Breaking new ground: Investigating and prosecuting land grabbing as an international crime

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Peter A. Allard School of Law, University of British Columbia | Februrary 2018

Breaking new ground: Investigating and prosecuting land grabbing as an international crime 

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Executive Summary
 
Since 2000, governments, financial investors, and national and transnational corporate actors have been involved in land deals covering over 38.9 million hectares of land in developing countries – an area greater in size than Germany. Conservative estimates suggest that over 12 million people have lost their incomes as a result of the recent land rush – more than a third of the number of people internally displaced due to conflict and a quarter of the number of migrations induced by natural hazards in 2012. In Cambodia alone, an estimated 830,000 people have been affected by land grabbing since 2000, including over 60,000 additional victims in an eighteen-month period beginning in early 2014.
 
Although some of these land deals occur peacefully and within the bounds of the law, many do
not, constituting illegal “land grabs” in violation of international law. Within that context, land grabbing for natural resource exploitation has emerged as a rampant global human rights issue, threatening food security and livelihoods and often resulting in forced eviction and transfer, environmental degradation, and even murder and other forms of physical violence. Vulnerable and marginalized populations – in particular, impoverished communities, women and children, indigenous populations, and ethnic minorities – are especially susceptible, and often lack the resources or knowledge required to exercise their rights. Multinational corporations (“MNCs”), international institutions, national and regional governments, and local business elites have all been implicated in various land grabs around the world.

Accordingly, in a September 2016 policy paper on case selection, the Office of the Prosecutor (“OTP” or “the Office”) of the International Criminal Court (“ICC” or “the Court”) stated that it would  consider giving special consideration to Rome Statute crimes committed by means of (or resulting in) illegal dispossession of land, exploitation of natural resources, and environmental destruction. Driven by this novel policy direction, Breaking New Ground (“this manual”) aims to assist international investigative bodies, prosecutors, and judges in evaluating the international law prohibiting serious land grabs as crimes against humanity. It provides a factual overview of the scope of the problem and its impacts, briefly examining land grabs occurring in Papua New Guinea (“PNG”), Brazil, Myanmar, and Cambodia. It then proceeds to lay out the steps to prosecuting land grabbing as a crime against humanity under the Rome Statute.

Specifically, this manual examines the law surrounding the crime of forced transfer and other land grabbing-related crimes, surveying ICC jurisprudence, as well as caselaw from other influential international tribunals (the International Criminal Tribunal for the former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (“ICTR”) and regional courts, including the European Court of Human Rights, the African Court of Human and Peoples’ Rights, and the Inter-American Court of Human Rights. It explores, in depth, various hurdles to jurisdiction and admissibility, possible defendants and modes of liability, and other elements of a land grabbing action under international criminal law –including the issue of corporate accountability and challenges with respect to bringing corporate executives or the corporate entity itself before the ICC.

In short, Breaking New Ground seeks to guide investigative bodies, judges, and prosecutors
engaged with the factual and legal dimensions of land grabbing, as well as advocates, political
institutions, and companies working to curb this phenomenon. By prosecuting even a few of the most serious instances of the crimes arising from land acquisitions, the ICC can send a strong message to corporations and governments, deterring future violation and beginning to bring justice to victims of illegitimate land seizures. Consistent with the Rome Statute’s affirmation that “the most serious crimes of concern to the international community as a whole must not go unpunished,” ongoing impunity should no longer be tolerated for crimes against humanity arising in connection with land grabbing. 
Original source: UBC
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