Countries around the world are implementing new laws and developing new mechanisms to achieve the goals of the Paris Climate Agreement, while while several organizations have filed civil suits to force government action. But one mechanism has been sorely under-utilized: namely, prosecuting climate scofflaws as criminals under laws that already exist, argues Reinhold Gallmetzer of the International Criminal Court.
7 July 2017 | Criminal justice can help achieve the objectives of the Paris Agreement on climate change as part of an integrated approach from governments, private businesses, finance, science, civil society and others.
A significant share of global greenhouse gas emissions results from, or is associated with, conduct that violates existing criminal law. Those caused by deforestation and forest degradation are one striking example: a World Bank study on forest crimes found that up to 90 per cent of logging in key producer tropical countries is illegal and involves criminal activity. In addition, INTERPOL’s guide on carbon trading crime shows how fraud undermines the carbon market, an essential mechanism for reducing greenhouse gas emissions.
Even when emissions are not directly based on criminal conduct, they may be associated with crimes – such as corruption, trade violations, financial crimes or fraud – committed, for instance, in the context of extracting or trading fossil fuels or timber. Moreover, if there is a concrete causal link between a specific source of emissions and a harmful consequence – such as serious injury to body or physical health or the destruction of property – this may constitute a crime. All these offences can be collectively referred to as climate crimes.
Climate crimes are under-prosecuted due to: a misconception that their prosecution has an uncertain legal basis; the low priority given to them; and their under-reporting in the first place. Yet none of these reasons should stand in the way of significantly scaling up the prosecution of climate crimes. That would repress and deter criminal conduct that facilitates greenhouse gas emissions, and thereby help achieve the objectives of the Paris Agreement.
Law enforcement authorities are already equipped with the necessary legal tools to prosecute climate crimes effectively. Many legal systems punish environmental crimes such as illegal deforestation or pollution, which may allow direct prosecution of greenhouse gas-emitting activities. Prosecutors may also examine the broader context in which emissions occur, as well as their consequences, and target them indirectly by focussing on crimes commonly associated with, or resulting from, emissions, such as corruption, financial crimes or destruction of property.
Targeting associated crimes offers several practical advantages compared to the direct prosecution of greenhouse gas-emitting activities. This approach may use jurisdiction in countries other than those where the emissions are released, by relying on criminal conduct taking place in third countries or involving their nationals. Moreover, investigating and prosecuting associated crimes is simpler as their factual basis is often narrower. Associated crimes are also more common and less technical, so authorities have more expertise and resources to pursue them. Finally, the penalties for associated crimes may be higher, and are thus a greater deterrent.
Budgetary constraints require investigators and prosecutors to identify priorities when selecting cases. Economic crimes, and crimes against persons and their property, are given higher priority, as they are perceived to affect the core values protected by our legal systems more directly. Climate crimes are often deprioritised, especially when viewed as “only” affecting the environment, because they are not seen to cause immediate harm to persons. However, this does not properly take into account the impact that climate crimes can have on human life, on global security and on the economy, especially in the long term.
The International Criminal Court (ICC) cannot directly hear climate crimes, but the Office of the Prosecutor of the ICC has stated – in its recent policy paper on case selection – that war crimes, crimes against humanity or genocide committed through, or resulting in, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land warrant particular attention when selecting cases for investigation and prosecution before the ICC. Indeed, climate crimes are often intertwined with other serious international crimes. As a result of this link, and through their impact on climate change, climate crimes may represent a threat to international peace and security and potentially affect all of humankind and the very foundations of civilization. Viewing climate crimes in this way should allow national authorities to reconsider and reprioritise their commitment to investigating and prosecuting them.
Under-reporting of climate crimes to law enforcement agencies – and the fact that information made available by non-government organizations is often insufficient to trigger criminal investigations – are also major reasons for their under-prosecution. This could soon be addressed through a personal initiative by prosecutors and law enforcement agents to establish the Center for Climate Crime Analysis, an independent mechanism that will take an innovative approach to reporting climate crimes by: collecting publicly available information and leads through cutting-edge open-source investigation techniques; collecting additional information through targeted requests and crowd sourcing; conducting legal and forensic analysis of information in light of potential climate crimes; and sharing information, leads and analysis with the competent law enforcement agencies.
The centre’s activities are intended to trigger and support concrete investigations and prosecutions by sharing information and analysis which would otherwise only be available to individual law enforcement offices at a substantial financial cost. They will also help preserve information that might otherwise be unavailable to those conducting a formal investigation long after the relevant events. Such activities complement existing projects that support investigations and prosecutions through capacity building and enhanced cooperation.
Scaling up the prosecution of climate crimes is both necessary and possible. It is a highly cost-effective way of helping to achieve the objectives of the Paris Agreement.
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