Environmental and Cultural Heritage Crimes: The Possibilities under the Rome Statute

in Justice Without Borders
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This chapter examines the possibilities for prosecuting environmental and cultural heritage crimes under the Rome Statute. The ICC Prosecutor’s 2016 Policy on Case Selection and Prioritisation refers to destruction of the environment as a factor the Prosecutor will consider in assessing the gravity of crimes when deciding whether to commence a prosecution. The chapter briefly traces the historical path from Nuremberg to the ICC of prosecuting environmental and cultural heritage crimes, including highlighting some missed opportunities. It outlines how cultural property and the environment have been legally protected under international humanitarian law and in international criminal law to date. It explores how such crimes could be prosecuted as war crimes, crimes against humanity, genocide and aggression (once the ICC has jurisdiction over that crime). For example, environmental crimes in international armed conflicts could be prosecuted as intentionally launching an attack knowing that it will cause widespread, long-term and severe damage to the environment. Other possibilities exist for charging damage to or destruction of the environment as war crimes in non-international and international armed conflicts. For crimes against humanity, destruction of the environment or cultural heritage could be a precursor to or the result of crimes against humanity such as forced transfer, persecution and inhumane acts. For genocide, environmental or cultural heritage damage could, in certain circumstances, be considered as acts in destroying a group in whole or in part. The chapter concludes that the ICC’s jurisdiction over war crimes, crimes against humanity, genocide and, in the future, aggression offers potential to prosecute not only cultural property crimes but also environmentally-damaging or destructive crimes, and the Prosecutor’s recent Case Selection Policy provides indications that this could transpire. It remains to be seen how and when, and in what circumstances.

Justice Without Borders

Essays in Honour of Wolfgang Schombourg

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