Author: Rachel Killean

Prosecuting Environmental Crimes at the International Criminal Court – Is a Crime of Ecocide Necessary?

/ Rachel Killean / Leave a comment

On the 22nd of June 2021 a group known as the ‘Independent Expert Panel for the Legal Definition of Ecocide’ officially launched what they described as a ‘practical and effective definition of the crime of ecocide.’ The twelve members – lawyers from around the world with backgrounds in criminal, environmental, and climate law – expressed their hope that the ‘proposed definition might serve as the basis of consideration for an amendment to the Rome Statute of the International Criminal Court.’ As they argued, ‘the time has come to extend the protections for serious environmental harm.’ Ecocide, as they envisioned it, would form a new distinct international crime, defined thus:

For the purpose of this Statute, “ecocide” means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.

The work of the Independent Panel builds on years of campaigns to criminalise ecocide and their definition is not the first to be offered up as a possible addition to the Rome Statute. The framing of environmental harm as ‘ecocide’ can be traced to the 1970s, when it emerged in response to the environmental atrocities caused by the use of herbicides such as Agent Orange in the Vietnam War. Since then, notable attempts to respond to large-scale environmental destruction have included Professor Richard A. Falk’s draft of an International Convention on the Crime of Ecocide in 1973, debates over whether to criminalise environmental destruction in the Draft Codes of Crimes Against Peace and Security of Mankind in the 1990s, and Polly Higgins‘ proposal for a crime of ecocide to be added to the Rome Statute in 2010. While definitions have differed, proponents of a specific crime of ecocide have been united by a belief that existing criminal laws are insufficient as a framework for addressing environmental crimes.

Following the release of the Independent Expert Panel’s definition last week, commentators have been offering their initial reflections on its wording, its practicality and on whether such a crime is necessary. In his recent post on EJIL: Talk, Kai Ambos opined:

it is doubtful whether a new, stand-alone core crime is needed to better protect the environment. It is arguably more sensible, especially from a practical point of view, to further develop in case law those elements in the existing international core crimes which have an environmental ingredient…

Given the likely political challenges associated with actually introducing and implementing a new crime to the ICC’s mandate, Ambos’s second point is fair. It is not straightforward to amend the Rome Statute. As I have explored elsewhere, it makes sense to work with the tools we have. In fact, there have been previous signs that the ICC’s Office of the Prosecutor (OTP) might be willing to use the existing core crimes (genocide, crimes against humanity, war crimes and the crime of aggression) to prosecute environmental harm. Policy Papers released in 2013 and 2016 indicated that ‘environmental damage,’ ‘the destruction of the environment’ and ‘illegal exploitation of land’ could be relevant considerations when conducing preliminary examinations and selecting cases.

However, while there are certainly possibilities for prosecuting environmental harms under the existing core crimes, Ambos’s latter point does not prove the former. Before dismissing the necessity of a new crime of ecocide, is worth reviewing the extent to which the core crimes can be considered as having an ‘environmental ingredient’, and where gaps in environmental protection emerge.

War Crimes

Only one of the four existing core crimes refers directly to the natural environment. Dubbed as the first ecocentric war crime, Article 8(2)(b)(iv) prohibits:

intentionally launching an attack in the knowledge that such attack will cause… widespread, long-term and severe damage to the non-human environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.

Commentators have flagged four key issues regarding the practicality of this Article. First, commentators have noted that the ‘operative core’ of the Article imposes a triple and cumulative standard of ‘widespread, long-term and severe’ that must be met before environmental damage is prohibited (it is notable that the Independent Panel of Experts adopted this language but removed the cumulative standard in their definition of ecocide). Second, the reference to damage that is ‘clearly excessive in relation to the concrete and direct overall military advantage anticipated’ introduces an expansive proportionality test, determined on the basis of the information available to the perpetrator at the time of launching the attack. Third, the mens rea requires that the potential offender had the intent to commit the attack in the knowledge that it would cause ‘widespread, long-term and severe damage.’ Fourth, the Article is only applicable to crimes perpetrated in the context of an international armed conflict. As argued by one commentator, the provision cannot therefore be applied, ‘neatly and directly, to many of the worst assaults on the natural environment – whether degradation of forests, poisoning of rivers, or extinction of animal species,’ most of which occur in peacetime. These issues limit the usefulness of Article 8(2)(b)(iv) – indeed, to date no successful prosecutions have been brought using this crime.

Genocide

It is certainly possible to envision environmental destruction being prosecuted under the rubric of genocide – many scholars have explored the frequently interconnected perpetration of ecocide and genocide (or the ‘genocide-ecocide nexus‘). There is even some limited precedent for this – in 2008 the ICC prosecution charged Omar Al-Bashir with genocide under Article 6(c), noting the connection between genocide and the deliberate destruction of the environment by systematically destroying properties, vegetation and water sources and repeatedly destroying, polluting or poisoning communal wells or other communal water sources by the militia and Janjaweed in Darfur.

Nonetheless, the limits of genocide as a means of protecting the environment arise from its anthropocentric focus – by definition, genocide involves ‘acts committed with the intent to destroy, in whole or in part, a national, racial or religious group.’ As such, this crime is applicable only to the extent that environmental destruction can be linked to the specific intent to perpetrate harm against a group of human beings.

Crimes Against Humanity

While none of the acts listed in the Elements of Crimes contain an ‘environmental ingredient’, it is possible that crimes against the environment could fall within four categories of acts that constitute crime against humanity. First, the prohibition of ‘extermination, or intentional infliction of conditions of life…calculated to bring about the destruction of part of the population’. Second, the deportation or forcible transfer of a population. Third, persecution through the intentional and severe deprivation of fundamental rights contrary to international law. And fourth, it could be considered an example of ‘other inhumane acts’, provided the destruction occurred ‘as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.’ Again, in the situation of Darfur referenced above, the OTP found that the same behaviour highlighted above in the context of genocide, which also incorporated the forcible displacement of populations, could constitute a basis for crimes against humanity charges.

However, we come up against the limits of a crime centred around human suffering – crimes against humanity must be directed at a civilian population, and the framing of crimes against humanity has been accurately described as ‘anthropocentric, putting mankind centre stage.’

The Crime of Aggression

Finally, it is theoretically possible to frame environmental crimes as a crime of aggression, or the ‘use of armed force by a State against the sovereign territorial integrity or political independence of another State.’ There is again some limited precedent – the initial inquiry into NATO’s bombing campaign against Serbian military positions in 1999 examined aggression-related environmental harm, although no criminal case against followed.

Although not anthropocentric in quite the same way as genocide and crimes against humanity (i.e. explicitly based on human suffering), the crime of aggression is nonetheless based on the harms humans perpetrate against each other – in this case acts carried out by senior political and military state actors against another state. This focus on state sovereignty, territorial integrity and inter-state conflict again limits the scope of this crime as a means of addressing environmental destruction.

Is a Crime of Ecocide Necessary?

While there are certainly opportunities to prosecute environmental harms using the existing core crimes contained within the Rome Statute, it is arguable that the anthropocentric limitations of the existing crimes create a gap in international criminal accountability. The addition of a crime of ecocide to the ICC’s mandate might address this gap. Notably, the definition offered by the Independent Panel enables ecocide to be prosecuted in times of peace, a significant shift away from the limits of Article 2(b)(iv) and recognition of the fact that the devastation sown by some human activities under the cover of ‘peace’ is often far greater than that caused in ‘war’. It does not require a connection to the destruction of a group, nor an attack on a civilian population, nor an act against the territorial integrity of a state. While the Independent Panel did not manage to divorce themselves from anthropocentrism entirely (see this critique by Kevin Jon Heller), the proposed crime recognises that environmental harm, in itself, is worthy of being classified as a crime that ‘shocks the conscience of humanity’.

There are certainly theoretical and practical issues with the definition offered by the Independent Panel that require further consideration, and as I mentioned above, it is not an easy process to introduce a new crime to the Rome Statute. Furthermore, it would be a mistake to assume that criminalisation will offer a meaningful response to environmental destruction by itself. As I have argued previously, too great a focus on individual responsibility risks diverting energy away from the reforms and systemic changes that are essential to protecting and repairing the natural world.

Nonetheless, I would argue that rather than dismissing the crime as ‘not needed’, the introduction of a crime of ecocide should be seen as an an opportunity for the ICC State Parties to make a strong declarative statement that harm against the environment is one of the ‘most serious crimes of concern’ to the international community. In doing so, they would be contributing to a growing consciousness of the need to rethink our relationship with nature and meaningfully address the harms already perpetrated against the natural world. Indeed, the urgent environmental challenges facing our planet, the failure of environmental regulation to prevent widespread destruction, and the normative expressive value of prohibiting the loss of ecosystems all make the call for a crime against the environment compelling.

The Death of ‘Brother No. 2’, the Impact of the Death of an Appellant and the Risks of Justice Delayed

/ Rachel Killean / Leave a comment

On the 4th August 2019, one of the former senior leaders of the Khmer Rouge, Nuon Chea, passed away at the Khmer Soviet Friendship Hospital. The third to die of five individuals accused of international crimes by the Extraordinary Chambers in the Courts of Cambodia (ECCC), his death raises important questions about the implications of the death of an appellant, as well as drawing attention to the threat of justice delayed becoming justice denied for victims of mass atrocities.

Nuon Chea, or ‘Brother No. 2’, was second in command after Pol Pot in leading the Khmer Rouge, a regime which held power in Cambodia from 1975-1979. Nuon Chea was considered a significant ideological driver of the regime, and one of those primarily responsible for the forcible restructuring of Cambodia in pursuit of an agrarian revolution.  These policies led to the deaths of an estimated 1.7 million people, through starvation, disease and overwork, as well as through the deliberate execution of anyone considered a threat to the regime.

The regime was followed by continued conflict, a period of amnesties and a policy of ‘burying the past‘ for many years. However, after several further years of negotiations between the UN and the Royal Government of Cambodia, an agreement was reached enabling the creation of the ECCC, established in 2006 to prosecute crimes perpetrated by senior leaders and those most responsible for crimes perpetrated during the regime.

Nuon Chea was arrested on 19 September 2007. Alongside Ieng Sary, Ieng Thirith and Khieu Samphan, he faced charges of crimes against humanity, grave breaches of the Geneva Conventions of 1949, and genocide. The case, known as Case 002, had been called “the most important case in the international legal history since Nuremberg” as it indicted all the four surviving senior leaders of Democratic Kampuchea.

Given the complexity of the trial, and concerns over the advanced age of the defendants, this trial was split into a series of sub-trials, and the first judgment was delivered on 7 August 2014, nearly forty years after the Khmer Rouge came to power. By this point, the number of defendants had already been halved, following the death of Ieng Sary in 2013 and the staying of proceedings against Ieng Thirith as a result of her degenerative mental health.  The remaining defendants received convictions and life sentences for crimes against humanity relating to forced transfers and the killing of the former regime’s soldiers.  On 23 November 2016, the Supreme Court Chamber quashed part of the convictions but affirmed their life imprisonment. 

The Case 002/02 judgment, significantly broader in scope, was delivered on 16 November 2018, convicting Nuon Chea and Khieu Samphan of grave breaches of the Geneva Conventions, a range of crimes against humanity (notably including the regulation of marriage), and the genocide of the ethnic-Vietnamese and (in the case of Nuon Chea) the Cham Islamic minority group.

This conviction was praised by commentators for its significance for the victims of the regime and for international criminal law more generally. However, both defendants appealed the conviction on multiple grounds, raising important questions with regards to whether Nuon Chea’s appeal can continue and the status of his conviction if it cannot.

The Court may find that without an appellant, the appeal cannot continue.  Such an approach would be in keeping with that of the International Tribunal for the Former Yugoslavia, where the Appeal Chamber in the Delic case found that as there was no appellant, no appeal could be made, and the trial judgment would therefore stand.

However, the ECCC Internal Rules specify that ‘The convicted person or, after his or her death, the spouse, children, parents, or any person alive at the time of the person’s death who has been given express written instructions from the convicted person to bring such a claim…may apply to the Chamber to revise the final judgment” on certain limited grounds, relating to the discovery of new evidence or serious misconduct on the part of a judge. While relatively narrow, this may suggest that at the ECCC, the death of an accused does not preclude the continuance of an appeal.

Domestic case law is also varied on this point, and it could be argued that allowing the appeal to continue would constitute a valuable way of protecting the rights of a defendant to clear his name, enhancing the legitimacy of the judgment, and potentially facilitating the ‘truth-telling’ goals of the tribunal by allowing findings to be tested further. These latter arguments are particularly pertinent given the wide-ranging grounds of appeal submitted by his defence team, some of which challenge the impartiality and legitimacy of the Trial Chamber itself, and which differ significantly from those put forward by Khieu Samphan’s team.

If the appeal does not continue, then the status of Nuon Chea’s conviction is unclear. Under Article 35 new of the Law on the ECCC, the accused shall be presumed innocent as long as the court has not given its definitive judgment. If the trial judgment is considered the definitive judgment, then Nuon Chea’s conviction may stand. However, if the definitive judgment is considered the final appeal judgment, then it may be that the trial judgment is unable to be considered legally sound, meaning Nuon Chea may be presumed innocent until/unless his appeal is heard. In such a scenario, the ECCC’s legal recognition of the genocide perpetrated against the Cham community, and the role of Nuon Chea in a range of additional mass atrocities, would lose its legal force.

Regardless of the outcome, the death of Nuon Chea prior to his appeal being completed draws attention to the risks for the rights of both defendants and victims in delaying the delivery of justice. The ECCC has continued to be subjected to sustained critiques for the time it had taken to complete its cases, resulting in many victims, as well as defendants, dying before judgments were delivered. During my research into the perspectives held about the Court amongst survivors of the regime, the issue of expediency and a wish for closure was raised time and again. I was repeatedly asked when the Court would finish its work, and attention was drawn to the advanced ages of the accused. The depletion of the number of defendants was often attributed to the Court’s slow progress, and many respondents voiced their frustration at having had to wait so long, and their fear that the other defendants would also die, meaning that the Court ‘will have been a failure’. Such views are natural given the several decades that have passed since the Khmer Rouge inflicted years of hardship and suffering on Cambodian society, and highlight the profound importance of delivering timely responses to mass atrocity. 

 

 

 

 

 

ECCC Rejects Joint Criminal Enterprise III

/ Rachel Killean / Leave a comment

scc-eccc

On the 23rd November 2016, the Supreme Court Chamber (SCC) of the Extraordinary Chambers in the Courts of Cambodia (ECCC) released its appeals judgment in Case 002/01, upholding the life sentences given to Khieu Samphan and Nuon Chea, two former senior leaders of the Khmer Rouge regime. The judgment is an important development in the ECCC’s life for a number of reasons. First, although the SCC rejected the two accused’s allegations of fair trial breaches, and upheld convictions for crimes against humanity of murder, persecution on political grounds and other inhumane acts, the SCC was did not uniformly support the conclusions of the Trial Chamber (TC). Highlighting several incidences in which the TC failed to demonstrate sufficient evidence to justify its conclusions, the SCC reversed convictions in relation to the execution of Khmer Republic officials, extermination during the evacuation of Phnom Penh, and the persecution during the forced movement of the population. As I have noted elsewhere, these findings are an important contribution to the legacy of the ECCC. The TC’s initial judgment had been strongly criticized for its failure to engage sufficiently with the evidence, and the SCC’s decision to overturn its findings, while maintaining the life sentences due to the gravity of the crimes, has hopefully improved the reputation of the ECCC’s jurisprudence and enhanced its contribution to international criminal law more broadly.

Another particularly noteworthy element of the judgment, is the SCC’s handling of the mode of liability, Joint Criminal Enterprise III (JCE III). Although the SCC rejected the Co-Prosecutors’ appeal in this regard on procedural grounds, the Chamber found that the appeal gave the SCC the opportunity to analyze the concept of JCE III. In a decision that has the potential to seriously impact the legitimacy of this already controversial mode of liability, the SCC found that JCE III was not customary international law at the time the crimes were committed, and excluded it from all future proceedings at the ECCC.

JCE was first defined as a distinct form of criminal liability by the International Criminal Tribunal for the former Yugoslavia’s Appeal Chamber, in their very first case, against Duško Tadić. The ICTY found that participation in a common plan could be a form of ‘committing’ a crime, and outlined three forms of JCE:

  1. JCE I, or the ‘basic’ mode, provides for liability where an individual intentionally acts collectively with others to commit international crimes pursuant to a common plan.
  2. JCE II, or the ‘systematic’ form, allows for liability when individuals contribute to the maintenance or essential functions of a criminal institution or system, for example in concentration or detention camps.
  3. JCE III, the most controversial form, provides for liability for crimes that were the natural and foreseeable consequence of implementing the common design.

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