International Environmental Criminal Law Amissi Melchiade Manirabona Researcher: UdeM/McGill Thursday 2 July 2009 13h30 16h30
General Considerations: Why Criminal Law in Int l Evtl Matters? Introduction Considerable development of the IECL in recent years (20 years ago, IECL was a surprising thing). Today the ICC and Int l Crim. Tribunals Recognize that at certain degree, evtl crimes can constitute int l crimes. Problems of Criminal regulation: Eco centric & Anthropocentric approaches of the environment (Whether or not evt. is an essential element of human life). All approaches are now concerned by criminal law.
Reasons for the Criminalization of Int l Envir. Misconducts Protection of abstract values: The evtl protection as a fundamental value for present generation (envir.= Public interest, shared values) & future generation (inter generational equity & sustainable development principles). Evtl crimes are then considered as morally outrageous for whole int l community (At present many duties to protect evt are obligations Ergas Omnes= all states are injured by int l evtl crimes. This could trigger the universal jurisdiction but we are not there yet).
Reasons for the Criminalization of Int l Envir. Misconducts (Cont.) Protection of values related to human life: The best quality of evt. as an vital interest for every one without borders. Many crimes against evt. are harmful like other int l crimes or even worse than int l crimes (Ex. Dumping hazardous waste in evt). Int l crimes of ecocide or geocide?
Reasons (Cont.) The offense of public interest requires public sanctions (or public interest cannot be protected by private vigilance. Deterrence of environmentally harmful conducts (Sanction must outweighs benefit so as to encourage compliance with law). Unlike civil sanction criminal sanction is more effective because of its potency to affect one s reputation (State responsibility s ineffectiveness to enforce Int l Evtl Norms). Jurisdictional issue: IECL avoids impunity due to the lack of jurisdiction upon a conduct occurred in the Global commons beyond national territory (Ex: Illegal dumping of toxic waste in high sea, Global warming).
Definition of Int l Evtl Crime No admitted definition of an Int l evtl crime. (a) Directly causing large scale or serious pollution of the: 1.sea 2. Atmosphere 3. [other relevant sites# mediums of pollution]; or (b) Conducting an activity, the widespread harmful effects of which should have been contemplated by a reasonably prudent individual; or (c) Breaching an obligation within the established framework of international law, the observance of which is recognized as essential for the protection of the environment; or (d) Aiding and abetting any of the above acts. [McLaughlin, 2000]
Reality of IECL Doubts & skepticisms (Lack of genuine int l community, no int l legislature to establish IECL, no int l enforcement authority) But ICC practice is a counter example. There is an real international and moral order in evtl matters which merit to be secured by criminal law (without any exclusion on the exercise of the complementary principle)
Source of I.E.C.L. Int l Humanitarian Law Protocol Additional I (1977) to the 1949 Geneva Conventions on the Law of War, arts. 35 &55]: Prohibition of employing means of warfare intended or expected to cause widespread, long term and severe damage to natural evt. 1977 UN Convention on the prohibition of Military or Any Other Hostile Use of Evtl Modifications Techniques, art. 1: 1. Each State Party to this Convention undertakes not to engage in military or any other hostile use of environmental modification techniques having widespread, long lasting or severe effects as the means of destruction, damage or injury to any other State Party. 2. Each State Party to this Convention undertakes not to assist, encourage or induce any State, group of States or international organization to engage in activities contrary to the provisions of paragraph 1 of this article.
Source of I.E.C.L. (cont.) Int l Law Commission, Draft Articles on States Responsibility, art. 19 (3)d) : prohibition of serious breach of an international obligation of essential importance for the safeguarding and the preservation of human evt. Int l Law Commission s, Draft Code of Crimes against the Peace and Security of Mankind (1991), arts. 22 (2) d): war crime: employing methods or means which are intended or may be expected to cause widespread, long term and severe damage to the natural environment. Art. 26: An individual who wilfully causes or orders the causing of widespread, long term and severe damage to the natural environment shall, on conviction thereof, be sentenced. (In time of peace and war)
Source of IECL (cont.) 1996 ILC Draft Code of Crimes against the Peace, art. 19 g):(g) In the case of armed conflict, using methods or means of warfare not justified by military necessity with the intent to cause widespread, long term and severe damage to the natural environment and thereby gravely prejudice the health or survival of the population and such damage occurs.
Source of I.E.C.L. (cont.) ICC s provisions relating to evt Genocide: ICC Elements of crimes, art. 6 (c) 4. The conditions of life calculated to bring about the physical destruction of that group, in whole or in part (Ex: deliberate deprivation of resources indispensable for survival, such as food or medical services, or systematic expulsion from homes. War crimes: 8 (2) a) (iv)extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; 8 (2) b) (iv)intentionally launching an attack in the knowledge that such attack will cause incidental widespread, long term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.
Other int l sources Treaties on Banning Nuclear Weapon Tests in the Atmosphere, in Outer Space and Under Water, Moscow 1963 & New York 1996, art. 1: Prohibition of carrying out any nuclear weapon test explosion, or any other nuclear explosion, at any place under its jurisdiction or control (But problem of sanction about states as Int l crim liablity of states is not yet admitted).
Jurisprudential sources of IECL Prosecutor v. Krstic, IT 98 33 T, ICTY, (2001) at para. 580: «an enterprise attacking only the cultural or sociological characteristics of a human group in order to annihilate these elements which give to that group its own identity distinct from the rest of the community would not fall under the definition of genocide. The Trial Chamber however points out that where there is physical or biological destruction there are often simultaneous attacks on the cultural and religious property and symbols of the targeted group as well, attacks which may legitimately be considered as evidence of an intent to physically destroy the group. In this case, the Trial Chamber will thus take into account as evidence of intent to destroy the group the deliberate destruction of mosques and houses belonging to members of the group».
Jurisprudential sources of IECL (cont.) Prosecutor v. Blagojevic & Jokic, IT 02 60 T, ICTY, (2005) at para. 666: «[t]hetrial Chamber finds in this respect that the physical or biological destruction of a group is not necessarily the death of the group members. While killing large numbers of a group may be the most direct means of destroying a group, other acts or series of acts, can also lead to the destruction of the group. A group is comprised of its individuals, but also of its history, destruction of homes and property, destruction of towns, churches may serve evidentially the intent to destroy a group of individual. traditions, the relationship between its members, the relationship with other groups, the relationship with the land. The Trial Chamber finds that the physical or biological destruction of the group is the likely outcome of a forcible transfer of the population when this transfer is conducted in such a way that the group can no longer reconstitute itself particularly when it involves the separation of its members. In such cases the Trial Chamber finds that the forcible transfer of individuals could lead to the material destruction of the group, since the group ceases to exist as a group, or at least as the group it was. The Trial Chamber emphasises that its reasoning and conclusion are not an argument for the recognition of cultural genocide, but rather an attempt to clarify the meaning of physical or biological destruction».
Comments Int l Humanitarian law: applicable only between states Rome Statute: basically homocentric, Applicable only in army conflicts (many evtl are committed in time of peace), Conditioned to the outweighing anticipated military advantages, vagueness of the expression widespread, long term, severe damage
Transnationalization of national criminal law Most int l evtl treaties impose obligations on States parties to adopt domestic criminal law ( Ex. The Council of Europe Convention on the protection of the evt through criminal law, arts. 2 & 3; Basle Convention on the control of transboundary movement of Hazardous Waste, art. 9 (5); Paris Convention on the prevention of Marine Pollution, art. 12 (1); CITES, art. VIII (1) a)..
IECL at national level Introduction: Implementing int l treaties obligations in domestic law: Monism & Dualism systems CCHWCA ( implementation of ICC Rome statute), s. 6 (3) on War crimes (Universal jurisdiction). Extraterritoriality of CEPA, art. 123(2): No person or ship shall export a substance for disposal in an area of the sea under the jurisdiction of a foreign state or in its internal waters; art. 124(3) :The master of a Canadian ship or pilot in command of a Canadian aircraft shall not permit a substance to be loaded onto their ship or aircraft outside Canada for the purpose of disposal at sea; CEPA, art. 171 no harm principle; art. 186(2): No person shall abandon any dangerous waste in the course of import, export or transit.
IECL at national level (Cont.) Species at Risk Act (2002): Art. 2: Protection of endangered species in Canada and around the world Possible CEPA extraterritoriality by using some principles of Public Int l Law: Variety of the traditional territorial principle, active & passive personality pcple, protective pcple, universal jurisdiction pcple (when int l evtl crimes is considered as genocide and crimes { CCHWCA, s. 6 (4) The law applies to int l crimes according to past, existing and future rules of customary international law}).
Enforcement Mechanisms International Possibility of prosecution by ICC, located in The Hague, the Netherlands in 2002. But art. 25 limits its jurisdiction on natural persons. Domestic Domestic courts are more suitable to enforce int l evtl crimes. But many countries do not have appropriate law on the subject particularly in developing countries where a great number of evtl crimes are committed. In addition, in those countries, corruption and fear of disinvestment from companies ground the tolerance of corporate criminal conduct. On the other hand, in developed countries where there is effective legislation, there is little political will to prosecute evtl crimes committed outside national territory.
Int l Evtl Criminal Liability: Who may incur liability? Individual: Int l & National stage Corporations: National & international stage [but difficulty on int l stage as ICC doesn t have jurisdiction upon Corpo although during the Nuremberg trial (Allied trials of war criminals) it was recognized that corporations could incur criminal liability under int l law). It would be an important step if ICC could change its Statute so as to have jurisdiction on juristic persons. Int l evtl crim Liability and States: Controversial question (ILC abandoned this possibility. But the Treaty banning nuclear weapon has some criminal provisions. This area has not been developed in practice however). But see 2007 ICJ decision on genocide (Bosnia v. Serbia) holding that a State can commit genocide especially when it reasonably did nothing in order to avoid crimes curried out by individuals on its control)
Canadian Corporate Criminal Liability Crimes of mens rea 22.2 An organization is a party to the offence if, with the intent at least in part to benefit the organization, one of its senior officers (a) acting within the scope of their authority, is a party to the offence; (b) having the mental state required to be a party to the offence and acting within the scope of their authority, directs the work of other representatives of the organization so that they do the act or make the omission specified in the offence; or (c) knowing that a representative of the organization is or is about to be a party to the offence, does not take all reasonable measures to stop them from being a party to the offence.
Canadian Corporate Criminal Liability Crimes of negligence 22.1 An organization is a party to the offence if (a) acting within the scope of their authority (i) one of its representatives is a party to the offence, or (ii) two or more of its representatives engage in conduct, whether by act or omission, such that, if it had been the conduct of only one representative, that representative would have been a party to the offence; and (b) the senior officer who is responsible for the aspect of the organization s activities that is relevant to the offence departs or the senior officers, collectively, depart markedly from the standard of care that, in the circumstances, could reasonably be expected to prevent a representative of the organization from being a party to the offence.
Modes of criminal participation Principal offender (as a principal perpetrator or as a superior) Aiding and abetting Joint criminal enterprise
Sentencing To Deter To Punish To rehabilitate These objectives are not easily applied when offenders are corporation (Problem to evaluate the degree of evtl crime, no immediate damage
CEPA sentencing considerations Art. 287. A court that imposes a sentence shall take into account, in addition to any other principles that it is required to consider, the following factors: (a) the harm or risk of harm caused by the commission of the offence; (b) an estimate of the total costs to remedy or reduce any damages caused by the commission of the offence; (c) whether any remedial or preventive action has been taken or proposed by or on behalf of the offender, including having in place an environmental management system that meets a recognized Canadian or international standard or a pollution prevention plan; (d) whether any reporting requirements under this Act or the regulations were complied with by the offender;
CEPA sentencing consideration (cont.) (e) whether the offender was found to have committed the offence intentionally, recklessly or inadvertently; (f) whether the offender was found by the court to have been negligent or incompetent or to have shown a lack of concern with respect to the commission of the offence; (g) any property, benefit or advantage received or receivable by the offender to which, but for the commission of the offence, the offender would not have been entitled; (h) any evidence from which the court may reasonably conclude that the offender has a history of non compliance with legislation designed to prevent or minimize harm to the environment; and (i) all available sanctions that are reasonable in the circumstances, with particular attention to the circumstances of aboriginal offenders.