Abstract
Environmental crimes are a serious and growing international concern as they cause significant harm to the environment and human health. Establishing environmental offences as international crimes would be a way to end with impunity as no country, no company and no individual would easily be able to escape from international criminal justice. As environmental offences do not yet fall under the scope of crimes against humanity, a new “core crime”—ecocide—should be introduced into the Rome Statute of the International Criminal Court. This hypothetical scenario will have an important repercussion: individuals in a position of superior or command responsibility, such as CEOs, will be criminally liable if they carry out an activity that harms the environment.
This is a preview of subscription content, log in via an institution.
Buying options
Tax calculation will be finalised at checkout
Purchases are for personal use only
Learn about institutional subscriptionsNotes
- 1.
Brazil has established regulations in order to make environmental enforcement more effective. The Brazilian Federal Constitution establishes three kinds of liabilities for environmental violations: administrative, civil and criminal. The Brazilian environmental regulation is known as one of the most complete legislations in the world regarding this important topic.
- 2.
Shell was sentenced in the Netherlands to pay a bill of hundreds of millions dollars after accepting full liability for two massive oil spills occurred in Nigeria. Cf. http://www.guardian.co.uk/environment/2011/aug/03/shell-liability-oil-spills-nigeria (12.2.2014).
Another recent environmental disaster took place in the United States of America. In April 2010, 200 million gallons of black crude oil were spilled into the Gulf of Mexico, affecting hundreds of miles of coastline and killing thousands of animals. The US Department of Justice settled federal criminal charges against British Petroleum, which had pleaded guilty to 14 federal charges.
- 3.
According to the Environmental Investigation Agency, an international environmental crime “can be defined across five broad areas of offences which have been recognised by bodies such as the G8, Interpol, EU, UN Environment programme and the UN Interregional Crime and Justice Research Institute: illegal trade in wildlife in contravention to the 1973 Washington Convention on International Trade in Endangered Species of fauna and Flora; illegal trade in ozone-depleting substances in contravention to the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer; dumping and illegal transport of various kinds of hazardous waste in contravention of the 1989 Basel Convention on the Control of Transboundary Movement of Hazardous Wastes and Other Wastes and their Disposal; illegal, unregulated and unreported fishing in contravention to controls imposed by various regional fisheries management organisations; illegal logging and trade in timber when timber is harvested, transported, bought or sold in violation of national laws”. See http://www.unodc.org/documents/NGO/EIA_Ecocrime_report_0908_final_draft_low.pdf (12.2.2014).
- 4.
Nevertheless, in the Kupreškić case the Court stated that crimes against humanity do not need the participation of the State although its toleration is vital. Regarding the organizational policy, the Court concluded that the accomplishment of this requirement would be duly fulfilled if in the commitment of such important crime any kind of entity—capable of committing acts of large-scale violence—is involved.
- 5.
Article 7 of the Rome Statute refers to a policy requirement in order to identify crimes against humanity. However, paragraph 2 of the mentioned legal provision expressly talks about a State or an organization that has to be involved in its commitment. As Jalloh (2013), p. 409 has highlighted, this article “(…) reveals the schizophrenia of the definition that at once nods to both the mass crime and the predatory State rationales for the offense”. Hence, is the perpetration of an attack against civilians that leads to the commitment of a crime covered by international regulations? Or is it mandatory the participation of the State or organization in perpetrating or condoning the underlying heinous acts? The above mentioned author says that maybe the combination of the mentioned factors are relevant to consider that one illicit behaviour falls within the scope of article 7. See Jalloh (2013), p. 385.
- 6.
It is useful to point out the Kenya Decision of March 2010, which was issued by the International Criminal Court Pre-Trail Chamber regarding the violence that occurred after the presidential elections of December 27, 2007. The facts alleged in Kenya were, summing up, that a political party enrolling a criminal organization attacked rival supporters with the connivance of the police. In this case, the dissent opinion stated that a “State like” organization has to be involved in the performance of a crime against humanity. Judge Kaul’s, the dissenter, clearly argued that the group involved in the commitment of a crime against humanity requires having State-like characteristics. Accordingly, not any organization can participate in the infliction of the mentioned crime; it is important to identify an important one that possesses State-like qualities. Under the same perspective, the drafters of the Rome Statute have declared that the organizational policy requirement was introduced in order to include different organs of the State (police, military, intelligence, etc.). Notwithstanding, the majority of the judges concluded that: “Whereas some have argued that only State-like organizations may qualify, the Chamber opines that the formal nature of a group and the level of its organization should not be the defining criterion. Instead, as others have convincingly put forward, a distinction should be drawn on whether the group has the capability to perform acts which infringe on basic human values”. Therefore, Jalloh points out “(…) this approach tends to view customary international law as evolving to allow the ICC’s [International Criminal Court] jurisdiction to cover an expanding category of mass crimes that perhaps could eventually include even purely private organizations”. As Kress (2010), p. 873 says, in this case one important question emerges: is the international regulation going forward to protect States and their population from internal and external risk coming from private persons?
- 7.
When talking about ecocide, Polly Higgins makes a division between ascertain and non-ascertainable crimes. The formers refer to crimes committed by individuals and, also, as a consequence of corporate activity, whereas the latters refer to catastrophic events that take place as a force majeure (floods, earthquake, tsunamis, etc.). From now onwards, the present contribution strictly refers to the first category of the discussed illicit behaviour.
- 8.
See supra footnote 3.
- 9.
Abbas declares the following: “environmental problems characteristically require expedition and flexible solutions, subject to current updating and amendments—to meet rapidly changing situation and scientific-technology progress”. Cf. Abbas (2012), p. 611.
- 10.
It is important to highlight that the Rome Statute—article 8.2.b (iv)—includes a crime that harms the environment during war time: “Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”.
- 11.
This study will be done by the United Nations Environment Programme and the United Nations Interregional Crime and Justice Research Institute, which considers that environmental crime is “a serious and growing danger for development, global stability and international security”, as well as “an emerging form of transnational organized crime requiring more in-depth analysis and better-coordinated responses at national, regional and international levels”. See http://www.unicri.it/topics/environmental/ (12.2.2014).
- 12.
Only three countries are on record as having opposed to the inclusion of environmental crimes under international regulation: The Netherlands, United Kingdom and the United States of America.
- 13.
Among other countries, Vietnam in the decade of the 1990s introduced the crimes of ecocide, Ukraine in 2001, as well as the Republic of Moldova 1 year later.
- 14.
See Human Rights Consortium, School of Advanced Study, University of London 2012.
- 15.
This can be linked with another important doctrine: the vicarious liability. According to this doctrine, employers can be held accountable for negligent acts or omissions caused by their employees within their employment tasks or functions.
- 16.
It can be useful to take a look to the Ecocide Act—proposed by Polly Higgins—which is a clear example of how the Rome Statute can govern all these issues: http://eradicatingecocide.com/overview/ecocide-act/ (12.2.2014).
The preamble of the Ecocide Act declares that: All Heads of state, Ministers, CEO’s, Directors and any person(s) who exercise rights, implicit or explicit, over a given territory have an explicit responsibility under the principle of superior responsibility that applies to the whole of this Act.
- 17.
References
Abbas M (2012) International law. Oxford University Press, New York
Human Rights Consortium, School of Advanced Study, University of London (2012) Ecocide is the missing 5th crime against peace. http://www.academia.edu/1807111/Ecocide_is_the_missing_5th_Crime_Against_Peace/. Accessed 12 Feb 2014
Jalloh C (2013) What makes crimes against humanity crimes against humanity? Legal Studies Research Paper Series Working Paper No. 2013-03
Kress C (2010) On the outer limits of crimes against humanity: the concept of organization within the policy requirement: some reflections on the March 2010 ICC Kenya decision. Leiden J Int Law 23(4):855–873
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2014 Springer International Publishing Switzerland
About this chapter
Cite this chapter
Hellman, J. (2014). The Fifth Crime Under International Criminal Law: Ecocide?. In: Brodowski, D., Espinoza de los Monteros de la Parra, M., Tiedemann, K., Vogel, J. (eds) Regulating Corporate Criminal Liability. Springer, Cham. https://doi.org/10.1007/978-3-319-05993-8_22
Download citation
DOI: https://doi.org/10.1007/978-3-319-05993-8_22
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-05992-1
Online ISBN: 978-3-319-05993-8
eBook Packages: Humanities, Social Sciences and LawLaw and Criminology (R0)