1. INTRODUCTION
Illegal logging and trafficking of timber is one of the main causes of massive deforestation, and therefore a contributor to climate change. While it often takes place in the context of non-international armed conflicts, the responses available to hold those guilty of such practices criminally responsible remain significantly limited at the international level. The article will discuss those limits under the framework of the Statute of the International Criminal Court (ICC) (Rome StatuteFootnote 1). In particular, it will analyze the applicability of the war crimes of destruction of property and pillage (Article 8(2)(e)(v) and (xii) of the Rome Statute) to the situation of illegal logging and trafficking of rosewood timber in Casamance (Senegal).
1.1. Illegal Logging and Trafficking of Timber: A Cause of Deforestation and a Contributor to Climate Change
Healthy forests absorb and store greenhouse gases (GHGs) from the atmosphere. Their destruction provokes the release of the same gases and thus strongly contributes to climate change.Footnote 2 Forest protection is therefore a vital pillar of Article 5 of the 2015 Paris Agreement, which invites states to ‘take action to conserve and enhance … sinks and reservoirs of greenhouse gases’.Footnote 3 Programmes such as the REDD+ framework were established in order to achieve that specific purpose, and its related actions have been considered among the most significant and cost-effective ways to reduce global emissions, while also producing important adaptation, biodiversity, livelihood, and development benefits.Footnote 4
According to a recent report published by the Food and Agriculture Organization (FAO) of the United Nations (UN), Africa is the continent with the highest annual rate of net forest loss over the last decade.Footnote 5 The report also specified that the rate of net forest loss has increased in Africa since 1990.Footnote 6 Reasons for this include illegal logging and trafficking of timber, both of which are associated with a wide range of problems such as lack of appropriate legal protection of forests, weak forest governance, massive illegal importation of timber, and forest conversion for agricultural purposes, sometimes arguably facilitated by armed conflicts.Footnote 7 In the latter case, deforestation practices occur because control over natural resources can be a fruitful source of funds for the parties to the conflict (through the illicit smuggling of timber, for example), or because situations of conflict provoke forest-hungry activities such as the illegal exploitation of natural resources (for instance, through mining), or the development of other unlawful activities (such as growing coca). This phenomenon has been observed in Latin American countries such as Colombia and on the African continent, including in Liberia, the Democratic Republic of the Congo, and Senegal.Footnote 8
1.2. Focus on Casamance (Senegal)
Several factors drew our attention to Senegal as a suitable case study for the purpose of this article. Global Forest Watch reported that 93% of all Senegalese low-tree cover between 2001 and 2019 occurred in the Casamance region, which is the site of a 30-year non-international armed conflict.Footnote 9 The FAO identified two key factors driving mass deforestation practices in West Africa: (i) unsustainable agricultural expansion, and (ii) illegal logging, with the latter often exacerbated by transboundary issues such as trade between regions or within a region.Footnote 10 Such activities, allegedly taking place in Senegal and the Gambia, were recently reported. In June 2019, the non-governmental organization (NGO) TRIAL International filed a criminal complaint in the Swiss War Crimes Unit, arguing that illicit logging and trafficking of rosewood timber activities were taking place in the Casamance region, and amounted to the war crime of pillage.Footnote 11 In March 2020, a BBC News Africa documentary unveiled the same activities,Footnote 12 which were similarly denounced three months later in a studyFootnote 13 by the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES).Footnote 14
Despite ongoing proceedings before the Swiss authorities for the practices described above, one may wonder whether such activities could constitute an international crime based on the existing provisions of the Rome Statute of the ICC, which would thus open the door for the prosecution of acts of massive deforestation before the Court.Footnote 15 Despite the growing efforts of activists towards the inclusion of the crime of ecocide within the Rome Statute,Footnote 16 the Statute does not provide for the prosecution of environmental crimes. The only exception is Article 8(2)(b)(iv), which prohibits intentional attacks launched in the knowledge that they would cause ‘widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated’. Its scope, however, is limited to international armed conflicts and is difficult to work with because the conditions set out in the provision rarely apply.Footnote 17
This article examines whether the war crimes of destruction of property and pillage (Article 8(2)(e)(v) and (xii) of the Rome Statute) could be potential bases for the prosecution of acts of massive deforestation such as those allegedly taking place in the Casamance region, even though they would operate as stopgap solutions in this context. The article identifies and discusses two primary challenges that would arise from the application of Article 8(2)(e)(v) and (xii) to these types of practice, and offers potential avenues of reflection to overcome these issues. Genocide (Article 6) and crimes against humanity (Article 7) are voluntarily excluded from the analysis because the requisite contextual elements of these crimes are hardly demonstrable in the case at hand.
The following section will begin with a presentation of the relevant facts and will briefly address jurisdictional and admissibility considerations. Section 3 will tackle the first major issue resulting from the application of Article 8(2)(e)(v) and (xii) to acts of massive deforestation, namely, the establishment of a nexus between the armed conflict and the potentially criminal conduct. Section 4 will then discuss the second issue of whether the notion of ‘property’, which is at the heart of the relevant provisions, could encompass ownership of natural resources. It will also elaborate on the difficulties linked to the determination of who owns these resources. Section 5 will consider potential reforms of the Rome Statute and alternative transnational approaches to allow for the prosecution of environmental crimes. The final section offers a brief conclusion.
2. DEFORESTATION PRACTICES IN THE NON-INTERNATIONAL ARMED CONFLICT IN CASAMANCE: REACTIONS AND POTENTIAL LEGAL RESPONSE
2.1. Alleged Illegal Logging and Trafficking of Rosewood Timber despite National and International Legal Protection
Casamance is a segment of Senegalese territory located in the south of the country and sandwiched between the Gambia and Guinea-Bissau. It shelters approximately 30,000 hectares of forests.Footnote 18 Some of these forests benefit from the legal protective status of forêts classées under the Senegalese Forestry Code,Footnote 19 including the 5,000 hectares of the Parc National de Basse Casamance.Footnote 20 These forests are part of Senegalese national territory (domaine national).Footnote 21 Their administration is based on a decentralized system:Footnote 22 local communities (collectivités locales) are responsible for their management and act under the authority of the Direction des Eaux et Forêts, Chasses et de la Conservation des Sols, which works under the supervision of the Ministry of Environment and Sustainable Development.Footnote 23 The Forestry Code criminalizes a series of acts, including the illicit exploitation and logging of forests belonging to Senegal's domaine national. Violation of the Forestry Code can lead to heavy fines and prison sentences of up to ten years.Footnote 24
A particular tree grows in Casamance forests: rosewood (pterocarpus erinaceus). It is threatened with extinction and was therefore added to Appendix II of CITES in 2017.Footnote 25 CITES aims to ensure that international trade in specimens of wild animals and plants does not threaten the survival of the species. This international agreement provides a regulatory framework for its state parties. Once transposed into domestic legislation, this regulatory framework subjects the trade of the listed species to strict regulation ‘in order to avoid utilization incompatible with their survival’.Footnote 26 Rosewood trade is therefore subject to the grant of an export permit issued if the conditions prescribed in Article IV CITES are met. Any actual or attempted exportation of species protected by CITES without the requisite permit is penalized under the Senegalese Forestry Code with a sentence of five to ten years and/or a fine of 5 to 10 million West African CFA francs (approximately EUR 7,500 to 15,000).
According to investigations led by TRIAL International, the BBC and CITES, this two-fold level of protection did not preclude acts of mass deforestation in the Casamance region or the illegal logging and smuggling of rosewood timber found in the protected forests. In addition, the log export ban did not come into force in the Gambia until June 2017.Footnote 27 The BBC News Africa documentary reported that the Gambia exported to China approximately 600,000 tonnes of rosewood timber (which represents about one million trees), illegally logged in the forests of the Casamance region over the past six years.Footnote 28
TRIAL International, the BBC and CITES have linked the existence of these deforestation practices to the conflict in Senegal and to the Mouvement des Forces Démocratiques de la Casamance (MFDC), which seeks independence for Casamance and has controlled significant parts of the region since the end of the 1980s. The conflict would qualify as a non-international armed conflict under international humanitarian lawFootnote 29 on the basis that ‘the protracted violence between [Senegalese] governmental authorities’ and the organized armed group MFDCFootnote 30 reaches the requisite level of intensity and organization.Footnote 31
The aforementioned sources affirm that the MFDC funds its armed struggle against the Senegalese army by ‘delivering logging authorizations and transport permits, and by ensuring the security of the latter’,Footnote 32 and that the rebels ‘illegally exploit and sell precious hardwood timber’ for the same financial purposes.Footnote 33 They allegedly benefit from the support of corrupt officials, and rosewood logs are exported through the company Westwood, which reportedly has a monopoly on the export of the species.Footnote 34 The criminal complaint brought by TRIAL International before the Swiss War Crimes Unit is directed against a single individual who, according to the NGO, co-founded that company and should be held criminally liable for pillaging natural resources.Footnote 35
2.2. Potential Intervention by the International Criminal Court?
The objective of this contribution is to look at whether acts of massive deforestation committed in the context of a non-international armed conflict, such as the events purportedly taking place in Senegal and the Gambia, constitute an international crime under the Rome Statute. In this context, the most relevant provisions that could serve as a basis for the prosecution of such practices are Article 8(2)(e)(v) and (xii), which criminalize as war crimes pillage and the destruction of property. They read as follows:
2. For the purpose of this Statute, ‘war crimes’ means: …
(e) [o]ther serious violations of the laws and customs applicable in armed conflicts not of an international character, within the established framework of international law, namely, any of the following acts: …
(v) Pillaging a town or place, even when taken by assault ….
(xii) Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict.
At the time of writing the ICC has had few opportunities to address pillage and destruction or seizure of property.Footnote 36 Interestingly, in the Katanga caseFootnote 37 the Court considered the ‘essential to daily life’ character of the properties pillaged to emphasize how serious were the acts of pillage to fall within the scope of Article 8(2)(e).Footnote 38 Based on these findings, acts of pillage and destruction of forests should be considered as being particularly grave on the ground of the crucial importance of forests to any life on earth: they stabilize the climate;Footnote 39 they bind the soil and protect it against erosion and landslide;Footnote 40 they ‘support food security and nutrition’;Footnote 41 and they play a crucial role in maintaining biodiversity.Footnote 42
Before elaborating on the two major challenges that would arise from the application of Article 8(2)(e)(v) and (xii) to deforestation practices, it must be underlined that any proceedings over the same facts before the ICC would need to be in accordance with the principle of complementarity enshrined in Articles 1 and 17 of the Rome Statute. Accordingly, the Prosecutor and the Court would have to take into consideration the scope of the investigations conducted by the Swiss authorities, as well as any other proceedings instigated by other domestic authorities, to determine whether the case is admissible.Footnote 43
While the developments below have been applied to this case study for the sake of comprehension, the identified issues are likely to arise in any case involving the illicit exploitation of natural resources in the context of a non-international armed conflict. The analysis could be relevant for cases that share common features with the situation in the Casamance region and the findings would be similarly applicable.
3. FIRST MAJOR CHALLENGE: A NEXUS WITH A NON-INTERNATIONAL ARMED CONFLICT
The ICC Elements of CrimesFootnote 44 specify that two contextual elements must be met for conduct to qualify as a war crime in non-international armed conflicts under Article 8(2)(e) of the Rome Statute.Footnote 45 The first element refers to the perpetrator's knowledge of the factual circumstances that established the existence of a non-international armed conflict.Footnote 46 It is likely that this would be easily demonstrated for any perpetrators in the case at hand, as (i) the alleged logging and trafficking take place in the region of the armed conflict; (ii) the armed conflict has been ongoing for more than 30 years; and (iii) the region is reportedly subject to MFDC control.
The second element, however, appears to be far more complex to assess. The Elements of Crimes specify that the conduct shall have taken place ‘in the context of and was associated with an armed conflict not of an international character’.Footnote 47 It requires acts (i.e., the acts of pillage and destruction of property: here, the alleged illicit exploitation of natural resources and deforestation practices) to be ‘sufficiently related to the armed conflict’; they must be ‘shaped by or dependent upon the environment – the armed conflict – in which [they are] committed’.Footnote 48 The jurisprudence of the International Criminal Tribunal for Rwanda, which was referred to by the ICC,Footnote 49 specified that ‘the existence of an armed conflict must, at a minimum, have played a substantial part in the perpetrator's ability to commit it, his decision to commit it, the manner in which it was committed or the purpose for which it was committed’.Footnote 50 The Tribunal added a few factors which could be taken into consideration in order to demonstrate that connection, such as ‘the fact that the perpetrator is a combatant; the fact that the victim is a non-combatant; the fact that the victim is a member of the opposing party; the fact that the act may be said to serve the ultimate goal of a military campaign; and the fact that the crime is committed as part of or in the context of the perpetrator's official duties’.Footnote 51
The assessment of this second element necessitates clear data on the role and purported participation of the various actors involved in the logging and trafficking, and the extent to which the armed conflict allowed them to commit the acts of deforestation or influenced their decision to do so, and how. This can be complex to establish because of the wide range of actors involved in this kind of practice (for example, corrupt officials, private companies, armed groups, individuals not related to any of them but in need of financial gains), and the difficulty in determining the cause-and-effect relationship between control over natural resources and the existence of an armed conflict. The control over such resources can sometimes be a direct cause of the conflict (for example, maintaining control over diamond mine regions in Sierra Leone).Footnote 52 In most cases, however, the connection between the armed conflict and the illegal exploitation of natural resources is not that straightforward, and doubts may arise as to the existence of that nexus.
In the light of the information reported by the investigations mentioned above, the case of Casamance seems to fall within this second category, where the link between the exploitation of natural resources and the armed conflict is ambiguous. The MFDC is alleged to obtain financial gains from the smuggling of rosewood timber by delivering authorizations and imposing taxation on transporters. This would suggest that the MFDC did not initiate the trafficking, nor does it take a direct part in it. If so, the existence of the armed conflict is not necessarily directly related to the trafficking itself; the MFDC would simply take advantage of the control it has over the region and the existence of the exploitation of rosewood timber to make money and finance its campaign.Footnote 53 One may wonder whether the fact that an armed group uses the control it possesses over a territory in the context of an armed conflict in order to impose illegal taxation on transporters, public authorities, and corporate actors involved in the illicit trafficking of timberFootnote 54 – and therefore uses the situation in its favour in order to ‘generate revenue for financing armed forces and the acquisition of weapons’Footnote 55 – is enough to meet the ‘substantial part’ threshold mentioned above.
This remains an open question that the ICC would have to address if it were seized of the matter. If it answers in the negative, and considers that financing an armed struggle through the illicit exploitation of natural resources does not meet the nexus criterion under Article 8(2)(e), the prosecution of acts of massive deforestation, such as those at hand, as war crimes would not be possible under the Rome Statute.
4. SECOND MAJOR CHALLENGE: WHOSE PROPERTY?
The Elements of Crimes stipulate that pillage requires the appropriation of certain property without the consent of the owner.Footnote 56 In a similar vein, destruction of property necessitates the destruction of certain property that belongs to the adversary.Footnote 57 In order for acts of deforestation to qualify as war crimes, it must be established beforehand whether forests fall within the definition of property, who owns the forests, and whether these owners were not ‘part of, or aligned with, an armed force or group the perpetrators were part of’.Footnote 58 Each of these considerations raises a challenge.
4.1. Natural Resources as Property?
The ICC has defined the term ‘property’ with regard to Article 8(2)(e)(xii), and stated that it encompasses ‘all types of property, movable and immovable, as well as public and private property’.Footnote 59 While the inclusion of natural resources such as forests within the scope of the ICC notion of ‘property’ would be subject to the Court's further appreciation, it is argued that the ICC should rule in the affirmative based on the jurisprudence of international human rights courts, which consider that the right to property covers natural resources.
Before elaborating on the jurisprudence of these courts, it is worth stating that the inclusion of forests within the notion of ‘natural resources’ is well established. According to the 1972 Stockholm Declaration, natural resources encompass ‘air, water, land, flora and fauna and especially representative samples of natural ecosystems’.Footnote 60 A similar definition exists at the African level: the 1968 African Convention on the Conservation of Nature and Natural Resources specifies that ‘“Natural Resources” means renewable resources, tangible and non-tangible, including soil, water, flora and fauna and non-renewable resources’.Footnote 61 As they harbour a wide range of species of fauna and flora, forests will be considered as such. This position is also shared by the Inter-American Commission on Human Rights, which has enumerated among natural resources ‘air, land, water, natural gas, coal, oil, petroleum, minerals, wood, topsoil, fauna, flora, forests and wildlife’.Footnote 62
International human rights courts protect rights over natural resources – and therefore over forests – based on provisions establishing the right to property. The Inter-American Court of Human Rights (IACtHR) has had several opportunities to rule on the violation of Indigenous peoples’ right to property. It has described that right as including ‘those material things which can be possessed, as well as any right which may be part of a person's patrimony; that concept includes all movables and immovables, corporeal and incorporeal elements and any other intangible object capable of having value’.Footnote 63 It reached the conclusion that ‘the close ties of indigenous peoples with their traditional lands and the native natural resources thereof … must be secured under Article 21 of the American Convention [on Human Rights]’,Footnote 64 which ensures the protection of the right to property.Footnote 65 ‘The Court understood that the right to property protects not only the connection of the Indigenous communities with their territories, but also “the natural resources these territories contain that are connected to their culture, as well as the intangible elements derived from them”’,Footnote 66 otherwise ‘the right to use and enjoy their territory would be meaningless’.Footnote 67 Similarly, the African Commission on Human and Peoples’ Rights (ACHPR) sets out that Article 14 (on the right to property) of the African Charter on Human and Peoples’ Rights (Banjul Charter)Footnote 68 protects ‘rights guaranteed by traditional custom and law to access to, and use of, land and other natural resources held under communal ownership’.Footnote 69 The European Court of Human Rights (ECtHR) has an equivalent jurisprudence: it has affirmed that ‘rights over the common lands …, such as … the forest land … were qualified as “possessions” for the purposes of Article 1 of Protocol No. 1’.Footnote 70
The ICC could adopt similar reasoning and consider that forests and natural resources fall within the notion of ‘property’ by virtue of Article 21(3) of the Rome Statute, which imposes on the Court the obligation to apply and interpret its law in accordance with ‘internationally recognized human rights’. On that basis the forests and rosewood timber of Casamance can be considered ‘property’ for the purpose of Article 8(2)(e)(v) and (xii). This conclusion would be consistent with the reasoning of the United Nations War Crimes Commission, which recognized in 1948 that the ‘wholesale cutting of … timber’ was indicative of the ‘prima facie existence of a war crime’ – namely, pillage of a state's public property – thus affirming that forests fall within the scope of ‘property’ under the war crime of pillage.
4.2. Ownership of Natural Resources?
In order to determine whether acts of pillage (namely, acts of appropriation for private or personal use) occurred without the consent of the owner, and whether acts of destruction of property were committed against the enemy's property, the ownership of the property must be established.Footnote 71 Applied to the facts at issue, it means that one must be able to determine who owns the forests and rosewood trees of Casamance.
The ICC jurisprudence appears to be unhelpful in making such determination as cases it has handled concerned goods the ownership of which was relatively simple to ascertain, such as houses,Footnote 72 vehicles,Footnote 73 crops,Footnote 74 food and beverages,Footnote 75 and clothes.Footnote 76
James Stewart identifies ‘four areas of law that might require consideration’ to resolve this conundrum.Footnote 77 These areas would be national laws and constitutional principles, the doctrine of the permanent sovereignty of states over natural resources, the rights of Indigenous peoples, and the rules applicable in the case of recognition of new governments. The following sections will analyze whether these areas of law may offer solutions for the ICC in determining the ownership of natural resources and, in this case, of the Casamance forests. While none of these sets of laws provides a definitive solution that would allow for the requirements of Article 8(2)(e)(v) and (xii) to be met, it is suggested that they remain useful tools for the Court.
The next subsection will discuss the ‘without the consent of the owner’ requirement for the crime of pillage. After exposing two difficulties related to that element of the crime, the following two subsections will then present avenues of reflection to overcome them based on the ideas of common property as used by Indigenous peoples and common goods as envisaged in public international law treaties. The fourth subsection will discuss the ‘against the enemy's property’ requirement for the crime of destruction of property (Article 8(2)(e)(xii)). It will show that the doctrine of permanent sovereignty of states over natural resources and rules applicable in the case of recognition of new governments may help to demonstrate that the acts of destruction of property were committed against the adversary's property under Article 8(2)(e)(xii), when members of an armed group are prosecuted for the destruction of natural resources.
(1) Pillage and ‘without the consent of the owner’ requirement
To qualify as a crime an act of pillage must be conducted without the consent of the owner of the property that has been appropriated.Footnote 78 The ownership of the properties concerned (here, the forests in the Casamance region and rosewood timber) must therefore be established in order to determine whether consent was given for the forests and trees to be appropriated by loggers and smugglers.
According to Senegalese constitutional rules, which echo Article 21(1) of the Banjul Charter, natural resources belong to the people.Footnote 79 Forests on Senegalese territory, including those in Casamance, are therefore the collective property of all Senegalese people without distinction. This means that any act of exploitation of natural resources would require the consent of the Senegalese people as a whole. This causes two major difficulties.
Firstly, taking into consideration Senegalese laws to establish the aforementioned requirement deprives that requirement of its object. As stated above, Senegal opted for a decentralized system for the administration of natural resources, including forests,Footnote 80 in which local communities are conferred powers ‘for the design, planning and implementation of natural resource and environmental management activities of regional, municipal or rural community interest, and for ensuring protection of the resources’.Footnote 81 These powers, however, must be exercised within the limits of the law: that is, in compliance with the Senegalese Forestry Code, which prohibits the illicit exploitation and logging of national forests, and exportation of timber in violation of CITES.Footnote 82 These rules apply equally to all Senegalese people, and therefore to the perpetrators of rosewood timber logging and smuggling, regardless of their affiliation with a party to the conflict or to local communities. As a result, any exploitation of the protected forests by the Senegalese people, who own them by virtue of their Constitution, and committed with their consent would be contrary to Senegalese law, but would be acceptable under the framework of the Rome Statute.
Secondly, the investigations led by the BBC and CITES revealed contradictory views among the Senegalese population regarding the exploitation of rosewood trees. Some individuals participate in the logging and trafficking, and thus consent to the exploitation of forests. Others are strongly opposed to these activities, notably because of the sacred nature and spiritual character of forests for local communities,Footnote 83 and would never consent to their exploitation under any circumstances, with the exception of activities allowed on the basis of culture and tradition.Footnote 84
In this context, one may legitimately wonder whether the ICC will consider consent at all. In the affirmative, whose consent is to be taken into account, and how may contradictory views be reconciled? The use of collective properties by Indigenous peoples and treaties on the management of collective resources could offer a solution in this respect.
(2) Management of collective properties by Indigenous peoples
The rights of Indigenous peoples could offer insights into how collective property can be managed. As noted above, the Inter-American Court of Human Rights and the African Commission on Human and Peoples’ Rights found that Indigenous peoples are entitled to property rights over natural resources on their traditional lands.Footnote 85 Although their understanding of property does not correspond to the classical conception because it is a ‘communal form of collective ownership of the land, in the sense that its possession is not centred on an individual but rather on the group and its community’,Footnote 86 the Inter-American Court affords them equal protection.Footnote 87 The protection would still be applicable when natural resources are ‘illegally exploited during armed conflict, irrespective of whether national mining legislation or domestic constitutional principles explicitly recognize these rights’.Footnote 88
Leaving aside the question of whether local communities living in Casamance could be considered as Indigenous peoples entitled to the rights mentioned above, the findings of these courts appear relevant and useful for the ICC with regard to the use of natural resources. According to the jurisprudence of the courts, Indigenous peoples’ right to property with regard to their lands consists of ‘the right to use and enjoyment of their territory’.Footnote 89 This idea of collective ownership would confer upon owners of collective properties two of the three components usually incorporated within the classical conception of the right to property: ‘the right to use (usus) and the right to enjoy the produce of the land (fructus)’.Footnote 90 It would exclude the right to abuse (abusus), which allows the owners ‘to perform material acts of destruction and legal acts of disposition in relation to the land’.Footnote 91
The ICC could treat the above considerations as general guidelines on the use of collective properties such as natural resources and, thus, forests if it had to address this matter. The reasoning suggests that owners of collective properties are not entitled to destroy or damage these properties, as they lack the abusus component. Acts of pillage (appropriation of natural resources) that ultimately lead to the destruction of the relevant properties (the forests and trees) or cause them damage would thus be committed in violation of the general principles on the use of such resources. A fortiori, one could consider that such acts would be committed against the interests of the collective owners, and thus in opposition to and without their consent. Based on this reasoning, the alleged illegal logging and trafficking of timber that is taking place in Casamance could be considered to be without the consent of the owners of the Casamance forests and rosewood timber (namely, the Senegalese population as whole). From that perspective the requirement under Article 8(2)(e)(v) prescribing that the acts of pillage must be against the consent of the owners would therefore be met.
(3) Management of common goods in public international law treaties
The management of collective property may be seen as intrinsically related to the delicate issue of the management of common goods. The definition of the concept of common goods and whether it should include natural resources within its scope is a task for legal philosophers.Footnote 92 Their observations connect the use of common goods to ‘the master principle of morality’. They note that ‘[i]n voluntarily acting for human goods and avoiding what is opposed to them, one ought to choose and otherwise will those and only those possibilities whose willing is compatible with a will toward integral human fulfilment’.Footnote 93 These philosophical considerations have inspired various legislative enactments related to the collective use of natural resources, sometimes considered as the common heritage of mankind. The underlying idea is to protect that heritage: ‘the most essential criteria of the concept are non-destructive – which includes peaceful use and good management in the interest of all mankind’.Footnote 94
For instance, the Antarctic Treaty was concluded to ensure demilitarization, as ‘it [was] in the interest of all mankind that Antarctica shall continue forever to be used exclusively for peaceful purposes and shall not become the scene or object of international discord’.Footnote 95 States finally reached a consensus and decided that it is to be used solely for scientific purposes.Footnote 96 Similar ideas may be found in other treaties, such as the United Nations Convention on the Law of the Sea (UNCLOS), which states that ‘[t]he Area and its resources are the common heritage of mankind’ and that activities in the Area shall be conducted for peaceful purposes for the benefit of mankind as a whole,Footnote 97 and the Agreement Governing the Activities of States on the Moon and Other Celestial Bodies, which provides that states’ exploration and use of the moon and celestial bodies shall be ‘for the benefit and in the interests of all countries’ and shall not cause harmful effects to the environment of the earth.Footnote 98 Some have raised the argument that the common heritage of mankind is not a concept limited to resources that cannot be appropriated by states, but extends to resources falling within national jurisdiction, thus including forests, as ‘the common heritage of humankind is the entire ecosystem of the Planet’.Footnote 99 This is reflected, for instance, in the Vienna Convention for the Protection of the Ozone Layer,Footnote 100 the Preamble to which stipulates that states maintain sovereignty over their natural resources, but are responsible ‘for ensuring the safety of activities within their jurisdiction or control, which would not harm the environment of other states or areas out of the national jurisdiction’.Footnote 101 The European Union (EU) has also adopted legislation to preserve the environment, including natural resources, as they are ‘an essential objective of general interest pursued by the [European] Community’ and a ‘common responsibility of all Member States’.Footnote 102 With regard to the protection of forests specifically, the Court of Justice of the EU (CJEU) found that Poland failed to fulfil its obligations under EU law because of its decision to authorize almost the ‘tripling of harvesting of timber in the Białowieża Forest District’, which ‘adversely affect[ed] the integrity’ of the site.Footnote 103
Although these treaties are applicable to states, their approach to the accepted use of collective properties by individuals could be used as judicial guidelines. For example, the Court could consider that individuals are to treat natural resources in a sustainable way, and refrain from acts that would cause harm to the environment. In that same spirit, acts of appropriation resulting in environmental damage would be considered to be against the interests of all nations – including those of the owners of the property – and a fortiori without their consent.
(4) Destruction of property and ‘property of the adversary’ requirement
Pursuant to the Elements of Crimes, ownership of the property must be established in order to determine whether acts of destruction of property were committed against property of the enemy.Footnote 104 Contrary to the developments related to pillage, the application of Senegalese law would not be conclusive with regard to destruction of property. This is because it provides that natural resources belong to the Senegalese people, who could not be considered per se as the enemy of each party to the conflict as the population as a whole is not involved in that conflict. It would therefore be difficult to argue that those involved in smuggling destroyed the property of their enemy. Doctrines related to public international law discussed by Stewart could be a better fit if a court were to prosecute members of an armed group for destruction of natural resources. However, they would be unhelpful in cases where members of the government are prosecuted for such acts, leaving an important gap to be filled.
The doctrine of permanent sovereignty over natural resources was recognized as a customary norm of international law by the International Court of Justice (ICJ) in the case Armed Activities on the Territory of the Congo.Footnote 105 Its implementation during periods of armed conflict nevertheless remains controversial. Judge Koroma affirmed in a Declaration that this right ‘remain[s] in effect at all times, including during armed conflict and during occupation’,Footnote 106 whereas the Court noted that it was not applicable in situations of ‘looting, pillage and exploitation of natural resources by members of the army of a State military intervening in another State’.Footnote 107 This doctrine, however, would be used only in particular scenarios, namely when ‘resources are appropriated from peoples who enjoy an unrealized right to self-determination’ and ‘if privately owned resources were expropriated by national decree’.Footnote 108
The last set of laws to offer a potential resolution of the question of ownership of natural resources relates to the recognition of governments and new states. Recognition by foreign countries would be relevant in determining who has authority over natural resources among various actors, including the state and an armed group.Footnote 109 Any recognition would obviously need to be substantiated by a claim from the armed group ‘to represent the national government or to secede from [it]’.Footnote 110 Nevertheless, the jurisprudence leaves little room for accepting that the seizure of natural resources by rebel groups on a territory under their control is lawful, even when they enacted legislation in this respect.Footnote 111 Some argue that the ICC should follow that jurisprudence to provide international standards that would be observed by national courts.Footnote 112
These two sets of laws could serve as tools for the ICC if it needs to determine whether destroyed natural resources belonged to the enemy of those prosecuted under Article 8(2)(e)(xii). However, their utility would be limited to scenarios where there is an armed conflict between a state and an armed group, and members of that armed group are prosecuted for destroying natural resources. Indeed, the co-application of (i) the doctrine of permanent sovereignty over natural resources and (ii) jurisprudence that refuses to ascribe any value to claims of ownership of natural resources coming from an armed group pretending to represent a government or having declared its independence suggests that natural resources will be considered the property of the state. In that respect, any acts of destruction of natural resources committed by members of a rebel group involved in a conflict with the state where those resources are located would be considered as falling within the scope of Article 8(2)(e)(xii) as the natural resources destroyed would belong to the armed group's enemy, namely the state. This condition would be met if members of the MFDC were prosecuted for the alleged logging and smuggling of rosewood timber in the situation under consideration, because the properties destroyed (forests in Casamance and rosewood trees) would be those of the MFDC's adversary, Senegal.
5. PROSECUTING ACTS OF MASSIVE DEFORESTATION COMMITTED IN THE CONTEXT OF A NON-INTERNATIONAL ARMED CONFLICT: A LEGAL GAP TO BE FILLED
Against this background, various attempts to make possible the prosecution of massive deforestation practices – and beyond that, the prosecution of environmental crimes in general – have been and are being discussed with a view to improving environmental protection and deterring the illegal exploitation or destruction of natural resources in times of peace as well as in times of war. To this end, some are advocating amendments to the Rome Statute to include ecocide as a fifth crime under the jurisdiction of the ICC, while others favour a more traditional approach with the negotiation of new international multilateral agreements.
5.1. Including Ecocide as a Fifth Crime under the Jurisdiction of the ICC
Since the 1970s and the Vietnam War, some authors have argued for the introduction of a new crime, namely the crime of ecocide, which could serve as a legal basis for the prosecution of a wide range of activities considered as particularly grave ‘environmental crimes’, or the adoption of a ‘law of ecocide’.Footnote 113
Initially, the debate concentrated on the definition of environmental crimes in times of war. Most of the focus was on the means and methods of warfare used, rather than the consequences of their usage on the natural environment.Footnote 114 This paved the way for the negotiation of the Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques (ENMOD Convention) in order to protect the environment in the event of armed conflict.Footnote 115 This agreement purports to prevent the use of the environment as a means of warfare, by prohibiting the deliberate manipulation of natural processes that could produce phenomena such as hurricanes, tidal waves or changes in the climate. In the same vein, Article 35(3) of the 1977 Additional Protocol I to the Geneva Conventions prohibited the employment of ‘methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment’.Footnote 116 As such, none of these regulations would contribute to filling the identified legal gaps that have been discussed in this article: in Casamance, forests are being used in the context of a non-international armed conflict rather than as a means of warfare for their intrinsic value as natural resources.
Discussions on ecocide and environmental crimes then developed progressively beyond the limited context of armed conflict, international or otherwise. In 1985 a UN commission even proposed broadening the definition of genocide to include cultural genocide or ‘ethnocide’ and ecocide as ‘an adverse alteration, often irreparable, to the environment – for example through nuclear explosions, chemical weapons, serious pollution and acid rain, or destruction of the rain forest – which threaten the existence of entire populations, whether deliberately or with criminal negligence’.Footnote 117 This suggestion failed to gather support and the definition of genocide has therefore remained untouched.
Over the last five to ten years, activists and academics from various countries, mostly European, have pushed strongly for reactivation of the debate. Their efforts are now bearing some fruit, particularly with the recent adoption of a draft definition of the crime of ecocide by a panel of experts in June 2021.Footnote 118 During the same period, the idea of criminalizing mass damage and destruction of ecosystems at the global level has been gaining momentum, starting with small island developing states such as Vanuatu and the Maldives and extending to the newly formed Belgian government. Despite the enthusiasm of civil society and the support of these states, the various substantial, procedural and diplomatic obstacles remain daunting and it seems unlikely that diplomats or scholars will reach a consensus on the definition of ecocide or achieve its inclusion in the Rome Statute in the foreseeable future.Footnote 119
5.2. Alternative Transnational Approaches
Given the difficulties attached to the negotiation of an amendment to the Rome Statute, some have argued that negotiating an entirely new international convention dedicated to ecocide would be the most efficient approach. This was the position supported by French Professor Laurent Neyret, who designed the ‘ecocide project’ with a team of journalists from Le Monde, and conducted a series of targeted investigations to uncover international environmental crimes, identify legal gaps and draft proposals in order to fill in the gaps. This resulted in the publication in 2015 of a comprehensive report containing 35 proposals to better prevent and sanction environmental crimes, including a draft International Convention on the Crime of Ecocide.Footnote 120
While there was no follow-up to this ecocide proposal, a similar approach was adopted by the International Law Commission (ILC) on the issue of environmental crimes in times of war, resulting in the adoption on 6 June 2019 of 28 draft principles on the protection of the environment in relation to an armed conflict.Footnote 121 These principles were transmitted to governments and international organizations – including the UN Environment Programme, the International Committee of the Red Cross, and the Environmental Law Institute – for their comments and observations to be submitted by 30 June 2021.Footnote 122 Some of the most interesting and novel aspects of these draft principles address issues at the intersection of armed conflicts, the environment, and private sector activities. Draft Principle 10, for example, encourages states to take measures aimed at ensuring that corporations and other business enterprises exercise due diligence with regard to the protection of the environment in times of conflict. Draft Principle 11 urges states to develop adequate procedures to ensure that corporations can be held liable for environmental harm.
As highlighted by that principle, corporate liability for environmental crimes such as mass deforestation – in times of both peace and war – is a burning issue. It could also be addressed as an amendment to the Rome StatuteFootnote 123 in a separate international or regional treaty.Footnote 124 An illustration of the latter may be found in the Protocol on Amendments to the Protocol on the Statute of the African Court of Justice and Human Rights (Malabo Protocol),Footnote 125 which, although not in force, contains a provision on corporate liability.Footnote 126 While it would definitely allow for the prosecution of the main actors in the exploitation, it would not resolve all issues. The requirement of ‘destruction of the enemy's property’ under Article 8(2)(e)(xii), for instance, would still be problematic as the corporate actors are usually not parties to the conflict, which makes it very difficult to identify ‘an enemy’ formally.
Interestingly, the drafters of the Malabo Protocol also included within the jurisdiction of the prospective African Court of Justice and Human Rights the crime of ‘illicit exploitation of natural resources’. This criminalizes a series of acts – such as ‘exploiting natural resources without any agreement with the State concerned’ and ‘exploitation of natural resources without complying with norms relating to the protection of the environment and the security of the people and the staff’ – when ‘they are of a serious nature affecting the stability of a state, region or the [African] Union’.Footnote 127 This innovative approach is particularly interesting because the application of the provision does not generate the issues identified above. As such practices may be prosecuted in times of peace and war, there is no requirement of a nexus with an armed conflict, and the provision does not necessitate the determination of the owners of the natural resources. Adopting a similar provision in the form of an amendment to the Rome Statute or in a separate treaty is thus worth considering, as it would overcome the challenges linked to the prosecution of the illicit exploitation of natural resources and mass deforestation practices as war crimes, and would give prosecutors a better chance to obtain the conviction of those involved in such activities.
6. CONCLUSION
The ineluctable conclusion to be drawn from the developments of this article is the current inadequacy of the Rome Statute as an effective legal basis for the prosecution as war crimes of acts of massive deforestation committed in the context of non-international armed conflicts. It is highly problematic that none of the laws mentioned in the section above enables a clear determination of the ownership of natural resources in a way that would be both protective of the forests and compatible with the requirements of Article 8(2)(e)(v) and (xii).
These findings do not apply solely to deforestation practices in the Casamance region; they equally concern situations where natural resources are exploited, such as in Colombia and the Democratic Republic of the Congo, as the issues related to the nexus between the acts and the armed conflict and those connected with the ownership of the natural resources would similarly arise.Footnote 128 The status quo gives illegal loggers and smugglers carte blanche to act with full impunity when national authorities fail to investigate and prosecute these practices. This occurs frequently, as national authorities are already preoccupied with other urgent and complicated questions such as disarmament.
As a consequence, the path towards finding an effective legal response to secure the prosecution of acts of massive deforestation committed in the context of a non-international armed conflict from an international criminal law perspective still seems lengthy. The ICC Rome Statute is an anthropocentric instrument; it was not designed to protect the environment but to protect humankind. Pending the concretization of amendments to the Rome Statute or the adoption of new treaties allowing for the prosecution of environmental crimes one may, however, be hopeful. In 2016 the ICC Office of the Prosecutor (OTP) adopted a policy paper in which it was announced that ‘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’.Footnote 129 While the most logical provision to be used as a basis for prosecution would be the complex Article 8(2)(b)(iv) mentioned in the introduction, legal creativity guided by the developments of the article remains an option, and ICC judges and the Prosecutor may decide to leave room for a flexible interpretation of Article 8(2)(e)(v) and (xii) of the Rome Statute.
