Prosecuting climate crimes as a matter of priority and general deterrence

Climate crimes are often intertwined with other serious international crimes. As a result of this link, as well through their impact on climate change, climate crimes may represent a threat to international peace and security and potentially affect all of humankind and the very foundations of civilization. Viewing climate crimes in this way should allow national and international authorities to prioritize the investigation and prosecution of these crimes.

For instance, although the International Criminal Court (ICC) cannot directly hear climate crimes, the Office of the Prosecutor of the ICC has stated - in its recent policy paper on case selection and prioritization - that war crimes, crimes against humanity or genocide committed through, or resulting in, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land warrant particular attention when selecting cases for investigation and prosecution before the ICC. The Office of the Prosecutor will also support national authorities who investigate and prosecute these crimes.

Targeting climate crimes through enforcement of existing national or international criminal law is an extremely efficient way to reduce global emissions because the political risk is minimal - it is already accepted that the climate damaging conduct in question is criminal and should not be occurring.

In addition, criminal prosecutions - and, more importantly still, the realistic threat of criminal prosecutions - have a unique ability to repress, disrupt and deter climate damaging conduct. This is because, unlike other legal mechanisms, human individuals can be held directly responsible, and thus may be liable for imprisonment or a significant personal fine. Nor do insurers cover prosecution related risks. Moreover, being linked to a criminal investigation and prosecution may cause devastating reputational damage for individuals and businesses, and directly impact on their ability to do business.

As a result of their general deterrent impact, criminal prosecutions are an effective means to trigger large-scale and lasting change. The targeted prosecution of a carefully selected sample of actors has a direct impact on the behaviour of a much larger pool of actors who operate under similar conditions. This is particularly true for business actors who generally take a rational approach to assessing risks and to considering those risks as part of their decision-making. This distinguishes criminal prosecution from other legal mechanisms, such as administrative enforcement or civil litigation, where the impact is largely limited to the specific subject of the enforcement or litigation.