Could the International Criminal Court Start Prosecuting Climate Crimes?

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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 carbonย emissions.

A common question that attorneys get from those concerned about the environment is why theyย canโ€™t sue corporations for causingย climateย change.

The answer from those lawyers is that provingย a definitive relationship between a corporation and specific climate damagesย is simply tooย 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 climateย change.ย 

Holding companies accountable for discharging toxins such as, say, PCBs or mercury,ย into the environment is an easier task, though still quiteย challenging.

Proving that Company X dumped Toxin Y into a river that caused Cancer Z is not uncommon in American courtrooms.ย Each toxin dumped into the environment by a company โ€” whether as a solid or liquid โ€” maintains a chemical signature that scientists can frequently link directly back to a company after identifying the toxin in, for example,ย the body of a person or in a body ofย 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 causingย destructive changes to the environment at an alarming and unprecendentedย rate.

Why is that not enough to hold the corporations behind these actions accountable? In theย future, it might be enough evidence to secure aย 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 ofย land.

The document also specifies some of the criteria that will be used to determine the severity of theย 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 crimesย committed by means of, or resulting in, the destruction of the environment or of protectedย objects.

As Tara Smith points out at The Conversation, these guidelines actually do not broaden the ICCโ€™s scope of crimes beingย prosecuted. Instead, it will prioritize more highlyย 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 environmentalย 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 exambleย would beย when Saddam Hussein diverted rivers in Iraq to create a drought and famine in โ€œdisobedientโ€ areas of southernย Iraq.

The new system will allow the agency to tackle individuals and governmentsย 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 ofย 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 BPย at the time, could potentiallyย be held criminally responsible by The Hague under the agencyโ€™s newย direction.

The current Dakota Access pipeline, intended to carry Bakken crude oil through the Dakotas, Iowa, and Illinois,ย is another example of something that could potentially be brought before the ICC. The agencyโ€™s guidelines specifically mention the โ€œdestruction of the environment or of protectedย objects.โ€

The protected lands of the Standing Rockย Sioux Tribe leading theย 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 burialย grounds.

In addition, it is conceivable that the ICC‘sย new focus on environmental destruction could lead to the prosecution of current and former officials at Exxonย for covering up the dangers of climate change that were a direct result of the CO2 emissions created by using Exxonโ€™sย products.

In a case that is becoming increasingly complicated as investigations and probes on both sides stackย up,ย Exxon knowingly and willfully hid the dangers of climate change from the public, despite its own research findings,ย in order to avoid liability. This kind ofย example could fall under the violations among the ICCโ€™s criteria for caseย selection.

Asย The Guardian reported, โ€œThe 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,โ€ which is explicitly highlighted in the newย rules.

Thisย shift in focus by the ICC shows promiseย that the court isย taking the issue of climate change and environmental destruction muchย moreย seriously.ย 

Main image:ย International Criminal Court, The Hague, Netherlandsย Credit:ย Hypergio,ย CC BYSAย 4.0

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Farron Cousins is the executive editor of The Trial Lawyer magazine, and his articles have appeared on The Huffington Post, Alternet, and The Progressive Magazine. He has worked for the Ring of Fire radio program with hosts Robert F. Kennedy, Jr., Mike Papantonio, and Sam Seder since August 2004, and is currently the co-host and producer of the program. He also currently serves as the co-host of Ring of Fire on Free Speech TV, a daily program airing nightly at 8:30pm eastern. Farron received his bachelor's degree in Political Science from the University of West Florida in 2005 and became a member of American MENSA in 2009.ย  Follow him on Twitterย @farronbalanced.

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