Opinion by Mathew Carr (World Press Freedom Day special)
May 3-9, 2023 — It might sound like hubris, but I don’t think it is.
Expanding in fossil fuels could be enough to make you an international criminal, even if you don’t mean to hurt anyone.
You could join the ranks, potentially, of Vladimir Putin, who ordered the invasion of Ukraine.
What matters isn’t that the International Energy Agency said new fossil fuels aren’t needed anymore. Yet, it did say that in 2021.
It’s not even the most important point that scientists grouped together by the UN say new coal, crude oil and natural gas expansion would probably break the targets agreed in the Paris climate deal struck in 2015 to limit global heating to 1.5C or at most 2C vs pre-industrial times.
What probably should be the most important disincentive for those expanding fossil fuels is the International Criminal Court, which doesn’t just cover war crimes. The US isn’t covered by the court, even though it helped set it up (see the briefing below). Other nations have not joined it, as well.
Yet 123 countries are parties to the Rome Statute of the International Criminal Court, about two thirds of the world’s nations.
Out of them, 33 are African States, 19 are Asia-Pacific States, 18 are from Eastern Europe, 28 are from Latin American and Caribbean States, and 25 are from Western European and other States (including the UK).
Nowhere to Hide
What the court’s legislation says is if you do something that causes mass death, you are a criminal — especially if it’s race related or across borders, as the climate crisis is: mainly wealthy white-skinned folks have caused most of the heat-trapping gas in the atmosphere, while brown-skinned people are suffering in the biggest way.
New Zealand youth are already seeking remedy for the climate using the law (see report in notes below), citing crimes against humanity by BP Plc.
Country Need Not Prompt Prosecution
Under Article 15 of the ICC Rome Statute the Office of the Prosecutor (“OTP”) may determine there is a “reasonable basis to proceed with an investigation” into allegations of crimes and may receive information regarding potential crimes from “non-governmental organizations, or other reliable sources that he or she deems appropriate.” (New Zealand, UK youth report)
Caselaw has established that “nationals of a country which is not a Member State [eg the U.S.] may still be liable under the ICC Rome Statute if their acts are linked to the territory of a Member State [eg the UK].”
I read this as meaning that, even if you are a U.S. citizen, then you may not be safe if you expand fossil fuels in the UK or one of the 122 other countries that have ratified the Rome Statute.
Oblique Intent
Under International Criminal Law, expanding fossil fuels is not an inconvenience, like delaying traffic is: it is murder by oblique intent.
“And these two words – oblique intent – change everything,” according to campaign group Just Stop (New) Oil. “Speak them, understand them and the mask slips: respectable-looking politicians are seen as the murderers they really are,” it said last month (link above).
CarrZee: The same can indeed be said for enablers (like lawyers and news executives) and oil industry executives themselves, from my reading of the statute, which I reproduce below in the notes for convenience and for download. I will gather more views. What’s your view? It’s an easy read. Seems clear.
The law: Oblique intent is referenced in Article 30 of the statute, which states that death or harm doesn’t have to be a primary intention for someone to be held criminally responsible. They simply have to be ‘aware that it will occur in the ordinary course of events’.
‘It will occur in the ordinary course of events’
ICC law
As climate science has shown the past 50 years or so, there is now a very clear that additional output of greenhouse gas equals more global heating.
Importantly, the ICC can only intervene as a court of last resort, encouraging Member States to take up investigations of grave crimes directly, themselves. This means that even if ICC jurisdiction is established, a case may be declared inadmissible if the national jurisdiction of a member is willing and able to pursue the case.
Source: NZ, UK youth
Here is the Article in full, with words in bold.
‘Article 30 Mental element
1. Unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge.
2. For the purposes of this article, a person has intent where:
(a) In relation to conduct, that person means to engage in the conduct; 16 Rome Statute of the International Criminal Court
(b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events. [This is the oblique intent.]
3. For the purposes of this article, “knowledge” means awareness that a circumstance exists or a consequence will occur in the ordinary course of events. “Know” and “knowingly” shall be construed accordingly.’
There is also this developing UN law, undedited:
ICJ Resolution
On 29 March 2023, the 18 International Court of Justice Champions Nations, and 132 Co Sponsors successfully saw the adoption by consensus of the Resolution.
Now that the Resolution is adopted, the Court will commence legal proceedings.
Widespread Co-Sponsorship has sent a strong and unambiguous signal that nations are united in their commitment to abide by existing climate obligations under international law and to successful international climate cooperation.
Formal translations of the final Resolution are available here in English, French, Spanish, Arabic, Russian, Chinese and Portuguese.
Seventy-seventh session
Agenda item 70: Report of the International Court of Justice
Request for an advisory opinion of the International Court of Justice on the obligations of States in respect of climate change
The General Assembly,
[PP1] Recognizing that climate change is an unprecedented challenge of civilizational proportions, and that the well-being of present and future generations of humankind depends on our immediate and urgent response to it,
[PP2] Recalling its resolution 77/165 of 14 December 2022 and all its other resolutions and decisions relating to the protection of the global climate for present and future generations of humankind, and its resolution 76/300 of 28 July 2022 on the human right to a clean, healthy and sustainable environment,
[PP2bis] Recalling also its resolution 70/1 of 21 October 2015 entitled “Transforming our world: the 2030 Agenda for Sustainable Development.”
[PP3] Recalling further Human Rights Council resolution 50/9 of 7 July 2022 and all previous resolutions of the Human Rights Council on human rights and climate change, and Human Rights Council resolution 48/13 of 8 October 2021, as well as the need to ensure gender equality and empowerment of women,
[PP4] Emphasizing the importance of the Charter of the United Nations, the Universal Declaration of Human Rights, the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, the Convention on the Rights of the Child, the United Nations Convention on the Law of the Sea, the Vienna Convention for the Protection of the Ozone Layer, the Montreal Protocol on Substances that Deplete the Ozone Layer, the Convention on Biological Diversity and the United Nations Convention to Combat Desertification among other instruments, and of the relevant principles and relevant obligations of customary international law, including those reflected in the Declaration of the Stockholm Conference on the Human Environment and the Rio Declaration on Environment and Development, to the conduct of States over time in relation to activities that contribute to climate change and its adverse effects,
[PP5] Recalling the United Nations Framework Convention on Climate Change, the Kyoto Protocol and the Paris Agreement, as expressions of the determination to address decisively the threat posed by climate change, urging all Parties to fully implement them, and noting with concern the significant gap both between the aggregate effect of States’ current nationally determined contributions and the emission reductions required to hold the increase in the global average temperature to well below 2°C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5°C above pre-industrial levels, and between current levels of adaptation and levels needed to respond to the adverse effects of climate change,
[PP6] Recalling further that the United Nations Framework Convention on Climate Change and the Paris Agreement will be implemented to reflect equity and the principle of common but differentiated responsibilities and respective capabilities, in the light of different national circumstances,
[PP7] Noting with profound alarm that emissions of greenhouse gases continue to rise despite the fact that all countries, in particular developing countries, are vulnerable to the adverse effects of climate change and that those that are particularly vulnerable to the adverse effects of climate change and have significant capacity constraints, such as the least developed countries and small island developing States, are already experiencing an increase in such effects, including persistent drought and extreme weather events, land loss and degradation, sea level rise, coastal erosion, ocean acidification, and the retreat of mountain glaciers, leading to displacement of affected persons and further threatening food security, water availability and livelihoods, as well as efforts to eradicate poverty in all its forms and dimensions and achieve sustainable development,
[PP8] Noting with utmost concern the scientific consensus, expressed inter alia in the reports of the Intergovernmental Panel on Climate Change, including that anthropogenic emissions of greenhouses gases are unequivocally the dominant cause of the global warming observed since the mid-20th century, that human-induced climate change, including more frequent and intense extreme events, has caused widespread adverse impacts and related losses and damages to nature and people, beyond natural climate variability, and that across sectors and regions the most vulnerable people and systems are observed to be disproportionately affected,
[PP9] Acknowledging that as temperatures rise, impacts from climate and weather extremes, as well as slow onset events, will pose an ever-greater social, cultural, economic and environmental threat,
[PP10] Emphasizing the urgency of scaling up action and support, including finance, capacity building and technology transfer, to enhance adaptive capacity and to implement collaborative approaches for effectively responding to the adverse effects of climate change, as well as for averting, minimizing and addressing loss and damage associated with those effects in developing countries that are particularly vulnerable to these effects,
[PP11] Expressing serious concern that the goal of developed countries to mobilize jointly USD 100 billion per year by 2020 in the context of meaningful mitigation actions and transparency on implementation has not yet been met, and urging developed countries to meet the goal,
Decides, in accordance with Article 96 of the Charter of the United Nations, to request the International Court of Justice, pursuant to Article 65 of the Statute of the Court, to render an advisory opinion on the following question:
“Having particular regard to the Charter of the United Nations, the International Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights, the United Nations Framework Convention on Climate Change, the Paris Agreement, the United Nations Convention on the Law of the Sea, the duty of due diligence, the rights recognized in the Universal Declaration of Human Rights, the principle of prevention of significant harm to the environment, and the duty to protect and preserve the marine environment,
(1) What are the obligations of States under international law to ensure the protection of the climate system and other parts of the environment from anthropogenic emissions of greenhouse gases for States and for present and future generations;
(2) What are the legal consequences under these obligations for States where they, by their acts and omissions, have caused significant harm to the climate system and other parts of the environment, with respect to:
(a) States, including, in particular, small island developing States, which due to their geographical circumstances and level of development, are injured or specially affected by or are particularly vulnerable to the adverse effects of climate change?
(b) Peoples and individuals of the present and future generations affected by the adverse effects of climate change?”
Final Resolution sent to ICJ
UNGA Official Document Page of Resolution: http://undocs.org/A/77/L.58
I believe this resolution immediately above will add to pressure on states to meet their climate targets, and they will do so by putting legal requirements on executives and companies because they are the source of the damage to the climate.
Bottom line
Knowing that greenhouse gases trap heat might be enough to make you a criminal, if you are also supporting the expansion of fossil fuels.
(Updates with ICJ, earlier context on the US, the racial element of the climate crisis, US briefing in notes, more to come)
NOTES
UN briefing from 2020
Q&A: The International Criminal Court and the United States
This Q&A addresses key questions regarding the International Criminal Court (ICC) and the relationship between the court and the United States.
1. What is the International Criminal Court?
2. Is the US a member of the ICC?
3. What fair trial protections exist before the ICC?
4. Does the ICC override national authorities in carrying out investigations and prosecutions?
5. Why can the ICC investigate and prosecute US personnel?
7. What has been the US relationship with the ICC?
8. What is the US position now on the ICC?
9. Could the ICC open an investigation in Palestine?
10. What safeguards exist at the ICC to prevent politically motivated cases?
11. Which countries support the ICC?
12. Has the ICC lived up to expectations?
1. What is the International Criminal Court?
The ICC is an independent judicial institution empowered to investigate and prosecute war crimes, crimes against humanity, genocide, and the crime of aggression. Its establishment in 2002 signaled the commitment of many countries to fight impunity for the worst international crimes. Currently, 123 countries are ICC members, giving the ICC authority, under its founding treaty, the Rome Statute, to investigate and prosecute crimes committed by their nationals or by anyone on their territory. As a matter of policy, the ICC prosecutor gives priority to cases against individuals who it determines are most responsible for the crimes under the court’s jurisdiction, regardless of their official position.
The court has been in operation since 2003. It has opened more than two dozen cases based on investigations in 11 countries, most of which are ongoing. On March 5, 2020, the ICC appeals chamber authorized the court’s prosecutor to open an investigation in Afghanistan, which could include alleged crimes committed by the Taliban, Afghan National Security Forces, and United States military and Central Intelligence Agency (CIA) personnel. The authorities in Afghanistan have asked the ICC prosecutor to defer her investigation, asserting that they can conduct credible national proceedings, and the matter remains under consideration. Based on our research in the Afghan justice system, Human Rights Watch strongly doubts the Afghan government’s capacity and willingness to bring alleged perpetrators to justice.
The ICC prosecutor is considering whether investigations are needed in another seven countries and has concluded there is a basis to proceed with an investigation into alleged serious crimes committed in Palestine, but has requested a ruling from the court’s judges on the scope of the ICC’s territorial jurisdiction.
2. Is the US a member of the ICC?
The US is not a state party to the Rome Statute. The US participated in the negotiations that led to the creation of the court. However, in 1998 the US was one of only seven countries – along with China, Iraq, Israel, Libya, Qatar, and Yemen – that voted against the Rome Statute. US President Bill Clinton signed the Rome Statute in 2000 but did not submit the treaty to the Senate for ratification. In 2002, President George W. Bush effectively “unsigned” the treaty, sending a note to the United Nations secretary-general that the US no longer intended to ratify the treaty and that it did not have any obligations toward it. However, since then, US relations with the court have been complicated but often positive (see question 7 below).
3. What fair trial protections exist before the ICC?
The ICC is designed to be an independent permanent tribunal that respects the highest standards of justice. The Rome Statute incorporates international fair trial standards to preserve a defendant’s due process rights, including: presumption of innocence; right to counsel; right to present evidence and to confront witnesses; right to remain silent; right to be present at trial; right to have charges proved beyond a reasonable doubt; right to an appeal; and protection against double jeopardy.
4. Does the ICC override national authorities in carrying out investigations and prosecutions?
Under international law, states have a responsibility to investigate and appropriately prosecute (or extradite for prosecution) suspected perpetrators of genocide, war crimes, crimes against humanity, and other international crimes. The ICC does not shift this responsibility. It is a court of last resort. Under what is known as the “principle of complementarity,” the ICC may only exercise its jurisdiction when a country is either unwilling or genuinely unable to investigate and prosecute these grave crimes.
Even after an investigation is opened, there are opportunities for states and individual defendants to challenge the lawfulness of cases before the court based on the existence of national proceedings.
May 8, 2018
Insurgent Attacks on Civilians in Afghanistan
- Download the full report in English
- Download the summary and recommendations in Pashto
- Download the summary and recommendations in Dari
5. Why can the ICC investigate and prosecute US personnel?
There are limited situations in which the ICC has jurisdiction over the nationals of countries, such as the US, that have not joined the Rome Statute.
March 3, 2015
Afghanistan’s Strongmen and the Legacy of Impunity
This includes when a citizen of a non-member country commits war crimes, crimes against humanity, and genocide on the territory of an ICC member country. That’s why US citizens may be subject to the court’s jurisdiction as it investigates alleged grave crimes that took place in Afghanistan, which is a state party, or in Poland, Lithuania, and Romania, which are also states parties. [emphasis added]
There is nothing unusual in this. US citizens who commit crimes abroad are already subject to the jurisdiction of foreign courts. This is a basic and well established principle of international law. Countries that ratify the Rome Statute are simply delegating their authority to prosecute certain grave crimes committed on their territory to an international court.
March 7, 2004
Abuses by U.S. Forces in Afghanistan
By providing accountability for war crimes, the ICC promotes respect for the laws of war, which protect civilians as well as soldiers.
With respect to Afghanistan, the parties to the armed conflict in the country have committed numerous violations of international humanitarian law, or the laws of war. The Taliban and other insurgent groups have committed targeted and indiscriminate attacks on civilians that have caused thousands of casualties. Afghan security forces and pro-government militias have committed torture, rape, enforced disappearances, and extrajudicial killings. The US military, Central Intelligence Agency (CIA), and other foreign forces have also committed serious abuses, particularly against people in custody.
December 1, 2015
A Roadmap to Justice for CIA Torture
- Download the full report
- Download the summary and recommendations in Arabic
- Download the summary and recommendations in Chinese
The US has conducted some investigations into alleged abuses by US personnel in Afghanistan, but they were limited in scope. In 2009, the US Department of Justice opened an investigation into 101 cases of alleged detainee abuse by the CIA, including the cases of two detainees who died in CIA custody, but no charges were brought. Human Rights Watch found no evidence that the investigators interviewed any victims of CIA torture. Moreover, the investigation was limited to abuses that went beyond the interrogation methods authorized by the Justice Department. Many of the authorized techniques were abusive – some clearly amounting to torture – and should have been included. A 2014 report by the US Senate Intelligence Committee concluded that the CIA covered up its crimes, including by making false claims to the Justice Department. The 6,700-page Senate report remains classified, but a redacted version of the 525-page summary shows that abusive CIA interrogation methods were far more brutal, systematic, and widespread than previously reported.
It is harder to evaluate the extent to which torture by the US military in Afghanistan has been investigated and prosecuted. In 2015, the United States reported to the UN Committee Against Torture that the armed forces had begun 70 investigations into detainee abuse that resulted in trial by courts-martial, but no time period was provided, and no further information was publicly available.
7. What has been the US relationship with the ICC?
In the early years of the ICC, the George W. Bush administration led a hostile campaign against the court. For instance, the Bush administration pressured governments around the world to enter into bilateral agreements requiring them not to surrender US nationals to the ICC. But these efforts did little more than erode US credibility on international justice and gradually gave way to a more supportive US posture, starting in 2005. The US did not veto a UN Security Council request to the ICC prosecutor to investigate crimes in Darfur, Sudan in 2005 and it voted for the UN Security Council referral of the situation in Libya to the court in 2011.
US support was critical in the transfer to the court of ICC suspects Bosco Ntaganda, a Congolese rebel leader, in 2012 and Dominic Ongwen, a Lord’s Resistance Army commander, in 2015. In 2013, the US Congress expanded its existing war crimes rewards program to provide rewards to people providing information to facilitate the arrest of foreign individuals wanted by any international court or tribunal, including the ICC.
8. What is the US position now on the ICC?
Under President Donald Trump’s administration, the US government has said that it will not cooperate with the ICC and has threatened retaliatory steps against ICC staff and member countries should the court investigate US or allied country citizens. Then National Security Adviser John Bolton first announced this approach in September 2018. Two weeks later, President Trump addressed the UN General Assembly stating that the “United States will provide no support or recognition to the International Criminal Court. As far as America is concerned the ICC has no jurisdiction, no legitimacy, and no authority.”
On March 15, 2019, US Secretary of State Mike Pompeo announced that the US would impose visa bans on ICC officials involved in the court’s potential investigation of US citizens for alleged crimes in Afghanistan. He indicated the same policy may be used to deter ICC efforts to investigate nationals of allied countries, including Israelis, and stated that the US would be prepared to take further actions, including economic sanctions, “if the ICC does not change its course.” The Trump administration confirmed in early April 2019 that it had revoked ICC Prosecutor Fatou Bensouda’s visa.
Pompeo publicly threatened two staff members of the ICC on March 17, 2020, naming them and stating that he was “considering what the United States’ next steps ought to be with respect to these individuals and all those who are putting Americans at risk.” Pompeo said he wanted to identify people responsible for the investigation – and their family members – and implied he could seek actions against them.
On May 15, 2020, Pompeo vowed to “exact consequences” if the ICC “continues down its current course” – that is, if the court moves forward with a Palestine investigation.
Trump issued a sweeping executive order on June 11, 2020 authorizing asset freezes and family entry bans that could be imposed against certain ICC officials. The administration acted on September 2 to designate Fatou Bensouda, the ICC prosecutor, and Phakiso Mochochoko, the head of the Office of the Prosecutor’s Jurisdiction, Complementarity, and Cooperation Division, for sanctions. The executive order also provides for the same sanctions with regard to those who assist certain court investigations, risking a broad chilling effect on cooperation with the ICC.
9. Could the ICC open an investigation in Palestine?
Since January 2015, the ICC prosecutor has been examining alleged serious crimes committed in Palestine since June 13, 2014, including war crimes and crimes against humanity, in what is known as a “preliminary examination.” On May 22, 2018, Palestine submitted a “referral” requesting the prosecutor investigate crimes under the ICC’s jurisdiction.
In December 2019, Bensouda the ICC prosecutor, concluded her preliminary inquiry, determining that “all the statutory criteria” to proceed with a formal investigation have been met. However, she then sought a ruling from the court’s judges on the scope of the ICC’s territorial jurisdiction. The matter is pending before the court.
Given strong evidence that serious crimes have been committed in Palestine since 2014, including the transfer of Israeli civilians into the occupied West Bank and alleged war crimes committed during the 2014 hostilities in Gaza by the Israeli military and Palestinian armed groups, Human Rights Watch has called on the ICC prosecutor to open a formal investigation of serious international crimes committed in Palestine by Israelis and Palestinians.
10. What safeguards exist at the ICC to prevent politically motivated cases?
Numerous safeguards are set out in the Rome Statute to prevent frivolous or politically motivated cases. Unless there is a referral from a state or the UN Security Council, the ICC prosecutor is not able to begin an investigation on her own initiative; it requires authorization from a pre-trial chamber of three judges. In all investigations, the prosecutor needs to apply to the court’s judges for arrest warrants and to confirm charges prior to trial.
The focus of ICC investigations and prosecutions in Africa in its early years have led to criticisms of bias by some African leaders, although attacks on the ICC emanating from Africa have ebbed in recent years. While nearly all of the court’s first investigations were in Africa, the majority were initiated following a request from the country where the crimes were committed or a UN Security Council referral. Still, international justice has been applied unevenly: powerful countries and their allies have been able to evade the reach of justice when serious crimes are committed on their territories by not joining the ICC and by blocking referrals by the Security Council.
11. Which countries support the ICC?
The ICC has the backing of established and emerging democracies around the world. Its governing body, the Assembly of States Parties (ASP), currently consists of 123 countries that have ratified the Rome Statute: 33 from the Africa region, 19 from the Asia-Pacific region, 18 from Eastern Europe, 28 from the Latin American and Caribbean region, and 25 from Western Europe and North America.
The prosecutor and the judges are accountable to the ASP. The ASP has the authority to remove them from office in the event that they abuse their powers. The ASP has also established an Independent Oversight Mechanism. Among other functions, the oversight mechanism can conduct investigations of alleged misconduct or fraud concerning any elected court official or court staff.
Burundi withdrew from the ICC effective October 2017, and the Philippines’ notice of withdrawal came into effect in March 2019. An effort by the government of Kenya – at a time when its president and deputy president were facing charges before the court – to lead a mass withdrawal of African states from the treaty failed to materialize.
12. Has the ICC lived up to expectations?
The ICC has so far opened more than two dozen cases, and pre-trial or trial proceedings are ongoing in three cases. However, trials for war crimes and crimes against humanity have only been completed in a handful of cases, with four people convicted and four others acquitted. Some other cases have been dismissed for lack of evidence. Court officials have made a number of missteps and stronger investigations by the ICC prosecutor, better choices in the selection of cases, more efficient proceedings, and more effective outreach with victims and affected communities are needed. The court’s leadership took an important step forward in 2019, requesting an independent expert review of its performance. The review, conducted by a panel of nine experts, is expected to be completed by the end of September 2020.
The court also faces steep challenges in carrying out its mandate. Without a police force, it relies on states for cooperation in arrests, and that cooperation has been inadequate. Arrest warrants remain outstanding against 14 individuals. ICC member states have also held back on necessary budget increases even as the court’s workload has grown.
The court certainly needs to continue to learn lessons, correct mistakes, and improve its work. But an effective ICC backed by the strong support of the international community is needed more than ever to send the message that impunity for mass atrocities will not be tolerated.
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