Abandoning Climate Refugees: A “Crime against Humanity” under International Criminal Law?

By: TIRTHARAJ CHOUDHURY and DEEKSHA SHARMA


On 7 January 2020, the United Nations Human Rights Committee decided that international refugees should not be sent home.[1] This decision was handed down by the committee after examining the case of Ioane Teitiota, a Kiribati citizen of South Tarawa, who was seeking refugee rights in New Zealand, but was denied. While upholding New Zealand’s decision, the Committee agreed that climate threats would in the future prevent international law states from returning refugees to their own countries. This decision is quite relevant in relation to international criminal law and the responsibility to protect Environmental Refugees.[2] “Environmental refugee”, a term coined by Essam El-Hinnawi, identifies people who have been forced to leave their traditional habitat temporarily or permanently because of a significant environmental (natural and/or human-induced) disturbance that endangers their life and/or seriously affects the quality of their lives.[3]

As international refugee law fails to take into consideration climate/ecological refugees, the article suggests that international criminal law could be resorted to in this situation. The article will clarify the application of international criminal law, in particular “Crimes Against Humanity” (CAH) for the protection of refugees due to climate change, natural disasters and environmental crimes. CAH have been a measure in international court tribunals for acts that “shocked the conscience of mankind”.[4]

Slow-onset disasters, fueled by climate change render places uninhabitable by creeping up on communities. While their relatively slow evolution offers an opportunity to prepare appropriate responses, the perceived lack of urgency can pose a significant challenge for those affected.[5] This takes into consideration the country’s own legislation on disaster prevention, but the legislation in some countries does not include slow-onset disasters and climate induced sudden events, such as super-cyclones for example. In these scenarios, man’s presence and his actions alter the nature and extent of a disaster.[6] A similar thing happened when Cyclone Amphan caused massive damage and destruction in India.[7] It is also possible to draw a connection between mass crimes and climate change, both of which endanger the most basic rights of the population.[8] Jessica Cooper goes a step further, suggesting that both slow-onset disasters related to climate change and sudden natural disasters can be regarded as persecution.[9] In order to satisfy the criterion of persecution for a specific cause, Cooper claims that the ecologically displaced people are being persecuted on the grounds that they belong to a certain social community, namely a category of individuals who are politically helpless to defend their environment.[10]

The second situation is the assistance by the international community in a timely manner. Previously, Russian scientists had reported that a small Arctic island had disappeared, saying that only open water remained at the site. In these recent examples, the islands were small and uninhabited, but scientists say the fate of these tiny pieces of land could be a harbinger of what is to come.[11] Researchers also expect that before the end of this century, islands such as Maldives, Tuvalu and, Fiji will be underwater.

CAH has an expounding and evolving context, and from what we have witnessed, it has been in the process of gradual development since its inception. Potential CAH cases brought under the ICC may occur as states plan to expel individuals fleeing environmental catastrophe in home countries, posing a threat to life.[12] Again, it is problematic that states with the resources and the potential to offer shelter for fleeing communities do not provide refuge in their countries as the universal concept of refugees does not cover climate refugees.[13] This implements the “burden sharing” of the detrimental impact of climate change on the refugee-hosting community.[14]

The third situation concerns man-made disasters that directly affect the environment, such as illegal wildlife trade, river dumping and unrestricted logging, the result of which is ecological refugees. Westra in her book, Environmental Justice and the Rights of Ecological Refugees notes that the case states ICC cases for the former Yugoslavia and the Rome Legislation are illustrative of the open essence of CAH, which indicate that they would accommodate ecological crimes. She further says that CAH take into consideration the lower mens rea level of “knowledge of an attack” making ecological crimes a perfect fit for this category.[15]

Conclusion

As environmental disasters, caused by climate change or otherwise, worsen, increasing populations suffer from the negative effects of climate change by death or displacement. With this comes the so-called Responsibility to Protect of home states and the international community, failure to comply with which should count as a CAH and such incidents should be brought under the jurisdiction of ICC. We need to look towards international criminal law and its amalgamation with International Environmental Law for solutions, the demand for which keeps rising daily. Though steps are slowly being taken to reduce emissions to cut down on our carbon footprint, it is still not enough. It is high time for international law to pay heed to this rapidly deteriorating situation at hand.

[1] Refworld. 2020. Refworld | Ioane Teitiota V. New Zealand (Advance Unedited Version), https://www.refworld.org/cases,HRC,5e26f7134.html.

[2] Melinna Godin, Climate Refugees Cannot Be Sent Home, U.N. Rules | Time (2020), https://time.com/5768347/climate-refugees-un-ioane-teitiota/.

[3] Globalization101, http://www.globalization101.org/environmental-refugees/#:~:text=%E2%80%9CEnvironmental%20refugee%E2%80%9D%2C%20a%20term,seriously%20effects%20the%20quality%20of.

[4] Charles Jalloh, What Makes a Crime Against Humanity a Crime Against Humanity? (28 ed. 2013), American University International Law Review.

[5] Elisa Alonzo, Slow onset disasters: where climate change adaptation and disaster risk reduction meet | PreventionWeb.net (2017), https://www.preventionweb.net/news/view/53004.

[6] IDRL Guidelines at the 31st International Conference,, https://www.ifrc.org/en/what-we-do/disaster-law/about-disaster-law/international-disaster-response-laws-rules-and-principles/idrl-guidelines/.

[7] Architesh Panda, Climate Change, Displacement, and Managed Retreat in Coastal India (2020), https://www.migrationpolicy.org/article/climate-change-displacement-managed-retreat-india.

[8] Naser, Mostafa. (2013). Climate Change induced Displacement: Definitional Issues and Concerns. Chicago-Kent Journal of Environmental and Energy Law. 2.

[9] Jessica Cooper, Note, Environmental Refugees: Meeting the Requirements of the Refugee Definition, 6 N.Y.U. Envtl. L.J. 480, 503 (1998), at 509.

[10] Shouvik Guha, According Refugee Protection to Environmental Migrants: An overview under International Refugee Law (2 ed.), International Journal of International Law.

[11] Denise Chow, Three islands disappeared in the past year. Is climate change to blame? (2019), https://www.nbcnews.com/mach/science/three-islands-disappeared-past-year-climate-change-blame-ncna1015316.

[12] Charles Chernor Jalloh, What Makes a Crime Against Humanity a Crime Against Humanity? , 28 Am. U. Int’l L. Rev. 381 (2013), https://ecollections.law.fiu.edu/cgi/viewcontent.cgi?article=1246&context=faculty_publications#:~:text=30%2C%202012)%20(defining%20crimes,religious%20or%20political%20grounds%22).

[13] Peter Lehner, Environment, Law, and Nonprofits: How NGOs Shape Our Laws, Health, and Communities, 26 Pace Envtl. L. Rev. 19 (2009), https://digitalcommons.pace.edu/pelr/vol26/iss1/2/

[14] Nafess Ahmad, Overheating the Humanitarian Law in contemporary international relations (2018), https://www.ifimes.org/en/9551.

[15] Laura Westra, Environmental Justice and the Rights of Ecological Refugees 188 (2009).

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