ICL and Environmental Protection Symposium: Environmental Crimes Against Humanity

[Darryl Robinson is an Associate Professor at Queen’s University Faculty of Law (Canada), specializing in international criminal justice. This is part of a series of blog posts examining International Criminal Law and the Protection of the Environment, and stems from an expert meeting group convened at the Promise Institute for Human Rights at UCLA School of Law in February 2020.]

In this post, I argue that mass harms to humans, directly produced through harms to their environment, can in principle satisfy the existing definition of crimes against humanity.  At first glance, this conclusion will seem counter-intuitive for some readers, because we are habituated to think of environmental harm as “separate” from harms to humans.  I will briefly address both the perceptual barriers and the interpretive questions for “environmental crimes against humanity” (“ECAH”).  For readers intrigued by these novel legal questions, I refer you to early works by Luigi Prosperi and Jacopo Terrosi, Jessica Durney, and Caitlin Lambert.

I focus in this post on egregious pollution that is substantially certain to cause massive and severe harm to human populations.  A possible illustration could be the open-pit mine that was permitted to operate literally inside the town of Cerro de Pasco, Peru, slowly consuming the city and creating toxic metal concentrations 100,000 times higher than normal (See: “A Mine Eats A 400-Year Old City”).  The city has been described as the most polluted on Earth, and has been declared a health emergency three times.  According to reports (see here, here, here), the mine has resulted in lead, arsenic and mercury poisoning of the town’s 70,000 inhabitants.  Such poisoning predictably produces higher mortality rates and severe health and developmental problems.  I do not attempt to assess the evidence here; I refer to it merely as an illustration of the type of harm that ECAH might address.

A.  Perceptual Barriers: Contemporary Crimes Against Humanity

International criminal lawyers frequently encounter arguments to “stretch” crimes against humanity to cover all manners of social ills, and hence they are quite rightly wary of arguments that sound creative.  Those who advocate recognition of ECAH should carefully show that such recognition is thoroughly mindful of strict construction, the limited role of criminal law, and the even more limited mandate for international criminal law.  The proposal is not to stretch the law but to soberly apply the law in a new context.

The Nuremberg paradigm: So far, crimes against humanity law is generally applied in contexts of either (a) state repression or (b) predation by armed groups.  Accordingly, some jurists may reflexively resist the idea of ECAH, because it seems like an unfamiliar application of the law.  However, just because the law has typically been applied in two contexts does not necessarily mean they are the only permissible contexts.  We should instead turn to the definition of the crime and the basic theory of the crime.  The law of crimes against humanity can have contemporary applications.

            “Separate compartments”: Another possible reflex is that international criminal law and environmental law are different things that must remain in hermetically-sealed separate compartments.  However, different types of criminality can overlap: for example, crimes against humanity, war crimes, corruption, environmental crimes, and illicit trade can overlap in different ways.  Foreseeably poisoning thousands of human beings can in principle constitute both an environmental offence and a crime against humanity.

Environmental harm as human harm: When I refer to ECAH, I am not proposing an amendment or a radical new conception that makes pollution per se a crime against humanity.  The law of crimes against humanity is anthropocentric: it focuses on harms to human beings.  This is not necessarily a problem with the law (crimes against humanity law performs an important function, enabling extra-territorial jurisdiction over mass harms).  It may be that an additional crime, such as ‘ecocide’ is needed to respond to acts of environmental destruction per se.  ECAH maintains the focus on human harm, but recognizes that massive pollution can inflict severe and foreseeable harm. 

            “Profit is different”: Finally, another possible resistive reflex is that pollution is “different” because it is motivated by profit and not malevolence toward a population.  I discuss this below.

B. Legal Issues

Prohibited acts?  A first challenge for any ECAH case is that one must prove the commission of one or more of the prohibited acts (see eg Article 7(1) of the ICC Statute).  An important category will be “other inhumane acts” (Article 7(1)(k)).  To satisfy the legality principle, this category is bounded by two requirements.  The first is that the inhumane act cause “great suffering, or serious injury to body or to mental or physical health”.  In situations of, for example, extremely high levels of poisoning with toxic metals, this is conceptually straightforward (although proving causation in cases of diffused harm requires careful evidence).  The second requirement is that the harm must be of a “similar character” to the enumerated acts.  The application of this category is more open to debate, because the other examples in Article 7 involve fairly direct physical harms, although there are exceptions like ‘extermination’, which includes indirectly producing deaths.  However, all in all, poisoning people – resulting in deaths and severe health problems – seems to be of a similar character to the other acts.

Intent? The enumerated acts must be committed “intentionally”.  In cases of toxic pollution, the harm is not the purpose, but rather a byproduct of cutting corners in pursuit of profit.  However, intention includes both direct intent (purpose) and indirect intent, ie. knowing that the harm is a substantially certain consequence of one’s conduct (see eg Article 30(2)(b) ICC Statute).  Thus, an ECAH case will require proof of knowledge of substantial certainty of harm, which is a high threshold, but one that can be met in egregious cases.

 “Attack”?  Another seeming challenge is the requirement of an “attack” on a civilian population.  Established jurisprudence shows that an “attack” need not entail violence (see eg. Kunarac, ICC Elements of Crimes); it suffices to have a course of conduct involving prohibited acts.  There is jurisprudence requiring that the civilian population be the “primary object” of the attack, but that jurisprudence is about distinguishing attacks on military objectives, which are assessed under the laws of war (see eg Kunarac).  It should not be misunderstood as incorporating a ‘special intent’ requirement into crimes against humanity (ie a desire to attack civilians).  On this, see for example earlier work by me and by Chile Eboe-Osuji.  The fact that the aim or motive of an operation was profit does not preclude it from being a crime against humanity, if one chooses to inflict mass harms on humans in pursuit of one’s aims.  Nuremberg jurisprudence on the use of slave labour by industrial leaders is one example showing that a profit motivation does not provide any immunity or exception.  Indeed, the earliest recognized crime against humanity – slavery – was largely driven by economic motivations.  The comparatively recent Commission of Inquiry report on North Korea (para 1135) admirably explains that crimes against humanity do not require a purpose of harming, and may be knowingly committed for ulterior motives. 

Policy of corporation or State?  Lastly, if the ICC standard is being applied, one must decide if the harm flows from a policy of an organization (eg. the polluting corporation) or the State.  There is room to debate whether corporations can qualify as an ‘organization’ under Article 7, but given ICC jurisprudence, it is most likely that corporations have the institutional structure and capacity to qualify.  (See eg here and here.)  The other possibility is to try to show that the State was actively involved, encouraging the policy. 

C.  Why Crimes Against Humanity?

Why turn to crimes against humanity as a response to harms inflicted through environmental destruction?  Environmental crimes are often conceptualized as a ‘lesser’, regulatory offence.  Where domestic environmental laws have failed to protect human beings from widespread and systematic harm, the law of crimes against humanity may be helpful.  Crimes against humanity shifts the frame from “mere” licensing, regulatory and environmental degradation questions, and instead shines the spotlight on massive, substantially certain harm inflicted on identifiable population of human beings.  ECAH investigations might shift perceptions of future corporate leaders and regulatory officials, from “business as usual” to a more sober pondering of unjustifiable excessive harms externalized onto vulnerable populations. 

The ECAH framing can also elevate the question, if necessary, from domestic regulatory bodies or criminal courts, to extra-territorial jurisdiction.  The answer might not necessarily be an ICC prosecution – the ICC is one institution with an overladen docket and limited budget.  (Furthermore, some chambers have adopted positions on crimes against humanity and on evidence that have no counterpart in any other jurisdiction, and that would render successful prosecution highly unlikely if such standards persist.)  Thus, for the next while, the future of crimes against humanity may lie in revitalized national prosecutions, with both domestic and extra-territorial cases.  This post offers a cursory initial introduction to some of the issues and opportunities for this new area of research and advocacy.