Andre Penner/AP Photo
Land recently burned and deforested by cattle farmers stands empty near Novo Progresso, Para state, Brazil, August 16, 2020.
A month ago, the U.N. Office on Drugs and Crime (UNODC) set up shop at the COP27 global climate conference in Sharm el-Sheikh, Egypt. They were there for one main reason: to release a report that encourages integrating crimes that affect the environment and increase global temperatures into criminal prosecutions.
As climate change increasingly permeates all aspects of life, there is a young but rising movement that wants a broader adoption of climate change science within existing environmental laws. Some see the UNODC report as the first official endorsement of that effort.
International climate change litigation doubled between 2015 and 2021. However, those cases have been limited to civil, administrative, or regulatory prosecution based on issues like failed emissions reductions or inadequate climate commitments. According to the report, there have been almost no cases based on criminal law.
Under this framework, a shipping company that emits nitrous oxide, a potent greenhouse gas (GHG), could be charged in criminal court. The report also focuses on issues of mining and deforestation activities, which both significantly contribute to biodiversity destruction and GHG emissions; the illegality is usually tied to permits rather than criminal law. This proposal advocates a criminal justice response to what are otherwise legal and large-scale mining and logging activities by transnational corporations.
The report marks the very first time the UNODC has appeared at a COP event and signals an international push to reframe actions that increase climate change as criminal.
While many experts don’t expect the report to lead to any new laws or measures, it is seen as a relatively groundbreaking sign of support for something many in the environmental law community have been working on: to make prosecutors more aware of the potential use of existing environmental laws, and to figure out how to give climate change science legal standing in courts.
There are, however, a number of barriers to making climate change science more mainstream in criminal law. When Matthew Brubacher, the lead writer on the UNODC report, was approached by the U.N., he was hesitant to sign on.
“I was quite skeptical about it,” says Brubacher. “I didn’t see the role of criminal justice in climate change.” His hesitation had to do with the fact that most of the causes of climate change are legal, so it was difficult to imagine how actions that worsened climate change could be prosecuted.
Brubacher’s challenge was to find the nexus between climate and criminal law. What he articulated in the report is that harm caused by climate change has become a matter of public interest. Though the acts themselves might be legal—like bottom trawling, which destroys the carbon capture potential of the seabed, the use of harmful fuels in the shipping industry, and many business-related green-collar crimes—they can be prosecuted using existing laws as an aggravating factor to public harm.
“Victims are no longer faceless,” he said. “You can identify the victims of climate change.”
But then there is the challenge of explaining and proving that a particular act has contributed to climate change, and subsequently contributed to public harm. This requires a relatively detailed understanding of the science.
Harm caused by climate change has become a matter of public interest.
Each case would need to be able to generate admissible forensic evidence that proves the role of climate change in a crime. That evidence would need to be intelligible, Brubacher explained, requiring education about climate change science in law schools and for prosecutors, as well as a new workforce of experts who specialize in both areas.
“You need to develop briefings for prosecutors and judges, you need tools to show how a particular crime can be assessed for its contribution to climate change that can then be understood by people who aren’t knowledgeable in climate science,” Brubacher said. “It’s a huge lift,” he added.
Brubacher is hoping the UNODC will develop tools to translate climate change science and educate practitioners, lawyers, and law enforcement.
The report is not the first time this issue has come up in the law community. There is an existing effort to integrate the justice system’s response to crime into issues of climate change, and those working on it feel that the UNODC report might help the movement gain momentum.
“I’m not sure this report is trying to push forward any big change that we can see and measure,” said Thomas Sparks, senior research fellow at the Max Planck Institute for Comparative Public Law. “I’m very excited about it because of that. It’s trying to say that we already have these laws. It’s a question of just getting prosecutors to understand their potential.”
In 2021, a group of lawyers signed a pledge that calls for taking legal action against climate change. “We will cultivate a heightened awareness of the relevance of our activities to climate change and vice versa, and seek to integrate, address, and mitigate climate change concerns throughout our professional life,” the pledge says. “We call upon the global community—including practicing lawyers, judges, academics, civil servants, law students, lawmakers, and all others working in and with the law—to join us in this vital endeavour.”
There is a precedent for connecting crimes of the environment to criminal law. The International Criminal Court (ICC) has jurisdiction over something called the Rome Statute, which includes war crimes, crimes against humanity, genocide, and the crime of aggression. In one case, which was prosecuted in 2008, the charges noted “the connection between genocide and the deliberate destruction of the environment …”
The ICC said in an email that it has no power to expand its own jurisdiction. But its primary selection criterion is the “gravity of the crimes.” It assesses gravity based on vulnerability of victims and the social, economic, and environmental damage caused by a crime. “In that context,” the ICC wrote, “the policy paper states that ‘the Office will give particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in … the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.’”
Not all experts feel that an increased criminal justice approach is the best way to decrease environmental crimes. Some feel that the report is too conservative because the main issue remains that the majority of the most destructive activities, like agriculture and sewage runoff, or the ability for large cargo ships to burn a particularly destructive fuel called “bunker fuel,” remain legal. Others feel that putting the CEO of a polluting company in prison doesn’t put enough emphasis on the damage already done.
“If there’s an assault—one person hits another person or somebody is killed—you send the perpetrator to prison and it might bring closure to the families and express general societal disapproval,” said Angus Nurse, senior lecturer in criminology at Middlesex University’s School of Law. “But if you’ve polluted a river and wiped out an entire ecosystem, sending someone to prison doesn’t do anything.”
Brubacher responds to both of these complaints. He says that while there should also be a push to create more climate change laws, for example developing laws around the concept of ecocide, that takes a lot of time and “would consume a lot of oxygen.”
This report, he adds, “was about what can be done with laws that exist today to integrate a climate perspective into a criminal angle.” He also says that taking a criminal justice approach doesn’t preclude fining a corporation for the damage it has caused. Prosecutors are somewhat disillusioned by fines, however, because many companies are just working the fine into their expenses.
Ultimately, supporters of this approach feel that the move to criminalize these acts will change the public’s perception about the severity of climate change–related damage.
“It has that symbolic importance,” Nurse said. “We’re treating it as though the perpetrator has killed somebody and that is a larger signal shift.”
