The International Criminal Court at The Hague (ICC) has released a new set of proposed rule changes that could open the door to prosecuting individuals, governments, and perhaps even corporations for environmental crimes against humanity, such as oil spills, deforestation, and excessive carbon emissions.
A common question that attorneys get from those concerned about the environment is why they can’t sue corporations for causing climate change.
The answer from those lawyers is that proving a definitive relationship between a corporation and specific climate damages is simply too difficult.
For example, in order to obtain a verdict, a lawyer would have to prove that Company X created Product Y and Product Y is directly, solely responsible for Damage Z. Any other outside forces acting upon Damage Z can negate an entire lawsuit, and it is nearly impossible to directly link Product Y as the only factor in something as massive and complicated as climate change.
Holding companies accountable for discharging toxins such as, say, PCBs or mercury, into the environment is an easier task, though still quite challenging.
Proving that Company X dumped Toxin Y into a river that caused Cancer Z is not uncommon in American courtrooms. Each toxin dumped into the environment by a company — whether as a solid or liquid — maintains a chemical signature that scientists can frequently link directly back to a company after identifying the toxin in, for example, the body of a person or in a body of water.
So, how do we reconcile the two examples of pollution? It is well known that the fossil fuel industry emits copious amounts of carbon dioxide (CO2) into the atmosphere, and we know that this and other greenhouse gases are causing destructive changes to the environment at an alarming and unprecendented rate.
Why is that not enough to hold the corporations behind these actions accountable? In the future, it might be enough evidence to secure a conviction.
From the ICC document:
The impact of the crimes may be assessed in light of, inter alia, the increased vulnerability of victims, the terror subsequently instilled, or the social, economic and environmental damage inflicted on the affected communities. In this context, the Office will give particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.
The document also specifies some of the criteria that will be used to determine the severity of the crimes:
The manner of commission of the crimes may be assessed in light of, inter alia, the means employed to execute the crime, the extent to which the crimes were systematic or resulted from a plan or organized policy or otherwise resulted from the abuse of power or official capacity, the existence of elements of particular cruelty, including the vulnerability of the victims, any motives involving discrimination held by the direct perpetrators of the crimes, the use of rape and other sexual or gender-based violence or crimes committed by means of, or resulting in, the destruction of the environment or of protected objects.
As Tara Smith points out at The Conversation, these guidelines actually do not broaden the ICC’s scope of crimes being prosecuted. Instead, it will prioritize more highly cases involving the environment, making it far more likely for individuals and the corporations that they control to be held liable for actions that result in environmental destruction.
In the past, the court had spent most of its environmental focus on the intentional destruction or degradation of the environment and natural resources carried out by individuals seeking to harm a certain population. One examble would be when Saddam Hussein diverted rivers in Iraq to create a drought and famine in “disobedient” areas of southern Iraq.
The new system will allow the agency to tackle individuals and governments for knowingly and willfully creating environmental destruction. A more recent example might be the role that BP, TransOcean, and Halliburton played in the Deepwater Horizon explosion and oil spill in the Gulf of Mexico.
All parties involved were aware that they were skirting safety measures and putting themselves and the Gulf of Mexico in danger, yet they avoided taking actions that could have ultimately prevented the disaster. People like Tony Hayward, CEO of BP at the time, could potentially be held criminally responsible by The Hague under the agency’s new direction.
The current Dakota Access pipeline, intended to carry Bakken crude oil through the Dakotas, Iowa, and Illinois, is another example of something that could potentially be brought before the ICC. The agency’s guidelines specifically mention the “destruction of the environment or of protected objects.”
The protected lands of the Standing Rock Sioux Tribe leading the fight against the pipeline could potentially fall under those criteria, especially in light of the pipeline company’s Labor Day weekend destruction of recently discovered sacred burial grounds.
In addition, it is conceivable that the ICC‘s new focus on environmental destruction could lead to the prosecution of current and former officials at Exxon for covering up the dangers of climate change that were a direct result of the CO2 emissions created by using Exxon’s products.
In a case that is becoming increasingly complicated as investigations and probes on both sides stack up, Exxon knowingly and willfully hid the dangers of climate change from the public, despite its own research findings, in order to avoid liability. This kind of example could fall under the violations among the ICC’s criteria for case selection.
As The Guardian reported, “The new ICC focus could also open the door to prosecutions over climate change, [Richard Rogers of the international criminal law firm Global Diligence] said, because a large percentage of CO2 emissions had been caused by deforestation as a result of illegal land-grabbing,” which is explicitly highlighted in the new rules.
This shift in focus by the ICC shows promise that the court is taking the issue of climate change and environmental destruction much more seriously.
Main image: International Criminal Court, The Hague, Netherlands Credit: Hypergio, CC BY–SA 4.0