The International Criminal Court (ICC) announced on 15 September 2016 that it will start to investigate environmental crimes under international law, raising the prospect that company executives could be prosecuted in The Hague in respect of corporate activities with serious environmental impacts.
An ICC policy paper on case selection and prioritisation states that the ICC Prosecutor “will give particular consideration to prosecuting [Rome Statute of the ICC] crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land“.
This marks a departure from the ICC’s historic focus on genocide, crimes against humanity, and war crimes associated with armed conflict. The ICC’s announcement does not, however, constitute an extension of its jurisdiction, but rather the ICC will now investigate environmental crimes which arise within its existing remit – for example, environmental impacts which reach the threshold of and constitute crimes against humanity in their own right.
This development will require companies to carefully consider their activities in certain countries, particularly those activities which may, and potentially with the involvement of national governments, result in mass human rights violations such as the forcible transfer of populated land for commercial exploitation (so-called “land-grabbing”).
Any prosecutions would be subject to the normal rules and procedures governing the ICC including the requirement that any potential criminal activity can only be prosecuted if it takes place in a country which has ratified the Rome Statute, if the perpetrator originates from one of these countries, or if the UN Security Council refers a case to the ICC. In addition, the activity must have taken place after 1 July 2002.
The United Kingdom, the Netherlands, Germany, Poland, Italy, Mexico, South Korea, and Japan are among the countries that have ratified the Rome Statute, but the United States has not yet done so.
The ICC’s policy paper is available at https://www.icc-cpi.int/itemsDocuments/20160915_OTP-Policy_Case-Selection_Eng.pdf.