ICL and Environmental Protection Symposium: Can Ecocide Save the Planet? An International Crime of Climate Change

[Kate Mackintosh is the inaugural Executive Director of the Promise Institute for Human Rights at the UCLA School of Law. 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.]

The appeal of using international criminal law to protect the environment is intuitive: the destruction of our environment poses the greatest contemporary threat to the values that body of law seeks to protect: human rights, human health, global security – perhaps even human survival. And the threat is both massive and transnational in character. However, while environmental experts concur that climate change is the environmental issue, it proves the most difficult aspect of environmental destruction to capture in international criminal law. In this post I examine how an international crime of contributing to climate change could fit into accepted notions of international criminal law.

Conceptual challenges

Two conceptual challenges arise at the outset. The first is that international criminal law, is – with very few exceptions – anthropocentric, concerned with the situation of people, and not ecocentric or concerned with our planet. The Rome Statute includes the war crime of  “intentionally launching an attack in the knowledge that such attack will cause … widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated” (Article (8(2)(b)(iv)); but otherwise, while international crimes may be committed by means of environmental destruction, they require harm to people. Although we all feel alarmed by the future harms that can be predicted as a result of climate change, these are gradual and seem distant.

Unfortunately, these harms may be manifesting already, and our future trajectory is becoming clearer. Research published on May 4 estimated drily that that between one and three billion people are projected to be “left outside the climate conditions that have served humanity well over the past 6,000 years”. Among the more tangible effects that the International Panel on Climate Change lists as occurring with high probability if we keep global warming to the ambitious 1.5C level, are forest fires and extreme weather events; water scarcity, loss of fisheries’ productivity and the creation of oceanic dead zones, and the spread of invasive pests and diseases, not to mention the sea level rise which is already forcibly displacing people from their homes and seems set to eradicate small island states.

The negative impacts of these effects on humans are being acknowledged in the international legal sphere, most notably in the field of human rights. In its November 2017 Advisory Opinion, building on a chain of international human rights soft law and jurisprudence, the InterAmerican Court of Human Rights declared that “[e]nvironmental  degradation  may  cause  irreparable  harm  to  human  beings;  thus, a  healthy environment is a fundamental right for the existence of humankind” (para 59). And in January 2020, the UN Human Rights Committee found that returning an individual to the Republic of Kiribati entailed a real risk of impairment to his right to life due to the impact of climate change and associated sea level rise. The anthropocentric / ecocentric distinction makes less and less sense as we continue along our current path, an understanding  viscerally communicated by those climate activists who chose to name their movement Extinction Rebellion.

Human life and well-being is not the only interest protected by ICL: another, through the crime of aggression, is sovereignty. And sovereignty is also at stake in climate change, which ignores borders and foists new conditions of life on states without their consent or control. This is the fundamental plea of the small island states – that to fail to halt global warming, and accompanying sea-level rise, is an effective act of aggression which will eradicate them as surely as the use of weapons of mass destruction.

The second conceptual challenge is the contrast between the individual focus of international criminal law and the systemic character of climate change. Apart from the difficulty this causes in attributing responsibility, of which more below, how likely is an individual approach to be effective in halting or mitigating the climate crisis? In fact the system’s complexity makes it hard to predict how the system will react to new elements designed to redirect it. What is certain is that no single strategy is likely to solve the problem. And it may be that the reframing of responsibility for climate change as individual and criminal, rather than intangible and diffuse, has system wide effects, whether through shifting public awareness, weighting board-room decisions or some as yet unpredicted butterfly effect.

Elements of the crime

If we can overcome the initial conceptual barriers to an international crime of climate change, how can we define the actus reus? The simplest approach would take as given (1) that global warming and climate change causes and will increasingly cause severe harm to human life (and violate sovereignty), see above; (2) that the main driver of global warming is greenhouse gas emissions, and (3) that these are overwhelming released by the burning of fossil fuels, with deforestation another major cause. The science seems clear enough on all three points (see the IPCC; the FAO and the US EPA). In this approach, the prohibited conduct would consist of those actions which contribute most significantly to greenhouse gas emissions, such as fossil fuel extraction, refinement and combustion, as well as deforestation. A gravity threshold would be one way to distill the distributed responsibility of the system and identify those most culpable, so that only the largest contributions, either in terms of quantity or percentage of global emissions, become unlawful.

The appeal of this approach lies in its simplicity. There is no need to prove the already established link between emissions and global warming, nor between global warming and human harm. A domestic analogy would be the criminalisation of pollution, where knowing release of toxic substances – often above a certain threshold quantity – is a criminal offence. Defining the mens rea is also straightforward. Intent to engage in the prohibited emissions-releasing conduct, at the requisite scale, is all that is required for responsibility.

Alternatively, emission of greenhouse gases, and global warming, could be included as consequences in the definition of the crime, perhaps as a chapeau element, requiring prosecutors to establish these causal links. Mens rea would have to address these consequences. However, if the ICC article 30 standard is followed this should not present an obstacle as responsibility attaches, in relation to a consequence, when a person means to cause that consequence or is aware that it will occur in the ordinary course of events.

The criminalisation of massive greenhouse gas emissions might be just what is needed to force the radical shifts in our economy and way of life that are needed to avert the climate crisis. However, it may be a political step too far, at least at the moment. More thought is also required about how such crimes would relate to domestic and international regulatory systems, including the Paris Agreement (some kind of integration with that state-based framework would be ideal).  An intermediate alternative could lie in the introduction of elements of fraud, deception or corruption to the definition of the crime. Deception could include the types of behavior alleged against Exxon, Mobil et al., who spent millions of dollars to spread misinformation and discredit the science on climate change. This would focus responsibility on individuals who aim to avoid and so frustrate existing and emerging regulatory frameworks, and has the advantage of capturing behaviour already understood to be criminal.

Conclusion

While the addition of fraud or corruption to an international climate change crime might make it easier to imagine, I wonder if this is the right moment to compromise. Could a campaign to criminalise massive emissions be the push that the carbon majors need to pivot to sustainable energy?This post seeks to start a conversation amongst international lawyers about how such a crime might plausibly be crafted, and how ICL might help us confront the greatest challenge facing us today.