International Criminal Court puts corporate polluters on notice
By Isabella Kaminski and Molly Quell
Polluters have long faced civil litigation for the harm they cause to the environment. Now the International Criminal Court could be coming for them - although climate change is probably out of its grasp
People working for corporations now risk criminal prosecution in The Hague for the havoc they wreck on the natural world.
In a new policy paper, published earlier in the month following a lengthy consultation period, the International Criminal Court (ICC)’s Office of the Prosiecutor sets out how it intends to tackle environmental crimes - and the private sector is not immune.
The Rome Statute, which underpins the court’s work, was created late last century “but the world has changed a great deal since,” says Reinhold Gallmetzer, appeals counsel at the Office of the Prosecutor.
The Rome Statue makes one explicit reference to the environment, as a subprovision of “other serious violations of the laws and customs” under war crimes. However, this has has never been prosecuted at the ICC; the only case it has undertaken with an environmenal component was its 2008 charge of then Sudanese president Omar Al-Bashir with genocide.
Campaigners have long called for the ICC to act on environmental damage. At least six environment and climate-related complaints (or ‘communications’ in ICC lingo) have been submitted to the court in the past five years, but it has no obligation to reply or even confirm their existence so these tend to disappear into its bureaucratic black hole.
Investigative priorities
The new paper clearly applies to crimes committed by the ICC’s “usual suspects” - government and military leaders, as well as non-state actors like militia leaders - but the court has never yet brought a case against a corporate actor.
Kevin Jon Heller, special advisor to the ICC prosecutor on war crimes, who co-authored the paper with Gallmetzer, says the policy will likely first be used by adding environmental elements to existing cases on its books. “Many crimes have such a component already,” he says, citing the hypothetical example of destroying grazing lands in an effort to force out a group.
Gallmetzer does not rule out fresh prosecutions with a stronger environmental angle in future (although this is unlikely to ever be the main focus), but stresses that the court “simply doesn’t have the capacity” to handle a huge caseload, “neither is that our mandate”.
The paper does refer to specific conflicts such as those in the Democratic Republic of the Congo, Central African Republic, Darfur, Ukraine and Palestine as involving Rome Statute crimes that are “often motivated by competition over natural resources, such as land, water, and minerals, and routinely result in serious environmental damage”.
The ICC has already sent investigators to look into the aftermath of Russia’s destruction of the Ukraine's Kakhovka dam in 2023, a part of a war where environmental damage has been particularly visible and well documented. The collapse of the this Soviet-era dam, one of six along the Dnipro river, flooded the region and killed 84 people. The water surge also contained toxic heavy metals, which contaminated drinking water and agricultural land.
But neither Gallmetzer nor Heller would not be drawn on which, if any, of these cases are now in the court’s green sights.
The place where Gallmetzer thinks the court can be most effective is in supporting national investigations by sharing intelligence, evidence and expertise, providing training, and entering into burden-sharing agreements - all of which it already does in non-environmental contexts. When it comes to corporate activities, he says the court can pass on information about civil illegality too, potentially triggering regulatory mechanisms or sanctions at domestic level.
Richard J Rogers, international criminal lawyer and executive director of Climate Counsel, who has submitted several complaints to the ICC, is particularly optimistic about the corporate part of the paper. “It could be really groundbreaking in terms of the responsibility or corporate actors because, unlike most war crimes, which are committed by individuals working for armies or governments, many environmental crimes are committed by individuals working for corporations.”
(As a side note, the paper shows that the ICC clearly interprets the ICJ advisory opinion as affirming the right to a clean, healthy, and sustainable environment, even though scholars have described the language actually used by the ICJ as “frustratingly vague”.)
Climate - no change
What is clear is that the ICC will not be prosecuting anyone for the worst environmental disaster humanity faces.
Climate change is mentioned in the policy several times, with explicit references to recent advisory opinions from the International Court of Justice (ICJ) and the Inter-American Court of Human Rights.
Criminal prosecutions require a clear relationship between the actions of the defendant and the harm caused. That is not insurmountable, says Gallmetzer, but “we cannot, as the law is today, and as the scientific evidence is today, hold individuals responsible for the ultimate impacts and harms caused by climate change.” Heller is even more blunt: “The court is not going to be in the business of combatting climate change.”
However, Gallmetzer points out that the court can prosecute the “discrete drivers of climate change” such as deforestation, he says. Deforestation damages a vital carbon sink but also has major local impacts, for example through land grabs, particularly in Indigenous and other local communities, that could provide the meat of a lawsuit, suggests Gallmetzer, likely under crimes against humanity.
When challenged on whether this risks targeting Global South contributors to the climate crisis instead of much more significant Global North offenders like fossil fuel industry executives, playing into long-running accusations of bias, he urges detractors to “read the policy paper in context”. “Obviously we can be criticised on a concrete case, but the policy surely is not myopic,” he says.
What's the evidence?
Rogers believes prosecuting corporate criminals would be no more inherently difficult than prosecuting government or military officials, and there are precedents for doing so at national level; in Sweden, two directors of Swedish oil company Lundin Oil are currently on trial charged with complicity in war crimes in Sudan between 1997 and 2003.
Heller points out that other international courts have tried corporate actors. Leading industrialist Friedrich Flick was convicted at the post-World War II Nuremberg Trials for using slave labour. Thirteen directors of German chemical conglomerate IG Farben were also convicted for manufacturing Zyklon B, the gas used to exterminate millions during the Holocaust.
There are clear issues with piercing the corporate veil and building the evidence base when it comes to the private sector, particularly when dealing with complex modern business supply chains.
However, as the Conflict and Environment Observatory points out, the policy “significantly expands the kinds of evidence available to establish the scope and foreseeability of harm”, committing the court to interdisciplinary investigations drawing on climate science, environmental forensics, toxicology, public health, satellite imaging, remote sensing, ecological field surveys, Indigenous and local knowledge, and supply chain analysis.
Maud Sarlieve, research fellow at the University of London, is one of the lead organisers of a new initiative to develop guidelines on documenting and investigating environmental international crimes run by her institution’s Institute of Commonwealth Studies at University, together with various partners. “It's time for evidence to be gathered and this framework to be tested to see if it indeed flies,” says Sarlieve. “Without evidence this is all hot air.”
Legal risk
Gallmetzer hopes that the policy itself will help shift corporate behaviour.
When the ICC published a previous paper back in 2016 saying it intended to prioritise cases involving the destruction of the environment, illegal exploitation of resources and land-grabbing, some law firms warned their corporate clients that the reputational risks of even being associated with an investigation would be remote but “devastating”.
This did not lead to any prosecutions. But Peter Prove, director of international affairs at the World Council of Churches, which submitted a response to the ICC’s policy consultation and has also urged Christians worldwide to take legal action on climate change, says there is “nothing that affects the thinking and decision making of a corporate leader more than the risk of legal accountability. So even a slight risk of that happening is going to impact decision-making in a positive direction.”
Ecocide is explicitly outside the court’s current mandate. Even so, Stop Ecocide International, which campaigns for such a crime to be added to the Rome Statue, called the policy a “major step toward meaningful prevention and credible deterrence”, reflecting “an international justice system beginning to engage seriously with ecological reality”.
Jurisdictional limits
The court is wary of being perceived as policymaking, and Gallmetzer repeatedly says the organisation is “conscious of the limits” in its jurisdiction. Like the ICJ before it, the ICC is teasing out the implications of existing laws rather than creating new ones, he says.
But Gallmetzer seems undaunted about the prospect of backlash, stressing that some states were involved in the consultation process and the launch was co-sponsored by Germany, France, Panama, Costa Rica and the Marshall Islands. “I think initial skepticism was addressed when we clarified what this is and what it is not.”
There’s also the issue of money: given its serious budget problems, the court has asked for “voluntary contributions” from governments, international organisations, individuals, corporations and others to help it implement the policy.
However, a fresh focus on environmental crimes could restore public confidence in the ICC, suggests Rogers, and win it a new constituency of supporters. “They may have finally realised that they need to keep up to date with the issues of our time,” says Rogers.
