At last week’s IBA War and Justice Conference, ICC judge Howard Morrison said that international criminal law must develop to accommodate the changing nature of atrocities and the changing nature of conflict. One example is to prosecute the perpetrators of massive environmental damage, including damage connected to business activity. This is consistent with the ICC Prosecutor’s 2016 Policy Paper on Case Selection and Prioritisation. This post examines whether massive environmental damage could, in principle, constitute a crime under international law and the circumstances in which courts of third states and the ICC would have jurisdiction over such a case. It concludes with some practical advice for businesses on risk management.

Could massive environmental damage constitute a crime under international law?

First, it is necessary to find an applicable crime. The potentially relevant “core crimes” under international law are war crimes, genocide and crimes against humanity.

A war crime requires the existence of an armed conflict, commission of a prescribed act and a nexus between the two. Prescribed acts are listed in the Geneva Conventions and the Rome Statute. With the possible exception of the destruction of the property of an adversary, environmental damage does not easily fit within any of these acts. Even if this obstacle could be surmounted, the nexus requirement means that the prescribed act must be committed in the context of an armed conflict, requiring that the perpetrator act in furtherance of or under the guise of the armed conflict. It is difficult to imagine a scenario where this could apply to mass environmental damage caused by a business. It should, however, be noted that other factual circumstances not related to environmental damage could give rise to a business related war crime. For example, the ICC prosecutor indicated that she was also interested in investigating business related “land grabs”. These could, in the context of an armed conflict, plausibly constitute a war crime.

Genocide requires the intentional commission of a prescribed act with intention to destroy in whole or in part a national, ethnical, racial or religious group. This double intent requirement is notoriously difficult to prove and often means that prosecutors seek to frame a crime as a war crime or crime against humanity instead. In the vast majority of cases of massive environmental damage, this would render prosecution for genocide implausible. However, it is possible to imagine a scenario (albeit rarefied) where the double intent requirement could be made out. Take the example of a business operating in the agricultural sector which clears an area of rainforest which is the home to an indigenous group whose survival depends on that particular environment. Under the Rome Statute of the ICC, “intent” can mean that the suspect is at least aware that a consequence will occur in the ordinary course of events. If it can be shown that a business person has actual knowledge that proceeding with the project will destroy this ethnic group and proceeds regardless, could this constitute an act of genocide? It would be a challenging case for the prosecution. The list of prescribed acts is closed and it would probably be necessary to demonstrate that the suspect “deliberately inflicted on the group conditions of life calculated to bring about the group’s physical destruction”. “Destruction” in this context means biological or physical destruction therefore excluding the notion of a “cultural genocide”. This means that, if the ethnic group could survive elsewhere, it may be difficult to satisfy the intent element. While significant, these challenges are not insuperable. In rare circumstances, it may be at least theoretically possible to prosecute massive environmental damage as genocide.

Perhaps the core crime with most obvious application to mass environmental damage is a crime against humanity. In certain respects, crimes against humanity have broader application than genocide and war crimes – unlike genocide, there is no requirement for special intent to destroy a protected group and, unlike a war crime, no armed conflict or nexus is required. For a crime against humanity to occur, the suspect must commit a prescribed act as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack. The prescribed acts enumerated in the Rome Statute include “persecution” as well as a catch all category for “other inhumane acts of similar character intentionally causing great suffering, or serious injury to body or mental or physical health”. Again, intent can be satisfied by showing that the suspect is at least aware that a consequence will occur in the ordinary course of events. In theory, this could apply to a situation where a factory or mine, for example, releases toxic substances into a water course in the knowledge that this will have a detrimental impact on the health of the local community. However, there are still substantial obstacles to the prosecution of a crime against humanity for causing massive environmental damage. An “attack directed against any civilian population” is defined in the Rome Statute as occurring “in furtherance of a State or organisational policy to commit such an attack”. This “policy” would appear to require more than indifference to the plight of communities affected by environmental damage and will, in many circumstances, preclude prosecutions for environmental damage.

Who would be the perpetrator of the crime?

An additional obstacle to the prosecution of business related crimes under international law is that there is no recognised concept of corporate liability. As far as the ICC is concerned, its jurisdiction is limited to “natural persons”. As the US Supreme Court recently recognised (see our blog on Jesner), the drafters of the Rome Statute considered, but rejected, a proposal to give the International Criminal Court jurisdiction over corporations. This was, at least in part, on the basis that there was no basis for corporate liability in customary international law. Notwithstanding some recent academic opinion that there is an emerging consensus on corporate liability for crimes under international law, customary international law does not provide a basis for the prosecution of a corporate entity or a derivative prosecution of its executives. It would therefore be necessary for the prosecution to identify an individual who satisfies all of the elements of the crime. Furthermore, international law does not provide for criminal liability on the basis of negligence. It would be necessary to prove more, that the perpetrator at least knew what the consequences of their actions would be in the ordinary course of events. In large organisations with multiple layers of reporting and delegated decision making, this will be a considerable challenge.

Which court would have jurisdiction over such a crime?

The ICC has jurisdiction over crimes which take place on the territory of a state party, by the national of a state party or by virtue of a Security Council resolution. There are currently 123 state parties to the Rome Statute. However there are certain notable (and populous) non-state parties, including the USA, China and India. The ICC’s jurisdiction is also complementary, meaning that it will only investigate and prosecute where a state with jurisdiction is unwilling or unable to do so.

As a matter of international law, domestic courts can (and in some circumstances are required to) exercise jurisdiction over a crime under customary international law (including genocide, war crimes and crimes against humanity) irrespective of any other link to the crime. However, states often restrict the exercise of such “universal” jurisdiction, for example by requiring that the suspect is present on its territory.

How should businesses respond to this risk?

By way of preliminary conclusion, there are numerous legal, not to mention practical and diplomatic obstacles to the prosecution of massive environmental damage as a crime under international law. However, in principle at least, these obstacles are not insurmountable. When considering the environmental and human rights impact of their operations, businesses should consider the risk of criminal or civil liability under both domestic and international law. Given the ICC’s own political and diplomatic challenges and its tendency towards symbolic prosecutions, a business executive would be a relatively “soft” and attractive target. All the more reason for businesses to conduct thorough human rights due diligence on their operations, wherever they are located and to seek to prevent the incidence of environmental damage that could give rise to a human rights impact and associated legal liability.