Transitional Justice Mechanisms: Fortifying the Fifth Crime of Ecocide
Updated: Oct 18, 2022
Mansi Srivastava is a Judicial Law Clerk-cum-Legal Researcher with HMJ Prathiba M. Singh at the Delhi High Court, where she assists on a wide variety of areas such as conflict of laws, global data privacy laws, constitutional laws, labour laws, intellectual property laws, and general civil/criminal procedure. She is a member of the Association for Young International Criminal Lawyers (AYICL) and is currently also assisting the Centre for International Law Research and Policy (CILRAP) with their Second Edition of the treatise, ‘Historical Origins of International Criminal Law: Volumes 1-4’. Prior to this, she was an Associate with L&L Partners, advising the India Government and foreign investors on clean energy and infrastructure projects. She graduated from National Law University, Jodhpur in 2019, with a B.A., LL.B.(Hons.) with the late Ms. Pranita Mehta Memorial Gold Medal for Outstanding Mooting Achievements. Her areas of research interest include public international law, international criminal and humanitarian law, international relations, and global data privacy laws vis-à-vis freedom of speech and expression.
Image by Marcin Jozwiak available here.
“[T]he critical moment may not come when the Court first begins to investigate and pursue charges. Instead, it may come later, after which the ICC’s work may already have helped to stigmatize the wrongdoers, draw international attention to a difficult situation, and catalyze increased political pressure that is conducive to negotiation.”
This excerpt highlights an increasingly vital function of the first permanent International Criminal Court (ICC) in the world. The Rome Statute recognizes prosecutorial practices along with transitional justice, toward a holistic rebuilding of post-conflict societies. In this vein, Article 53 of the Rome Statute stipulates that an investigation may be forgone if it “would not serve the interests of justice.” Article 75 further recognizes symbolic and restorative forms of reparations before the ICC. The ICC Office of the Prosecutor also expresses support for capacity-building, traditional justice, and institutional reforms. The ICC therefore blurs the lines between retributive, deterrent, and transitional justice, making itself potentially far more effective than a pure prosecutorial mechanism. Therefore, traditional prosecution before the ICC for the newly proposed crime of ecocide should incorporate transitional justice mechanisms to address the urgent issue of environmental damage. Scholars have studied both definitional gaps and practical prosecutorial challenges related to the newly proposed crime of ecocide. Consequently, there are proposals for a more eco-centric definition, a clarification of mens rea requirements, forensic practices to aid evidence presentation for ecocide, and the addition of corporate criminal liability. However, even the foremost critics of the legal concept of ecocide support some movement toward the criminalization of environmental damage, albeit in different ways. Cognizant of the ongoing work in addressing challenges to the Rome Statute’s incorporation of ecocide, this post does not seek to propose more definitional changes. Instead, it takes a step further – considering ecocide as an existing crime in the Rome Statute in some form – to propose the deployment of complementary Transitional Justice Mechanisms (TJMs) to make the criminalization of ecocide significantly more effective.
The Role of Transitional Justice Mechanisms in Vulnerable Communities
At the outset, TJMs are defined as judicial or non-judicial measures to address rights violations and establish rule of law in societies emerging from repressive regimes. Such mechanisms serve to achieve accountability, reconciliation, and redress for the violation of victims’ rights. Indigenous groups, women, and other vulnerable groups that are known to be disproportionately impacted by environmental destruction. Therefore, TJMs would be instrumental in societies where social and political systems have failed to prevent and prosecute environmental destruction.
To understand the precise role of TJMs in addressing environmental destruction, this post reviews the purported objectives of criminalizing ecocide. These objectives identify the gaps in international environmental laws, demonstrating the need for the proposal of ecocide. Such objectives are then mapped against corresponding TJMs that would help achieve the objectives in conjunction with prosecution for ecocide.
Applicable Transitional Justice Mechanisms for Tackling Environmental Damage
Ecocide has been proposed as a fifth crime to address various issues plaguing international environmental law (IEL), as per the UN Report on Gaps in IEL. These issues include (i) lack of harmonized IEL principles; (ii) lack of robust enforcement and implementation procedures; (iii) lack of political will and inadequate engagement of stakeholders and civil society; (iv) limited reporting, knowledge gaps, and inadequacy of data due to high costs of sampling and analysis and lack of scientific experts, especially in developing countries; and (v) absence of review mechanisms and global liability and compensation regimes (such as the specific exclusion of liability and compensation for climate damage from the Paris Agreement).
In this situation, the most useful tools of TJMs applied ecocide are as follows:
People’s Tribunals: Especially in cases of environmental destruction where there are obstacles like lack of political will, scant stakeholder engagement, and data inadequacy, tribunals like the International Monsanto Tribunal and Permanent People’s Tribunal provide platforms for vulnerable communities to reclaim their rights. Relatively free from political influence, tribunals enable people’s participation in the justice system, allow critiques of crimes, and provide accurate recommendations even if perpetrated by powerful corporate actors, state organs, or state-enabled actors (such as through licensing regimes). Driven by private citizens and civil society organizations, acting as judges, investigators, and witnesses, people’s tribunals further free public discourse. Moreover, such tribunals are better positioned to gather local evidence without the ICC’s access barriers. Most recently, the Uyghur Tribunal gathered extensive evidence, conducted a trial, and decided that China was committing genocide. Despite the ICC’s refusal to open an investigation, this successful tribunal illustrates an effective people’s tribunal, where civil society actors and victims, cooperating with international legal experts, create a record of evidence and assist the judiciary with preliminary assessments of claims. People’s tribunals also factor indigenous practices into the restorative process, as the traditionally environmentally sustainable practices of indigenous communities become especially relevant in cases of environmental damage. This inclusiveness would contribute immensely towards strengthening the prosecution of ecocide with proper evidence and victim participation.
Reparations and Liability Regime: As noted by the UN Report on Gaps in IEL, the lack of harmonized principles of liability and knowledge transfer is a crucial gap in IEL. Capacity-building, technological support, and legislative reforms toward a more environmentally conscious regime are crucial in societies destroyed by environmental damages. Obtaining meaningful reparations is a primary objective of both the ICC and TJMs. Article 75 of the Rome Statute is pivotal in its recognition of non-monetary compensations such as the return of property, rehabilitation, and symbolic reparations. Considering that most perpetrators of ecocide are corporate entities with substantial resources, TJMs could enable a reparations regime where such perpetrators contribute to rebuilding society and providing resources. These reparations, unlike the imprisonment of some figureheads, could actually impact the victims’ lives. Therefore, this provision would lead to meaningful reparations for victims and a stronger civil liability regime. Further, the unindicted perpetrator provisions under Article 25 of the Rome Statute would bring other responsible actors, like participants in the supply chain, to the forefront. For instance, companies selling LCDs in a developed country, source the components through various suppliers and distributors, who ultimately use manufacturers of LCDs in a developing country, emitting fluorinated greenhouse gases in such countries. Thus, a comprehensive and tailored reparations and liability regime for ecocide provided through the Rome Statute, elicits stronger domestic supervisory and regulatory mechanisms to encourage state responsibility and systemic changes in the environmental legal and policy framework. Such international provisions supplemented by stronger domestic support, would make commissions like the UNCCC, which held Iraq responsible for environmental damage in Kuwait, more of standing institutions instead of ad hoc inventions. Transforming such commissions into standing institutions would strengthen the deterrent effect on potential perpetrators, who currently act without fear of facing any certain punishment. Therefore, tying up the loose ends of the reparations regime for environmental damage is crucial to provide effective and consistent remedies, as also deter further damage.
National Legal Reforms: One of the fundamental criticisms about the proposed definition of ecocide is that it is anthropocentric, meaning it shields environmental damage from prosecution to the extent that such damage is required for some socially or economically beneficial activities. Therefore, the crime subordinates environmental protection to human benefits. TJMs can encourage ecocentrism. For instance, national awareness of ecocide could be used to accord a legal personality to natural resources, as was achieved for the Vilcabamba River in Ecuador to secure a constitutional injunction. This would be instrumental in developing a collective conscience that ecocide is not victimless and enabling ecocentric reparations.
Evidentiary Benefits: A persistent concern in prosecuting environmental crimes is the lack of sophisticated scientific/forensic evidence gathering mechanisms, especially in developing economies, which are the most impacted by environmental damages. With ecocide included in the Rome Statute, the ICC’s scientific and forensic practices for evidence collection and the scientific experts could be lent out domestically to provide investigative skills and technologies. This would enable the localized collection of data, as well as faster identification of damages by local organizations with more sophisticated technologies. Recent proposals to the ICC for improvements to aid in more scientific and forensic evidence collection would also provide effective investigations by knowledge transfer in domestic jurisdictions, thus easing the prosecutorial burden in the long run.
Therefore, ICC and TJMs stand to mutually benefit from each other, not only by criminal prosecutions but also by reformative and restorative justice. Hybrid mechanisms, where domestic and international laws are synergized, have already demonstrated improved results such as the Extraordinary Chambers in the Courts of Cambodia and the Columbian Special Jurisdiction for Peace. Such a mandate would pave the way for sweeping changes in societies’ responses to environmental issues.
A version of this text is originally hosted on Völkerrechtsblog.