ICC will investigate environmental destruction as well as war crimes
The ICC is now prioritizing crimes involving environmental destruction and land grabbing. How will this change economic development? A contribution to open GlobalRights’ debate on the International Criminal Court.
By Richard J. Rogers - 19 October 2016 - Español
With land grabbing fast becoming one of the most pressing human rights issues of our time, the International Criminal Court has started to recognize that the guise of economic development can mask many crimes against humanity. Indeed, environmental destruction, illegal seizure of land, and the illegal exploitation of natural resources can all have devastating effects on people’s right to a healthy, safe and dignified life.
On 7 October 2014, as a partner of Global Diligence LLP, I filed a Communication (similar to a “complaint”) on behalf of Cambodian victims before the Prosecutor of the International Criminal Court (ICC) in The Hague. The Communication requested the Prosecutor to investigate the mass crimes associated with the land grabbing frenzy that has plagued Cambodia for the past 20 years. We contended in the document that an estimated 850,000 people have been adversely affected by land conflicts, with 300-400,000 already evicted from their land; in Phnom Penh alone around 145,000 have been displaced. Those who resisted eviction have been driven out by tear gas, batons, and live ammunition. Some have been killed, raped, brutally beaten, and imprisoned on false charges. The indigenous minority population, due to their particular dependence on and cultural attachment to their land, has been disproportionately affected.
Land grabbing has also been the cause of Cambodia’s rapid rate of deforestation, reportedly the fifth highest in the world. Evictees now live in squalid conditions and some become victims of human trafficking, child labour and prostitution. Activists have been intimidated, prosecuted, detained on false-charges, and murdered.
The Communication alleged that members of Cambodia’s “ruling elite” engaged in a widespread and systematic attack against the Cambodian civilian population, pursuant to a state policy, and committed the underlying crimes of illegal forcible transfer of population, murder, illegal imprisonment, other inhumane acts, and persecution. The cumulative effect of these crimes pushed the situation beyond the boundaries of human rights law and into the realm of international criminal law—the facts satisfied all the elements of the “crime against humanity” and, therefore, the situation fell squarely within the jurisdiction of the ICC.
This filing gained considerable international attention and support: forty land rights organisations from around the world signed onto a letter urging the Prosecutor to act; thousands of Cambodians sent a petition supporting the case; and human rights organisations such as Global Witness and FIDH threw their full weight behind it. On 21 August 2015, I testified on the issue before the U.S. House Foreign Affairs Committee—an estimated 600 Cambodian Americans attended. The European Parliament’s Human Rights Sub-Committee debated the Communication and, on 26 November 2015, the European Parliament passed a resolution damning the human rights violations in Cambodia.
Crimes committed under the guise of “development” are no less damaging to victims than many wartime atrocities. More recently, on 15 September 2016, the Prosecutor of the ICC announced a change in the case selection and prioritization policy. The Prosecution will now prioritize crimes that are committed by means of or result in “the destruction of the environment, the illegal exploitation of natural resources, or the illegal dispossession of land.” It appears that the Prosecutor has accepted the argument provided by Global Diligence that systemic crimes committed under the guise of “development” are no less damaging to victims than many wartime atrocities. The policy announcement comes at a critical time with land grabbing becoming one of the greatest human rights challenges of our time. With the rise of the world’s population and higher consumption levels, enormous pressure has been placed on natural resources. In countries lacking good governance, land deals have been the source forcible transfer of population, loss of livelihood for the vulnerable, and environmental degradation.
The ICC’s policy does not change existing law or definitions. Instead it signals a new “internal focus” for prioritizing cases involving certain types of crimes (or causes or consequences) that are within the ICC’s jurisdiction. Under the Rome Statute, forcible transfer of population, which often flows from land grabbing, is explicitly listed as an underlying act of crimes against humanity. Therefore, if mass forcible displacements of civilian population are committed as part of a widespread and systematic attack pursuant to a state policy, then the situation may amount to crimes against humanity. Environmental destruction and illegal resource exploitation that flow from land grabbing may also become crucial elements that influence the ICC Prosecutor’s priorities.
The Prosecutor’s new focus has a huge potential to positively impact the field. First, whilst most war criminals are unlikely to be deterred by the threat of an indictment, perpetrators engaged in land grabbing have much more to lose. They tend to be government officials and business executives who care about their reputation, their legitimacy, their wealth, and their freedom. They are far more likely to change their behavior. Second, business executives are much more likely to undertake serious due-diligence before investing in countries suffering from land conflicts, otherwise they risk becoming complicit in crimes against humanity. Third, if the ICC takes up the Cambodian case, it will empower victims and land rights groups around the world, and help prevent further violations.
This ICC Prosecutor’s shift in focus marks a significant development in international criminal law: It is the first time that an international criminal court has signalled that mass crimes committed during times of peace and in the name of profit will be considered alongside traditional war crimes. In doing so, the ICC Prosecutor has shown that she listens carefully to the concerns of victims and is willing to direct her resources to tackle today’s most compelling human rights problems.
READ ALSO: ENVIRONMENTAL CRIME - A threat to our future
ICC to prosecute environmental crimes for profit
The International Criminal Court in The Hague is to broaden its focus to prosecute governments and individuals for environmental crimes, write John Vidal & Owen Bowcott. Examples include illegal deforestation, theft of resources, and expulsion of populations from their land.
Environmental destruction and landgrabs could lead to governments and individuals being prosecuted for crimes against humanity by the international criminal court following a decision to expand its remit.
The UN-backed court, which sits in The Hague, has mostly ruled on cases of genocide and war crimes since it was set up in 2002. It has been criticised for its reluctance to investigate major environmental and cultural crimes, which often happen in peacetime.
In a change of focus, the ICC said on Thursday it would also prioritise crimes that result in the "destruction of the environment", "exploitation of natural resources" and the "illegal dispossession" of land. It also included an explicit reference to land-grabbing.
The court, which is funded by governments and is regarded as the court of last resort, said it would now take many crimes that have been traditionally under-prosecuted into consideration.
The ICC is not formally extending its jurisdiction, but the court said it would assess existing offences, such as crimes against humanity, in a broader context.
The ICC's policy paper on case selection and prioritisation declares: "The office [of the prosecutor] will give particular consideration to prosecuting Rome statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land."
Land-grabbing has become increasingly common worldwide, with national and local governments allocating private companies tens of millions of hectares of land in the past 10 years.
The anti-corruption campaigners Global Witness say this has led to many forced evictions, the cultural genocide of indigenous peoples, malnutrition and environmental destruction.
"Land-grabbing is no less harmful than war in terms of negative impacts on civilians", said Alice Harrison, an adviser at Global Witness. "Today's announcement should send a warning shot to company executives and investors that the environment is no longer their playground.
"The terrible impacts of land-grabbing and environmental destruction have been acknowledged at the highest level of criminal justice, and private sector actors could now be put on trial for their role in illegally seizing land, flattening rainforests or poisoning water sources."
Crimes for profit, not just war
International lawyers said broadening the priority cases to include land-grabbing would recognise that mass human rights violations committed during peacetime and in the name of profit could be just as serious as traditional war crimes.
"It will not make land-grabbing per se a crime, but mass forcible evictions that results from land-grabbing may end up being tried as a crime against humanity", said Richard Rogers, a partner in the international criminal law firm Global Diligence.
Rogers has lodged a case with the ICC on behalf of 10 Cambodians alleging that the country's ruling elite, including its government and military, has perpetuated mass rights violations since 2002 in pursuit of wealth and power by grabbing land and forcibly evicting up to 350,000 people.
"Cambodia is a perfect example for this new ICC focus. It fits in to the new criteria", he said.
He predicted it could have a bearing on the way business is done in certain countries. "Companies who want to invest in [some] places risk being complicit in crimes against humanity. Tackling land-grabbing will also help address some of the causes of climate change, since deforestation is very often a result of land-grabbing."
Assisting states to carry out prosections under national laws
The new ICC focus could also open the door to prosecutions over climate change, Rogers said, because a large percentage of CO2 emissions had been caused by deforestation as a result of illegal land-grabbing.
The ICC can take action if the crime happens in any of the 124 countries that have ratified the Rome statute, if the perpetrator originates from one of these countries, or if the UN security council refers a case to it. Crimes must have taken place after the Rome statue came into force on 1st July 2002.
Reinhold Gallmetzer, a member of the ICC working group who drew up the policy document, said: "We are exercising our jurisdiction by looking at the broader context in which crimes are committed. We are extending the focus to include Rome statute crimes already in our jurisdiction.
"Forcible transfer [of people] can already be a crime against humanity, so if it is committed by land-grabbing - whether as a result or a precursor - it can be included."
The ICC paper also lists other crimes, such as arms trafficking, human trafficking, terrorism and financial crimes, in which it intends to provide more help to individual states to carry out national prosecutions.
John Vidal is the Guardian's environment editor.
Owen Bowcott is the Guardian's legal affairs correspondent.