The International Criminal Court (ICC) held its seventeenth session of the Assembly of States Parties to the Rome Statute in The Hague from 5 to 12 December 2018. The seventeenth session consisted of many side events, including a number of events on the topic of climate crime.
The first event, co-organised by the Institute for Environmental Security (IES) and Ecological Defence Integrity (EDI) was held at the MUSEON on 6 December. Here, ecocide law expert, Polly Higgins, announced EDI’s commencement of their independent preliminary investigation into climate ecocide, which implicates two top executives from Shell and a Dutch minister.
The second event was held on 8 December at the World Forum where the September 2016 ICC Office of the Prosecutor (OTP) Policy Paper on Case Selection and Prioritisation was discussed. The policy paper adds a new focus on crimes committed through or resulting in the destruction of the environment, the illegal exploitation of natural resources and the illegal dispossession of land. Co-organisers, Green Transparency, Foundation Earth, Friends of the Earth, IES and EDI put together a panel consisting of Reinhold Gallmetzer (Appeals Counsel, ICC OTP), Peter D. Carter (co-author of Unprecedented Crime: Climate Science Denial and Game Changers for Survival and Founder/Director of the Climate Emergency Institute), Wouter J. Veening (President/Chairperson, IES) and Polly Higgins. The panel was moderated by Shirleen Chin, Founder of Green Transparency.
Polly emphasised that atrocity crime perpetrated by carbon majors is undeniably a 21st century challenge. Sadly, the constant battle is convincing states about the threats we face from accelerating climate breakdown.
Wouter then highlighted the ecological situation in Venezuela where large swaths of the Amazon have been bestowed by President Nicolás Maduro to foreign partners, organised crime groups and the military under the pretext of mining. In considering the use of international criminal law to counter this problem, Wouter stated that the NGO’s reception of the policy paper is lukewarm at best. There is a lack of awareness about the document and he reiterated that the cumbersomeness of this route can be a disincentive.
Peter, who is also an expert IPCC reviewer added that the science behind climate change is undeniable and should suffice as hard evidence of climate crime. The United Nations Framework Convention on Climate Change (UNFCCC) is good law but is not optimally used in spite of the climate emergency upon us.
To those who know the policy paper, Reinhold enumerated the mandate of the ICC and dispelled some confusion about the document. Domestic (criminal) proceedings remain the ideal course for action vis-a-vis climate crime. In such events, the ICC may offer assistance and cooperate if climate crime is recognised as a serious crime under national law.
Furthermore, because the Rome Statute is anthropocentric in nature, one would have to prove direct causal link between climate crime and harm to humans for it to qualify as a crime against humanity – on top of meeting the elements of crime under Article 7. Therefore, climate crime cannot (yet) qualify as a crime against humanity under the Rome Statute but could be pursued using other means nationally (see next paragraph for examples of climate action).
(This panel was repeated the next day on 9 December at Grand Café Utopie to a public audience.)
Since the turn of the century, the world has witnessed a storm of climate litigation brewing bringing the total of climate cases, in over 20 countries, to at least 900. Most of these are in the form of civil lawsuits or class action suits (see for instance the Urgenda and Juliana cases filed in The Netherlands and the United States respectively) by citizens against their governments for failing to adequately dealing with climate change.
The main purpose of these lawsuits is to create pressure for much needed policy changes. Countries like Vanuatu and the Philippines that are threatened by sea-level rise and extreme weather events are saying enough is enough as they use the shields of ecocide law and human rights to defend their existence against big carbon energy producers.
Meanwhile, cities are also pursuing action of their own. Led by mayors, initiatives such as the C40 Cities Climate Leadership Group and Global Covenant of Mayors for Climate and Energy, accelerate climate actions at the ground level. Last November, the City of London also saw the launch of a non-violent civil disobedience movement called Extinction Rebellion. The deliberately disruptive lockdown of the city spoke volumes and is being replicated in cities all over the world. The myriad of non-governmental actions testifies to the displeasure felt by world citizens of political tardiness and inefficiencies.
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