Prosecuting Ecocide Before the International Criminal Court: Concrete Possibility or Long-Term Aspiration? (Part 2)

In his blog post, Jérôme de Hemptinne explained that although crimes falling under the jurisdiction of the International Criminal Court (ICC) could in theory be used to address environmental harms, their anthropocentric nature as well as their specific requirements will in practice result in a limited applicability of those crimes. There is more to it than that. As this post will show, unless the ICC reconsidered the mental element requirements for the existing crimes, the prosecution of people ‘most responsible’ for environmental harms would be (to put it mildly) an uphill struggle.  

Drawing from arguments detailed in the Inputs to the ICC Prosecutor, this post will focus on two main points. First, it will show that the mental element standard, as detailed in the ICC Statute and the case law of the Court, may be very difficult to meet in instances concerning environmental crimes. Second, it will argue that also in light of that standard, the existing modes of liability are not (entirely) fit for the purpose of holding higher-level perpetrators accountable for the commission of such crimes. 

The mental element standard required under the ICC framework is too high 

Pursuant to Article 30 of the ICC Statute, unless the Statute establishes specific mental element requirements for a given crime, a person can only be held responsible for a crime falling under the jurisdiction of the Court if he or she committed it with ‘intent’ and ‘knowledge’. In accordance with the same provision, a person has ‘intent’ where he or she ‘means to engage in the conduct’ and ‘means to cause’ the consequence of such conduct or is ‘aware that it will occur in the ordinary course of events’; on the other hand, ‘knowledge’ entails that he or she is aware ‘that a circumstance exists, or a consequence will occur in the ordinary course of events’. 

Unfortunately, the Statute does not provide a definition of awareness. When this matter was brought before ICC judges, they interpreted the standard as requiring virtual or practical certainty (see, amongst others, The Prosecutor v. Jeanne-Pierre Bemba Gombo, Decision Pursuant to Art. 61(7)(a) and (b) on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo (ICC-01/05-01/08), Pre-Trial Chamber, 15 June 2009, para. 362). Therefore, the Prosecution must prove that when he or she committed the conduct amounting to a crime falling under the jurisdiction of the ICC, the perpetrator was virtually certain that environmental damage would ensue. Which is a heavy burden placed on the Prosecution, especially considering that in many instances, causality can be difficult to prove in scenarios involving environmental damage.  

An example can help understand this. 

To prove that an individual committed a crime against humanity of murder, according to the Elements of Crimes the Prosecution must prove that he or she killed or caused the death of the victim(s) as well as that he or she knew that the conduct was part of, or intended the conduct to be part of a widespread or systematic attack against a civilian population (Elements of Crimes, Article 7(1)(a), paras. 1 and 3). If the conduct committed by the perpetrator consisted in discharging toxic waste into a river, the Prosecution shall not only prove that he or she meant to discharge the said waste, but also that the perpetrator was virtually certain that as a result of such action, the victim(s) would die.  

Therefore, in order to make the requirements less burdensome the Prosecution should seek a revision of the case law on the mental element standard. In particular, in the Inputs we argued that the Prosecution should request ICC judges to adopt a standard of dolus eventualis, requiring that the perpetrator is aware that a certain result (in the example above, the death of one or more persons) is a very likely consequence of his or her act or omission (for instance, the discharge of toxic waste into the river) and that he or she reconciled himself or herself with such foreseeable outcome. 

The existing modes of liability are not fit for the purpose of addressing environmental criminality

The second point of contention revolves around whether the current methods of assigning legal responsibility (that is, modes of participation in a crime) adequately address the unique aspects of environmental criminality. 

One peculiarity has to do with the link between environmental crime and corporations. As recently stressed by the EU Commission, ‘legal persons are estimated to be responsible for up to 75% of environmental crime’ (EU Commission, Evaluation of the Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law (Environmental crime directive), 28 October 2020, p. 36). Unfortunately, legal persons cannot be held accountable pursuant to the ICC Statute. Meaning that should the Prosecution seek to address environmental crimes, it would need to identify natural persons who committed them or otherwise contributed to their commission. Additionally, one should consider that when it comes to corporate crimes, it is highly unlikely that senior managers of these corporations would commit them. In fact, ‘[t]he corporation’s structural architecture ensures that corporate owners and investors, and directors and senior managers, will almost always be protected from liability’ (D. Whyte, Ecocide. Kill the corporation before it kills us (Manchester University Press, 2020), p. 49). Besides the fact that the standard mental element pursuant to Article 30 is difficult to meet, a further limitation is that the ICC Statute only criminalizes other contributions to crimes (to the so-called “secondary liability”) under strict conditions. 

One example concerns aiding and abetting.  

Pursuant to Article 25(3)(c) of the Statute, an individual can be held liable for a crime if that person aids, abets or otherwise assists in its commission, including through the provision of the means for its commission, under two conditions: (i) that the assistance had a causal effect on the commission of the crime; (ii) that the person provided assistance to the direct perpetrator(s) with the aim of facilitating the offence, being at least aware that the offence will occur in the ordinary course of events – that is, a higher mental element requirement than under Article 30 (these conditions have been detailed in, amongst others, The Prosecutor v. Jeanne-Pierre Bemba Gombo and others, Judgment pursuant to Article 74 of the Statute (ICC-01/05-01/13), Trial Chamber VII, 19 October 2016, paras. 90-97). 

In short, considering that most environmental crimes are committed by legal persons and that senior managers of the said companies are unlikely to be charged either as direct perpetrators or through secondary liability, it might be practically impossible for the ICC Prosecutor to pursue individuals who hold higher positions within a company. Therefore, the Prosecution might only be able to focus on “low-hanging fruits” – direct perpetrators who commit the conduct for the benefit of an organization in which they have a limited role. An outcome that may be in tension with the current prosecutorial policies, discouraging the prosecution of lower-level perpetrators (see Policy Paper on case selection and prioritization, 15 September 2016, paras. 42-43). 

Conclusion: a new crime of ecocide should incorporate a specific mental element requirement 

In our two blog posts, we have explored reasons why although this is in theory possible, the current ICC framework does not appear to be well-suited to investigate and prosecute environmental crimes. In this post, obstacles regarding the mental element requirements have been examined, focusing on two main problems. 

On the one hand, it might be very challenging for the Prosecution to prove that when a perpetrator committed an environmental crime, he or she was aware that in the ordinary course of events such conduct would result in harm to individuals and thus in the commission of one of the crimes falling under the jurisdiction of the ICC. This is particularly the case where the perpetrator was removed from the crime scene and can hide behind the “corporate veil”. 

On the other hand, due to the strict conditions attached to the so-called “secondary liability”, it might become practically impossible for the Prosecution to pursue individuals who hold higher positions within a company – that is, the entity that might be behind a large majority of environmental crimes. Therefore, the Prosecution might end up only being able to go after “low-hanging fruits”. 

In light of these considerations, in our Inputs we concluded that in order to increase the chances of capturing the conducts of high-level perpetrators (and particularly senior managers of corporations), the ICC Prosecution has two options.  

In the short term, the Prosecution should push the boundaries of Article 30 of the Statute, requesting the judges to reconsider the mental element standard so to encompass situations where a perpetrator is aware that a crime is a likely (or probable) consequence of his or her act or omission. In the longer term, a discussion should take place among States Parties to the ICC Statute for the purpose of amending the Statute and introducing a crime of ‘ecocide’. This crime should incorporate a specific mental element requirement encompassing a lower standard than under Article 30, such as dolus eventualis or even negligence.