ICL and Environmental Protection Symposium: Establishing Facts for Strategic Climate Litigation Through Private-Public Partnerships

[Reinhold Gallmetzer is Chair of the Board of Director for the Center for Climate Crimes Analysis (“CCCA”) and an Appeals Counsel for the Office of the Prosecutor of the International Criminal Court. Nema Milaninia is an Advisory Board member of CCCA and formerly a Trial Attorney for the Office of the Prosecutor of the International Criminal Court.  The views expressed herein are those of the authors alone and do not necessarily reflect the views of the Office of the Prosecutor or the International Criminal Court.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.]

Climate change is the defining issue of this generation, and the present moment is that issue’s defining moment. The potential and actual consequences of climate change are felt by every country around the world. Even as seen through the narrow lens of international criminal and humanitarian law, climate change threatens to destabilize already vulnerable communities and increases the risk of violent armed conflict. According to a study published by Nature in 2019, climate has influenced between 3% and 20% of armed conflicts over the last century and intensifying climate change is estimated to increase future risks of conflict. With these considerations in mind, a discussion regarding the prevention and prosecution of atrocity crimes can no longer be seriously had without understanding and combating the impact of climate polluters. As recently recognized by the International Bar Association’s 5 May 2020 Climate Crisis Statement, “[t]he legal profession must be prepared to play a leading role in maintaining and strengthening the rule of law and supporting responsible, enlightened governance in an era marked by a climate crisis.”

Bearing in mind the important role lawyers across legal disciplines can take in combatting climate change, this post explores how international criminal practitioners can generate strategic climate litigation. In doing so, this post identifies important ways in which civil society and other private entities can engage government and public partners to achieve criminal or other legal responsibility for climate polluters.

Courts are critical components in the global response to the climate emergency. Judicial proceedings, when managed by experienced judges and judicial officers, are particularly apt at addressing long-term challenges, such as climate change, for which the most severe impact will be felt only by the next generations. Constitutionally-guaranteed independence and impartiality releases judges from the pressures of short-term political gain, special interests’ lobbies, and the vagaries of public opinion. At the same time, judgments and judicial opinions are legally binding and enforceable and can, in some circumstances, be enforced across borders. Beyond the weight of legal precedence, judicial decisions, especially when properly reasoned, can influence public opinion and add to the public discourse regarding the issue at stake.

A few hurdles, however, need to be overcome to make more and better use of courts in addressing the climate emergency. Notwithstanding recent examples of successful strategic climate litigation, laws with the potential of addressing some of the key causes of climate change are still not adequately enforced. This applies, for instance, to the direct and illegal harm caused through the extraction and use of fossil fuels or to illegal deforestation. Our enquiries with prosecution and police authorities suggest that this is mostly because law enforcement agencies lack access to high quality information and support that would enable them to trigger and conduct effective proceedings within the means available to them. These issues are likely to become exacerbated in the near future, as the global economy has plummeted in recent months due to the Covid-19 pandemic, causing national economies to recede and capital flows to decrease.

The same authorities have also indicated to us that non-governmental organizations (NGOs) or other private actors lobbying for or bringing more strategic climate cases, must produce stronger evidence—suggesting that climate cases often fail due to proof issues. Judicial climate action—whether enforced through criminal, administrative, constitutional or civil courts—can only be successful if it is based on relevant and probative evidence. Generally, this evidence must establish that a person (natural or legal) engaged in illegal conduct or caused an illegal harm. The lack of access to high quality information establishing those facts prevents courts and regulatory authorities from fully exploiting their collective potential to enforce laws capable of addressing the climate emergency.

This problem can be fixed. Recent developments in information and communication technology have created new and unprecedented possibilities for private organizations and individuals to generate, access, verify and disseminate information. This allows NGOs and private citizens to trigger and support judicial or regulatory proceedings. In fact, even if private entities lack the investigative powers enjoyed by government authorities, they may in many ways be more effective at information gathering and analysis than government authorities. This is because, collectively, they have more people to carry out such tasks; more immediate and direct access to certain kinds of information; more diverse expertise; and the ability to share relevant information swiftly and across borders without being restricted by jurisdictional limitations, bureaucratic or administrative hurdles, or narrow procedural rules. If mobilized in a coordinated and strategic way, NGOs and private citizens have the capacity to bring stronger cases before judicial authorities or support judicial climate action.

One such example is the work of the Center for Climate Crime Analysis (“CCCA”)—an organization to which both authors belong. CCCA is comprised of current and former international prosecutors and police investigators that use their law enforcement expertise to strategically advise, support, and coordinate NGOs and private citizens in their efforts to generate, preserve and collect information relevant to climate litigation. This ensures that the information collected is relevant and probative, as comprehensive as possible, and admissible in court. CCCA also conducts legal and forensic analyses of information and prepares case files that are then shared with law enforcement or advocacy organizations to support strategic climate litigation. These activities are intended to bridge the gap between the many entities with expertise or access to information and the competent national authorities or advocacy organizations.

The effectiveness of this approach can be illustrated in the Cerro de Pasco case in which CCCA and its partners forensically established that a lead mine owned by one of the world’s largest coal producers was, and continues to be, responsible for environmental contamination and harm to the inhabitants of Cerro de Pasco, Peru. CCCA first developed a case hypothesis and a collection plan. It then cooperated with private organizations specialized in environmental science, satellite imagery technology, open source investigations and data visualization, as well as with a team of experts in forensic medicine and with the affected grassroots communities to collect and analyze the relevant information. This information was analyzed under different legal statutes and is made available to domestic law enforcement authorities for criminal prosecution and regulatory enforcement; to government authorities to freeze assets or to impose other sanctions (for instance pursuant to the U.S. Global Magnitsky Human Rights Accountability Act); to NGOs for various forms of civil litigation; to investors to divest from the relevant corporations; and to other stakeholders to assist them in complying with their due-diligence obligations or with voluntary sustainability or human rights standards.

Technological developments enable NGOs and concerned citizens to strategically trigger and support legal proceedings by collecting and providing relevant and probative information that establishes the factual foundation for these proceedings. CCCA harnesses this potential to make effective use of it in judicial climate action and related initiatives. At a time when political institutions in parts of the world appear paralyzed in the face of the unprecedented complexity of the climate emergency, the decisions of independent and impartial courts are a key component to addressing it. It is to that end that international criminal practitioners, with their skills and expertise in law enforcement techniques and in handling complex criminal matters, can play a supporting role in ensuring that strategic climate cases are appropriately evidenced and of the highest quality to ensure success.