Introduction
The International Criminal Court (ICC) was established to try those most responsible for the most serious crimes of concern to the international community, including genocide, crimes against humanity and war crimes. In recent years, some have called upon the ICC to investigate and prosecute individuals who are alleged to have contributed to climate change. This includes, in 2022, an application by two civil society organisations to the ICC Prosecutor setting out the basis for investigating British Petroleum (BP) executives.
In this piece, 4 New Square Chambers’ Lionel Nichols examines the merits of such cases and considers the legal, procedural and practical obstacles that would need to be overcome before a director of a fossil fuel company could appear in the dock of a Hague courtroom.
The Rome Statute
The ICC does not have universal jurisdiction over international crimes, with the Rome Statute imposing several jurisdictional and admissibility requirements before a case may commence:
- First, the ICC only has jurisdiction over crimes committed on the later of 1 July 2002 and the date on which the relevant State Party ratified the Rome Statute (Article 11);
- Secondly, unless there has been a Security Council Referral (Article 13), the crime must have been committed within the territory of one of the ICC’s 124 State Parties or by a national of a State Party (Article 12);
- Thirdly, the situation in question requires either a Security Council referral, a referral from a State Party, or for the ICC Prosecutor to commence an investigation on his own motion (Article 13);
- Fourthly, the ICC is intended to be a court of last resort, so a case may only be investigated and prosecuted where the State which has jurisdiction over the crime is unwilling or unable to investigate and prosecute (Article 17);
- Finally, where an investigation is initiated by the ICC Prosecutor, there are further admissibility requirements: (1) the ICC Prosecutor must be satisfied, having regard to the gravity of the crime and the interests of victims, that it is in the interests of justice to proceed (Article 53); and (2), the ICC Prosecutor must obtain authorisation from the Pre-Trial Chamber before commencing an investigation (Article 15(3)).
Some have called for the addition of the crime of ecocide (the destruction of the natural environment by deliberate or negligent human action) to the Rome Statute, but this has not yet been adopted by the States Parties, and the Rome Statute makes almost no reference at all to the environment.
Although the International Law Commission’s drafts of what would later become the
Rome Statute included as crimes punishable by the International Criminal Court ‘acts
causing serious damage to the environment’ and ‘wilful and severe damage to the
environment’, these crimes did not survive to the final text. Indeed, the Rome Statute
makes only one passing reference to ‘the environment’.
This appears in Article 8(2)(b)(iv), which recognises as a war crime the intentional launching of an attack during an international armed conflict where it is known that such an attack will cause ‘severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated’.
The Article 15 application
Article 15(2) of the Rome Statute empowers non-governmental organisations to provide the ICC Prosecutor with information that a crime has been committed which falls within the jurisdiction of the ICC. In 2022, the UK Youth Climate Coalition and Students for Climate Solutions Aotearoa New Zealand filed a submission to the ICC Prosecutor (Submission) alleging that the senior BP executives have committed a
crime against humanity through their conduct in relation to climate change. This follows five submissions filed since November 2019 from human rights groups alleging that Brazil’s destruction of the Amazon Rainforest amounts to crimes against humanity and genocide against Brazil’s indigenous people.
The Submission relies upon attribution science analysis to demonstrate that the fossil fuel industry was responsible for 91% of global industrial greenhouse gas emissions and that BP alone has overseen more than 34 billion metric tons of carbon dioxide equivalent emissions. The Submission alleges that BP executives, motivated by profit, engaged in a policy which created doubt around climate change science, fostered and procured state dependency on petroleum products, advocated for delay in addressing climate change, engaged in deception around the impact of fossil fuels on climate change, and controlled political processes through lobbying.
The Submission alleges that the conduct of BP’s executives constitutes an ‘other inhumane act’ under Article 7(1)(k) of the Rome Statute, which is of a similar character to the ten specified crimes and likewise causes ‘great suffering or serious injury to body or to mental or physical health’. Essentially, the argument is that climate change has caused death, the forcible transfer of populations, serious injury to physical or
mental health caused by extreme weather events, and the persecution of indigenous and minority groups. As such, it is said that this is a comparable crime against humanity properly belonging to the ‘other inhumane acts’ category, like the crimes of forced marriage, forcible transfer and enforced disappearance, which have already been recognised by the courts.
According to Article 7(2)(a), an essential element of a crime against humanity is that there be an ‘attack directed against any civilian population’ which is made ‘pursuant to or in furtherance of a State or organisational policy’. The Submission makes reference to the role played by BP executives in releasing ‘carbon bombs’ into the atmosphere but struggles to attribute this to a State or organisational policy. The Submission cites the ICC Pre-Trial Chamber’s Article 15 Decision in the Kenya situation, in which the Pre Trial Chamber suggested that a group could qualify as an ‘organisation’ where it ‘has the capability to perform acts which infringe on basic human values’. The Submission suggests that a company such as BP satisfies this criterion, but it is clear from the Article 15 Decision that what the Pre-Trial Chamber had in mind was an organisation with de facto State power. A finding that a corporation may commit crimes against humanity is unprecedented in international criminal law and represents a not insignificant departure from existing jurisprudence.
Jurisdiction is claimed on the basis that BP is incorporated in the United Kingdom (UK), which ratified the Rome Statute in 2002, and also on the basis that many of BP’s directors are UK nationals or domiciled in the UK. Moreover, it is said that, although BP executives have been responsible for the crime against humanity of climate change since the 1950s, this crime is ongoing and so the ICC has temporal jurisdiction over conduct since 2002.
Finally, on admissibility, the Submission argues that the UK has been unwilling or unable to prosecute BP executives, and also that the conduct is of sufficient gravity such that it would be in the interests of justice to open an investigation.
Interestingly, the objective of the Submission appears not to be the incarceration of BP executives, but rather an order that BP pay reparations to victims. The Submission makes reference to a previous ICC order that Congolese warlord Bosco Ntaganda pay USD 30 million in damages and calls on the ICC to order that BP pay a portion of the costs of climate change harm remediation based on an attribution science assessment.
Prospects of success
In recent years, commentators such as Sharp, Patel and Keenan have expressed some doubts over whether environmental crimes can (or should) be prosecuted by the ICC. Sharp suggests that the requirement that the attack form part of a State or organisational policy ‘is likely the most troublesome hurdle’. Patel argues that defendants might have a defence based on the Rio Declaration, which allows for acceptable levels of environmental degradation if those actions are justified for the benefit of society. Keenan goes further by suggesting that we should be wary of prosecuting such crimes at the ICC because this ‘would symbolically declare that climate crimes are only those crimes committed by people or institutions that are morally equivalent to the people who committed the genocide in Rwanda or organised the Holocaust’.
Aside from these legal hurdles, investigating international climate crimes is likely to face a number of practical and procedural challenges. One challenge concerns gathering evidence, which is likely to be held in multiple jurisdictions. Moreover, key evidence, such as the minutes of Board meetings and internal emails, will typically not be in the public domain. Under the ICC’s Rules of Procedure and Evidence, defendants are under no obligation to disclose all material within their possession and may be able to rely upon the privilege against self-incrimination in refusing to disclose certain documents.
The ICC Prosecutor may, therefore, struggle to collect sufficient evidence to secure a conviction. This challenge is particularly acute, given the presumption of innocence and the requirement that the Prosecutor prove his case beyond a reasonable doubt (Article 66). Given that claimants in domestic civil proceedings have at times struggled to prove their cases on the balance of probabilities where the defendants are subject to disclosure obligations, one might anticipate that this will make it particularly
challenging for a Prosecutor to secure a conviction.
Perhaps the greatest challenge, however, is resourcing. In November 2023, the ICC Prosecutor told the UN Security Council that he had ‘an inadequate, insufficient core budget’ and requested an increased budget for 2024. Later that month, the Office of the Prosecutor announced that it was closing its ongoing investigation in Kenya. Despite this, it still has 18 ongoing investigations in 16 jurisdictions. The Office of the Prosecutor (OTP) appears to be struggling to adequately fund its existing investigations, so it may be reluctant at this stage to take on resource-intensive investigations into international climate crimes.
On 15 September 2016, then-Prosecutor Fatou Bensouda published a Policy Paper on Case Selection and Prioritisation, setting out the Prosecutor’s policy and practice for selecting the incidents, persons and conduct to be investigated and prosecuted. This policy paper stated that the Prosecutor would ‘give particular consideration’ to alleged crimes that result in ‘the destruction of the environment’. International non-governmental organisation Global Witness described the policy change as ‘a warning shot to company executives and investors’. However, the OTP’s current Strategic Plan 2023-2025 identifies ten strategic goals but makes no mention of environmental crimes. Instead, it identifies that the OTP will ‘have to define a realistic scope of operations and bring manageable cases’, which will inevitably involve the prioritisation of cases ‘according to factors such as their relative gravity and prospect of success’.
Conclusion
Attempts to investigate and prosecute directors of oil and gas majors at the ICC for crimes against humanity due to their alleged contributions to climate change are likely to face considerable legal, procedural and policy challenges. This may mean that it may be some time before senior executives appear in the dock (if ever) and may first require amendments to the Rome Statute, the Rules of Procedure and the OTP’s prosecutorial policy. The Submission, however, states that it is intended to serve as a template for indigenous communities particularly affected by climate change, so it may be that future fact patterns fit more easily with the existing and developing jurisprudence, thereby opening up the potential for international climate crimes to be tried in The Hague.
© Lionel Nichols, 4 New Square Chambers, March 2024
Disclaimer: this article is not to be relied upon as legal advice. The circumstances of each case differ and legal advice specific to the individual case should always be sought.
This article was first published in the Bonavero Report ‘Climate Litigation in Europe Unleashed: Catalysing Action against States and Corporations‘ and has been reproduced with permission from the Bonavero Institute of Human Rights.
