Victims of Environmental Harm: Rights, Recognition and Redress under National and International Law

Author: Mathew Hall
Publisher: Abingdon, Oxon, UK; New York: Routledge, 2013. 216p.
Reviewer: Avi Brisman | March 2014

When Lynch (1990) first introduced the term “green criminology” to criminologists, he suggested that it might include:

(1) the study of crimes committed against humanity through environmental destruction; (2) the study of laws, treaties and movements designed to promote sound environmental practices that protect [against] the destruction of human, plant and animal life; (3) examinations of the successes and failures of governments and corporations to protect humans and animals from environmental hazards; (4) the study of specific governmental and corporate practices and social trends that destroy the environment and thereby threaten the survival of humans, animals and plants; (5) the study of reckless, negligent or willful destruction of humans and animals through misuse of [t]he environment or environmental [predation]; (6) examinations of the testing of chemical compounds, drugs, etc., on animal and human subjects and the production of commodities and chemicals that have negative effects on all forms of living organisms; and (7) the study of hunger and homelessness as the product of corporatism, individualism, greed, corruption, poor planning, overuse/poor use of land, excessive pesticide use, etc.

Lynch made clear that his list was not exhaustive and noted the contributions of scholars in other fields. For Lynch, the study of environmental harm and degradation would not be criminology’s alone, but criminology should not stand on the sidelines or sit in the bleachers. Criminologists—and especially critical criminologists—needed to maintain their commitment to exposing class biases in criminal law and the criminal justice system, while also broadening their gaze “to deal with a wider variety of class-related injustices that maintain an inequitable distribution of power while destroying human life, generating hunger, uprooting and poisoning the environment of all classes, peoples and animals.”

In the years since, criminologists have embraced Lynch’s challenge, identifying and exposing a wide range of environmental crimes and harms. For the most part, their focus has been on offenders and perpetrators of harm—what acts or omissions, by whom, where and on what scale, how, and, increasingly, to questions of why (see, e.g., Agnew 2012a, 2012b, 2013). Comparatively little has been written on the victims of environmental crime and harm.   

Matthew Hall’s thoughtful and insightful book, Victims of Environmental Harm: Rights, recognition and redress under national and international law, takes a big step towards filling the gap in the literature and rectifying the imbalance in scholarship. Combining Hall’s long-term interest in the legal position and rights of victims of crime and other social harms with the growing field of green criminology and the development of international environmental law, Victims of Environmental Harm: Rights, recognition and redress under national and international law considers who are the victims of environmental crimes and harms and how such victimization is often unequally distributed among the world’s populations. By contemplating issues of recognition, acknowledgment, participation, redress, compensation and restoration for victims of environmental crime and harm, the book provides the foundation for analysis of what are the impacts of environmental crime and harm and what is, could be, and should be done for the victims thereof.

Hall begins, in Chapter 1, “Victims, environmental harm and international law,” by setting forth the principal research questions addressed in his book:

1. “Can criminal justice play an effective role at the national and international levels in providing official recognition, support and redress for victims of environmental harm?”
2. “What are the limitations to current provisions for official recognition, support and redress for victims of environmental harm through criminal justice, both within individual jurisdictions domestically and at the international level?”
3. “What does an interdisciplinary approach (encompassing socio-legal analysis, criminology and victimology and international law teach us about how to effectively address these limitations?” (p.2)

Hall clarifies that his focus is on “victims of man-made environmental disasters as opposed to the ‘casualties’ (Williams, 1996) of natural catastrophes” and “human victims of man-made environmental degradation” (p.3; emphasis in original). While not insensitive to the fact that non-human animals, ecosystems and the biosphere can be and often are victims of environmental harm, Hall explains that by confining his discussion to human victims, he is able to situate his discussion “within a conception of environmental rights (as an extension of human social rights)”—and to examine how national and international criminal justice mechanisms respond to such human victims—as well as to tease out and highlight how “environmental victimization, like other forms of victimization, is an active social process” (p.3). Hall’s hope is to bring together the fields of international law and victimology on the grounds that “international environmental lawyers can benefit from the individual-based and agency-based discussion provided by the victimological literature (incorporating the people who, after all, constitute states), whereas victimologists can draw from the structural frameworks developed by international lawyers as a means of furthering official recognition and redress for victims of harms brought about by environmental degradation (and perhaps other harms)” (p.22).

Chapter 2, “Identifying and conceptualizing the victims of environmental harm,” presents a typology of the forms of harm environmental victims might experience, splitting environmental victimization into health impacts, economic impacts, social and cultural impacts, and impacts on security. Hall then considers “victims as offenders, offenders as victims”—“the substantial overlap which seems to exist between those prompted to commit criminal offences by environmental pressures and the victims of those pressures” (p.38)—before turning to a discussion of how the impacts of environmental degradation and climate change are distributed unequally among the world’s population. Given the book’s overall goal of determining how national and international law can be applied to a wider range of environmental victims, Hall concludes the chapter by offering a new conceptualization of those affected by environmental harms—victims of abuse of power under the United Nations’ 1985 Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power (the “1985 UN Declaration”).  

Whereas Chapters 1 and 2 set forth the theoretical basis for the consideration of victims of environmental harm by criminologists and victimologists, including arguments regarding the nature of such victims and such victimization, Chapter 3, “Environmental victims across jurisdictions: criminal law and state responsibility,” takes the next step: examining how such victims are acknowledged by and fit into national and international legal systems—something that Hall claims is “largely absent from the existing literatures in both international and national environmental law as well as in victimological critiques” (p.50). The first part of the chapter deals with the application of criminal law at the national and international level in relation to the victims of environmental harm, and includes a discussion of the challenges of incorporating environmental harms into criminal law, an overview of victims of environmental harm in various domestic criminal justice systems, a survey of victims of environmental harm in European criminal justice, an examination of the potential role of the 1985 UN Declaration and international law to include environmental victims, and an assessment of the prospects for the International Criminal Court. The second part of the chapter deals with the possibility of holding states accountable for environmental harm under international law because, as Hall explains, “it is states, not just corporations or individuals, that are ultimately responsible (or at least partly responsible) for a large portion of environmentally destructive activities and the subsequent harms they cause to individuals and ecosystems” (p.51; emphasis in original). Unfortunately, Hall claims, the potential for bringing environmental victims within the ambit of domestic, European and international criminal law is somewhat limited, and the difficulties of attributing legal responsibility to states for environmentally degrading activities—especially with respect to individual victims—are huge. Hall concludes: “Victims of more mainstream crimes have in the last three decades made enormous strides towards full recognition by legal systems both nationally and internationally. Those affected by environmental harm, however, seem to fall into a lacuna in which they are ignored. The options available to such victims are in fact remarkably narrow” (p.71). But the situation is not entirely hopeless. According to Hall, incorporating individual victims within national and international legal systems is far from unthinkable—and “[o]ne way to achieve this . . . is to look at the question from the perspective of the rights of environmental victims” (p.72)—which Hall turns to in Chapter 4.

In Chapter 4, “Human rights, victim rights, environmental rights?,” Hall discusses the advances in both victimology and international environmental law linking the plight of victims with wider human rights, drawing parallels between “the relatively recent moves to ascribe ‘rights’ to victims of crime more generally and recent developments within international legal scholarship concerning environmental harms” (p.73). Hall considers the prospect of individuals gaining redress from states for the impacts of environmental harms through a right to a clean, unpolluted environment, as well as the impact of the 1998 United Nations Economic Commission for Europe (UNECE), ‘Convention on Access to Information, Public Participation in Decision- making and Access to Justice in Environmental Matters’ (usually known as the “Aarhus Convention”) and the question of environmental victims’ participation in civil, criminal or administrative processes in which corporations, states or any other parties are held to account for the harms caused by polluting activities. Particularly compelling is Hall’s section entitled “Conceptualizing victims’ rights,” which demonstrates that the book, as a whole, is not just one about victims of environmental harm (and the limitations and potential of international environmental law and rights regimes), it is one that considers victims, more generally, as well as the operations of international law and rights regimes, more broadly.

Chapter 4’s examination of the application of human rights principles to victims as a whole in the victimological literature and specifically to victims of environmental harms demonstrates that both victimologists and international environmental lawyers face common difficulties in terms of the recognition of any such rights. But the difficulties are not identical, Hall points out at the end of the chapter: the key difficulty faced by victimologists is the lack of enforcement and redress mechanisms in traditional law for victims of crime, whereas for international environmental lawyers, the structure of international instruments does not recognize the needs of or harm to individuals.

Chapter 5, “Responding to environmental victimization: compensation, restitution and redress,” concerns itself not with the place and recognition of victims of environmental harm in criminal, administrative or civil proceedings at the national and international level, which was the orientation of previous chapters, but with the question of what provisions exist for restitution and/or compensation for victims of environmental harm, with a specific focus on environmental crime, at national and international levels. In particular, the chapter compares the different avenues of compensation and restitution available to victims of environmental harm—both in theory and in practice—emphasizing awards received from their own state and other states. Hall begins with a section devoted to the questions of what do victims of environmental crime want and what do they need. With this backdrop—although Hall admits the lack of empirical evidence to answer these questions—he turns to an evaluation of the various mechanisms for providing redress. After assessing redress through criminal justice mechanisms (including restitution as part of sentencing for environmental crimes and state-based criminal compensation systems), administrative compensation schemes, and civil resolutions and “toxic torts,” as well as developments at the international level with respect to compensation and restitution to victims of environmental harm, Hall turns to the possibility of restorative options (“environmental mediation” and “environmental alternative dispute resolution”). Because, Hall concludes, none of the systems are particularly well adapted to offering redress mechanisms for environmental victims, he offers a potential way forward that combines criminal and administrative resolutions in an effort to correct inequalities between the redress mechanisms available to victims of different socio-economic nationalities.  

Chapter 6, “Mapping out a green victimology,” returns to the research questions posed in Chapter 1. Marshaling the evidence from the previous chapters, Hall argues that while most criminal justice systems across the world are not geared to deal effectively with the type of “mass victimizations” that are often a feature of environmental offending and that while “any encouragement of a greater role for criminal justice in matters of environmental degradation might well have a net-widening effect, bringing more people and corporations within the scope of criminal justice (and state control) than ever before” (p.133), the engagement of criminal justice systems with environmental harm—and with environmental victimization—is vital. Hall reasons that incorporating environmental victimization within the context of the criminal justice system will increase compliance with existing environmental laws, increase the effectiveness of investigation of environmental offenses, render protection of the environment a greater deterrent for would-be polluters, grant important symbolic benefits to victims from having their victimization acknowledged by a criminal court as opposed to an administrative body or civil court, and further incorporate victims of environmental crimes into the justice system, thereby helping to improve overall enforceability of relevant laws.

Hall then turns to the second research question: what are the limitations of current provisions for environmental victims? Again, Hall reviews the evidence and debates from previous chapters (especially Chapters 1, 3 and 5) to conclude that the limitations presently impeding the development of greater official recognition, support and redress for victims of environmental harm through criminal justice are not insurmountable, but that “the complexity and scope of the relevant issues are too wide for lawyers, criminologists or victimologists to fully address in isolation from each other” (p.140).

Hall’s answer to the second question provides a fine segue to his third research question: what does an interdisciplinary approach teach us about how to effectively address the limitations of current provisions for environmental victims? Hall makes a general point about the benefit of interdisciplinary approaches to the understanding of any given subject of research, before reviewing his arguments concerning the importance of an interdisciplinary approach for recognition of environmental victimization within criminal justice. Concluding that at present, “the literature from both victimologists and legal fields has failed to make even limited inroads into addressing environmental harm from a truly interdisciplinary perspective, to their mutual disadvantage” (p.144), Hall ends his book by offering a roadmap for the continuing development of interdisciplinary academic study in what he terms “green victimology,” which includes the following themes: the need for a critical approach to green victimology; the significance of culture to this study; a sensitivity to the heterogeneous nature of environmental victims; the symbolic character of environmental harm and justice mechanisms; and the importance of the human rights perspective.

As an advocate of interdisciplinary approaches and arguments that call for fields to adapt their existing assumptions, orientation and methodologies in light of the insights provided by other fields, I have a particular fondness for Victims of Environmental Harm: Rights, recognition and redress under national and international law and wholeheartedly endorse Hall’s position that victimologists and international (environmental) lawyers have much to learn from one another. I also very much appreciate the care Hall took to define key concepts and terms (e.g., “environmental victims” and “traditional victims” (p.3-4); “environmental degradation” (p.4); “conservation criminology” (p.6-7); “compensation,” “restitution,” and “redress” (p.97); “restorative” (p.123); “green victimology” (p.144); “inter-disciplinary” versus “multi-disciplinary” (p.157 n.38))—an effort that shares common ground with another excellent recent book—Rob White’s Environmental Harm: An Eco-Justice Perspective—and which exponentially increases the accessibility of the book.

Were I to have any criticisms of Victims of Environmental Harm: Rights, recognition and redress under national and international law, they would be the truncated discussion of standing in U.S. environmental law, which is often a huge obstacle for victims of environmental harm in the United States, as well as the inattention to individuals suffering harm and injury from oil spill cleanup activities (see, e.g., D’Andrea and Reddy 2013). But these are minor matters that Hall could easily address in future work and which do not at all detract from the overall significance of the book.

Since Lynch (1990), criminological study of environmental degradation and its resulting harms has grown remarkably. While this may be welcome news to a planet in pain, it also signifies that environmental conditions have continued to deteriorate. Given that change does not appear to be in sight, the goal of criminologists (especially green criminologists) and international lawyers (especially international environmental lawyers) must be to ensure that the perspectives, views and needs of environmental victims not be ignored. Matthew Hall has boldly started to lead the way. It is up to us to join him.

References:

Agnew, Robert. 2012a. Dire forecast: A theoretical model of the impact of climate change on crime. Theoretical Criminology 16(1): 21-42.

Agnew, Robert. 2012b. It’s the End of the World as We Know It: The Advance of Climate Change from a Criminological Perspective. In Climate Change from a Criminological Perspective, Rob White, ed. Pp. 13-25. New York: Springer.

Agnew, Robert. 2013. The ordinary acts that contribute to ecocide: A criminological analysis. In Routledge International Handbook of Green Criminology, Nigel South and Avi Brisman, eds. Pp. 58-72. London and New York: Routledge.

D’Andrea, Mark A., and G. Kesava Reddy. 2013. Health Consequences among Subjects Involved in Gulf Oil Spill Clean-up Activities. The American Journal of Medicine 126(11) [November]: 966-74.

Lynch, Michael J. 1990. The greening of criminology: A perspective on the 1990s. Critical Criminologist 2(3): 3–4, 11–12.

White, Rob. 2013. Environmental Harm: An Eco-Justice Perspective. Bristol, UK: Policy Press.

Williams, Christopher. 1996. An Environmental Victimology. Social Science 23(1): 16-40.

Avi Brisman, MFA, JD, PhD, Assistant Professor, School of Justice Studies, Eastern Kentucky University, avi.brisman@eku.edu