Waad Abualrob is a final year PhD student at the University of Westminster.

This post intends to illuminate how the Rome Statute of the International Criminal Court (ICC) contributes to safeguarding the environment during times of occupation.

There is no doubt that the Rome Statute may apply to occupied territory. The ICC has jurisdiction over international crimes pursuant to the rules on jurisdiction embodied in the Statute.[1] These rules do not mention situations of occupation as an obstacle to the prosecution of international crimes. Although the Rome Statute does not provide a definition of occupation, its ‘Elements of Crimes’ equates situations of occupation to armed conflicts in relation to the definition of war crimes: “The term international armed conflict includes military occupation. This footnote also applies to the corresponding element in each crime under Article 8 (2) (a)”.[2] 

There are different scenarios in which the ICC can have jurisdiction over international crimes that allegedly occurred in occupied territories. The first scenario is the case of the occupation of the territory of a State Party by another State Party (e.g. Uganda/DRC over Ituri), where the Court has jurisdiction over the international crimes committed by the occupying power in the occupied territory.[3] Secondly, the occupation of the territory of a State Party by a non-State Party (e.g. Cyprus/Turkey, respectively), where the Court also has jurisdiction over the international crimes committed in the occupied territory, even if the international crimes are committed by a State that is not Party to the Rome Statute.[4] The third scenario is the case of occupation of the territory of a non-State Party by a State Party (e.g. Iraq by the United Kingdom, respectively).[5] This is the only case where the Court does not have jurisdiction over international crimes committed in the occupied territory.[6] There are some exceptions to this point, but the issue requires a separate and in-depth examination.

Regarding the protection of the environment in occupied territories, the Rome Statute provides direct and indirect protection. It provides direct protection by prohibiting as a war crime under Article 8(2)(b)(iv), the intentional launch of “an attack in the knowledge that such attack will cause… widespread, long-term and severe damage to the non-human environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”. While this direct approach to the protection of the environment in wartime provides advantages, it also involves shortcomings that might limit its application in practice (see e.g. here and here).

A different way through which the Rome Statute provides indirect protection to the environment in situations of occupation is through rules applicable to property. For example, the Statute provides that any extreme damage and/or appropriation of property without absolute military needs is an unlawful act and would be considered as war crime of “pillage”.[7] For instance, the Statute affirms under Article 8(2)(a)(iv) that any “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly” constitutes a war crime under the Statute.[8] Furthermore, Article 8(2)(b)(xiii) adds that “destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war” is a war crime and a serious violation of the laws and customs applicable in IHL.[9] In addition to this, Article 8(2)(b)(xvi) considers a pillage in such situations as a war crime under the Statute.[10]

This can be illustrated by acts committed in the context of Uganda’s occupation of the DRC. Since both States are parties to the Rome Statute, the ICC has jurisdiction to investigate any war crime committed by Uganda’s forces on the territory of the DRC during the time of the occupation, such the plundering and illegal exploitation of the natural resources of the DRC by Uganda’s occupying forces.[11] In the case concerning Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), the International Court of Justice (ICJ) declared that:

‘[T]he acts and omissions of members of Uganda’s military forces in the DRC engage Uganda’s international responsibility in all circumstances, whether it was an occupying Power in particular regions or not. Thus, whenever members of the UPDF were involved in the looting, plundering and exploitation of natural resources in the territory of the DRC, they acted in violation of the jus in bello, which prohibits the commission of such acts by a foreign army in the territory where it is present.’[12]

For instance, the Okapi Wildlife and the Kahuzi-Biega reserves are both reserves considered as a property of the DRC, which have suffered from the abusive utilisation of natural resources within these reserves.[13] Accordingly, there is a compelling case that such acts committed by Uganda’s occupying forces against the property (natural reserves) of the occupied DRC constitute the war crime of pillage under the Rome Statute.[14]

Another example may be provided in the case of the Occupied Palestinian Territories (OPT), where the Israeli occupation contributed to deteriorating the ecosystems of the OPT. Particularly, by deliberately damaging the natural resources, destroying of forests and cutting thousands of trees, confiscating agricultural lands and seizing or contaminating the ground water, the occupying power prevented local people from enjoying their natural resources.[15] All these policies, some of which were discussed in a previous post, impacted the biodiversity of the OPT, in particular, the wildlife and the vegetation cover.[16] Accordingly, such acts may be argued to constitute war crimes under the Rome Statute, including the crime of pillage, when there is an abusive and overutilisation of the natural resources of the OPT.

It is noteworthy that the ICC has declared it has territorial jurisdiction over the OPT, which means that it can investigate any war crime committed in violation of the Rome Statute.[17] Accordingly, any unjustified destruction, confiscation or seizing of the natural resources of the OPT could be used as a basis for opening an ICC investigation for war crimes committed against property rights in the OPT.[18]

Here it is interesting to note that that the Office of the Prosecutor of the ICC’s policy paper on case selection and prioritisation (2016) considers that “crimes committed by means of, or resulting in, the destruction of the environment or of protected objects” may be used toward showing ‘the existence of elements of particular cruelty’ when assessing the manner of commission of crimes.[19] The paper strongly focuses on crimes related to environmental destruction. For instance, it provides that:

“[T]he impact of the crimes may be assessed in light of, inter alia,… the social, economic and environmental damage inflicted on the affected communities. In this context, the Office will give particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land”.[20]

It is then possible to suggest that, by considering the destruction and seizing of property without justified military need as a war crime, the Rome Statute strengthened the protection of the environment through property rights in situations of occupation, in particular, by the possible to qualify such acts as constituting the crime of pillage. Moreover, the Office of the ICC Prosecutor has clearly taken environmental considerations into account and given the protection of the environment more attention under the Rome Statue.[21] Therefore, the Rome Statue serves as deterrent by recognising environmental damage as criminal conduct. Hence, individuals including political and military leaders, may be less inclined to engage in acts that harm the environment if they know they might be held legally and criminally responsible for such harm.

To conclude, the Rome Statute’s applicability to environmental protection in situations of armed conflict and occupation reflects the evolving recognition of the environment as a critical aspect of human well-being and global peace and security. It emphasises that crimes against the environment are not only harmful but also subject to international legal accountability, which in turn provide direct and indirect protection to the environment, the biodiversity and the ecosystem functions in such situations.

[1] Rome Statute of the International Criminal Court, “Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court (ICC-ASP/1/3 and Corr.1)”, (First Session, 3-10 September 2002), Part II-B, ‘Elements of Crimes’, Article 8 (2) (a) (i). F.n (34) at.126; Michail Vagias, The Territorial Jurisdiction of the International Criminal Court (Cambridge University Press 2014) 214-215.

[2] Rome Statute of the International Criminal Court, “Official Records of the Assembly of States Parties to the Rome Statute of the International Criminal Court (ICC-ASP/1/3 and Corr.1)”, (First Session, 3-10 September 2002), Part II-B, ‘Elements of Crimes’, Article 8 (2) (a) (i). F.n (34) at.126.

[3] Michail Vagias, The Territorial Jurisdiction of the International Criminal Court (Cambridge University Press 2014) 210.

[4] Ibid,

[5] Ibid,

[6] Ibid, 242. “In the event that the territory of a State Party is occupied either by a State Party or a by a State not Party to the Statute, the Court has jurisdiction under Article 12(2)(a)”. However, “In the event that a State Party occupies the territory of a State not Party, Article 12(2)(a) seems to preclude the application of the Rome Statute, in the absence of a Security Council referral”. For more information see page 242 of Michail Vagias, “Belligerent Occupation and ICC Territorial Jurisdiction,” The Territorial Jurisdiction of the International Criminal Court (Cambridge University Press 2014).

[7] Rome Statute of the International Criminal Court, Article 8(2)(a)(iv), 8(2)(b)(xiii), 8(2)(b)(xvi), and 8 (2) (e)(v). For more information about the Pillage crime during armed conflict, see, Larissa Herik and Daniella Dam-Dejong, ‘Revitalizing the Antique War Crime of Pillage: The Potential and Pitfalls of Using International Criminal Law to Address Illegal Resource Exploitation during Armed Conflict’, (Springer Netherlands 2011) Criminal Law Forum, 22, 237.

[8] Ibid, Article 8(2)(a)(iv).

[9] Ibid, Article 8(2)(b)(xiii).

[10] Ibid, Article 8(2)(b)(xvi).

[11] ICJ, DRC v. Uganda,para 245.

[12] ICJ, DRC v. Uganda,para 245.

[13] The United Nations, ‘Interim report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of DR Congo’, (S/2002/565) (22/May/2002). Para 52.

[14] For more information about the crime of pillage and the natural resources see: Larissa Herik and Daniella Dam-Dejong, ‘Revitalizing the Antique War Crime of Pillage: The Potential and Pitfalls of Using International Criminal Law to Address Illegal Resource Exploitation during Armed Conflict’, (Springer Netherlands 2011) Criminal Law Forum, 22, 237.

[15] Jean Jaquet, Akiko Harayama, Kaeser D, ‘Desk Study on the Environment in the Occupied Palestinian Territories’, (The United Nations Environmental Programme (UNEP) 2003) 81-82,95- 96,113-118; Akram Abu Amr, “The Israeli occupation and environmental degradation in Palestine”, Ro’ea Magazine: Vol:8, (2001).

[16] Ibid.; The Palestinian Central Bureau of Statistics (PCBS) issues a press release on World Environment Day:”The Palestinian environment to where?”:‘Solid Waste in the Palestinian Territory’. P.3; The United Nations: Human Rights Council, ‘Report of the Special Rapporteur on the situation of human rights in the Palestinian territories occupied since 1967’, (A/HRC/40/73), (15 March 2019) Paras 47, 61.

[17] International Criminal Court, ‘ICC Pre-Trial Chamber I issues its decision on the Prosecutor’s request related to territorial jurisdiction over Palestine’, (5 February 2021).

[18] Rome Statute of the International Criminal Court, Article 8(2)(a)(iv), 8(2)(b)(xiii), 8(2)(b)(xvi), and 8 (2) (e)(v).

[19] International Criminal Court: The Office of the Prosecutor, “Policy paper on case selection and prioritisation”, (2016), Para 40. Available online at: < https://www.icc-cpi.int/itemsdocuments/20160915_otp-policy_case-selection_eng.pdf>. Accessed date: 28/Oct/2020.

[20] Ibid, Para 41.

[21] International Criminal Court: The Office of the Prosecutor, “Policy paper on case selection and prioritisation”, (2016), Para 40-41.