Environmental crimes as crimes against humanity

The Rome Statute Explanatory Memorandum says crimes against humanity are:

… particularly odious offenses in that they constitute a serious attack on human dignity or grave humiliation or a degradation of one or more human beings. They are not isolated or sporadic events, but are part either of a government policy (although the perpetrators need not identify themselves with this policy) or of a wide practice of atrocities tolerated or condoned by a government or a de facto authority.

Article 7 of the Rome Statute defines them as acts being 'part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack', including murder, extermination, torture, persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender including inhumane acts intentionally causing great suffering, or serious injury to body or to mental or physical health. 'Extermination' includes intentional infliction of conditions of life. 'Torture' means intentional infliction of severe pain or suffering, physical or mental, outside lawful sanctions, upon a person in custody or under control of the accused. 'Persecution' is intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity.

Article 30 establishes the mental element in crimes against humanity. Crimes come within the ICC's jurisdiction if material elements are committed with intent and knowledge. 'Intent' covers the person who 'means to engage in the conduct' and/or 'means to cause that consequence or is aware that it will occur in the ordinary course of events'. 'Knowledge' means 'awareness that a circumstance exists or a consequence will occur in the ordinary course of events'. 'Know' and 'knowingly' apply accordingly.

Where governments fail to ensure that comprehensive environmental policies and regulatory systems of corporate and industrial control exist or, if existing, fail to ensure they are effective, can stand as 'reckless' as to the detrimental consequences. In the ordinary course of events, absent strong environmental laws and independent agencies which apply them according to their intent, governments must be taken to be aware that 'circumstances exist or a consequence will occur in the ordinary course of events' in the nature of the disasters of which the world already has experience. Corporations that fail to adhere to regulatory requirements must be taken to know or be reckless as to the consequences.

To bring these disasters within the definition of 'crimes against humanity', either a broader definition should be adopted to ensure that environmental crimes are indisputably covered. Alternatively, the existing definition may be applied. Corporations engaging in reckless or intentional activity having a likelihood of impacting negatively upon the environment can be said to be engaging in acts directed against the civilian population: the civilian population constitutes the workers, their families and residents living nearby the factory, nuclear facility, plant or other hazard. Too often, these disasters disclose knowledge or recklessness on the part of decision-makers, with scant regard for the consequences. Workers often come from ethnically identifiable groups. They come from industrially identifiable groups and from groups defined by income, working-class status, and not infrequently by race/ethnicity.

It is no coincidence that disasters such as Bhopal take place in 'developing' countries dependent upon global corporations such as Dow Chemicals (UCLI was a subsidiary) for the provision of jobs and contributions to the economy. Yet the wealth generated generally finds its way to shareholders and others dwelling elsewhere. This supports an argument that environmental crimes may have a geographical impact upon particular civilian populations identifiable on racial, national or ethnic lines.

The importance of the ICC as a forum for environmental crimes is that these occur on a scale requiring a world court's attention. Equally important is the lack of will that may occur when governments are confronted with a 'choice' between pursuing through the local court system those responsible, or allowing their own nationals to languish in the cause of retaining the corporation's 'good offices'. When it comes to a choice between keeping in the country an industry and the corporation that runs it, or losing the operation to another country anxious to increase its GDP whatever the cost to the environment, workers and general population, economic imperatives too often win out. Environmental rights and the rights of the populace not to be exploited or endangered take second place. The great divide between the 'first' and 'third' world presents this 'option', placing 'third' world counties in such a dilemma.

Hence, the importance of an alternative avenue through which environmental crimes can be heard 'without fear or favour'. These crimes against humanity must be recognised for what they are, with the ICC to apply impartial justice.