Beyond Symbolism: Problems and Prospects with Prosecuting Environmental Destruction before the ICC

In September 2016, the International Criminal Court (ICC) Prosecutor issued a new policy paper detailing the Office of the Prosecutor’s (OTP) priorities for case selection and prioritization, including giving a ‘particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land’. This new commitment of the OTP in fighting environmental devastation has been received enthusiastically by civil society and alleged victims. Indeed, few would disagree that protecting the environment against harmful conduct and conserving the world’s natural resources are some of the most compelling challenges faced by the international community. Further, the negative impact of environmental destruction on human rights and peace and security is a matter of concern for many international institutions, including the Security Council. This article considers the merits and limits of prosecuting environmental destruction before the ICC. It contends that the significance and practical implications of the OTP’s green shift ought to be appreciated against the constraints posed by existing criminal provisions (which have already received attention in the literature) and, more significantly, factual and structural challenges that have been more peripheral in the academic debate. Accordingly, the article suggests possible ways to overcome some of these obstacles. The article concludes by reflecting on the necessity to strike a balance between the OTP’s commendable policy shift, victims’ and environmental activists’ expectations, and the ICC’s possible contribution to ‘environmental justice’.