Steven Freeland, “Crimes Against the Environment—A Role for the International Criminal Court?”, in Droit de l’environnement dans le Pacifique Problematiques et Perspectives Croisées [Environmental Law in the Pacific: International and Comparative Perspectives], 335–72 (Alberto Costi & Yves-Louis Sage eds., 2005)
This chapter explores “whether, and in what circumstances, actions designed to deliberately destroy the environment may fall within the jurisdiction of the ICC” vis-à-vis the Rome Statute. Writing in early-mid 2000s and looking forward to the 2009 Review Conference, Freeland argues for the creation of a discrete category for international environmental crimes—“crimes against the environment”—within the Court’s competence. He proposes the following working definition of the fifth crime:
A deliberate action committed with intent to cause significant harm to the environment, including ecological, biological and natural resource systems, in order to promote a particular military, strategic, political or other aim, and which does in fact cause such damage.
Despite political resistance and the challenge of formulating the scope of the crime, Freeland prefers this mode of accountability to the alternative approach.
The alternative would be interpreting existing crimes in the Rome Statute to apply to acts of deliberate, significant environmental destruction, in other words, treating such acts as themselves constituting and thus prosecutable as the four core crimes already within the ICC’s mandate. While this is not ideal, Freeland does acknowledge it is “a more realistic possibility.” Considering that environmental crimes could be prosecuted as crimes against humanity before the ICC, Freeland posits that such prosecution “may well be strategically advantageous and symbolically important,” given the greater gravity accorded to crimes against humanity than war crimes.
Freeland concludes that whether prosecution of environmental crimes, via either option, will actually happen before the ICC “remains to be seen and will, at least in the short-medium term, probably be dictated as much by political as legal considerations.”