apparent into which category environmental abuses fall.).

[3] Office of the Prosecutor, Policy Paper on Case Selection and Prioritisation, doc number, Sept. 15, 2016, at para. 7. Here, national law refers to the law of the country involved.

[4] Id. at para. 41.

[5] Id. at para. 41.

[6] CEOs Can Now be Prosecuted Like War Criminals at the Hague, teleSUR (Sept. 16, 2016), http://www.telesurtv.net/english/news/CEOs-Can-Now-Be-Prosecuted-Like-War-Criminals-at-the-Hague-20160916-0013.html [https://perma.cc/QBH5-YEW8] [hereinafter CEOs Prosecuted Like War Criminals].

[7]Olivier De Schutter, The Green Rush: The Global Race for Farmland and the Rights of Land Users, 52 Harv. Int’l L.J. 504 (2011).

[8] See Global Witness, supra note 1 (“In 2015 more than three people were murdered a week defending their land from theft and destructive industries.”).

[9] Ann-Christin Gerlach & Pascal Liu, Resource-seeking Foreign Direct Investment in African Agriculture: A Review of Country Case Studies (FAO Commodity and Trade Policy Research Working Paper No. 31, 2010) 9, available at http://www.fao.org/fileadmin/templates/est/PUBLICATIONS/Comm_Working_Papers/EST-WP31.pdf. [https://perma.cc/Q78Y-APJA].

[10] See infra notes 23-24 and accompanying text.

[11] Tara Smith, Why the International Criminal Court is Right to Focus on the Environment, The Conversation (Sept. 23, 2016, 11:30 AM EDT), https://theconversation.com/why-the-international-criminal-court-is-right-to-focus-on-the-environment-65920 [https://perma.cc/D2EM-AGUB].

[12] Shehab Khan, CEOs Can Now be Tried under International Law at the Hague for Environmental Crimes, Independent (Sept. 19, 2016), http://www.independent.co.uk/news/business/news/ceos-hague-international-law-tried-environmental-crimes-icc-a7315866.html [https://perma.cc/QWC5-AKH8].

[13] Rome Statute, supra note 2.

[14] Global Witness, supra note 1.

[15] ICC Cambodia – GD Partner Invites ICC to Consider European Parliament Resolution, Global Diligence (Dec.. 1, 2015), http://www.globaldiligence.com/2015/12/01/icc-cambodia-gd-partner-invites-icc-to-consider-european-parliament-resolution/ [https://perma.cc/A4TF-66QP] [hereinafter ICC Cambodia].

[16] Press Release, FIDH, Cambodia: 60,000 New Victims of Government Land Grabbing Policy Since January 2014, available at https://www.fidh.org/en/region/asia/cambodia/cambodia-60-000-new-victims-of-government-land-grabbing-policy-since [https://perma.cc/YU9N-WJAH].

[17] Global Witness, supra note 1.

[18] Land Grabbers May End up in the Hague: Global Diligence Welcomes the ICC Prosecutor’s New Case Selection Policy, Global Diligence (Sept. 15, 2016), http://www.globaldiligence.com/2016/09/15/land-grabbers-may-end-up-in-the-hague-global-diligence-welcomes-the-icc-prosecutors-new-case-selection-policy/ [https://perma.cc/D77U-AHKU] [hereinafter Land Grabbers].

[19] Id.

[20] Luke Hunt, Cambodia’s Ruling Elite One Step Closer to International Court, The Diplomat (Sept. 16, 2016), http://thediplomat.com/2016/09/cambodias-ruling-elite-one-step-closer-to-international-court/ [https://perma.cc/NAD6-BQYS].

[21] ICC Cambodia, supra note 17.

[22] Id.

[23] Id.

[24] See supra note 2.

[25] Brian Bienkowski, Corporations, Investors ‘Grabbing’ Land and Water Overseas, Environmental Health News (Feb. 12, 2013), http://www.environmentalhealthnews.org/ehs/news/2013/land-grabbing [https://perma.cc/33FL-NPTG].

[26] Id.

[27] Id.

[28] Id.

[29] Id.

[30] Treaties in Force, 10, Department of State, available at http://www.state.gov/documents/organization/218912.pdf.

[31] CEOs Prosecuted Like War Criminals, supra note 6.

[32] Khan, supra note 12.

[33] Id.

[34] See id.

[35] Land Grabbers, supra note 20.

[36] See id. and accompanying text.

[37] Simon Allison, African Revolt Threatens International Criminal Court’s Legitimacy, The Guardian (Oct. 27, 2016, 10:32 AM EDT), https://www.theguardian.com/law/2016/oct/27/african-revolt-international-criminal-court-gambia [https://perma.cc/D6AM-X4YM].

[38] Id.

[39] About, International Criminal Court, https://www.icc-cpi.int/about [https://perma.cc/VFC2-QPAC ] (last visited Sept. 7, 2016).

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