Environmental crimes key to Pacific ICC membership?

Early this month, civil society and Pacific states gathered in Auckland to discuss the benefits of ICC membership and ratification of what are known as the Kampala Amendments.

The prosecution of environmental crimes was a hot topic for governments from the region—the possibility of which would be more likely with them inside the system.

Pacific states are greatly underrepresented at the ICC, with only six of a possible 16 fully signed up.

The workshop—co-organized by Liechtenstein and New Zealand along with the Global Institute for the Prevention of Aggression—gave stakeholders from around the region the opportunity to learn more about topics ranging from the ICC’s functions to technical challenges associated with ratification of the Rome Statute.

High-level speakers, including UN Secretary General Ban Ki-moon and New Zealand Minister of Justice Judith Collins, spoke about the many advantages of joining the ICC and ratifying the Kampala Amendments.

So is the ICC relevant to the Pacific?
In her address, Collins asked two pointed questions:

“What is the relevance of war crimes, crimes against humanity, genocide and the crime of aggression to the Pacific?  How does an international criminal justice system fit with the system of justice in the Pacific?”

Experts subsequently fleshed out some reasons Pacific states might not join the ICC, including:

• The primacy of state sovereignty;
• Incompatibilities with domestic legislation;
• Capacity issues;
• Immunities for heads of state; and
• The UN Security Council’s ability to refer and defer situations to the Court.

Of particular concern to government representatives was whether the ICC could help them tackle the primarily environmental challenges they are currently facing.

Can the ICC prosecute environmental crimes?
Of greatest concern for the Pacific region, and especially for smaller island states, are issues related to environmental degradation and climate change.

The Marshall Islands and Kiribati, for example, are threatened by rising sea levels. Meanwhile, Micronesia’s land is endangered by pollutants from mining operations.

Some participants asked if the ICC has jurisdiction over environmental crimes.

So, does it?

As it now stands, the ICC has some limited ability to prosecute environmental crimes, but only in the context of an armed conflict.

For example, if in the course of a war, a military commander orders the poisoning of a local population’s water supply, that act could be prosecuted as a war crime.

Nevertheless, when it comes to the environmental challenges facing many Pacific states, the Court currently lacks the ability to act. The Rome Statute was simply not envisioned as a bulwark against climate change.

Participants at the summit on the Rome Statute and Kampala Amendments. © Rene Holbach/Permanent Mission of Liechtenstein to the United Nations

A fifth Rome Statute crime?
In order for the ICC to gain jurisdiction over environmental crimes, the Rome Statute itself would have to be amended.

Civil society has been active on this issue, with some proposing to amend the Statute to include a fifth crime under ICC jurisdiction.

In 2010, international environmental lawyer Polly Higgins proposed the inclusion of a law against “ecocide.” She defined this as “the extensive damage to, destruction of or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.”

Supporters of such measures argue that ecocide belongs under ICC remit because intentional damage to the environment increases the risk of conflict and human rights violations, and damages the health and well-being of those living in affected areas.

While no ICC member state has yet put forward a concrete proposal, such an amendment is not impossible to envision.

Interested parties like the Pacific island states would gain the ability to influence and vote on such amendments if they joined the Court as states parties.

A relevant treaty for Pacific states
Regardless of the possibilities for the ICC to tackle environmental crimes, the Rome Statute system remains relevant for small states in the Pacific region.  As ICC President Song said at the workshop:

“If any of you think that the ICC is not relevant for small states, or that small states are not relevant for the ICC, I would beg to differ. In fact, it is precisely the small states that may have particular benefit from the collective legal protection of the Rome Statute community against threats of serious crimes under international law, regardless of whether such threats are external or internal. And small states can truly punch above their weight in the ICC setting.”

The Rome Statute carries the possibility for Pacific states to protect their own citizens and their territory, as well as the chance to join the international community in pursuit of an end to impunity for the world’s gravest crimes.

In light of the concerns voiced by states at the workshop, it is not only a relevant treaty, but an empowering system that Pacific states can better influence inside than out.

On 23 April 2014, Steven Freeland, professor of international law at the University of Western Sydney, spoke on “Addressing Crimes Against the Environment under the Rome Statute” as part of our joint lecture series in The Hague with the Asser Institute and the Grotius Centre of Leiden University:

Follow @AmielleDR, Amielle Del Rosario, our Asia regional coordinator.

Sign up for our email updates for the latest news on ratification of the Rome Statute and the Kampala Amendments.

Have your say: Do you think ecocide could become a Rome Statute crime?