The OTP’s New Policy on Environmental Crimes

In my capacity as Special Adviser on War Crimes, I have been assisting the Prosecutor with the development of the OTP’s forthcoming policy on Environmental Crimes Under the Rome Statute (ECP) — a policy he announced in Paris last February. “Damage to the environment poses an existential threat to all life on the planet,” the Prosecutor said. “For that reason, I am firmly committed to ensuring that my Office systematically addresses environmental crimes in all stages of its work, from preliminary examinations to prosecutions. This latest policy initiative is another commitment to this necessary objective.”

Not long after the Prosecutor’s speech, the OTP sought “blue sky” public comments on the policy — general thoughts on what the ECP should contain. We received nearly 80 submissions, including from states, IGOs, CSOs, legal scholars and practitioners, business leaders, and religious institutions. Notable respondents included UNEP, the UN Special Rapporteur on the Human Right to Safe Drinking Water and Sanitation, the Office of the Prosecutor General of Ukraine, and the High-Level Working Group on the Environmental Consequences of the War in Ukraine.

Last week, the OTP issued a second call for comments, this time based on a draft of the ECP. Here are a few paragraphs from the Executive Summary:

The Office of the Prosecutor’s Policy Paper on Environmental Crimes sets out how the Office will use its mandate and powers to investigate and prosecute environmental crimes within the Court’s jurisdiction that are committed by means of or that result in environmental damage, what the Policy collectively refers to as “environmental crimes.”

It also shows how the Office will support national efforts to prosecute illegal conduct that has an environmental dimension. Although the Rome Statute is largely anthropocentric, primarily protecting human life, it also recognises and protects the inherent value of the natural environment. There are significant synergies between the fight against impunity for international crimes and mitigating environmental damage. Destroying, degrading, or otherwise altering the natural environment will often directly impact humans, such as by causing people to be displaced, inflicting great suffering or injury on victims, or even causing death. If a direct causal link can be established between a perpetrator’s actions and such consequences, those acts may constitute Rome Statute crimes both during armed conflict and in times of peace.

[snip]

This Policy was developed through an extensive consultative process involving multiple rounds of written input and direct discussion with internal Office staff and external experts from across the globe. It is organised to maximise its utility and implementation by the Office while also optimising relevance and accessibility to colleagues working in other parts of the environmental-justice ecosystem.

Section I of the Policy defines the key terms and concepts relevant to the investigation and prosecution of environmental crimes and introduces how the Office understands the relationship between those concepts in the context of its mandate under the Statute. Section II discusses how general principles governing the Office’s exercise of its powers, such as gravity, apply in the environmental context and provides a systematic overview of how the crimes within the jurisdiction of the Court can be committed by means of or resulting in environmental damage. Section III of the Policy presents the principles that underlie all aspects of the Office’s work on environmental crimes: the need to adopt an intersectional perspective3 ; the obligation to perform due diligence, including protecting the rights of suspects and defendants; and the need for effective outreach to Court stakeholders. Finally, Section IV lays out how a commitment to investigating and prosecuting environmental crimes is operationalised by the Office in terms of how it will integrate a focus on environmental damage into each operational phase of its work and continuously implement, monitor, and evaluate the Policy.

Comments on the draft ECP are due by 11:59 pm (CET) on 21 February 2025. They will be analysed by our fantastic team, which includes a number of staff within the OTP; a brilliant legal fellow provided to the OTP by CUNY, Laura Baron-Mendoza; and a distinguished Advisory Group of outside experts. The team is also being assisted by Kate Mackintosh’s Promise Institute Europe and some of her students at UCLA Law School.

I would ask readers to help circulate the call for comments as widely as possible. This is a policy aimed not only at lawyers, but also at anyone working for or even just interested in environmental justice, from scientists to activists. And if you or your organisation falls into one of those categories, dear reader, please consider submitting comments yourself!