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Environmental Destruction in Ecuador: Crimes Against Humanity Under the Rome Statute?

Abstract
Abstract

On 16 March 2016, the Prosecutor of the International Criminal Court (ICC) rejected on jurisdictional grounds a victims’ request to investigate a case of environmental destruction by Chevron in Ecuador. A little over a year later, on 15 September 2016, the Prosecutor released a policy paper indicating that her office would consider hearing cases of environmental destruction. This article examines how the ICC can prosecute environmental destruction as a crime against humanity under Article 7 of the Rome Statute. It presents a survey of the potential jurisdictional and substantive issues of prosecuting environmental issues and uses the victims’ request asking the Prosecutor to investigate environmental destruction by Chevron in the Ecuadorian Amazon as a backdrop. The article proceeds in three parts. Firstly, it discusses the request by the victims in Ecuador asking for the Prosecutor to investigate. Secondly, it sets out the basic jurisdictional framework of the ICC and analyzes why the Prosecutor rejected the victims’ request. Thirdly, it examines Article 7 and concludes that while peacetime environmental destruction committed by a non-state actor that results in a humanitarian atrocity can qualify as a crime against humanity, the factual circumstances alleged in the Ecuadorian victims’ request did not amount to a crime against humanity under the Rome Statute.

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1 ‘Pablo Fajardo Seeks Justice in the Amazon’, Environmental Law Alliance Worldwide, Autumn 2009, available at www.elaw.org/catastrophe-in-ecuador.

2 Ibid.

3 ‘Texaco: A Century of Performance’, available at www.texaco.com/about-timeline.aspx. When Chevron merged with Texaco, the company inherited the liability caused by Texaco's pollution of the Ecuadorian Amazon.

4 Cely N., ‘Balancing Profit and Environmental Sustainability in Ecuador: Lessons Learned from the Chevron Case’, (2014) 24 Duke Environmental Law & Policy Forum 353 , at 354.

5 Radden Keefe P., ‘Reversal of Fortune: A crusading lawyer helped Ecuadorians secure a huge environmental judgment against Chevron. But did he go too far?’, The New Yorker, 9 January 2012 , available at www.newyorker.com/magazine/2012/01/09/reversal-of-fortune-patrick-radden-keefe.

6 See ibid. This article adopts the term Lago Agrio Victims to describe the rainforest community in Ecuador seeking redress.

7 See Aguinda v. Texaco Inc., 303 F.3d 470 (2d Cir. 2002); Jota v. Texaco, Inc., 157 F.3d 153 (2d Cir. 1998). See also Sharp P., ‘Prospects for Environmental Liability in the International Criminal Court’, (1999) 18 Virginia Environmental Law Journal 217 , 237–8. For a general overview of the litigation in the US, see Krauss C., ‘Big Victory for Chevron over Claims in Ecuador’, The New York Times, 4 March 2014 , available at www.nytimes.com/2014/03/05/business/federal-judge-rules-for-chevron-in-ecuadorean-pollution-case.html?_r=0. On 8 August 2016, the US Court of Appeals for the Second Circuit unanimously affirmed a lower court decision holding that the US$9 billion judgment against Chevron was the product of fraud and racketeering activity, and unenforceable in the US. See Chevron v. Donziger, 14-0826(L) (2d Cir. 2016), available at theamazonpost.com/wp-content/uploads/2016/08/CA2-Opinion.pdf.

8 See Aguinda v. Chevron Texaco, Judgment of the Lago Agrio, Ecuadorian Provincial Court of Justice of Sucumbios, Case No. 002-2003 (14 February 2011), available at chevrontoxico.com/assets/docs/2011-02-14-Aguinda-v-ChevronTexaco-judgement-English.pdf. See also Romero S. and Krauss C., ‘Ecuador Judge Orders Chevron to Pay $9 Billion’, The New York Times, 14 February 2011 , available at www.nytimes.com/2011/02/15/world/americas/15ecuador.html.

9 See Request to the Office of the Prosecutor of the ICC from the Legal Representatives of the Victims, ‘Communication: Situation in Ecuador’, 23 October 2014, available at chevrontoxico.com/assets/docs/2014-icc-complaint.pdf [hereinafter Lago Agrio Victims’ Request].

10 Ibid.

11 Ibid.

12 See 1998 Rome Statute of the International Criminal Court, 2187 UNTS 90, Art. 8(2)(b)(iv) [hereinafter Rome Statute].

13 Ibid., Art. 7(1)(k). The international community's commitment that crimes against humanity must not go unpunished is enshrined in Art. 7 of the Rome Statute:

‘1. For the purpose of this Statute, “crime against humanity” means any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack:

  1. (a)

    (a) Murder;

  2. (b)

    (b) Extermination;

  3. (c)

    (c) Enslavement;

  4. (d)

    (d) Deportation or forcible transfer of population;

  5. (e)

    (e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law;

  6. (f)

    (f) Torture;

  7. (g)

    (g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity;

  8. (h)

    (h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law, in connection with any act referred to in this paragraph or any crime within the jurisdiction of the Court;

  9. (i)

    (i) Enforced disappearance of persons;

  10. (j)

    (j) The crime of apartheid;

  11. (k)

    (k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health.’

14 Letter from M.P. Dillon, Head of the Information and Evidence Unit of the OTP to R. Doak Bishop, Partner of King & Spalding LLP, Reference No. OTP2014/036752, 16 March 2015, available at freebeacon.com/wp-content/uploads/2015/04/ICC-letter.pdf [hereinafter OTP Letter].

15 Office of the Prosecutor of the ICC, Policy Paper on Case Selection and Prioritisation (2016), available at www.icc-cpi.int/itemsDocuments/20160915_OTP-Policy_Case-Selection_Eng.pdf [hereinafter OTP Policy Paper] (noting that the ICC Prosecutor expanded her prosecutorial strategy to include incidents of environmental destruction that cause humanitarian harm).

16 Ibid., at 14.

17 See generally Luban D., ‘A Theory of Crimes Against Humanity’, (2004) 29 Yale Journal of International Law 85 (examining the theory behind crimes against humanity); Eboe-Osuji C., ‘Crimes Against Humanity: Directing Attacks Against A Civilian Population’, (2008) 2 (2) African Journal of Legal Studies 118 (arguing that courts should consider when determining cases of crimes against humanity not whether the civilian population was the primary target of an attack but merely whether it was intentionally targeted); Charles Russell C., ‘The Chapeau of Crimes Against Humanity: The Impact of the Rome Statute of the International Criminal Court’, (2011–2012) 8 (1) Eyes on the ICC 25 (arguing that the impact of the Rome Statute on crimes against humanity was limited and largely reflective of pre-Rome status regarding crimes against humanity); and de Guzman M.M., ‘The Road from Rome: The Developing Law of Crimes Against Humanity’, (2000) 22 Human Rights Quarterly 335 (presenting a comprehensive overview of the elements of crimes against humanity).

18 Lago Agrio Victims’ Request, supra note 9, at 19.

19 Ibid., at 16 (citing the Rome Statute, supra note 12, Arts. 11, 12, 13).

20 Ibid., at 18.

21 Ibid., at 40–6.

22 Ibid., at 19 (citing Prosecutor v. Akayesu, Judgement, Case No. ICTR-96-4-T, T.Ch. I, 2 September 1998, para. 581 [hereinafter Akayesu Judgement].

23 See Lago Agrio Victims’ Request, supra note 9, at 19.

24 Ibid., at 41–2.

25 Ibid.

26 See OTP Letter, supra note 14.

27 Rome Statute, supra note 12, preamble.

28 S. Freeland, Addressing the Intentional Destruction of the Environment during Warfare under the Rome Statute of the International Criminal Court (2015), 44.

29 The drafters of the Rome Statute intensely debated jurisdiction and the delegates ensured that state consent and not universal jurisdiction would guide the Court's jurisdiction. See Williams S.A., ‘Article 12. Preconditions to the exercise of Jurisdiction’, in Triffterer O. (ed.), Commentary on the Rome Statute of the International Criminal Court (1999), 329 . See also Cherif Bassiouni M., Introduction to International Criminal Law: Second Revised Edition (2013), at 659 .

30 See Rome Statute, supra note 12, Art. 12.

31 Ibid.

32 Ibid., Art. 13.

33 See States Parties to the Rome Statute, available at asp.icc-cpi.int/en_menus/asp/states%20parties/Pages/the%20states%20parties%20to%20the%20rome%20statute.aspx#E [hereinafter States Parties].

34 See Rome Statute, supra note 12, Art. 11.

35 Ibid.

36 Ibid., at Art. 11. For states that accede to the Rome Statute, the treaty enters into force on the first day of the month after the sixtieth day following the deposit of its instrument of accession. See ibid., Art. 126.

37 See States Parties, supra note 33.

38 See Lago Agrio Victims’ Request, supra note 9, at 41. The Victims could have argued, as some commentators have, that Chevron's alleged acts were part of a continuing crime that began with Texaco's dumping of toxic waste. See Nissel A., ‘Continuing Crimes in the Rome Statute’, (2004) 25 (3) Michigan Journal of International Law 653 (contending that the ICC can investigate and prosecute alleged crimes that occurred prior to the date the Rome Statute entered into force, if these alleged crimes are considered part of a continuing crime).

39 See OTP Letter, supra note 14.

40 See Rome Statute, supra note 12, Art. 5.

41 See Bassiouni, supra note 29, at 661.

42 Ibid. The ICC also has jurisdiction over offences against the administration of justice, such as witness tampering and contempt of court. See Rome Statute, supra note 12, Art. 70.

43 See Sharp P., ‘Prospects for Environmental Liability in the International Criminal Court’, (1999) 18 (2) Virginia Environmental Law Journal 217 , at 218 (noting that the Rome Statute is not an environmental document and the only explicit ground for environmental liability is under Art. 8 War crimes).

44 See Smith T., ‘Creating a Framework for the Prosecution of Environmental Crimes in International Criminal Law’, in Schabas W., McDermott Y. and Hayes N. (eds.), The Ashgate Research Companion to International Criminal Law: Critical Perspectives (2011), 3.

45 See Lago Agrio Victims’ Request, supra note 9, at 3–4.

46 See OTP Letter, supra note 14.

47 McLaughlin R., ‘Improving Compliance: Making Non-State International Actors Responsible for Environmental Crimes’, (2000) 11 Colorado Journal of International Environmental Law and Policy 377 , at 400–3.

48 See Rome Statute, supra note 12, Arts. 1, 25(1), 26.

49 Ibid., at Art. 27. Notably, the Rome Statute prohibits the defence of personal immunity. See ibid.

50 During the drafting of the Rome Statute, the delegates discussed including corporate liability but ‘time was simply too short for the delegates to reach a consensus and ultimately the concept had to be abandoned’, W. Schabas, An Introduction to the International Criminal Court (2011), 225.

51 See Rome Statute, supra note 12, Arts. 25, 28.

52 See Scheffer D., ‘Corporate Liability under the Rome Statute’, (2016) 57 Harvard International Law Journal 35 , at 36.

53 Prosecutor v. William Samoei Ruto, Henry Kiprono Kosgey and Joshua Arap Sang, Decision on the Confirmation of Charges Pursuant to Article 61(7)(a) and (b) of the Rome Statute, ICC-01/09-01/11-373, P-T.Ch. II, 23 January 2012, available at www.icc-cpi.int/iccdocs/doc/doc1314535.pdf. The ICC Trial Chamber vacated the charges against Sang on 5 April 2016. Prosecutor v. William Samoei Ruto and Joshua Arap Sang, Decision on Defence Applications for Judgments of Acquittal, ICC-01/09-01/11-2027-Red-Corr, T.Ch. V(A), 5 April 2016, available at www.icc-cpi.int/CourtRecords/CR2016_04384.PDF. The ICTR similarly held corporate officers accountable for their personal actions in the case of Nahimana et al., where the accused were convicted for inciting genocide through radio and print media. See Prosecutor v. Ferdinand Nahimana, Jean-Bosco Barayagwiza, Hassan Ngeze, Appeals Judgement, Case No. ICTR-99-52-A, A.Ch., 28 November 2007, available at www.un.org/en/preventgenocide/rwanda/pdf/NAHIMANA%20ET%20AL%20-%20APPEALS%20JUDGEMENT.pdf. National law increasingly recognizes finding a CEO and other high-ranking corporate officials criminally liable for corporate misconduct, including destruction of the environment. See generally Mullikan N., ‘Holding the “Responsible Corporate Officer” Responsible: Addressing the Need for Expansion of Criminal Liability For Corporate Environmental Violators’, (2001) 3 (2) Golden Gate University Environmental Law Journal 395.

54 See generally Plomp C., ‘Aiding and Abetting: The Responsibility of Business Leaders under the Rome Statute of the International Criminal Court’, (2014) 30 (79) Utrecht Journal of International and European Law 4 .

55 Schabas, supra note 50, at 157.

56 See Rome Statute, supra note 12, Art. 13. During the drafting of the Rome Statute, this referral mechanism was ‘thought to have the least potential for making the Court operational’, but state party referrals have proven effective with the self-referrals of the situations in the Democratic Republic of the Congo, Uganda, the Central Africa Republic, and Mali. See Schabas, supra note 50, at 159; Coalition for the International Criminal Court, ICC Situations and Cases, available at www.coalitionfortheicc.org/node/1126 [hereinafter ICC Situations and Cases].

57 Rome Statute, supra note 12, Art. 13. This is how the ICC gained jurisdiction over Libya and Darfur, Sudan. See ICC Situations and Cases, supra note 56.

58 Rome Statute, supra note 12, Art. 15.

59 ICC Situations and Cases, supra note 56.

60 Lago Agrio Victims’ Request, supra note 9, at 40. See also OTP Letter, supra note 14.

61 Schabas, supra note 50, at 187.

62 Ibid.

63 Ibid., at 188.

64 The admissibility determination applies to all cases that come before the Court, even those referred by the UN Security Council. See ibid., at 189.

65 See Rome Statute, supra note 12, Art. 17.

66 Schabas, supra note 50, at 190.

67 Schabas, supra note 50, at 193.

68 Lago Agrio Victims’ Request, supra note 9, at 7. Under Ecuadorian law, a resolution on the facts in the civil case was needed before the criminal case proceeded. Once the facts in the civil case were resolved, the statute of limitations had run on reopening the criminal case against Chevron. See ibid.

69 See Rome Statute, supra note 12, Art. 17. Sham trials are trials held to shield ‘the person concerned from criminal responsibility for crimes within the jurisdiction of the Court’, or trials that were ‘not conducted independently or impartially’ and in a manner ‘inconsistent with an intent to bring the person concerned to justice’. Ibid., at Art. 20.

70 Ibid., Art. 17.

71 See de Guzman M.M., ‘Crimes Against Humanity’, in Brown B.S. (ed.), Research Handbook on International Criminal Law (2011), 21

72 See Schabas, supra note 50, at 200.

73 See SáCouto S. and Cleary K.A., ‘The Gravity Threshold of the International Criminal Court’, (2008) 23 American University International Law Review 807 , at 811.

74 See OTP Letter, supra note 14.

75 See Cherif Bassiouni M., Crimes Against Humanity: Historical Evolution and Contemporary Application (2011).

76 Ibid.

77 See Cassese A. et al., Cassese's International Criminal Law (2013), at 85 .

78 Ibid., at 86.

79 Ibid. At Nuremberg, crimes against humanity were defined as:

murder, extermination, enslavement, deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

See also 1945 Charter of the International Military Tribunal, 82 UNTS 279, 58 Stat. 1544, Art. 6(c) [hereinafter Nuremberg Charter].

80 See generally Cassese et al., supra note 77, at 89–92. For example, Statute of the International Criminal Tribunal for Rwanda, UN Doc. S/Res/955 (1994), Art. 3; Statute of the International Criminal Tribunal for the Former Yugoslavia, UN Doc. S/Res/827 (1993), Art. 5; Statute of the Special Court for Sierra Leone, UN Doc. S/Res/1315 (2000), Art. 2. However, unlike genocide and war crimes, crimes against humanity has not been codified in an international convention but there have been calls to develop such a treaty. See generally Cherif Bassiouni M., ‘“Crimes Against Humanity”: The Need for a Specialized Convention’, (1993–1994) 31 Columbia Journal of Transnational Law 457 , and Sadat L.N., ‘Forging a Convention for Crimes Against Humanity’, (2012) 44 Studies in Transnational Legal Policy 229 . See also Van Schaack B., ‘The Definition of Crimes Against Humanity: Resolving the Incoherence’, (1998–1999) 37 Columbia Journal of Transnational Law 787 (noting that crimes against humanity ‘did not become the subject of a comprehensive multilateral convention’ until the 1990s).

81 R. Dixon, ‘Chapeau’, in Triffterer supra note 29, at 123.

82 See, for example, Prosecutor v. Dragoljub Kunarac, Radomir Kovac and Zoran Vukovic, Judgement, Case No. IT-96-23 and IT-96-23/1-A, A.Ch., 12 June 2002, para. 32, available at www.icty.org/x/cases/kunarac/acjug/en/kun-aj020612e.pdf (upholding the Trial Chamber's conviction for sexual enslavement and rape as crimes against humanity); Prosecutor v. Alfred Musema, Judgement, Case No. ICTR-96-13-A, A.Ch., 16 November 2001, para. 370, available at unictr.unmict.org/sites/unictr.org/files/case-documents/ictr-96-13/appeals-chamber-judgements/en/011116.pdf (affirming the Trial Chamber's conviction of extermination as a crime against humanity); and Prosecutor v. Nuon Chea and Khieu Samphan, Case 002/01 Judgment, Case No. 002/19-09-2007/ECCC/TC, T.Ch., 7 August 2014, at 622, available at www.eccc.gov.kh/sites/default/files/documents/courtdoc/2014-08-07%2017:04/E313_Trial%20Chamber%20Judgement%20Case%20002_01_ENG.pdf (finding the defendants guilty of extermination, persecution and other inhumane acts, including forced transfer, enforced disappearances and attacks against human dignity, as crimes against humanity).

83 The Nuremberg IMT prosecuted two Nazi generals for scorched earth practices during the Second World War as war crimes. See Bruch C.E., ‘All's Not Fair in (Civil) War: Criminal Liability for Environmental Damage in Internal Armed Conflict’, (2000–2001) 25 Vermont Law Review 695 , at 716 [citing The Trial of German Major War Criminals: Proceedings of the International Military Tribunal Sitting at Nuremberg Germany, (1950), Vol. 22, at 517 (holding General Alfred Jodl guilty for war crimes associated with scorched earth tactics in Northern Norway, Leningrad, and Moscow); Trials of War Criminals Before the Nuremberg Military Tribunal Under Control Council Law No. 10, (1949) Vol. XI, at 1297, available at www.loc.gov/rr/frd/Military_Law/pdf/NT_war-criminals_Vol-XI.pdf (holding General Lothar Rendulic not guilty of war crimes associated with scorched earth tactics in Finmark, Norway)]. Forms of environmental destruction were codified as war crimes under the Charter of the IMT at Nuremberg and defined as ‘violations of the laws and customs of war . . . shall include, but not be limited to . . . plunder of public or private property, wanton destruction of cities, towns or villages, or devastation not justified by military necessity’. Nuremberg Charter, supra note 79, at Art. 6(b).

84 See Weinstein T., ‘Prosecuting Attacks that Destroy the Environment: Environmental Crimes or Humanitarian Atrocities?’, (2005) 17 Georgetown International Environmental Law Review 697 , at 698.

85 See Van Schaack, supra note 80, at 792 (noting that the Nuremberg Tribunal had jurisdiction only over crimes committed ‘before or during the war’ and ‘in execution of or in connection with any crime within the jurisdiction of the Tribunal’). The Charter of International Military Tribunal for the Far East, known simply as the Tokyo Tribunal, followed a similar construction for crimes against humanity as the Nuremberg Charter requiring that the acts be committed ‘before or during the war’. See 1946 The International Military Tribunal for the Far East Charter, T.I.A.S. 1589, Art. 5(c), available at www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.3_1946%20Tokyo%20Charter.pdf.

86 See Van Schaack, supra note 80, at 793 [footnote 22, citing the ICTY Statute, supra note 80, Art. 5 (defining crimes against humanity as ‘the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: (a) murder; (b) extermination; (c) enslavement; (d) deportation; (e) imprisonment; (f) torture; (g) rape; (h) persecutions on political, racial and religious grounds; (i) other inhumane acts.’); ICTR Statute, supra note 80, Art. 3, (defining crimes against humanity as ‘the following crimes when committed as part of a widespread or systematic attack against any civilian population on national, political, ethnic, racial or religious grounds: (a) Murder; (b) Extermination; (c) Enslavement; (d) Deportation; (e) Imprisonment; (f) Torture; (g) Rape; (h) Persecutions on political, racial and religious grounds; (i) Other inhumane acts.’); Canadian Criminal Code, RSC, 1985, c. C-46, Section 7(3.76) (defining crimes against humanity as ‘murder, extermination, enslavement, deportation, persecution or any other inhumane act or omission that is committed against any civilian population or any identifiable group of persons, whether or not it constitutes a contravention of the law in force at the time and in the place of its commission, and that, at the time and in that place, constitutes a contravention of customary international law or conventional international law or is criminal according to the general principles of law recognized by the community of nations.’); Final Report of the Commission of Experts Established Pursuant to Security Council Resolution 935, UN Doc. S/1994/1405 (1994) (Rwanda Commission of Experts) (defining crimes against humanity as ‘gross violations of fundamental rules of humanitarian and human rights law committed by persons demonstrably linked to a party to the conflict, as part of an official policy based on discrimination against an identifiable group of persons, irrespective of war and the nationality of the victim . . .’)].

87 See Cassese et al., supra note 77, at 105.

88 See Dixon R. and Khan K.A., Archbold: International Criminal Court: Practice, Procedure & Evidence (2013), 1100 .

89 Rome Statute, supra note 12, Art. 7.

90 Ibid.

91 See Schabas, supra note 50, at 110. See also Dixon, supra note 81, at 122.

92 Rome Statute, supra note 12, Art. 7.

93 Ibid., Art. 7(2)(a).

94 See Ruto and Sang case, Decision on Defence Applications for Judgments of Acquittal, supra note 53, para. 345.

95 See Dixon, supra note 81, at 158.

96 See Dixon and Khan, supra note 88, at 1100.

97 See generally Dixon, supra note 81, at 158.

98 See Rome Statute, supra note 12, Art. 7.

99 Ibid.

100 See Dixon, supra note 81, at 124.

101 Ibid.

102 Ibid. See also Akayesu case, Judgement, supra note 22.

103 See 1949 Geneva Convention Relative to the Treatment of Prisoners of War, 75 UNTS 135, Art. 3. The phrasing ‘any civilian population’ includes persons of any nationality and does not denote the entire population of a state or territory. See Dixon, supra note 81, at 127.

104 Rome Statute, supra note 12, Art. 7(2)(a).

105 Ibid.

106 Bassiouni, supra note 29, at 664. In an earlier treatise, Professor Bassiouni argued the exact opposite, that Art. 7 of the Rome Statute did not apply to non-state actors. See Cherif Bassiouni M., The Legislative History of the International Criminal Court: Introduction, Analysis and Integrated Text (2005), 152.

107 See Bassiouni, supra note 29, at 664. Professor Bassiouni argues that Art. 7 would apply to terrorist groups like al-Qaeda and the Islamic State because of the ability of these groups to inflict significant harm in more than one state. See ibid.

108 Ibid.

109 See Schabas, supra note 50, at 113. See also Mariniello T., ‘International Criminal Court: Selected Developments in 2012’, (2013) 2 (2) International Human Rights Law Review 344 , at 344–7.

110 Prosecutor v. Jean-Pierre Bemba Gombo, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, P-T.Ch. II, 15 June 2009, para. 81 available at www.icc-cpi.int/iccdocs/doc/doc699541.pdf. See also Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Decision on the Confirmation of the Charges, ICC-01/04-01/07-717, P-T.Ch. I, 30 September 2008, para. 398, available at www.icc-cpi.int/iccdocs/doc/doc571253.pdf. But see, Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute on the Authorization of an Investigation into the Situation in the Republic of Kenya, ICC-01/09-19-Corr, P-T.Ch. II, 31 March 2010, Dissenting Opinion of Judge Hans-Peter Kaul, para. 51, available at www.icc-cpi.int/CourtRecords/CR2010_02409.PDF (asserting that ‘even though the constitutive elements of statehood need not be established those “organizations” should partake of some characteristics of a State. Those characteristics eventually turn the private “organization” into an entity which may act like a State or has quasi-State abilities’).

111 See generally Situation in the Republic of Kenya, Decision Pursuant to Article 15 of the Rome Statute, ibid., para. 90.

112 See, for example, Rodenhauser T., ‘Beyond State Crimes: Non-State Entities and Crimes Against Humanity’, (2014) 27 (4) Leiden Journal of International Law 913 (arguing that non-state entities can commit crimes against humanity under the Rome Statute).

113 ICC, Elements of the Crimes, Doc No ICC-PIDS-LT-03-002/11 (2011), at 5 [footnote 6], available at www.icc-cpi.int/NR/rdonlyres/336923D8-A6AD-40EC-AD7B-45BF9DE73D56/0/ElementsOfCrimesEng.pdf [hereinafter Elements of Crimes].

114 Cassese et al., supra note 77, at 107.

115 Dixon and Khan, supra note 88, at 1102.

116 See Lago Agrio Victims’ Request, supra note 9.

117 See Dixon, supra note 81, at 122. But see Jalloh C.C., ‘What Makes a Crime Against Humanity a Crime Against Humanity?’, (2013) 28 American University International Law Review 381 (noting that what establishes an act as a crime against humanity instead of a domestic crime is arguably the state or organizational policy element, the widespread or systematic element, or both elements together).

118 Ibid., at 126.

119 See Dixon and Khan, supra note 88, at 1107.

120 Ibid.

121 Ibid.

122 See Prosecutor v. Dusko Tadić a/k/a “Dule”, Opinion and Judgement, Case No. IT-94-1-T, T.Ch., 7 May 1997, para. 648, available at www.icty.org/x/cases/tadic/tjug/en/tad-tsj70507JT2-e.pdf.

123 Ibid.

124 See Bassiouni, supra note 75, at 203.

125 See ‘Chevron's Chernobyl in the Amazon’, Amazon Watch, available at amazonwatch.org/work/chevron

126 See Dixon and Khan, supra note 88, at 1107.

127 See Lago Agrio Victims’ Request, supra note 9, at 20.

128 Dixon, supra note 81, at 126.

129 Ibid.

130 Ibid.

131 Rome Statute, supra note 12, Art. 7.

132 Elements of Crimes, supra note 113, para. 2.

133 Dixon and Khan, supra note 88, at 1112.

134 Tadić case, supra note 122, para. 657.

135 See Dixon and Khan, supra note 88, at 1112.

136 See Rauxloh R., ‘The Role of International Criminal Law in Environmental Protection’, in Botchway F. (ed.), Natural Resource Investment and Africa's Development (2011), 423 at 449.

137 See supra notes 75–79 and supporting text.

138 See Smith, supra note 44, at 3; Orellana M.A., ‘Criminal Punishment for Environmental Damage: Individual and State Responsibility at a Crossroad’, (2005) 17 Georgetown International Environmental Law Review 673 , at 693.

139 See Bruch, supra note 83, at 729. See also Lago Agrio Victims’ Request, supra note 9, at 40–2.

140 Rome Statute, supra note 12, Art. 7(2)(b).

141 Elements of Crimes, supra note 113, Art. 7(1)(b)(2).

142 While not perpetrated by a non-state actor, an example of such an act is the Iraq Government intentionally draining the water source of the Marsh Arabs, which ultimately led to the destruction of this group. See generally ‘The Iraqi Government Assault on the Marsh Arabs: A Human Rights Watch Briefing Paper’, Human Rights Watch, January 2003, available at www.hrw.org/legacy/backgrounder/mena/marsharabs1.htm.

143 See Rome Statute, supra note 12, Arts. 7(2)(b), 7(2)(d), 7(2)(g).

144 See Lago Agrio Victims’ Request, supra note 9, at 18. If the facts evidenced that part of the population in the Ecuadorian Amazon moved out of the contaminated area, then the Prosecutor could potentially establish ‘forcible transfer of population’, but the Lago Agrio Victims’ Request does not provide such facts.

145 Rome Statute, supra note 12, Art. 7(2)(d).

146 See Smith, supra note 44, at 7 (noting the situation in South Sudan where the water supply and land of communities were targeted in an effort to force their exodus from the area to allow oil companies to exploit the area's natural resources). See also Rome Statute, supra note 12, Art. 7(2)(d).

147 Rome Statute, supra note 12, Art. 7(2)(g).

148 Elements of Crimes, supra note 113, Art. 7(1)(h)(3).

149 See Smith, supra note 44, at 7. For example, the case of the Marsh Arabs would likely amount to persecution under Art. 7 because the identity of the Marsh Arabs was the reason why their environment was intentionally targeted. See generally Human Rights Watch Briefing Paper, supra note 142, at 1.

150 See Elements of Crimes, supra note 113, Art. 7(1)(h)(4). See also de Guzman, supra note 71, at 16.

151 See Haenen I., ‘Classifying Acts as Crimes Against Humanity in the Rome Statute of the International Criminal Court’, (2013) 14 (7) German Law Journal 796 , at 810.

152 Rome Statute, supra note 12, Art. 7(1)(k).

153 See Schabas, supra note 50, at 119. But see Dr. Saif-Alden Wattad M., ‘The Rome Statute & Captain Planet: What Lies Between “Crimes Against Humanity” and the “Natural Environment?”’, (2009) 19 Fordham Environmental Law Review 265 , at 268–9 (arguing that interpreting ‘other inhumane acts’ to cover environmental destruction violates the principle of legality).

154 See Smith, supra note 44, at 7.

155 See Rome Statute, supra note 12, Art. 7(2); Elements of Crimes, supra note 113, Arts. 7(1)(c), 7(1)(e)–7(1)(g)-6, 7(1)(i), 7(1)(k).

156 Elements of Crimes, supra note 113, Art. 7(1)(a).

157 Ibid., Art. 7(1)(b).

158 See Rome Statute, supra note 12, Art. 22(2).

159 See Cassese et al., supra note 77, at 105. However, the exclusion of environmental destruction in Art. 7 is arguably evidence of the drafters’ intent to exclude environmental destruction when compared to the explicit inclusion of environmental destruction as a war crime under Art. 8(2)(b)(iv) of the Rome Statute. See Sadat L.N., ‘Crimes Against Humanity in the Modern Age’, (2013) 107 American Journal of International Law 334 , at 352 (noting that the rejection of appeals during the drafting of the Rome Statute to include environmental crimes under Art. 7 proves the drafters’ intent to exclude such acts from ICC prosecution).

160 See Rome Statute, supra note 12, Art. 7(1)(k).

161 Sadat, supra note 159, at 370. See also Freeland, supra note 28, at 179–80.

162 See Keefe, supra note 5.

* BA Mount Holyoke College 2009, JD Villanova University School of Law 2015 and MSt University of Oxford expected 2018 []. The author would like to dedicate this article to the memory of her godmother, Margaret Ann Campbell.

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Leiden Journal of International Law
  • ISSN: 0922-1565
  • EISSN: 1478-9698
  • URL: /core/journals/leiden-journal-of-international-law
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