Is environmental destruction a crime against humanity? The ICC may be about to find out.

Cambodian land rights activists shout slogans during a protest in front of the Phnom Penh municipal court on Aug. 22 to demand the release of two prominent activists who were sentenced to six days in jail. (Tang Chhin Sothy/AFP)

Is environmental destruction a crime against humanity? The ICC may be about to find out.

Washington Post | 16 September 2016

This week, the International Criminal Court announced that it would give special consideration to pursuing crimes involving environmental destruction and land grabs.

The announcement, made in a policy document released by the ICC's prosecutor on Thursday, appeared to show a deliberate expansion in focus for The Hague-based court, which was established by the Rome Statute in 1998 to investigate war crimes and crimes against humanity when national governments were unable to do so.

The potential effects could be significant. It could signal that ICC prosecutor Fatou Bensouda would pursue cases involving environmental damage or the misuse or theft of land as crimes against humanity. It also raises the question of whether international corporations and other businesses could become embroiled in cases in a court better known for cases against dictators and warlords.

The announcement drew widespread praise for the ICC, which has sometimes been criticized for its slow progress on convictions and a perceived focus on African leaders since it began operating in 2002. Global Diligence, an international criminal law firm that lodged a case with the court accusing Cambodia's ruling elite of land grabs that saw as many as 350,000 people evicted, was among those welcoming the news.

"The systemic crimes committed under the guise of ‘development’ are no less damaging to victims than many wartime atrocities," Richard Rogers, a partner in the firm, said in a statement. "The ICC Prosecutor has sent a clear message that such offences may amount to crimes against humanity and can no longer be tolerated.”

However, while some seemed to interpret the announcement as a change in the definition of crimes, experts said that the crimes related to the environment and land had already been spelled out in the Rome Statute and that the policy paper was not binding.

Instead, the ICC's shift seemed to be more subtle.

"They aren't changing the definitions of crimes or expanding the law or creating new crimes or anything like that," said Alex Whiting, a professor at Harvard Law School. "They are paying particular attention to crimes that are committed by use of environmental impact or have consequences of environmental impact."

The announcement could certainly create a shift in who might expect to find themselves prosecuted by the court. So far, the investigations launched by the ICC focused on acts of violence. Those who had faced prosecution were politicians, military commanders or rebel leaders. The expanded focus might make it more likely that individuals at corporations involved in environmental exploitation would be prosecuted.

“Company bosses and politicians complicit in violently seizing land, razing tropical forests or poisoning water sources could soon find themselves standing trial in The Hague alongside war criminals and dictators," Gillian Caldwell, executive director of the advocacy group Global Witness, said in a statement.

Some experts doubt that it would be practical for the ICC to pursue cases that involve corporations and businesses. "I wouldn't say those kind of prosecutions would be likely. They would be very hard to bring," said David Bosco, an assistant professor at American University's School of International Service and author of a book on the ICC, "Rough Justice." "What intent is required? It is enough to be recklessly negligent? That's a complicated legal question."

Instead, Bosco suggested that the ICC may be signaling that it intended to work more closely with national governments in cases involving environmental issues, including land grabs. These cases would then be prosecuted under national law rather than international law but use the ICC's expertise and clout to aid the investigation. That move in itself might represent an important new strategy for the court.

Whiting, who worked in the ICC prosecutor's office between 2010 and 2013, said the policy paper appeared to present a tactical shift on behalf of Bensouda. "The court is a fragile institution with limited power and capabilities," Whiting said. "By expanding the focus, she is also creating the possibility for new opportunities for cases that may not be the obvious direct cases."

Some might compare the situation to the "Al Capone" strategy used against the mobster in the 1930s by U.S. officials, Whiting suggested. "You can't get Al Capone on the main crimes, so you get him on tax crimes," Whiting said, though he noted that the negative toll of many environmental and land crimes meant this was a different, rather than lesser, avenue.

The announcement may serve a symbolic purpose, too, said Mark Kersten, a researcher based at the Munk School of Global Affairs at the University of Toronto and creator of the blog Justice in Conflict.

"I think the idea of the ICC seeking to prosecute crimes that resonate with the international community is a welcome development," Kersten wrote in an email. "However, ultimately the ICC will succeed or fail based on how it resonates with, and impacts the lives of, the people living within the communities affected by these crimes."