ICL and Environmental Protection Symposium: International Criminal Law as a Tool for Corporate Responsibility for Environmental Crimes (Part I)

[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 first 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.]

The principal role of international law is to regulate the obligations of States, be it with respect to individuals or other States. Human rights abuses by corporations may under certain circumstances be attributed to a State (see also here, para 54). Thus far, however, States have refrained from creating a binding treaty dictating the behavior of corporations under international law since such treaties are perceived as possibly competing with or undermining State sovereignty. While environmental agreements are signed between States, it is often non-state actors, including corporations, that are asked to implement them in their managerial decisions. And in most cases, it is these very same corporations that directly cause environmental damage; they are the direct perpetrators of environmental crimes. This creates a situation where multinational corporations, while preserving their power, enjoy limited accountability before national courts due to their multilayered, transnational operations, and are in a similar position before international courts because they are not recognized as subjects of international law. This situation is beginning to change as national environmental laws and regulations have increasingly been raised to hold corporations accountable for some of their acts. However, due to their limited possibility to consider some of the most serious, transnational environmental harms, the interdisciplinary approach between international criminal law (ICL) and environmental law, insufficiently explored, could offer some practical avenues on how to shape corporate liability in the context of climate change and great environmental harm.

Most companies nowadays are supposed to integrate environmental and social regulation as part of their corporate social responsibility (CSR) engagement. The protection of environment can be expanded to include companies that do not directly cause environmental harm. For example, by signing the Equator Principles, a bank undertakes to take into account a certain number of social and environmental evaluation criteria when choosing the projects it finances.

However, such regulations are often voluntary and non-binding, and are limited to providing a system of principles that may be deemed as unsatisfying; for instance, the principle that the pollutant pays or the principle of precaution. In most cases, this engagement is based on the principle of due diligence with the only obligation being to disclose non financial related information. Nonetheless, the violation of the obligation to report does not amount to an international or national crime; a company which violates such an obligation can only be sanctioned for its lack of reporting. Therefore, the CSR tools are limited in holding corporations accountable.

International environmental law as a branch of International Public Law is an exception to the traditional State-centric approach because it regulates the behavior of corporations by directly imposing obligations and duty on them. For instance, the International Convention on Civil Liability for Oil Pollution Damage, concluded in Brussels on November 29, 1969, states in article 3: “the owner of a ship at the time of an incident, or where the incident consists of a series of occurrences at the time of the first such occurrence, shall be liable for any pollution damage caused by oil which has escaped or been discharged from the ship as a result of the incident”. On the other hand, ICL does not require that the perpetrator – currently natural persons only – have international legal personality to be prosecuted before international courts.

ICL concerns only the most serious crimes that affect humanity as whole. By recognizing that damages caused to nature in ways that harms the co-existence between a healthy ecosystem and human communities are of a sufficient gravity, ICL could add environmental crimes to the family of international crimes (genocide, war crimes, crimes against humanity and aggression). Elevating environmental crimes into a very restricted group of international crimes sends a message that the protection of the environment is a concern for the whole humanity. While ICL tends to adopt an anthropocentric approach focusing mainly on the harm to human beings, nothing prevents States from enlarging the concept of international crimes to include environmental crimes, because ultimately the gravity criteria does impact the human well-being and its survival. This need has also been recognized by the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) in its 2016 Selection and Prioritization Policy paper (para 7).

Crimes themselves are not limited to natural persons, but their definition has rather emphasized the prohibition of the crime itself. To make corporations the bearer of duties and to proscribe prohibited conduct on them in the field of the protection of the environment, environmental crimes could be formulated as follows:

For the purposes of this [Convention], international environmental crime means any of the following acts when committed in the context of an organized and systematic crime of a transnational nature, causing long term damage to the environment which endangers peace or preventing the civilian population from enjoying a healthy environment, in particular:

a) land and territory grabbing;

b) illegal exploitation of forests and illegal trade in natural resources and biopiracy;

c) contamination of water sources and destruction of the integrated hydrological cycle;

d) the destruction of wild natural areas and biodiversity,

e) massive contamination of the oceans, watercourses and rivers or of the atmosphere;

f) modification of the environment for military purposes or any other hostile purpose;

g) ecocide.

The chapeau of the crime determines the contextual element, thus respecting the traditional construction of international crimes, while at the same time providing the gravity criteria that would help the selection process and exclude minor environmental damages. Furthermore, in contrast to national civil proceedings, there is no need to prove damages that in fact may not occur. For example, land grabbing may be illegal and cause some human rights harm, but not necessarily grave and immediate damage to the environment. However, there may be situations where corporations behave in a systematic way than their conduct could meet the threshold of gravity because the overall corporate operations could have longstanding, direct negative impact on the environment, such as the situation in Myanmar (see here and here) where mass land grabbing has caused long lasting environmental damages.  

Peoples’ tribunals have been very active in the field of corporate responsibility for environmental damage. Triggered and set up by the victims’ organizations, some of these tribunals have contributed to the legal debate on violations not yet recognized by international law or insufficiently explored by international courts. As a result, the Monsanto Tribunal analyzed the new legal concept of the crime of ecocide by the company Monsanto. According to the Monsanto “jury”, the increase in criminal sanctions in trials relating to environmental damage before domestic jurisdictions increasingly demonstrates the fact that the perpetration of environmental damage collides with fundamental values of society and should be integrated into the Rome Statute.

The protection of the environment has also been linked to armed conflicts, either because it provokes the conflict or by contributing to its consequences and duration, often through exploitation of natural resources which are subject to free trade instead of international protection. Nevertheless, it is important that environmental crime can be placed in contexts outside of armed conflict too, and consider environmental crimes occurring also during peace time. In addition to being more vulnerable to environmental crimes, developing countries have been victims of power relations where corporate actors disregard the environmental policies in the global south, as the Tecmed vs. Mexico and Chevron vs. Ecuador  demonstrate. By introducing the concept of corporate environmental crimes, in peace and conflict times, a competent court could arguably contribute to the balance of powers and prevent corporations profiting from unsustainable economic and social policies imposed by financial institutions on developing countries in order to avoid the environmental policies adopted in their home countries. This would undoubtedly create a balance in international law that traditionally protects private economic actors and favors the interest of developed countries.