Environmental, Natural Resources, & Energy Law Blog

It is a fact, as well as a universally accepted view, that climate change has been caused primarily by western nations while poor and already disadvantaged nations have suffered disproportionately and will be more impacted in the future.[1] Climate burdens “fall disproportionately on individuals and populations least responsible for causing them and raise serious concerns about justice.”[2]

To make matters worse, the more affluent nations who have largely caused climate change often take an “after you” approach to the global south, a position where they assert they will not make meaningful emissions reductions unless poor countries do so first.[3]

The world has known since the 2018 IPCC report Global Warming of 1.5°C that the difference between 1.5°C and 2°C is equivalent to “hundreds of millions” of deaths.[4] Therefore it is important to have a public discussion regarding criminal accountability. But in doing so it is critical that questions of who has caused the problem, and who will bear the brunt of the impact, be kept at the fore of any such analysis.

While there are various definitions of Environmental Justice (“EJ”), it may be more helpful to look at what are widely accepted concepts, or elements of EJ. Four have long been accepted: 1. distributive justice, 2. procedural justice, 3. corrective justice and 4. social justice.[5] A fifth factor has recently been accepted - recognitional justice.[6]

Recognitional justice requires recognizing differences “between society’s dominant and subordinate groups” and to “acknowledge the institutionalization of unconscious biases, exclusionary processes, and normative judgments” that work through social structures to “manifest [in] racially disparate outcomes.”

Distributive justice is about the fair and equal distribution of both costs and benefits, while procedural justice is about how you get there.[7]

Finally, a concept which is fundamental to EJ is “we speak for ourselves.”[8] This is also connected to recognitional justice.

The crime of ecocide should not be taken up by the ICC as is because it would violate these EJ principles and exacerbate the wrongs and imbalances which have driven climate change. While the application of criminal law to climate change is a worthy endeavor, other solutions should be found which are in keeping with principles of EJ.

This post will focus on an EJ critique of ecocide at the ICC, in the context of climate change. It will end with brief preliminary suggestions for other tools, but not go in depth on that. EJ is used instead of Climate Justice (“CJ”), because there may be less certainty regarding the newer evolving term CJ.

Back story

A potential new crime at the International Criminal Court (“ICC”), “ecocide,” is the topic of much discussion lately, as the ICC was presented with a definition for adoption in June of this year.[9] However, questions have arisen about whether that is a wise course of action, especially in relation to climate change.[10] Despite widespread support among the environmental movement, a number of issues have been raised with the crime of ecocide. The key critique here is the racial and economic imbalance in ICC prosecutions. All 42 of the indictments issued by the ICC have been against Black and/or Arab Africans.[11]

The main explanation for this is that the Rome Statute was designed to be a court of last resort, and so is functioning as it should.[12] Implicit in that is that the crimes the ICC was created to address – mass atrocity violence[13] are not being committed in the western states due to the rule of law. While this may be debatable from an Indigenous or Black perspective, it is likely a widely accepted view.

Regarding climate change, however – that view is turned on its head.

Recognitional justice demands that our history be acknowledged

Professor James Thuo Gathii has pointed out that Third World Approaches to International Law (TWAIL) scholarship “contests the idea that international law is applicable everywhere and that we should therefore regard it as a view from nowhere” and challenges international law’s failure “to engage in its complicity in histories of colonization, plunder, and enslavement—whose legacies continue to date.”[14]

This engages recognitional justice, and the issue of race must be confronted openly.[15] In contemplating a crime of ecocide at the ICC, as it relates to climate change, the historical and present role of international law in creating imbalances of wealth and power must be frankly considered.[16]

Procedural unfairness

There are limits on ICC jurisdiction which create unfairness as they relate to climate change and ecocide. One is temporal – crimes cannot be retroactive, and so prosecutions for ecocide can only occur for actions after it is listed as a crime in the Rome Statute.[17] Western nations have had more capacity to slow GHG production[18] and while not all of them have, such as Canada, the UK has made significant progress.[19] Poorer countries will take longer to bring emissions down as they need energy to develop.[20] This leaves them potentially more vulnerable to a new crime of ecocide at the ICC as it relates to climate change, and therefore exacerbates unfairness and is contrary to corrective justice.

A further limitation is capacity/ willingness to prosecute, addressed in Article 17 of the Rome Statute, which says that a case is only admissible where, “the State is unwilling or unable genuinely to carry out the investigation or prosecution.”[21]

This means that the ICC will only prosecute where it determines that there is a lack of capacity or willingness to do so. It has been described as requiring the “admission of state incapacity and dependence.”[22] In the context of climate change this is another barrier against any prosecution of Western nations and violates the principle of procedural justice.

A corrective INjustice if the biggest emitters walk

Regarding climate change would the ICC be likely to prosecute on the basis of having caused the most harm, and what would that look like? Or would the complicity of international law, mentioned above, be repeated by the ICC in pursuing justice for climate change impacts, by “picking the lowest hanging fruit”?[23]

There are two ways to be prosecuted by the ICC, one is to be a signatory to the Rome Statute (to have surrendered to the jurisdiction of the court), and the other is to have a case forwarded by the UN Security Council (UNSC).[24]

The top three historical emitters, who have contributed the most to global climate change, are the USA, China, and Russia. [25] None are signatories to the Rome Statute, [26] and all three are permanent members of the UNSC, and consequently have a veto.[27] Therefore the only way for persons from those three nations to be prosecuted by the ICC for ecocide as it relates to climate change is if the UNSC forwards the case, and they do not block it by veto.

This is also where “realpolitik” comes into play.[28] Germany is the 4th largest emitter historically, UK is 5^th, France 7^th and Canada is 9^th (as of 2011).[29] Does anyone really think the ICC will prosecute their leaders?

An answer to that can be predicted by looking at the past. In asking if the Prime Minister of the UK is likely to be prosecuted, one can simply ask, was Tony Blair prosecuted for the illegal invasion of Iraq? The ICC, and the UK’s highest court, have decided that he will not.[30] While the exact figure is unknown, it is clear that hundreds of thousands of civilians died in that war.[31] The UK is subject to ICC jurisdiction, but as EJ advocates may point out, Tony Blair is white, and comes from a Western European nation.

As further evidence of this divide, when the ICC hinted at investigating the USA for crimes in Afghanistan then-president Trump issued sanctions against the two black African members of the ICC Office of the Prosecutor. While Biden has withdrawn them, he has otherwise remained in lockstep with Trump and former administrations in saying that US nationals will not be subject to the ICC because the US is not a party (even though the US supports ICC jurisdiction against other non-parties).[32]

Prosecution for ecocide as it relates to climate change is virtually impossible against the three largest historical emitters, and hard to imagine for the top ten, other than, perhaps – India.

It would be the opposite of corrective justice to prosecute leaders or citizens of poorer countries, who have contributed the least, and already pay the most, while those who have done the most harm escape justice.

“We speak for ourselves” – a just process must be driven by developing nations

EJ nations and people must be allowed to speak for themselves. While it is true that African nations were drivers of the creation of the ICC,[33] there is now widespread and justified dissatisfaction.

The right international / UN body to address this could be the UN General Assembly, where there is “one nation one vote,” or a forum convened by those nations most impacted by climate change.[34]

If justice were the only concern, and the realities of global power were not, perhaps the most equitable solution would be a new tribunal similar to the International Criminal Tribunal for Yugoslavia, or that model, but brought and governed by the world’s poor, and with jurisdiction over the Western nations who have created the problem.

To be in keeping with basic principles of EJ, any international crimes or processes created to address climate change must recognize our structural differences and shared history. It must recognize the massive wealth created by and for the Western world in the course of creating the climate problem, the massive suffering of the world’s poor and people and nations of color as a result of it, and the social injustice of climate change. Most importantly it must be corrective - aimed at addressing that imbalance, not worsening it.

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[1] Henry Shue, Climate Justice: Vulnerability and Protection, Oxford University Press, Oxford, UK, (2014) p. 4; Fiona Harvey, July 15, 2021, Move faster to cut emissions, developing world tells rich nations, The Guardian, online: https://www.theguardian.com/environment/2021/jul/15/move-faster-to-cut-emissions-developing-world-tells-rich-nations.

[2] Christopher Preston & Wylie Carr (2018) Recognitional Justice, Climate Engineering, and the Care Approach, Ethics, Policy & Environment, 21:3, 308-323, DOI: 10.1080/21550085.2018.1562527.

[3] Shue, H. (2014) Climate justice: vulnerability and protection (1st ed.). Oxford, UK: Oxford University Press, pp. 63-70.

[4] David Wallace-Wells, The Uninhabitable Earth, Crown Publishing, New York, 2019, p. 28; Global Warming of 1.5°C: IPCC, 2018: Global Warming of 1.5°C.An IPCC Special Report on the impacts of global warming of 1.5°C above pre-industrial levels and related global greenhouse gas emission pathways, in the context of strengthening the global response to the threat of climate change, sustainable development, and efforts to eradicate poverty [Masson-Delmotte, V., P. Zhai, H.-O. Pörtner, D. Roberts, J. Skea, P.R. Shukla, A. Pirani, W. Moufouma-Okia, C. Péan, R. Pidcock, S. Connors, J.B.R. Matthews, Y. Chen, X. Zhou, M.I. Gomis, E. Lonnoy, T. Maycock, M. Tignor, and T. Waterfield (eds.)]. In Press, online: https://www.ipcc.ch/site/assets/uploads/sites/2/2019/06/SR15_Full_Report_Low_Res.pdf, pages 157 and 464.

[5] Villa, C. Ahmad, N. Bratspies, R., Lin, R., Rechtschaffen, C., Gauna, E., O’Neill, C. Environmental Justice: Law, Policy and Regulation, 3^rd Edition, Carolina Academic Press, LLC, Durham, North Carolina (2020), pp. 9-18, 22; Robert R. Kuehn, A Taxonomy of Environmental Justice, 30 Envtl. L. Rep. 10,681 (2000).

[6] Candice Youngblood, Put Your Money Where Their Mouth Is: Actualizing Environmental Justice by Amplifying Community Voices, 46 Ecology L. Q. 455 (2019).

[7] Robert R. Kuehn, A Taxonomy of Environmental Justice, 30 ENVTL. L. REP. News &

Analysis 10681 (2000), p. 10683 - 10684.

[8] Villa, C. Ahmad, N. Bratspies, R., Lin, R., Rechtschaffen, C., Gauna, E., O’Neill, C. Environmental Justice: Law, Policy and Regulation, 3^rd Edition, Carolina Academic Press, LLC, Durham, North Carolina (2020), p. 25.

[9] Ian Profiri, June 23, 2021, “Legal experts present definition of ecocide for adoption by ICC,” Jurist, online: https://www.jurist.org/news/2021/06/legal-experts-present-definition-of-ecocide-for-adoption-by-icc/ .

[10] Sara K. Phillips, 9 July 2021, Unpacking “ecocide”: a note of caution for international criminalization, Stockholm Environment Institute, Perspectives, online: https://www.sei.org/perspectives/unpacking-ecocide-international-law/ .

[11] Ibid, also see Kamari Maxine Clarke, July 24, 2020, Negotiating Racial Injustice: How International Criminal Law Helps Entrench Structural Inequality, Just Security, online: https://www.justsecurity.org/71614/negotiating-racial-injustice-how-international-criminal-law-helps-entrench-structural-inequality/; Randle C DeFalco, Frédéric Mégret, 10 June 2019, The invisibility of race at the ICC: lessons from the US criminal justice system, London Review of International Law, Volume 7, Issue 1, March 2019, Pages 55–87, https://doi.org/10.1093/lril/lrz002; Also see the full list of indictees here: https://en.wikipedia.org/wiki/List_of_people_indicted_in_the_International_Criminal_Court#Vincent_Otti

[12] Emily Rowe, Flux: International Relations Review Vol. 11 No. 2 (2021) - Articles
The ICC-African Relationship: More Complex Than a Simplistic Dichotomy, p. 56.

[13] Clarke, supra note 11; Christa-Gaye Kerr, Sovereign Immunity, the AU, and the ICC: Legitimacy Undermined, 41 MICH. J. INT’L L. 195 (2020), p. 211.

[14] Gathii, J. (2020). Promise of International Law: A Third World View (Including a TWAIL Bibliography 1996–2019 as an Appendix). Proceedings of the ASIL Annual Meeting, 114, 165-187. doi:10.1017/amp.2021.87, p. 2.

[15] Owiso Owiso, 19 April, 2021, ICC Sanctions Symposium: The United States of America, Racism and Sanctions Meet at the International Criminal Court, Opinio Juris, online: http://opiniojuris.org/2021/04/19/icc-sanctions-symposium-the-united-states-of-america-racism-and-sanctions-meet-at-the-international-criminal-court/; Kerr, supra note 13, page 213.

[16] John Reynolds & Sujith Xavier, The Dark Corners of the World, 14 J. INT’l CRIM. Just.

959 (2016), pp. 982-983.

[17] Rome Statute Article 24; although there may be more flexibility to this than first meets the eye, see Gerhard Kemp, “Climate Change, Global Governance and International Criminal Justice” published in Climate Change: International Law and Global Governance Volume I: Legal Responses and Global Responsibility, eds. Oliver C. Ruppel, Christian Roschmann and Katharina Ruppel-Schlichting, Nomos Verlagsgesellschaft mbH, (2013) pp. 717-718, online: https://www.jstor.org/stable/j.ctv941w8s.

[18] Shue, supra note 1, p. 5.

[19] Climate Action Tracker: Canada, online: https://climateactiontracker.org/countries/canada/ ; Climate Action Tracker: UK, online: https://climateactiontracker.org/countries/uk/.

[20] Shue, supra note 1, p. 27-36.

[21] Rome Statute of the International Criminal Court art. 66 ¶ 3, July 17, 1998, 2187 U.N.T.S. 90., Article 17; Kerr, supra note 13, p. 195.

[22] Clarke, supra note 11.

[23] Frazer, J. (2015, Jul 24). International courts and the new paternalism; African leaders are the targets because ambitious jurists consider them to be ‘low-hanging fruit.’ Wall Street Journal (Online) Retrieved from https://library.lcproxy.org/login?url=https://www.proquest.com/newspapers/international-courts-new-paternalism-african/docview/1698490328/se-2?accountid=25203.

[24] Clarke, supra note 11.

[25] Duncan Clark, Which nations are most responsible for climate change? The Guardian, 21 April 2011, online: https://www.theguardian.com/environment/2011/apr/21/countries-responsible-climate-change .

[26] International Criminal Court, Signatories to the Rome Statute, online: https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx.

[27] United Nations Security Council, Current Members, online: https://www.un.org/securitycouncil/content/current-members.

[28] Emily Rowe, Flux: International Relations Review Vol. 11 No. 2 (2021) - Articles
The ICC-African Relationship: More Complex Than a Simplistic Dichotomy, p. 57.

[29] Duncan Clark, Which nations are most responsible for climate change? The Guardian, 21 April 2011, online: https://www.theguardian.com/environment/2011/apr/21/countries-responsible-climate-change .

[30] International Criminal Court, 4 July 2016, “Statement of the Prosecutor correcting assertions contained in article published by The Telegraph,” online: https://www.icc-cpi.int/pages/item.aspx?name=160704-otp-stat; International Criminal Court, 9 December, 2020, “Preliminary examination, Iraq/UK, (Closed – decision not to proceed),” online: https://www.icc-cpi.int/iraq; Owen Bowcott, July 31, 2017, “Tony Blair prosecution over Iraq war blocked by judges,” The Guardian, online: https://www.theguardian.com/politics/2017/jul/31/tony-blair-prosecution-over-iraq-war-blocked-by-judges.

[31] Wikipedia, Casualties of the Iraq War, online: https://en.wikipedia.org/wiki/Casualties_of_the_Iraq_War#PLOS_Medicine_(2013).

[32] Owiso Owiso, 19 April, 2021, ICC Sanctions Symposium: The United States of America, Racism and Sanctions Meet at the International Criminal Court, Opinio Juris, online: http://opiniojuris.org/2021/04/19/icc-sanctions-symposium-the-united-states-of-america-racism-and-sanctions-meet-at-the-international-criminal-court/.

[33] Kerr, supra note 13, p. 198.

[34] A modification to the Rome Statute has been suggested where the UNGA could refer cases directly, see Alexandra Zavis and Robyn Dixon, Q&A: Only Africans have been tried at the court for the worst crimes on Earth, LA Times, online: https://www.latimes.com/world/africa/la-fg-icc-africa-snap-story.html.