Worker taking samples of water in flooded contaminated area. Credit: Adobe Sotck.
Humanity is waging war on nature […] Biodiversity is collapsing… […] is making our work for peace even more difficult as the disruptions drive instability, displacement, and conflict […]Let’s be clear: human activities are at the root of our descent towards chaos. -António Guterres, United Nations Secretary-General, December 2022
A blogpost on international law, environment and children by Úrsula Gutiérrez Trápaga, Programme Officer at Justice Rapid Response.
The Democratic Republic of the Congo, Israel, Palestine, Ukraine, Syria and Yemen are perfect examples of how armed conflicts can damage and destroy the environment.
Armed conflicts are not the sole cause of this “descent toward chaos.” Lasting impacts on human populations because of environmental damages are also a reality in peace times. One should note, however, that the latter may stem from – or result in – serious human rights violations if not crimes against humanity (CAH). The cases of the Amazon’s destruction in Brazil or Peru with the contamination of the Cerro de Pasco region – which became an important mining hub – are striking.
In fact, the environment has been the silent victim of armed conflicts, but also State policies and armed groups activities that contribute to serious human rights violations. Typical environment degradation acts committed by parties to armed conflicts include polluting water streams, torching crops, cutting down forests, poisoning soils, or killing animals to gain military advantage.
Environmental degradation and destruction affect the most vulnerable populations, such as indigenous groups, women, people living with disabilities, and, more particularly, children.
In fact, the Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy, and sustainable environment has highlighted that no other group is more vulnerable to environmental harm than children. For instance, degradation caused to the environment can be the root cause of forced displacement, human trafficking, sexual violence, and even the forced recruitment of children in armed conflicts.
Although environmental damage is evident and constantly demonstrated by civil society organizations, the international community has not efficiently used the existing international accountability avenues to hold perpetrators accountable for the damages they caused to the environment and their underlying impacts on the enjoyment of human rights.
Recognizing the discussions that the new General Comment 26 (GC) of the Committee on the Rights of the Child on children’s rights and the environment with a special focus on climate change has started, in the next few lines, we will dive into accountability avenues that should be better harnessed to bolster the fight against impunity in this field.
The Rome Statute
The first avenue coming to mind is through the International Criminal Court. The Rome Statute contains only one explicit reference to environmental damage. Under Article 8(2)(b)(iv), in the context of an international armed conflict, an attack causing widespread, long-term, and severe damage to the environment may amount to a war crime. However, as many scholars and practitioners have mentioned here, the standard of proof in this instance is exceptionally high, thus making it hard to rely on this provision.
Nonetheless, this should not be conceived as the only provision to rely upon as it is the only express reference to “environment damage.”
The Rome Statue is anthropocentric in nature, meaning it primarily protects human life integrity. Yet, the natural environment is intrinsically linked with human life, as it is the very foundation of human life. Therefore, anyone who destroys, alters, poisons, or otherwise interferes with the environment may also indirectly impact human life. This may be done through, for example, destroying forests, poisoning water sources, and poisoning fields used for agriculture. This way, a crime listed under the Rome Statute could be invoked when filing a complaint.
For instance, people might be forced to leave their land because it became uninhabitable, which may constitute an element of the crimes against humanity of forced displacement. Further, should people get seriously ill because their immediate environment was contaminated, this could amount to the CAH of other inhumane acts of a similar character intentionally causing great suffering or serious injury to the body or mental or physical health if not murder.
Human Rights Council-mandated Investigations
Another accountability avenue to explore is through the Human Rights Council-mandated investigations. These investigative bodies are increasingly being used to respond to situations of serious violations of international humanitarian law and international human rights law, whether protracted or resulting from sudden events, and to promote accountability and fight impunity.
Investigative bodies mandated by the Human Rights Council have taken numerous forms, including fact-finding missions (FFMs) or commissions of inquiry (COIs). They contribute to ensuring serious human rights violations are held accountable, thus preventing reoccurrences, fostering compliance with the law, and offering victims avenues to access justice and obtain redress.
These investigations also tend to focus on the typical violations against personal integrity, such as extrajudicial killings, unlawful attacks against the civilian population, unlawful confinement, unlawful deportation, torture, and inhumane treatment. And more and more consistently, especially when expertise is available, sexual gender-based violence and violations against and affecting children are incorporated into the final reports of these investigations. The same cannot be said for the impacts of a given situation on the environment.
The HRC has mandated 37 investigations since 2006. However, in very few instances have these investigative mechanisms reported on the environmental damages being caused in the context of armed conflicts or if they constituted a driver of the conflict at stake.
For example, the Commission of Inquiry on Lebanon carried out in 2006 is the only one that had a mandate to explicitly tackle the impact of military operations carried out by Israel on the environment. Also worth mentioning is the UN Commission on Human Rights on South Sudan, which reported on the environmental harm wreaked by oil companies in the country. The UN Fact-Finding Mission on Venezuela is another example. It reported on human rights violations and crimes – notably affecting indigenous peoples – committed by State and non-State actors while struggling for control over mining areas, and noted the devastating environmental toll of uncontrolled mining.
These few examples show how UN-mandated investigations could include this burning topic in their investigation strategy. Among the main reasons explaining the reluctance in doing so is that States have not tried to explicitly incorporate this issue in the actual mechanisms’ mandate. The lack of resources and of relevant expertise in the field is also a major constraint.
UN Treaty Bodies
The human rights treaty bodies are committees constituted of independent experts that monitor the implementation of the core international human rights conventions. These bodies have different tools to foster accountability. Among others are individual communications, inquiry procedures, and inter-state communications.
These committees also publish their General Comments, which guide States on the best ways to apply the provisions of their respective treaty. The Human Rights Committee in its General Comments No. 36 – Article 6: right to life, has already recognized that environmental degradation, climate change, and unsustainable development constitute some of the most pressing and serious threats to the ability of present and future generations to enjoy the right to life. Interestingly, the Committee on the Rights of the Child just adopted new General Comments on children’s rights and the environment with a special focus on climate change.
It is worth mentioning that it is the first time that the recently recognized right to a safe, clean, healthy, and sustainable environment will be directly linked to the rights contained in a UN human rights treaty. These General Comments constitute a breakthrough in tackling the issue of the interlinkage between the environment and child rights. In fact, it harnesses our collective understanding of the state of international law by offering expert guidance on how environmental degradation and destruction affect children’s rights and what States should do to ensure children live in a safe, clean, healthy, and sustainable environment.
Finally, these General Comment call all States to provide access to justice pathways for children. This includes complaint mechanisms that are child-friendly, gender-responsive and disability-inclusive to ensure their engagement with effective judicial, quasi-judicial and non-judicial mechanisms. Child-centered national human rights institutions for violations of their rights relating to environmental harm should also be considered, according to the General Comments.
Treaty bodies and the Universal Periodic Review tend to be underestimated when considering potential accountability avenues. However, they are still powerful human rights mechanisms that should be used more often to hold States accountable for environmental damage and their related impact on human rights.
What about Ecocide?
One element that remains to be discussed is the momentum around the inclusion of the crime of ecocide in the Rome Statute.
It is indeed an important step towards accountability for environmental damages, but while waiting for the international community to reach an agreement on the crime of ecocide, the tools to ensure accountability for environmental harm already existing under the current international legal framework should be better harnessed.
In fact, international lawyers should, for the time being, should recourse to creative interpretation of the current state of the law to further bolster accountability efforts on this specific issue.
Úrsula Gutiérrez Trápaga is a Programme Officer at the International Justice Programme at Justice Rapid Response in charge of promoting accountability for children in international justice processes. Her professional expertise is in international human rights law, international criminal law, and international humanitarian law. Prior to joining the organization she worked in Geneva with Plan International and Child Rights Connect, and in Mexico at the Mexican Ministry of Social Development and the Mexican Ministry of Foreign Affairs in their respective human rights departments. She holds a master’s degree in International Law from The Graduate Institute of International and Development Studies (IHEID) in Geneva and a BA in Law from the National Autonomous University of Mexico (UNAM). This blogpost is a result of a roundtable hosted in May 2023 by JRR on The Impact on Child Rights of International Crimes & Serious Human Rights Violations affecting the Environment that was possible thanks to the contribution of the Government of Canada.