Reparations in environmental cases: should the International Criminal Court consider the Inter-American Court of Human Rights’ jurisprudence?

Abstract

Abstract In a context where supranational courts order reparations in environmental cases, this article examines whether the International Criminal Court (ICC) should pay attention to the Inter-American Court of Human Rights (IACtHR) reparations jurisprudence in environmental cases. The ICC has yet to engage with environmental cases and order ensuing reparations. However, the ICC Statute contains an environmental war crime, ‘ecocide’ may be incorporated into it, and some ICC cases/ICC complaints involved environmental damages. This article examines constraints of a potential extrapolation of IACtHR’s reparation jurisprudence to the ICC’s reparations system in environmental cases: differences between IACtHR’s and ICC’s mandates, particularly their reparations systems; and potential backlash from states/other actors vis-à-vis ‘green’ reparations jurisprudence. This article also provides justifications for ICC/IACtHR cross-fertilization: international human rights law is embedded in ICC’s reparations law and practice, and need for a coherent international law of reparations in environmental cases across supranational courts. Through adapted cross-fertilization, the ICC’s reparations system should consider IACtHR’s reparations practice concerning environmental cases.