Climate Change, Global Governance and International Criminal Justice

Abstract

In this contribution it is argued that, as a response to climate change, inter- national criminal law and the evolving system of international criminal jus- tice can play a useful role in global governance. There are still many obsta- cles in the way of a truly international criminal justice response in the area of climate change. These obstacles include the lack of a substantive frame- work for the criminalisation of environmental crimes as international crimes, as well as the necessary enforcement jurisdiction at international and na- tional levels. Complex issues such as the expansion of the jurisdiction of the International Criminal Court and corporate criminal liability under interna- tional criminal law inform the debate. These obstacles should, however, not be seen as insurmountable since the evolving system of international crim- inal law is dynamic in nature and firmly rooted in the normative frameworks that underpin modern international law. International climate change instru- ments and agreements can equally inform future efforts to provide for crimes against the environment under international law. The essential assumption is that climate change is, at least in part, caused by human conduct. To the extent that such human conduct is harmful to the environment, thus causing or contributing to detrimental climate change, the question is whether an (international) criminal justice response or responses would be meaningful, appropriate and effective. Philosophically, the question whether an international criminal justice response to climate change is meaningful, or indeed, warranted, can perhaps best be answered with reference to Hannah Arendt’s distinction between Verbrechen gegen Menschheit (crimes against mankind) and Verbrechen gegen Menschlichkeit (crimes against humanity).1 The former group of atrocities affect our very existence and survival. This includes crimes against peace, and should arguably also include crimes against the environment which, in terms of gravity and scale, constitute threats to the survival of mankind. While the crime against peace (in the form of the crime of aggres- sion) was recognised as the “supreme international crime” at Nuremberg,2 we have yet to see any comparable criminal justice response to the phe- nomenon of climate change caused by human conduct. The crimes against humanity group of crimes are informed by those violations that affect our sensibilities and characteristics as human beings: our sense of being private, free, autonomous beings with inherent human dignity. There are, of course, criminal justice responses to conduct affecting the environment – both under national and international law. For instance, in- ternational humanitarian law prohibits widespread, long-term and severe damage to the natural environment. Violations of the relevant rules can lead to individual criminal liability. The article will return to the role of interna- tional humanitarian law later, but the point here is that the criminal justice response to harmful conduct against the environment is relatively well-es- tablished. The question is to what extent an (international) criminal justice response to human conduct that is so harmful that it causes climate change is sensible, and indeed feasible.