Gaps and Options for Accountability for Environmental Crimes in Armed Conflict

Abstract

This paper focuses on protection of the environment during armed conflict, specifically accountability gaps in the current international legal framework and options for change and improvement. It is limited to comments about individual criminal accountability for environmental crimes in armed conflict (i.e. not other forms of accountability and not environmental crimes in general). It examines the relevant provisions in the Rome Statute and scrutinizes the policies and practices of the International Criminal Court (ICC) in addressing environmental crimes. On this basis, the paper discusses options for enhancing accountability for environmental crimes during armed conflict, focusing on three key issues: 1) legal change and transformation; 2) the practice of relevant stakeholders within the ICC system, in particular the Office of the Prosecutor (OTP); and 3) strategies of actors outside the ICC system who seek to improve accountability options for environmental crimes in armed conflict.

Despite the OTP making accountability for environmental crimes a priority area though its Policy Paper on Case Selection and Prioritisation (2016), the Prosecutor is yet to charge any individual with the commission of environmental crimes; indeed to make these crimes part of a formal investigation. The paper observes that one key challenge is that the (main) relevant provision (Article 8(2)(b)(iv)) in the Rome Statute is very narrowly constructed, making it difficult to successfully prosecute these crimes. However, the paper argues that there are other challenges at play, including structural and normative ones, which result that the ICC system tends to focus on a fairly limited set of physical integrity violations.

The paper considers the various proposals for legal transformation, including the recent ‘ecocide’ proposal. It observes that there are serious obstacles to implementing these proposals, in part due to the structure of international criminal law. It then considers other options available to those who seek to advance accountability for environmental crimes during armed conflict, and concludes that these interests may, at least in the short term, best be served outside the ICC system, including by exploring domestic and universal jurisdiction options.

Keywords: Environmental crimes, armed conflict, International justice