Alessandra Mistura, Is There Space for Environmental Crimes Under International Criminal Law? The Impact of the Office of the Prosecutor Policy Paper on Case Selection and Prioritization on the Current Legal Framework, 43 COLUM. J. ENVTL. L. 181 (2018)

This note seeks to clarify the status of “environmental crimes” under international law, prompted by the ICC Office of the Prosecutor (“OTP”)’s Policy Paper on Case Selection and Prioritization (2016).

While the Policy Paper expressed OTP’s intention to consider “the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land,” Mistura views the resulting media enthusiasm as “misplaced” for several reasons. In addition to the Court’s limited jurisdiction to prosecuting “core crimes” (genocide, war crimes, crimes against humanity and aggression), she cites the lack of a satisfactory definition for “environmental crimes” as a major roadblock to prosecuting them.

To demonstrate international law’s treatment of environmental crimes today, she walks through international criminal law and international environmental law doctrinally. Because conduct provided in international environmental law treaties are criminalized and prosecuted by the state parties, not by an international legal framework, environmental crimes better qualify as “transnational crimes.” “Only the conduct of environmental destruction and degradation within the description of the core crimes provided under the Rome Statute could be properly qualified as ‘environmental crimes under international law.’”

Mistura then considers if this “extremely limited” space that “environmental crimes” occupy in the Rome Statute could be enlarged by the Policy Paper’s impact or the case for “ecocide.” The Policy Paper, as internal guidelines governing the exercise of prosecutorial discretion in case selection and prioritization, does not alter the current framework. Attempts to make ecocide a fifth crime, on the other hand, enjoy “only theoretical importance” due to the uncertainty and disagreement surrounding this project. Mistura concludes, “[w]hile there is no doubt that, in the future, ecocide could be included” in “the most serious crimes of international concern,” “the time is not yet ripe for such change to occur.”