Could Australia’s Environment Minister face prosecution at The Hague for “ecocide” due to climate change inaction? – Joshua Clarke

The recent report of the UNs Intergovernmental Panel on Climate Change is the latest in a series of events building pressure on Australias climate policy sclerosis. When an expert legal panel published a definition of ecocide” in June, it grabbed fewer headlines. But this international law milestone has potential implications for leaders globally. This article examines the proposed international crime of ecocide and considers what it means for political leaders whose countries are hindering global climate action.

A series of inconvenient events

It has been quite a month for headlines with temperature-related metaphors, and the news they were delivering was grim. On 9 August, the Intergovernmental Panel on Climate Change (IPCC) released part one of its sixth assessment report. In it, the UN body found that global warming of 1.5°C above pre-industrial levels could be upon us by 2030. With this prediction, the ambitions of the Paris Climate Agreement hang in the balance. The IPCC’s message is unequivocal: climate change is happening now and it is only through immediate, steep and sustained emissions reductions that catastrophe might be avoided. UN Secretary-General Antonio Guterres called the report a “code red for humanity”. 

Efforts to combat climate change will now need to redouble. But in this global campaign, few would regard Australia as a reliable ally. A report published in July on 193 countries’ progress towards the UN Sustainable Development Goals awarded Australia a score of only 10 out of 100 for climate action: the lowest awarded for any country. Australia’s high levels of exported greenhouse gas emissions and fossil fuel use per capita, plus its failure to make progress on implementing an effective price on emissions, earned the country its rock bottom ranking. It has not helped Australia’s standing that the country still conspicuously lacks a national commitment to carbon neutrality by 2050. And with the IPCC’s latest findings that urgent action in this decade is imperative, Australia’s unwillingness to update its 2030 emissions reduction targets since they were set in 2015 reads as defiance.

In commentary on Australia’s “climate wars”, the IPCC report now dominates: will it deal a decisive blow to climate policy stagnation as COP26 — the next UN Climate Change Conference — approaches in November? In the shadow of the IPCC report, it is easy to overlook other pertinent developments of the past few months. In July, Australia’s Great Barrier Reef narrowly avoided being classified by UNESCO as a world heritage site “in danger” primarily due to the threat posed by climate change. About the same time, Australia’s Federal Court declared that the Environment Minister Susan Ley, when determining whether to approve a coal mine project, owed a duty of care to avoid causing harm to children in Australia arising from emissions of carbon dioxide into the Earth’s atmosphere. The minister has appealed, but the Federal Government has since been hit with further lawsuits challenging its decisions for failing to take climate change into account, including in relation to a forest logging agreement and a gas exploration project

Amidst this flurry of activity, one milestone reached in international law went relatively unnoticed. But perhaps in time, this significant development may come to focus minds in Canberra and around the world on the necessity for climate action. 

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Enhancing State Capacity: An Analysis of the Draft Articles on Prevention and Punishment of Crimes Against Humanity 2019 and the Attendant Consequence For State Parties – Adeyinka Adegbite

To highlight the opportunity which the Draft Articles on Prevention and Punishment of Crimes Against Humanity present for progressive development of international criminal law, Adeyinka Adegbite outlines how the Draft Articles contribute to enhanced inter-State cooperation and capacity of national legal to prevent, prosecute and punish crimes against humanity.

Background to the Draft Articles

The motivation for developing the Draft Articles on Prevention and Punishment of Crimes against Humanity (‘Draft Articles on Crimes against Humanity’) by the International Law Commission (ILC), the expert body of the United Nations (UN) with responsibility for developing and codifying international law, was an awareness of the imperative to create a single international legal instrument which provided for the incorporation of the definition of crimes against humanity in national laws; imposed obligations on States to prevent the commission of crimes against humanity; and, conferred national jurisdiction to prosecute perpetrators of crimes against humanity. The first report of the ILC Special Rapporteur for the crimes against humanity stream of work in 2015 initiated what would later become the Draft Articles on Crimes against Humanity.

The comments of the government of States, including Australia, and other UN special agencies and international non-governmental organisations enriched the body of texts aimed at developing the law on this particular category of international crimes. It is important to note that the Charters, Statutes and instruments setting up International Criminal Tribunals, namely the International Military Tribunals for Nuremberg and Tokyo and the International Criminal Tribunal for Former Yugoslavia, among others, included a description of the crimes regarded as crimes against humanity. These provisions were further developed following the entry into force in 2002 of the Rome Statute of the International Criminal Court (‘Rome Statute’).

Article 7(1), (2) and (3) of the Rome Statute set out crimes against humanity as one of the categories of international crimes within the jurisdiction of the International Criminal Court (ICC). The Rome Statute appears to be richer in the provision concerning the category of crimes against humanity when compared with the earlier instruments of International Military Tribunals (IMT), as the definition of these crimes under the Rome Statute are broader in scope. 

Further, the principle of positive complementarity, a novel provision of the Rome Statute in Article 17, lends a two-pronged approach to the prosecution and punishment of crimes against humanity. The principle was a departure from the approach the IMT instruments, which gave priority to the jurisdiction of the IMTs over national jurisdiction. In further emphasising the importance of national jurisdiction, especially where the legal and judicial structures are available and the State is willing and able to undertake such prosecution, the ICC may offer assistance to the prosecuting State to the extent that the perpetrators of these crimes are prosecuted. Whilst a State shall cooperate with the ICC under Article 93(1), Article 93(10) imposes a discretionary duty on the ICC to cooperate with a prosecuting State, stating that the ICC may, upon request, cooperate and provide assistance to a State Party. Nonetheless, the recognition given to national jurisdiction is indeed very admirable. 

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Post-mortem on the ICC’s Prosecutorial Election: Lessons Learned and Questions for the Future – Natalie Hodgson

On 12 February 2021, Karim Khan QC was elected as the third Prosecutor of the ICC. This piece revisits the long process to that election, focusing on two key issues: the role of the Committee for the Election of the Prosecutor and the need for consensus. The election brought to the fore multiple important issues for states, civil society, academics, lawyers and the Court to consider. Now that the election is over, it is important to take this opportunity to reflect on some of the lessons learned for the future. 

On 12 February 2021, Karim Khan QC, a barrister from the United Kingdom, was elected as the third Prosecutor of the ICC. The election process was long and fraught. This election was the first time that states parties did not elect the Prosecutor by consensus; four men were nominated to contest the final ballot. Only one of those nominees, Fergal Gaynor, was among the shortlisted candidates identified by the Committee for the Election of the Prosecutor (CEP). The other three nominees were drawn from the CEP’s longlist – Carlos Castresana Fernández, Francesco Lo Voi and Khan. 

The way the election ultimately unfolded was far from what was envisaged when the process to elect a new Prosecutor commenced in 2019. This piece focuses on two key issues that emerged during the election – the role of the CEP and the need for consensus. (Other issues that arose, such as the need for improved vetting of candidates and female underrepresentation among candidates, have been discussed elsewhere.) In reflecting on these issues, this piece hopes to identify some lessons and questions for future prosecutorial elections.

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Representation as Gender Justice: Gender in the ICC’s Prosecutorial Election – Natalie Hodgson

This piece examines recent developments in the election of the International Criminal Court’s third Prosecutor with a focus on gender issues, in particular, the underrepresentation of female candidates and the vetting of candidates to ensure that they do not have a history of sexual harassment.

At the 2020 Assembly of States Parties meeting, States will elect the third Prosecutor of the International Criminal Court (ICC). At a time when the ICC is faced with increasing challenges, including hostile attacks from States, investigations into politically sensitive situations and limited financial and personnel resources to carry out its mandate, the decision on who will best serve the Court as Prosecutor for the next nine years is particularly significant. 

The election has been far from uneventful. After establishing a Committee on the Election of the Prosecutor (CEP) to receive applications, interview candidates and produce a shortlist for States to consider, there has been frustration with that shortlist, with Kenya arguing that the list is skewed in favour of a particular candidate. The deadline for the nomination period has been extended twice, with the most recent indication being that States are unable to reach a consensus on the shortlisted candidates and are considering introducing other candidates, possibly from the CEP’s longlist. 

Among these developments, gender issues have also featured significantly. This piece discusses two such issues and provides some suggestions for how they can be addressed in the short and long term – first, the underrepresentation of women among candidates nominating for the position of Prosecutor, and second, the vetting of candidates to ensure that they do not have a history of committing, condoning or ignoring sexual harassment. 

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Fair Trials at the International Criminal Court in the Age of COVID-19 – Adaena Sinclair-Blakemore

The COVID-19 pandemic has affected every corner of the world and the International Criminal Court (‘ICC’ or ‘the Court’) is no exception. Since March 2020, the Court’s premises in The Hague have been closed, staff have been working from home and visitors, including defence counsel, are not permitted into the UN Detention Facility to visit the accused. Nevertheless, trials remain ongoing and, like countless other courts around the world, the ICC has shifted to operating virtually for the foreseeable future. The ICC has so far postponed hearings in Prosecutor v Al HassanProsecutor v Ntaganda and Prosecutor v Gbagbo and Blé Goudé in response to the pandemic. However, it is possible that the Court may hold virtual hearings if the pandemic prevents in-person court sittings in the long-term. This post considers the impacts of both holding virtual hearings and postponing hearings on an accused’s fair trial rights under the Rome Statute of the International Criminal Court (‘Rome Statute’).

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ICC Appeals Chamber resurrects controversial customary international law argument to find Al-Bashir has no immunity before international courts – Keilin Anderson

Last Monday the Appeals Chamber (AC) of the International Criminal Court (ICC) delivered its judgment on the question of Omar Al-Bashir’s immunity from prosecution for international crimes. In addition to the majority judgment, four Judges penned a Joint Concurring Opinion. A joint dissenting opinion from two Judges is yet to be published.

The decision has already been described in early commentary as ‘stunning’ ‘deeply misguided’ and ‘extremely controversial’.

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The Supreme Court of the Philippines’ Review of Duterte’s Exit from the International Criminal Court: The Role of Domestic Courts in the Treaty Withdrawal Debate – Keilin Anderson

The questions of how, when and why States can withdraw from international agreements and with what consequences have long been overlooked in international law. The topic is even likened to mentioning divorce on a wedding day. However, the recent spate of withdrawals has bought the issue to the forefront of the international legal dialogue.

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International Law Update – The Conflict in Yemen, the International Criminal Court, and the Srebrenica Massacre

Yemen

Human Rights Watch called for the release of Yemeni activist Hisham al-Omeisy, whom Human Rights Watch claims has been detained by Houthi authorities. Human Rights Watch states that al-Omeisy was arrested by 15 officers on 14 August 2017 in Sanaa. They claim he has not been charged, brought before a judge or given access to a lawyer or his family, and that he is in an undisclosed location. Amnesty International has made a similar statement.

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2016 – Year in Review

The past year has been incredibly tumultuous, having reset the international stage and delivering incredibly unexpected political outcomes. From an international legal perspective, while events such as Brexit, Donald Trump’s election, and the crisis in Syria have undoubtedly raised important legal questions and will likely change international law in the future, there have been numerous other significant developments.

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