Editorial note: This article is part of a series of blog posts on critical subject-matters for the progressive development and codification of International Criminal Law.
By: Anthony Abato
The student advocates’ report on environmental crimes in The Future of International Accountability is a very important contribution to the decades-old campaign to criminalize harm to the environment under international law. As the students have highlighted, that campaign experienced a renaissance in 1991 with the International Law Commission’s Draft Code of Crimes Against the Peace and Security of Mankind. In the Draft Code, the Commission considered “wilfully caus[ing] or order[ing] the causing of widespread, long-term and severe damage to the natural environment” as a new, autonomous crime. Christian Tomuschat, member of the Commission, prepared a report on this proposal. Before setting out to write this blog, I read his report and reflected on the arduous task that advocates have had since the concept of an international criminal law of the environment was introduced. It is my intention to consider some of the challenges advocates have faced and to discuss why the campaign for environmental crimes may have lost its place in a policymaker’s agenda.
At the time of his report, Mr. Tomuschat was an academic with many publications on the subject of human rights in the German language. Mr Tomuschat’s report was colored with his experience as a human rights advocate, and it was calibrated very carefully to his audience. Cleverly, he focused his report on demonstrating that causing harm to the environment met the criteria that had been generally identified as characterizing crimes against the peace and security of mankind. He identified “seriousness” as one of the important criteria, which could be deduced either from the nature of the act itself or from the magnitude of its effects. He then illustrated brilliantly the “seriousness” of environmental damage and the need for a prohibition at the international level.
However, as Mr. Tomuschat noted in his report, the Special Rapporteur’s view was that governments showed a lack of support for the proposal to include a separate provision on environmental crimes. The Special Rapporteur himself indicated that the time was not yet ripe to go beyond the framework developed at Nuremberg, and he recommended deleting the provision. Despite its persuasive force and its appeal to reason, common sense, and emotion, Mr. Tomuschat’s report did not succeed. The draft provision on crimes against the environment was deleted in whole, and the drafting committee was tasked only with including damage to the environment as a war crime. After many modifications, the draft Code became the language of the founding treaty of the International Criminal Court. Therein, environmental damage is subsumed under war crimes committed during international armed conflict, and it is not recognized as an autonomous crime.
Nevertheless, Mr. Tomsuchat’s report helped to develop the dialogue regarding a full-scale prohibition of environmental crimes because it recognized that the campaign will not be won only by wielding astonishing facts and figures. In spite of the quantifiable loss of ecosystems and species, it is clear from Mr. Tomuschat’s assessment of the opposition voiced during the negotiations of the draft Code that governments were not at the time comfortable with the “seriousness” that may be posed by threats to the environment. After his report, and subsequent to the completion of the Code, similar concerns have been voiced over the years in the United Nations (“UN”) General Assembly and by states’ delegates during the travaux préparatoires for the Statute of the International Criminal Court (“ICC”).
Indeed, only “serious” crimes are prosecuted at the international level. The clever advocate will succeed in unshackling harm to the environment from the laws of international armed conflict only once the international community is convinced that it is by its nature serious enough to warrant full-scale criminal prohibition. A prepared and diligent advocate must directly address this deficit by demonstrating that crimes against the environment are like other autonomous international crimes in that i) they affect certain accepted humanitarian interests (things of value that the international community has decided to preserve) and ii) they carry a certain moral opprobrium.
As to the former, there is now consensus within the international community that certain humanitarian interests are worthy of the full-scale protection of penal law. Criminal law applicable during armed conflict protects civilians, prisoners of war, humanitarian aid personnel, and child soldiers, for example. Irrespective of armed conflict, the law against genocide protects against the destruction of national, racial, ethnic, and religious groups capable of being so defined, and the prohibition of crimes against humanity protects against the persecution of virtually any identifiable group. The consensus within the international community also extends to certain things, in addition to groups. Religious buildings, cultural monuments and institutions, hospitals, and civilian property are protected by penal law applicable during armed conflict. Finally, albeit slightly less tangible, state sovereignty is protected by the prohibition of the crime of aggression.
The Preamble to the Statute of the ICC affirms that infringements upon the groups or things mentioned above may constitute the most serious crimes of concern to the international community as a whole. It cites the need for a permanent international criminal court in part “for the sake of future generations.” But international criminal law still has not expressly acknowledged that many of the same humanitarian and state interests are confronted when human beings inflict severe damage to the natural world. Like the acts committed during a campaign of genocide or persecution, crimes against the environment have the potential to cause the destruction of groups expressly protected by international criminal law. For example, environmental degradation disproportionately affects groups such as indigenous and tribal peoples and agrarian societies. Climate change impinges upon the sovereignty of island nations and coastal communities, and its long-term effects disproportionately threaten today’s youth. Lawsuits for contribution to climate change have been launched by classes of children, farmers, and fishermen, and on behalf of cities and whole political regions.
Thus, policymakers need not look any further than the values expressed in the Statute of the ICC itself to be convinced of the importance of environmental conservation. And if the concern for such groups and things was somewhat abstract and unrealized at the time of Mr. Tomuschat’s report, it has become increasingly more concrete with the decades of cooperation and enforcement that have followed. So much of the budget of member states and the Trust Fund for Victims has been put towards the preservation of indigenous and tribal communities, youth education and development, and natural resource infrastructure. Moreover, so much prosecutorial capital has been invested in crimes directed at ethnic communities. For their part, environmental advocates have the opportunity to rally the support of humanitarian organizations and NGOs already interested in international justice and reparations for vulnerable groups.
Indeed, if at the time of Mr. Tomuschat’s report there was an apparent discomfort felt among policymakers regarding the relationship between environmental degradation and humanitarian interests, that discomfort has been eased. There is an emerging recognition within the international community that the effects of environmental damage are not unlike those of other international crimes. One of the key similarities is inherent in the prohibition of crimes against humanity, which recognizes that certain outrages against personal dignity must be prevented irrespective of whether they take place during armed conflict. The effects of environmental damage are not unlike those of crimes against humanity in this regard. They directly concern fundamental individual rights. There is a growing body of international human rights jurisprudence affirming that the effects of prolonged environmental degradation may violate the right to life as protected by human rights conventions. In particular, the Inter-American Court of Human Rights has determined that the conditions required for a decent life include adequate access to water, food, and health. These conditions have a significant impact on the right to a decent existence and the basic conditions for the exercise of other human rights. There is also a close relationship between the right to life and the right to personal integrity, and human intervention in the natural world may violate both fundamental rights.
Environmental advocates must capitalize on this development by spelling out the link between the right to a healthy environment and access to justice for the victims of environmental harm. It is perplexing, given the human rights norms at play, that human rights groups do not throw their support behind criminalizing harm to the environment at the international level.
But, finally, “seriousness” is not determined solely on the pervasiveness of damage. The international community has made the “seriousness” of a crime a more relativistic assessment, with a view to seeking out and bringing to justice individuals who would otherwise enjoy impunity. Corruption, greed, and aggression at the highest levels of the state and societal apparatus create a sense of injustice and powerlessness felt by ordinary people. And we have countenanced intervention in the affairs of a sovereign state almost invariably when that state has surrendered its jurisdiction or is otherwise not in a position to take sufficient action against the powerful and corrupt perpetrator. These prevailing circumstances underpin the concept of “impunity” expressed in the Statute of the ICC, and they are a prerequisite for an international crime. In the campaign to make crimes against the environment part of the arsenal of full-scale international crimes, it is imperative that policymakers appreciate the perniciousness of the underlying misconduct. And it is the role of the advocate to demonstrate that such misdeeds are morally reprehensible.
Corruption, greed, and aggressive force are at the heart of the destruction of our natural environment, and there is growing recognition of the moral bankruptcy suffered by the individuals behind such misconduct. The student advocates’ assessment of the current landscape demonstrates that perpetrators can no longer hide behind a color of right or a business motive, but are criminals in the eyes of the international community. Countless multilateral instruments call on states to criminalize various forms of harm to the environment. The Council of the European Union (“EU”) has, in the Directive on the Protection of the Environment through Criminal Law, identified the need for criminal penalties for transborder environmental offenses that reflect a “social disapproval of a qualitatively different nature compared to administrative penalties or a compensation mechanism under civil law.” Severe punitive damage awards in U.S. lawsuits involving environmental torts implicitly demonstrate the need not only for compensation but also for behavior modification and punishment. The case can and must be made that impunity abounds, and this warrants a collective response.
As recently as one year ago, one could still have found a sense of apathy in the general public regarding the importance of a collective response to the degradation and abuse of our natural world. The Covid-19 pandemic has no doubt created a renewed sense of awareness about the mutual interdependence of governments. Some have very astutely pointed out that the current health crisis that we face foreshadows the future climate crisis, and there are very close parallels between the two in the need for cooperation and enforcement of preventative measures. There should be no doubt now that our survival as a species depends on such cooperation and collective action. But equally, we have been forced to take stock of the importance of societal norms and rules and the effect that nonconformance can have on our fellow citizens. For those who may feel outrage when they read the headlines about individuals who are not keeping their distance, taking unnecessary risks, and even demonstrating against public safety measures—this outrage is a result of an expectation that individuals act responsibly and cooperate to prevent harm to the wider community.
There has never been a better time to talk about the moral responsibility of individuals to preserve the environment for future generations. Just as we wonder whether our neighbor will receive a penalty for breaking quarantine and putting the community at risk, we should also expect our neighbor who dumps toxic waste and contributes to the destruction of the planet’s ecosystems to be shamed and penalized. This moment must be seized by advocates for environmental crimes before our focus once again shifts inwards and our attention is consumed by some domestic high-profile sex scandal or murder trial.
At present, the volume of scientific research is immense and the international community of scientists is clear on the effects of climate change and loss of species. But there is a chasm that exists between the scientific research and the international community of criminal lawyers and policymakers. Advocacy needs to recognize the skepticism held by these latter groups and cater to their interests if there is to be any success in persuading them to adopt new, collective measures. It is unacceptable that since Mr. Tomuschat’s 1996 report, discussions about criminalizing harm to the environment have not taken place at a high level. Almost 25 years later, the environment is still novel, on the lips only of progressives and visionaries. Activists are not power wielding policymakers, but leaders of poorly-funded, “fringe” NGOs. The debates about criminalizing environmental damage are not central to UNGA and ICC governance agendas, but rather, take place at side events and student conferences.
As the Harvard student advocates have revealed in their research, there has been a palpable change in societal attitudes towards the environment and its degradation over the last few decades. The criminalization of environmental harm at the international level represents a logical, incremental step, carried by the tune of the larger environmental movement. Criminalization at the international level would represent merely an expression of the norms already held. The bottleneck is at the policy-making level, and in response, the focus of the campaign must now shift from research to advocacy.
 The views expressed herein are those of the author alone and do not necessarily reflect the views of the International Criminal Court. The author would like to thank the following individuals who, as students at Harvard Law School contributed to the research and drafting of this blog: Justin Fishman, Samantha Lint, Emma Broches, Celeste Kmiotek, Matthew Farrell, and Jung Min (Jasmine) Shin.
 Int’l Law Comm’n, Draft Code of Crimes Against the Peace and Security of Mankind, at 9 (1996).
 Christian Tomuschat (Member of the Commission), Document on Crimes Against the Environment, U.N. Doc. ILC (XLVII)/DC/CRD.3 (Mar. 1996).
 Id. at ¶14.
 A. Gauger et al., University of London, Hum. Rts. Consortium, Ecocide is the Missing 5th Crime Against Peace 10 (2013).
 As the student’s report points out, there is already consensus within the international community that attacks against the environment are prohibited by international criminal law provided that i) the damage is long term, widespread and severe, ii) the damage occurs in the course of an international armed conflict, and iii) the attack against the natural environment is intentional.
 “Full scale” prohibition, hereinafter, refers to crimes that occur in the context of conflicts not of an international character and in peace time.
 H. E. John H. Licht (Ambassador of the Republic of Vanuatu to the European Union), General Debate of the 18th Session of the Assembly of States Parties to the Rome Statute of the International Criminal Court, at 3, (Dec. 2–7, 2019), https://asp.icc-cpi.int/iccdocs/asp_docs/ASP18/GD.VAN.2.12.pdf.
 See Juliana v. United States, 947 F.3d 1159, 1175 (9th Cir. 2020) (Though unsuccessful in securing standing, the youth Plaintiffs in Juliana v. United States made a “compelling case that action is needed.”).
 Umair Irfan, Pay Attention to the Growing Wave of Climate Change Lawsuits, Vox (June 4, 2019, 11:13AM), https://www.vox.com/energy-and-environment/2019/2/22/17140166/climate-change-lawsuit-exxon-juliana-liability-kids.
 The Environment and Human Rights, Advisory Opinion OC-23/17, Inter-Am. Ct. H.R. (ser. A) No. 23, ¶ 109 (Nov. 15, 2017).
 See U.N. Dept. of Econ. and Soc. Aff., Sustainable Development Goal 16, https://sdgs.un.org/goals/goal16.
 To combat wildlife and forest crime, for example, the UN Office on Drugs and Crime has organized training and education specifically to stamp out corruption and strengthen member States’ tools for law enforcement. See, e.g., U.N. Off. on Drugs & Crime, Scaling Back Corruption: A Guide on Addressing Corruption for Wildlife Management Authorities (2019), https://www.unodc.org/documents/corruption/Publications/2019/19-08373_Scaling_Back_Corruption_ebook.pdf; U.N. Off. on Drugs & Crime, Rotten Fish: A Guide on Addressing Corruption in the Fisheries Sector (2019), https://www.unodc.org/documents/Rotten_Fish.pdf.
 Des écocrimes à l’écocide: le droit penal au secours de l’environnement 31 (Laurent Neyret ed., 2015).
 Council Directive 2008/99, 2008 O.J. (L 328) (EC).
 See Renee Cho, What Can We Learn from COVID-19 to Help with Climate Change, State of the Planet (Mar. 26, 2020), https://blogs.ei.columbia.edu/2020/03/26/covid-19-lessons-climate-change/.