ICL and Environmental Protection Symposium: International Criminal Courts as Potential Jurisdiction for Corporate Responsibility for Environmental Crimes (Part II)

[Dr. Jelena Aparac is lecturer and legal advisor in international law, with a research focused on Business and Human Rights in Armed Conflicts; and a Member of the UN Working Group on mercenaries. This is the second part of a two-part post. 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.]

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One of the fundamental questions lies in who exactly has the right to take legal action and before which court in the case of corporate environmental crimes? Because the environment does not have a legal personality, it can not act before courts. It is difficult to determine who exactly would have the right to seek reparation, in other words, to determine who the direct and indirect victims are. Due to the gravity towards the environmental common heritage, a public prosecutor should have standing to instigate the trial whether the harm concerns only the environment (as a direct “victim”) or also human beings (directly in their corporal damage or indirectly by affecting their habitat). Using ICL as a tool to prosecute environmental crimes will not depend on the victims and their legal representatives who may fear the corporate giants or who may dispose of unequal arms to fight the long legal procedures. Furthermore, environmental defenders are less exposed to risks when the international investigators and prosecutors can take part of burden of documenting corporate environmental crimes.

National environmental regulations cannot effectively address all environmental issues due to the transnational effects of this harm. For instance improving access to drinking water may require the appropriate legislation in the territory of the polluted water source or specific policies in land use in the neighboring territory. Often, national environmental regulations offer incentives to companies to meet their environment goals and for that are accompanied with the provisions on the liability exclusion. In practice this is translated in the lack of appropriate monitoring and enforcement capacity to stimulate effective corporate performance. Therefore, national environmental law may provide for extensive flexibility for companies as to the means to an end, and can create different risks for the environment.  In most cases, State courts can only address corporate liability for environmental damage if there is in fact identifiable damage. Another difficulty arises when the complainants have to demonstrate a personal interest in bringing proceedings in order for a judge to accept the case. Most of the procedures are conducted before civil courts and depend on victims to substantiate the claim. In legal systems like France which does not recognize the system of class action (but does recognize the right to act for non-governmental organizations), it may be difficult for a victim alone to bring such cases. Notwithstanding all these challenges, it is worth recognizing that the modern theory of corporate liability is largely inspired by transnational litigation of corporations for their environmental damages.

Proceedings under ICL do not always take into account the role played by multinational companies in international crimes. Despite ICL recognizing from its early judgments in Nuremberg the role that corporations can play in war crimes, they have been so far excluded from the jurisdiction of international tribunals. However, the absence of jurisdiction should not dismiss corporate liability for international and environmental crimes. The International Criminal Court (ICC) has jurisdiction over corporate directors that may contribute to crimes as civilians under article 25(3) (c) or (d) of the Rome Statute. Although no prosecutions have been yet undertaken for foreign corporate directors, in the ongoing preliminary examination of Colombia, corporate actors including those of Chiquita, are alleged to have had a role in crimes against humanity. The Court can also prosecute some crimes that have caused, inter alia, environmental damage, because article 8 of the Rome Statute allows the prosecution of environmental damage as war crimes limited to international armed conflicts only (see also here for the discussion on the crime against humanity as a potential legal basis).

But the ICC presents other interesting perspectives, such as prosecuting a corporation as an isolated case. Once the criminal conduct of a corporation involves a certain level of gravity, the Prosecutor can initiate an investigation, especially when the crime has been committed by different individuals or entities who belong to, or are affiliated with, the same corporate entity in several States that are signatories of the Statute of Rome. Thus, different cases could be classified as a situation, not because several crimes were committed on the same territory, but because they were committed by the same entity on separate sovereign territories. Therefore, the situation should not necessarily attach to a geographically limited territory, but to the entity, namely a legal person.

The option of the ICC, though interesting, presents overwhelming diplomatic challenges in the current multilateral crisis. Not only would the Rome Statute have to be modified to include the environmental crimes (amendment of the current article 5 and additional article on the crime itself), but it would also require modifications to include corporate entities as potential perpetrators in particular article 25(1) among others. In the absence of a consensus, article 121-3 requires a two-thirds majority of State parties to amend the Statute. If such a decision can be approved, the fact remains that the amendments must be ratified or accepted by seven-eighths of the member states in order to enter into force, as envisaged in article 121-4. Alternatively, another legal technique to enlarge the Court’s jurisdiction would be to consider an additional protocol to the Rome Statute which States can choose to ratify or not.

In 2010, during the Kampala conference State parties solemnly reiterated their “determination to put an end to impunity for perpetrators of the most serious crimes of international concern, […] and thus to contribute to the prevention of such crimes that threaten the peace, security and well-being of the world”. The protection of the peace, security and well-being of the world can result in taking into account any perpetrator of international crime, and more particularly, multinationals corporations. Therefore, if States wish to devote their commitments to the true protection of peace, they must find ways to include multinational corporations in the Rome Statute. This can be achieved by integrating the new vision of complementarity that has emerged at the Kampala Conference which is reflected in the concept of positive complementarity. The traditional approach of negative complementarity supposes a rather antagonistic relationship between the State concerned by the investigations in profit of the ICC. However, in the context of corporate liability and the potentially new crime of environmental harm, the positive complementary includes the perspective of positive cooperation strengthening the capacity of States to respect International Criminal Law (that would also protect the environment). State courts face many legal, diplomatic and logistical challenges to investigate and prosecute complex crimes that extend beyond one jurisdiction. As a result, complementarity, in this positive perspective, would allow national courts to conduct trials effectively sharing the burden of complex corporate crimes with the ICC.

Hybrid or internationalized courts are one of the options for addressing the issue of corporate criminal liability for environmental crimes. They are specifically tailored to address the context-specific issue of transitional justice, and they can introduce environmental crimes, as was the case of the Iraqi High Tribunal, or address the role of corporate actors as the Special Tribunal for Lebanon did in the cases of Al Jadeed S.A.L. & Ms Khayat  and Akhbar Beirut S.A.L. & Mr Al Amin.

While the perspective of corporate international criminal liability for environmental crimes is appealing, the length of these procedures may not be adapted to the context of rapid and irreversible environmental damage and may not prevent permanent environmental harm. Therefore considering the option of urgent appeals to introduce immediate environmental protection measures should be envisaged in all cases. And even though the procedures can be lengthy, the negative international publicity surrounding international criminal cases can have a dissuasive effect on corporate conduct. Indeed, corporations are more likely to change their operations if their reputation is at risk causing lack of confidence in the company and making them vulnerable. The potential of international criminal proceedings for corporate environmental crimes would therefore have a dissuasive and preventive effect rather than just punitive. Maintaining and protecting the health of the global ecosystem means preserving our humanity.