Persecution. Another underlying crime against humanity potentially applicable to environmental harm is persecution under article 7(1)(h) and 7(2)(g) of the Rome Statute.317 Persecution is defined as the intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity committed “on political, racial, national, ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are universally recognized as impermissible under international law”.318 The persecution must be committed “in connection with any act referred to in this paragraph [article 7] or any crime within the jurisdiction of the Court.”319 Although it is debatable whether the right to a healthy environment is a fundamental right established under international law,320 the commission of serious environmental harm can
Persecution. The NMT judgments have had a particularly significant impact on the ICTY’s understanding of the crime against humanity of persecution. In Kupreškić, for example, Trial Chamber II relied on High Command and Ministries to hold that any of the acts listed in Article 5 of the ICTY Statute, such as murder and deportation, can also qualify as persecution when committed with discriminatory intent112; relied on the Justice case and Flick to hold that “lesser forms” of persecution not covered by Article 5, such as “attacks on political, social, and economic rights,” qualify as crimes 101 Xxxxxxx, Appeals Judgment, para. 123. 102 Korau v. Niger, Merits, ECW/CCJ/JUD/06/08, para. 79 (27 Oct. 2008). 103 Id. 104 Prosecutor x. Xxxxxx, IT-97-24-A, Judgment, para. 291 (22 Mar. 2006). 105 See Chapter IX. 106 Prosecutor v. Xxxxxxxxx & Xxxxxxxxxx, IT-98-34-A, Judgment, Separate and Partially Dissenting Opinion of Judge Xxxxxxxxx, para. 12 (3 May 2006). 107 Prosecutor v. Krnojelac, IT-97-25-T, Judgment, para. 109 (15 Mar. 2002). 108 Prosecutor v. Furundžija, IT-95-17/1-T, Judgment, para. 137 (10 Dec. 1998). 109 Xxxxxxxxx x. Xxxxxxxx, 198 F. Supp. 2d 1322, 1353 (N.D. Ga. 2002). 110 Xxxxxx Prison v. Peru, IAHCR Series C, no. 160, Merits, para. 402 (25 Nov. 2006). 111 Furundžija, Trial Judgment, para. 168; Xxxxxxxxx, 198 F. Supp. 2d at 1353. 112 Kupreškic, Trial Judgment, paras. 594-98. against humanity as long as they are “of an equal gravity” to the acts in Article 5113; and relied on the Justice case to hold that the gravity of lesser acts of persecution “must not be considered in isolation but examined in their context and weighed for their cumulative effect.”114 Similarly, in Kvočka, the Trial Chamber cited Ministries’ condemnation of persecutory acts such as excluding Jews from educational opportunities for the idea that “acts that are not inherently criminal may nonetheless become criminal and persecutorial if committed with discriminatory intent.”115 Those are all accurate citations. By contrast, in Xxxxx, the Trial Chamber cited Flick for the proposition that “offences against industrial property” cannot qualify as persecution even when committed with discriminatory intent.116 That is a correct reading of Flick – but it overlooks the fact that, as discussed in Chapter 10, both Ministries and Xxxx reached the opposite conclusion.117 The Appeals Chamber made an even more glaring mistake in Xxxxxxx when it used Flick to question whether the plunder of industrial or personal...
