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Episode 154 – Environmental Damage at the ICC with Laura Baron-Mendoza

44m 29s

Episode 154 – Environmental Damage at the ICC with Laura Baron-Mendoza

The podcast discusses a significant new policy from the ICC's Office of the Prosecutor that frames environmental destruction within its existing legal framework. Rather than adding a new crime, the policy allows environmental damage to be prosecuted under current core crimes in three ways: as a specific war crime (though with a very high legal threshold), as a *means* of committing crimes like genocide or crimes against humanity, or as a *result* of such crimes, influencing gravity and reparations. This modernizes the court's approach, integrating scientific evidence and Indigenous knowledge to treat environmental harm as direct evidence rather than peripheral context. The discussion highlights real-world implications, citing ongoing conflicts in Sudan, Gaza, and Ukraine as potential cases, and notes groundbreaking precedents from Colombia's justice system that recognize the deep interconnection between Indigenous communities and their territories. The policy marks a pivotal step toward holding perpetrators accountable for ecological devastation in conflict zones.

Transcription

6237 Words, 37583 Characters

English
environmental damage stops being the background scenery and becomes part of the legal and evidentiary analysis itself. No one can act with impunity. These are crimes that are beyond the pale. We are talking about human beings. We're not talking about numbers. We need a court that's as simple as that. This is asymmetrical haircuts. Your International Justice podcast with Janet Anderson and Stephanie Vandenberg. This episode was produced in partnership with JusticeInfo.net. All rise. Hi, it's Janet here. I'm still alone, I'm happily, but staff will be back soon. Meanwhile, today we are adding a sort of building block to one of our ongoing strands, which is accountability for environmental crimes. This is a really busy field. One of the sponsors were where we're recording today, for example, this is Humanity Hub. It actually has somebody working specifically on climate justice. And that's a new job that they've put in here because there's just so much going on in this field. There are these big advisory opinions that we've covered, like at the International Court of Justice, at the Tribunal for the Law of the Sea, and there've been national cases, like here in the Netherlands, where we had Bonair, which is a place in the Caribbean, but it's actually officially part of the Netherlands, and they were taking their own state to court over what was going on with the environmental degradation in Bonair. So the show notes this time, which I'm going to leave to my producer, Margarita, or maybe to our new member of the team, Sam Maguire, who's joining us as well. You might see him actually because we'll take a screenshot of this picture for our website. We're going to make sure they're really full of all of the different stuff that we've been covering. So if you do a search on climate and the asymmetrical haircuts podcast, you could find all of these different podcasts. But after all of that self-promotion, I'm just going to say that today, actually what's going on is what is happening at our local court, which is the International Criminal Court, the ICC, and whether we might actually see some environmental crimes being prosecuted there. That's been lobbied for for as long as I can remember, basically since the court was set up, but as far as I'm aware, has never actually happened. Of course, what we have had, and we have covered previously, is kind of a sidetrack or a push, let's say, a really important one, to amend the Rome statute, which is the basic document that governs the ICC and to us whether it could include a fifth environmental crime echo side. And of course, we'll link to that episode as well in the show notes, or here's a little bit of a drum roll from me, bum, bum, bum, bum, maybe the lawyers could just use what's actually there in the Rome statute currently. War crimes, crimes against humanity and genocide and do the environmental damage via that. That's what we're going to discuss today. So the reason for this podcast, last December, I'll produce a Margarita Capacci. Hi, Margarita. Hi, she attended a session of the Assembly of States Parties of the ICC here in the Hague, and they're the Office of the Prosecutor launched a How-To, a strategy, a very long document. So, Margarita, what's the too long didn't read? Tell us what's the headline from that. What was interesting to me was that at the event, they put a definition to environmental crimes according to this policy, and they explain how they can prosecute damage that is done to the environment, but also damage that is done to people by the means of environmental crimes, and how they can prosecute that within the framework of the four existing crimes. And they gave some concrete examples and some challenges, and as you say, we've been following environmental crimes and accountability for quite a while, so it was interesting to me to see this new kind of stapper, new approach, let's say. Okay, that was longer than I expected, but much more detail than I had expected, and I think maybe we don't even need to do podcast, though, of course we do. So, straight after the event, Margarita grabbed one of the panelists, Laura Barom Mendoza, and she's here to explain exactly what is new and why it matters and how it's going to work. Hi, Laura. Hello, everyone. I'm Jenny Lee. Delighted to join you today. Laura's a Colombian lawyer, and she specialises in international human rights, and she was actually one of the consultants for this policy. So, Laura, what I understand is that even though I can go through the whole room's statute with a fine tooth comb, and I can look particularly at Article 5, which is the bit that lists the actual crimes that can be prosecuted at the ICC, and I can say, okay, environment doesn't come up there at all. The strategy, though, that you consulted on and that Margarita's just summarised for us, says that under the current crimes, like war crimes, crimes against humanity, genocide, maybe even aggression, but let's take the first big three. They could be the basis for charges around environmental damage. So, how is it just quoting directly from the strategy? Here's a quote from it, "committed by means of or that result in environmental damage." Let's start. Have I got that right? Have we got that right? What does that mean? So, let's get messy legally and intellectually. Let me begin by reframing a little bit of premise, because this is one of the biggest misunderstandings surrounding the ICC's new policy on addressing environmental damage. So, despite the use of the words environmental crimes, the ICC has not created a new category or a new crime. Instead, what the policy does is remind us and operationally, God, the office of the prosecutor, that the Rome has started already deals with environmental harm in three different ways. Two of those you mentioned and the third one ties it all together. So, the first one, the first scenario is the classic environmental war crime. This is our starting point, though article A2B4, it is and remains the only provision in the entire Rome's started that explicitly protects the natural environment as such. This is the war crime of launching an attack, knowing it will cause widespread long-term and severe damage to the environment. So, it's a beautiful idiom paper, but the threshold is so extraordinarily high that for two decades, it has essentially lived in a doctrinal museum untouched. We can say that. And that's exactly why the OTP realized it needed a broader framework, relying only on this one article made environmental accountability nearly impossible. So, how would that work, Lara? So, we do have a second scenario, which includes crimes committed by means of environmental damage. This second scenario is where things get more dynamic. Here, environmental damage becomes the method, the tool or the mechanism through which a Rome-stated crime is committed. And this is powerful because it transforms environmental harm into evidence. It means investigators, documentaries, prosecutors and judges can consider environmental damage when verifying whether an element of genocide, crimes against humanity, war crimes or aggression is present. So, in other words, environmental damage stops being the background scenery and becomes part of the legal and evidentiary analysis itself. And we do have the third scenario. So, crimes resulting in environmental damage as you rightly put it. And the third scenario flips the lens. Here, environmental harm is not the weapon, it's the consequence. And consequence matters. So, environmental destruction becomes contextual information that influences how we understand gravity, the scale, the impact of the crime, prioritisation, sentencing and reparations at some point. So, again, no new crime, but a profoundly expanded lens. Wow, that's a lot put in there. I mean, particularly that last part that it's the effects and therefore that could have an effect on sentencing. And as you say, finally, reparations. But should we wind back to, you know, you say for two decades it's been, you know, in the museum, we haven't been able to use that. And you say that just because it's such a high threshold, what the way that it's worded is the way that it's worded. Was that kind of copy-pasted from somewhere else and is therefore just the Roam Statute reflective of how how everybody thought when it was being drafted that this is the way it should be? Or have we started seeing the world differently in the last 20 years? I want to understand the process by which we're now revisiting this. This is such a key question because of course, there's the first thing I want to say is that the policy is in some sudden pivot or surprise move from the ICC. Perhaps the policy paper is just the continuation of a process that is at the years that go. So by 2016 the prosecutor's signal that environmental harm mattered for case selection. It wasn't yet a full framework, but it was a clear message. So it was that when crimes involve destroying ecosystems, exporting natural resources or disposing communities on the land, the ICC should pay attention. So we saw hints of this environmental lens in practice too. We saw for example former Sudanese president Omar Alba Shire who was charged with furthering genocidal policies through poisoning wells and destroying water pumps. Though the case hasn't reached trial. And then the ICC has issued also a res warrants for serious Russian military officials for attacks on civilian objects and energy infrastructure in Ukraine. So whether environmental harm is explicitly part of the charges remains unclear because the warrants are sealed. But all of this built pressure, legal, political, scientific, until the office essentially said we need a dedicated coherent policy that reflects the reality of today's conflicts, which was not included at first in the early 2000s. So the new policy isn't a sudden invention. It is the moment when scattered pieces were finally assembled into a structure operational approach. So I would say that it was just the momentum has been trying to be built over the past two decades to reach to today's moment or peak. Okay, so what is actually new about this policy paper? Let me start by saying that for decades international Crimea law tended to treat the environment as a set of separate objects. So a forest here, a river there, a field somewhere else. So this policy sweeps that away. It adopts a much more holistic perspective, one that reflects how scientists describe environmental systems today as interconnected dynamic, constantly interacting networks. So instead of focusing on isolated features, the policy recognizes that conflict disrupts entire systems, water cycles, food webs, soil health, air quality, species populations, and of course the services ecosystems provide to all of us. It also expands how we understand who is harmed, eat, acknowledge that environmental destruction affects not only human survival, but also non-human species of animals, biodiversity, and the cultural and spiritual relationships communities have with their lands. So it doesn't create new rights for nature, no, but it does open space for a much richer understanding of harm across all for crimes in the ISIS's jurisdiction. And this is one of the most grown breaking parts of the policy because it kind of modernizes the entire evidentiary toolbox. So in the past, documenting environmental harm in conflict was incredibly difficult. You needed scientists, specialized equipment, a long-term data, all things that are hard to access in special war sounds. But the new policy tuckles that head on. It commits the office to working with environmental scientists, toxicologists, climate specialists, public health experts, hydrologists, satellite analysts, ecological service teams, and even local and indigenous knowledge holders. It also normalizes using open source intelligence, for example, often the only feasible way to gather early evidence when boots on the ground aren't an option. So perhaps the most significant shift in this is that the policy encourages the use of best available science, including indigenous knowledge as such. Start off for however many dollars you want to put on this, what's going to be the first case that you see emerging from this new policy? That's a very tough question because of course every single case could have an environmental dimension for sure. But let me say that we can have brains with crimes against humanity, we can have two specific cases. One Sudan and second Gaza. So in Sudan we do have that seems April 2023, Sudan has been systematic attacks on water systems. Water has been weaponized in two different ways, perhaps I can say, deliberately by armed groups, ceasing aggressive wars, destroying treatment plans, and cutting water access to major urban centers and displacement camps. And indirectly through the collapse of infrastructure leading to color outbreaks, for example, farming conditions and mass displacement. So under the policy, this kind of environmental destruction is no longer just as humanitarian crisis. It can become evidence of crimes against humanity if it forms part of what's braid or systematic attack on civilians of course. And then Gaza is also an example. So in Gaza, the destruction of wastewater plans, the salinization facilities, farmland and essential ecosystems has created environmental collapse with long-term impact on water access, food systems, and public health. And this might also be legally because crimes against humanity can be committed through course at conditions, including those created by environmental degradation or destruction. So if they contribute to displacement, for example, or persecution or other in human acts, then we will have a case. And perhaps I can mention the most common case, which is the Kha'Kha'Kha'Kha'Dam destruction in Ukraine in 2023. So this is wildly considered the strongest candidate for the ISIS's first environmental war crime case. The dam's destruction caused massive flooding, long-term ecological damage, contamination of water assistance, destruction of agricultural land, and the military advantage appears minimal compared to the scale of the harm. But here's the The challenge - article 8 to before remains a doctoral labyrinth as we were saying at the beginning. The terms what spray, long term and severe are undefined, and the threshold is cumulative. The intent is notoriously difficult to prove. So even though the Kakaska is the clearest case we've seen, attribution, long term ecological assessments and legal interpretation remain significant hurdles. So the policy helps, it brings in science, cellular, imagery, cumulative input analysis, but it cannot rewrite the status high bar in this case. And you mentioned that we should see potentially the office of the prosecutor consulting with Indigenous leaders and actually understanding the Indigenous perspective, their knowledge of their own environment and what's actually been going wrong there. Can you imagine where we might see an impact on you yourself from Colombia? Is this actually going to make a difference, do you think to what's going on for Indigenous communities there or maybe somewhere else in Latin America? For sure, for sure. Well, this is where things get exciting, actually, because the ISIS-E's new policy resonates deeply with what Colombia has already begun to articulate through its transitional justice system. So the policy explicitly acknowledged that environmental harm do not impact our groups equally. It states clearly that the worst effects fall on marginalized groups, including Indigenous peoples, who are more dependent on and interconnected with their ecosystems. It also highlights that when analyzing environmental crimes, the ISIS-E will emphasize the right, both individual and collective of groups with a particularly close relationship to the natural environment. But the policy goes further and it takes me back to what we were saying. It recognizes that environmental crimes are complex and require an interdisciplinary approach, including, for example, environmental science, yes, but Indigenous knowledge systems. And the policy also commits to rely on diverse forces of evidence that includes testimony on perspectives from Indigenous peoples themselves, something that this special jurisdiction for peace in Colombia has already done. And I can, I can share with you one of the clearest examples in Colombia, which is the case 02 in the Awa territory. So one of the clearest examples of how environmental harm intersects with Indigenous crimes is this case that I just mentioned, which investigates crimes in areas largely inhabited by Indigenous peoples, such as the Awa, along with Afro-Colombian and Camposino communities. So the HEP has already charged former FARCEP members with environmental destruction as a war crime, recognizing that violence wasn't only against people, but it was also against the territory itself. And here is something very important because the HEP treated a war's ancestral territory that cuts us all as a victim itself, something that perhaps we're not going to see going as far for the OTP, but perhaps is just a precedent to start analyzing how we define the concept of victim when indigenous people, indigenous peoples will be before the court. So that is legally and symbolically groundbreaking. The findings of this case describe patterns of harm such as deliberate oils, peels that contaminated rivers, mangroves and coastal ecosystems, gold mining operations promoted or controlled by armed groups, destruction of soil, forest, water sources, but also connected to the damage to sacred sites and a space of cultural and spiritual significance, which caused also displacement, killings and threats used to control natural resources and the territory. So in other words, environmental destruction was not incidental, but it was a method of domination and territorial control. I'm a great, would you like to join it? Yeah, a question popped in my mind because I know you started the start of the conversation that the environment is not going to become a victim in itself, but I was wondering we have done an episode before about these lagooning spain, marmenor, and that became like a legal personhood, a legal person. And that also I guess matters when it comes to reparations. So I was wondering what kind of space does the policy create for that? For us, reparations not just to the people, but also to the environment and the ecosystem itself. It's very limited because of course it starts with the definition of who is a victim, right? And for the ISIS-A humans are the victims, right? But I do believe that there's an entry point to start considering, for example, collective reparations when it comes to indigenous peoples here, or even when it comes to Colombia, we talk about Afro-Columbians. And perhaps the head could be a good example for the ISIS-A in the future to explore other avenues. And one of the most innovative aspects of this case that I was telling you about K-02 is how the head understood territory itself. It didn't treat territories land in a property law sense, but it embraced the way many indigenous peoples have said territory is alive. It is social, it is ecological, it is spiritual and relational. And it is not separate from the people. So the people and the territories exist together. So for them when you say humans and when you say territory, we're basically talking of this relationship between both of them. So that has enormous legal impacts on the definition of victim preset. And the head used what is called a relational ontological approach which recognizes that the destruction of forests, rivers and secret spaces is simultaneously the destruction of identity, communities, structures and cultural continuity. So this approach allowed the head to fully grasp the magnitude of the harm and perhaps why not. One day in a couple of years we will see the OTP also addressing or having the same approach. For now it's quite limited. Whenever I hear somebody starting talking about what's been going on in Colombia at the JEP, the head, as you call it, I'm feeling really guilty because we haven't done a series of podcasts on it yet, but definitely we must do. Wondering also though in connection maybe with indigenous communities, we've been doing a series particularly on corporate crimes and we looked at some other places in South America and we're wondering whether this policy might lead to more investigations which could be connected to alleged corporate responsibility but it couldn't be corporate responsibility. Could it would have to be individual criminal responsibility. But what do you see potentially happening there? Well let me start by saying yes, South America is a fascinating region when we talk about corporate responsibility and not just in South America, we also said all over the globe, right? But the region is a fascinating, almost emblematic case study of how corporate power, environmental devastation and human rights have used as can into wine. Well the SCC's new policy does is bring corporate decision makers into a much sharp root focus. So it doesn't change the rule that companies themselves can't be prosecuted as you say it, but it absolutely threatens the possibility that people inside those companies, the executives, the financiers, the planners can be held accountable when their choices help produce environmental harm connected to rum-started crimes. The one of the most powerful and perhaps overlooked aspects of the policy is the way it explicitly affirms that corporate actors can be individually criminal responsible. That means if someone in a boardroom authorizes an operation that destroys critical ecosystems or it turns a blind eye to extraction in an area controlled by armed groups or profits from environmental destruction that forcibly, for example, again, this places communities that person is not safely insulated by the corporate structure. This is particularly significant in South America where high risk economic activities like gold mining, oil extraction, agribusiness, cattle expansion and even logging often take place in territories inhabited by indigenous peoples, affordicenden communities and rural communities. So this new policy gives the ISSC a robust framework to examine whether the environmental impacts of these activities intersect with any of the four rum-started crimes. So the ISSC already had jurisdiction over individuals, but the policy sharpens the tools needed to investigate and prosecute corporate linked environmental crimes. And here's what perhaps changes in practice. First corporate officers can be prosecuted as I was saying when their decisions contribute to rum-started crimes involving environmental harm and superior responsibility applies to civilian leaders too, meaning that executive could be held responsible for failing to prevent or stop environmental crimes committed on their authority. And the office of the prosecutor now has a financial investigation unit, a major step which allows investigators to trace, for example, supply chains, funding flows and corporate structures behind environmental destructive operations. It's all sounding quite amazing. Let's be clear though, what are the challenges to actually making this policy deliver something? What's standing in the way? A lot. I can start by saying that we have to acknowledge the obvious. The ISSC is not a well-resourced institution. Environmental investigations are not quick, cheap or simple. They require scientific sampling, long-term ecological monitoring, satellite analysis, toxicology, call studies, and teams of experts who can interpret all of that. And these cases are expensive, time-consuming and technically complex. So the ISSC is already stretched thin with its existing case load. That I would say it is the first challenge. A second challenge perhaps is the dependence on state cooperation. And this is an old challenge wearing new clothes, basically. The ISSC depends on states to cooperate. And let's be honest, these states where the worst environmental harms occur are often the least enthusiastic about opening their doors to investigators. Sometimes the state is directly implicates it. Sometimes the harm happens in areas controlled by armed groups. Sometimes the state just doesn't want external scrutiny of extractive industries or military operations. So no amount of policy innovation can replace the need for cooperation on the ground. A third challenge I would say it is geopolitics and jurisdictional gaps. Geopolitics steal shapes. What the ISSC can or cannot touch. So many of the conflicts with catastrophic environmental consequence fall outside the ISSC jurisdiction either because the state is an out-party of the RMSI code or because the Security Council would never refer the situation. So even when the jurisdiction exists, political pressure can style or narrow investigations. The environmental crimes are often intersect with powerful political and economic interests. And those interests can make accountability extremely difficult. And perhaps a fourth challenge that we all already mentioned is the legal hurdle. No one can ignore which is article 8-2 before. But that's precisely why the new policy shifts attention away from relying on these one crime, and it recognizes that realistic accountability will come through reframing environmental harm within other crimes. I mean, you acknowledge that the ICC is part of a bigger, kind of, ecosystem, and that sometimes that means that there are constraints, but it also means that sometimes other courts can actually take things on. So how do you see this as kind of one piece of the puzzle, and that we should also be looking at this sort of in relation to, let's say, the development of the crime of echo side elsewhere, what's going on at the International Court of Justice, the Inter-American Court, you know, I've got a whole long list of stuff that migrates as tough as 10 here. How do you think it all fits in here? Yes, let me start by saying that the positive paper is not a magic wand, right? So it is a major step toward making environmental destruction visible as a criminal harm. And I love your question because it reminds us that the ICC new policy is not operating in a vacuum. It's not a tile in a mosaic, a growing global architecture of environmental accountability. So I would start by just saying or mentioning the echo side movement that you, that you also refer to. This policy is not competing with echo side efforts and it's not a substitute for them either. If anything, it's evidence that the world is moving in the direction that echo side advocates have been pointing to for years. They need to treat severe environmental destruction as a matter of criminal responsibility. So the initiative to criminalize echo side at the international level driven by Pacific states, civil society and increasingly estates themselves is doing essential work by putting nature and planetary stability at the center of legal thinking. But there is still a long road ahead. We need a definition of echo side that is clear, operational, legally sound and not dependent on vague economic or cost benefit calculations that dilute its purpose. So the ICC's new policy doesn't create echo side, but it shows why echo side is needed. And it works with the law as it currently exists, as you mentioned at the beginning of this conversation. So while echo side pushes for the law, we need for the future, the policy works with what we have right now. You mentioned also ICJ in term American court, European court and other human rights, say the UNICEF. So this is perhaps one of the most exciting parts for me as a human rights lawyer, because the human rights court and the ICC are finally as taking to each other expressively. So conceptually and even if not directly, I would say. So the ICCJ, the internment and court, the European court and even the African regional bodies have been issuing grounding decisions and advice for opinions that to recognize environmental protection as a human rights obligation, the climate crisis as a legal challenge and the responsibility of state to prevent a remedy ecological harm. So these courts are mapping the human rights and mentions of environmental devastation. The ICC, meanwhile, is mapping the criminal dimensions to put those together and you get a much more complete picture. For example, when the internment court says that environmental degradation violates cultural rights, territorial rights or even the right to to to live, the right to a health environment, the ICC can look at those same harms in their rights circumstances and ask, do these human rights violations also amount to crimes against humanity, perhaps persecution or forcible displacement or other acts within order restriction? So this is the parcel coming together. Human rights law diagnosis the harm, I would say, and international criminal law kind of respond when that harm crosses into criminality. You kind of gave an explanation there of how it relates to coincide and the development of the echo side. I must admit though that kind of in my brain, I've been following the developments over the pressure for echo side as this fifth crime within the court. We know that that's basically not possible because it's very difficult to get enough states to to sign up to anything, anything to change anything in the Rome statute. So it does seem to say, let's not change the statute and let's make the policy instead work. But it also says in your policy that states themselves should be prosecuting echo side. I mean, isn't that a little bit hypocritical? I think the policy is certainly emerged in the same climate, intellectual, legal and political. And the ACC can't just decide to create a new crime as you said. Only state parties can amend the remiss to and if without you need consensus, you need negotiations, you need drafting, retification and also political will at the highest levels. And that process takes years, sometimes decades. So the question becomes what can the ACC do in the meantime with the law as it exists right now? And that's exactly what this policy does. It uses the legal tools already in the statute and shows how they can capture environmental harm today without waiting for formal amendments. The policy is not a substitute, but it's a validation of the need to have a fifth crime which is echo side. So because when the prosecutor says we can use existing crimes to address environmental harm, what the prosecutor is actually saying or is also saying is and we still need more. So the effort to define echo side led by states, Pacific nations is crucial, but ACC needs a clear definition that avoids vague economic balancing. So it's not about clashing initiatives. It's about complementary initiatives and the work is ongoing. Stopecosite is doing a wonderful job here and this policy buys time by is threatening accountability before echo side becomes part of the statute. We always round up the podcast Lara with a few general questions and the first one is, is there something that we should have asked you that we haven't managed to get round to to asking you? I think there are a lot of questions. I mean, this policy paper opens a lot of avenues. So for instance, questions about complementarity and corporation, questions about the next steps, questions about different types of environmental governance and how do they influence the analysis, legal analysis of the rumours such crimes. Lara, I'm going to put you on the spot then. One of all of those, what would you like to answer as your last sort of major additional question? Let's dive into the complementarity question because complementarity and corporation is not just part of the model here. It is the model. Capacity will always be a challenge and the ICC East and a global police force with unlimited resources. But this strategy here is smart. The ICC isn't trying to handle everything itself. It's trying to activate others. So think of the ICC less as the protagonist and more as the conductor coordinating, guiding, supporting and stepping in only when absolutely necessary. So if there is one message running through this policy, it's that enforcing environmental accountability requires a collective ecosystem of actors. Not a single heroic institution. The rumours such as build on the principle that states carry the primary responsibility to investigate and prosecute international crimes. So the ICC is steps in only when a state can or want to do so. So this policy embraces that vision and emphasizes on the positive complementarity. That means the ICC isn't sitting in the hake waiting for failure. But it is out there proactively helping state build the capacity to act themselves. So the policy guides the office of the prosecutor to do more than observe. It can share intelligence and evidence, help design investigative strategies, collaborate in case elections and many more other actions it can carry out. So many states want to act but simply don't have the tools to do so. So the ICC can help change that a little bit. The policy also clarifies how cooperation works. So it adopts the two-track system that the policy on complementarity developed, which is track one partnership and track two vigilance. Mercury, you would like to ask a final question. This is a more recent question that staff put in place. You can answer it two ways. So it's what was your oddest job before you started doing your current job or before you started working in international justice. Or was there a moment that really put you on this path that really is part of your interest in this field. Yes well there are two moments that brought me into this field. The first one is the fact of growing up in Colombia, a country that hasn't seen a single day without armed conflict and like most Colombian families, mine has lived it in different ways. That personal reality pushed me toward international law and then once there I started working directly with victims and former fight members. That's when I discovered this incredible complex relationship between conflict and environment and I saw not only how war harms ecosystems but also in a strange, paradoxical way how conflict can sometimes end up protecting them, those ecosystems. So it depends on the resources in the territory, local political dynamics, even rebel commanders personal ideology. So that's what led me to my current work on rebel environmental governance and digging into their relationship with nature and their way that they depend on nature to survive and also to acquire a sense of legitimacy. And the final question is is there something that you're reading at the moment or listening to or watching that you would like to share with everybody it can be something that's in this field or it can be something that's completely other that you use to get away from this field. Yes I do have a fantastic recommendation. It is the Seabind moons of Mali Almeida. It's part historical fiction, part supernatural thriller and completely unforgettable. So it throws you right into their Sri Laian conceivable war in the 1990s and the whole story unfolds in this after-live of the main character tries to solve his own murder and decide whether to let go or try to influence the world he left behind. It's a gem. I assure you, Danit. Yeah, great book. Thank you so much. So Laura, thank you so much for spending time with us this Friday afternoon to actually go through one of these enormous pieces of work that gets put in at the ICC and then I think often people like us wonder what happens next. So I think at least we have some indication now of what we should expect in terms of direction within the court. And that to be honest, I mean I'm quite excited. I think this sounds quite interesting. Should be quite good to watch this over the next few years. Well, we see you here in the Hague. Do you think you're sort of trying to kick it into touch? Perhaps I might let you know whenever I come to the Hague again. Right. Thank you so much for your time, Laura. I'm much appreciated and thank you. Margarita for setting this up and for stepping in and being a bit of staff. Thank you, Danit for having me again and thank you a lot. So much for joining us. It was really interesting. Now, thank you so much for having me. It's been a joy to be the guest in this wonderful, curious, sharp, etched podcast universe. And whenever you want to talk about the have, let me know. We'll do. Just to say that if you are enjoying this podcast and you'd like to give us a bit of extra support, you can head over to our supporters page where you can give us a tip or you can follow us on Patreon. And you can download our newsletter and we really appreciate everybody who gives us a bit of extra support there. This was Asymmetrical Haircuts, your International Justice podcast. Created and presented by Janet Anderson and Stephanie Van Nbeer. This episode was created in partnership with JusticeInfo.net, an independent site covering justice efforts for mass violence. And with the Hague Humanity Hub, music is by ordernotics.com. You can find show notes and everything about the podcast on asymmetricalhaircuts.com. This show is available on every major podcast service. So please subscribe, give us a rating and spread the word.

Podcast Summary

Key Points:

  1. The International Criminal Court (ICC) has released a new policy enabling the prosecution of environmental damage under existing Rome Statute crimes (war crimes, crimes against humanity, genocide, aggression), without creating a new standalone crime.
  2. The policy outlines three scenarios
  3. This represents a major shift, moving environmental harm from "background scenery" to central legal and evidentiary analysis, using modern interdisciplinary tools like science, satellite data, and Indigenous knowledge.
  4. Practical applications are emerging, with potential cases cited in Sudan (weaponization of water), Gaza (environmental collapse), Ukraine (Kakhovka dam destruction), and Colombia (where transitional justice already treats territory as a victim for Indigenous communities).

Summary:

The podcast discusses a significant new policy from the ICC's Office of the Prosecutor that frames environmental destruction within its existing legal framework. Rather than adding a new crime, the policy allows environmental damage to be prosecuted under current core crimes in three ways: as a specific war crime (though with a very high legal threshold), as a *means* of committing crimes like genocide or crimes against humanity, or as a *result* of such crimes, influencing gravity and reparations. This modernizes the court's approach, integrating scientific evidence and Indigenous knowledge to treat environmental harm as direct evidence rather than peripheral context.

The discussion highlights real-world implications, citing ongoing conflicts in Sudan, Gaza, and Ukraine as potential cases, and notes groundbreaking precedents from Colombia's justice system that recognize the deep interconnection between Indigenous communities and their territories. The policy marks a pivotal step toward holding perpetrators accountable for ecological devastation in conflict zones.

FAQs

The ICC's policy does not create a new crime but provides a framework to prosecute environmental damage under existing crimes like war crimes, crimes against humanity, and genocide, by treating it as a means, evidence, or consequence of these crimes.

Environmental damage can be prosecuted as a war crime under Article 8(2)(b)(iv), as a method for committing other crimes, or as a consequence influencing the gravity, sentencing, and reparations for established crimes.

The high legal threshold for war crimes involving environmental damage, such as proving widespread, long-term, and severe harm, along with intent, makes prosecution difficult, though the new policy aims to address this with scientific and interdisciplinary evidence.

The policy commits to using diverse evidence sources, including indigenous knowledge systems and testimony, to better understand environmental harm and its impact on marginalized communities like indigenous peoples.

In Sudan and Gaza, environmental destruction like attacks on water systems or ecosystems could be used as evidence for crimes against humanity, such as persecution or inhumane acts, under the new policy.

No, the ICC defines victims as humans, but the policy allows for collective reparations and considers environmental harm as part of the impact on communities, especially indigenous groups with close ties to their territory.

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