CiR2P Option 15 | Threaten international criminal prosecution

DISCUSSION:

Threatening international criminal prosecution is a significant legal weapon in the climate action armoury because unlike previous decades there is a growing possibility that those intent on committing crimes against nature and the climate, and by implication vulnerable human populations, may be tried and punished.

There are several legal avenues that international actors could explore to threaten or punish potential perpetrators of crimes against nature and the climate

Specialist tribunals, which deal with legal matters in specific contexts, could be a potential forum to address climate-related concerns. For example, the International Tribunal for the Law of the Sea, could potentially hear cases and address questions arising under the rubric of general international law such as what is the responsibility of a member party to the 1982 United National Convention on the Law of the Sea to prevent sea-level rise, and or to mitigate against the consequences of climate change?

The International Criminal Court can investigate and prosecute individuals (unlike the ICJ) for four grave international crimes: crimes against humanity, war crimes, genocide, and the crime of aggression. The deliberate destruction of the Amazon rainforest in 2020 prompted a renewed push to formally extend the ICC jurisdiction to include ‘ecocide’ as a fifth crime, or at least assess existing ICC offences in a broader context that could include crimes against natural systems that human populations rely upon for survival. Western powers could support the evolution of the ICC jurisdiction, which could then be used to dissuade governments from pursuing growth pathways that intentionally cause the large-scale destruction of the natural environment. 

Universal jurisdiction is the principle that an individual accused of an atrocity crime can be investigated and prosecuted before a national domestic court irrespective of his or her nationality or where the crime was committed. The notion of a ‘climate change jurisdiction’ is attracting scholarly attention but holds limited immediate utility in practice.  

Other legal options include supporting the creation of new international courts that focus on climate-related issues such as an International Environment Court; working through existing international bodies that can rule on climate change laws such as the World Trade Organization with respect to national climate policies that implicate trade law.

Western governments can also support the establishment of domestic environmental courts and tribunals in target countries to adjudicate on climate-related concerns.