ICC will investigate environmental destruction as well as war crimes

With land grabbing fast becoming one of the most pressing human rights issues of our time, the International Criminal Court has started to recognize that the guise of economic development can mask many crimes against humanity. Indeed, environmental destruction, illegal seizure of land, and the illegal exploitation of natural resources can all have devastating effects on people’s right to a healthy, safe and dignified life.

On 7 October 2014, as a partner of Global Diligence LLP, I filed a Communication (similar to a “complaint”) on behalf of Cambodian victims before the Prosecutor of the International Criminal Court (ICC) in The Hague. The Communication requested the Prosecutor to investigate the mass crimes associated with the land grabbing frenzy that has plagued Cambodia for the past 20 years. We contended in the document that an estimated 850,000 people have been adversely affected by land conflicts, with 300-400,000 already evicted from their land; in Phnom Penh alone around 145,000 have been displaced. Those who resisted eviction have been driven out by tear gas, batons, and live ammunition. Some have been killed, raped, brutally beaten, and imprisoned on false charges. The indigenous minority population, due to their particular dependence on and cultural attachment to their land, has been disproportionately affected.

Land grabbing has also been the cause of Cambodia’s rapid rate of deforestation, reportedly the fifth highest in the world. Evictees now live in squalid conditions and some become victims of human trafficking, child labour and prostitution. Activists have been intimidated, prosecuted, detained on false-charges, and murdered.

Flickr/jidanchaomian (Some rights reserved)

A frenzied demand for land in Cambodia has led to an epidemic of irresponsible deforestation.

The Communication alleged that members of Cambodia’s “ruling elite” engaged in a widespread and systematic attack against the Cambodian civilian population, pursuant to a state policy, and committed the underlying crimes of illegal forcible transfer of population, murder, illegal imprisonment, other inhumane acts, and persecution. The cumulative effect of these crimes pushed the situation beyond the boundaries of human rights law and into the realm of international criminal law—the facts satisfied all the elements of the “crime against humanity” and, therefore, the situation fell squarely within the jurisdiction of the ICC.  

This filing gained considerable international attention and support: forty land rights organisations from around the world signed onto a letter urging the Prosecutor to act; thousands of Cambodians sent a petition supporting the case; and human rights organisations such as Global Witness and FIDH threw their full weight behind it. On 21 August 2015, I testified on the issue before the U.S. House Foreign Affairs Committee—an estimated 600 Cambodian Americans attended. The European Parliament’s Human Rights Sub-Committee debated the Communication and, on 26 November 2015, the European Parliament passed a resolution damning the human rights violations in Cambodia.

Crimes committed under the guise of “development” are no less damaging to victims than many wartime atrocities. 

More recently, on 15 September 2016, the Prosecutor of the ICC announced a change in the case selection and prioritization policy. The Prosecution will now prioritize crimes that are committed by means of or result in “the destruction of the environment, the illegal exploitation of natural resources, or the illegal dispossession of land.” It appears that the Prosecutor has accepted the argument provided by Global Diligence that systemic crimes committed under the guise of “development” are no less damaging to victims than many wartime atrocities. The policy announcement comes at a critical time with land grabbing becoming one of the greatest human rights challenges of our time. With the rise of the world’s population and higher consumption levels, enormous pressure has been placed on natural resources. In countries lacking good governance, land deals have been the source forcible transfer of population, loss of livelihood for the vulnerable, and environmental degradation.

The ICC’s policy does not change existing law or definitions. Instead it signals a new “internal focus” for prioritizing cases involving certain types of crimes (or causes or consequences) that are within the ICC’s jurisdiction. Under the Rome Statute, forcible transfer of population, which often flows from land grabbing, is explicitly listed as an underlying act of crimes against humanity. Therefore, if mass forcible displacements of civilian population are committed as part of a widespread and systematic attack pursuant to a state policy, then the situation may amount to crimes against humanity. Environmental destruction and illegal resource exploitation that flow from land grabbing may also become crucial elements that influence the ICC Prosecutor’s priorities.  

The Prosecutor’s new focus has a huge potential to positively impact the field. First, whilst most war criminals are unlikely to be deterred by the threat of an indictment, perpetrators engaged in land grabbing have much more to lose. They tend to be government officials and business executives who care about their reputation, their legitimacy, their wealth, and their freedom. They are far more likely to change their behavior. Second, business executives are much more likely to undertake serious due-diligence before investing in countries suffering from land conflicts, otherwise they risk becoming complicit in crimes against humanity.  Third, if the ICC takes up the Cambodian case, it will empower victims and land rights groups around the world, and help prevent further violations.

This ICC Prosecutor’s shift in focus marks a significant development in international criminal law: It is the first time that an international criminal court has signalled that mass crimes committed during times of peace and in the name of profit will be considered alongside traditional war crimes. In doing so, the ICC Prosecutor has shown that she listens carefully to the concerns of victims and is willing to direct her resources to tackle today’s most compelling human rights problems.