Addressing Environmental Harm in Conflicts within Africa: Scope for International Criminal Law?

Abstract

International criminal law has flourished in recent years, with the emergence of several international criminal tribunals and developing a substantial body of jurisprudence, substantive and procedural rules but there is no existing international criminal tribunal with special jurisdiction over environmental crimes. While several international criminal law scholars have questioned the utility of international criminal law in relation to environmental harm, this paper argues that international criminal law has an important role in environmental protection. Various international criminal tribunals have in the past been either reluctant to investigate major environmental and cultural crimes or have adopted a cautious approach in the interpretation of these crimes. However, in 2016, the Office of the Prosecutor in International Criminal Court (ICC) released a new policy which broadened the focus of its investigations to give particular consideration to crimes relating to the ‘destruction of the environment’, ‘exploitation of natural resources’ and the ‘illegal dispossession’ of land. This paper has two key parts. The first undertakes a careful analysis of the jurisprudence from various international criminal tribunals to determine the extent to which they addressed environmental harm in conflicts within the African region. This is followed by an examination of the Protocol on the Statute of the African Court of Justice and Human Rights (Malabo Protocol) and its potential to enshrine international criminal accountability for damage to the environment. At the core of this paper is the question to what extent can international criminal law accommodate and effectively address environmental crimes committed within the context of armed conflicts in Africa? The paper contends that international criminal law provides a potential means for addressing environmental harm indirectly through progressive interpretation of genocide, war crimes and crimes against humanity, and directly within Africa through the provisions of the Malabo Protocol.