27 May 2022 – by Mary Rizk
On 22 June 2021, an international expert drafting panel commissioned by the Stop Ecocide Foundation shared its proposal for a fifth crime under the Rome Statute of the International Criminal Court (ICC). After approximately a year of negotiations, the new legal definition for the term “ecocide” emerged and was highly praised by a number of environmentalists. However, many are concerned about how the crime of ecocide could be prosecuted in practice.
The New Proposed Definition
The panel of international lawyers defined ecocide as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts”. If the introduction of this definition is welcomed and the efforts to criminalise ecocide are successful, the ICC would effectively be able to hold accountable those responsible for major ecological harms, such as governments and corporations.
The panel described “wanton” to mean: “reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated” and “severe” as: “damage which involves very serious adverse changes, disruption, or harm to any element of the environment, including grave impacts on human life or natural, cultural, or economic resources”. According to Phillipe Sands, who co-chaired the expert panel, the definition catches “the most egregious acts”, such as major oil spills and transboundary nuclear accidents.
The History of Ecocide
The battle for the recognition of ecocide as an international crime has been a lengthy and challenging process.
The term ecocide was first used in the 1970s, particularly in relation to whether the US was creating an ecocide in Vietnam during the war. In 1970, when speaking at the Conference on War and National Responsibility, Professor Arthur W. Galston suggested that there should be “a new international agreement to ban ecocide”. In 1972, at the United Nations (UN) Conference on the Human Environment, Swedish Prime Minister Olof Palme explicitly described the Vietnam War as an “ecocide”. In 1985, the concept of ecocide resurfaced with a failed attempt to add ecocide to the Genocide Convention. Furthermore, the UN’s International Law Commission decided not to include “environmental crime” as an independent crime in its Code of Crimes against the Peace and Security of Mankind.
In 2016, there was a shift in focus for the ICC, mainly in response to criticism for its unwillingness to investigate major environmental crimes at the time. The ICC’s Office of the Prosecutor, under former ICC Prosecutor Fatou Bensouda, published a policy paper which stated that the ICC would “prioritise” the prosecution of governments and individuals for environmental crimes, such as illegal exploitation of natural resources and land-grabbing.
Challenges in Applying the Ecocide Term
The ICC only has jurisdiction over natural persons, so it does not have jurisdiction to investigate and prosecute corporations. Therefore, where there has been alleged corporate involvement in ecocide, a corporation itself cannot stand before the court because (legally speaking) it is not a natural person. A further hurdle would be which of its corporate officers would be held accountable for the alleged crime of ecocide.
Additionally, a member of the expert panel, Christina Voigt stated that regardless of the exact wording to be adopted by State Parties, altering the Rome Statute to include the crime of ecocide will not be an easy accomplishment. Voigt notes that there will be difficulty in building broader political support and global cooperation around the definition. Thus, it appears that formulating a legal definition is just the first step: a member state needs to propose it to the ICC, thereafter it would need to be approved by a majority of ICC States. If the law is adopted into the Statute, harming nature or the planet will start to feel similar to harming humans. Nonetheless, the process of debating the definition will most likely take numerous years, while some argue it could take decades.
States such as France, Belgium, and Canada have voiced their support for ecocide to be recognised as a crime. However, it is important to note that the world’s top polluters, such as the United States, China, and India, are not members of the ICC.
The ICC is an autonomous and permanent court, established to investigate, prosecute, and try individuals accused of committing the most serious crimes of concern to the international community – namely genocide, crimes against humanity, war crimes, and the crime of aggression. The ICC does not replace national criminal justice systems, it complements them. It can investigate and, where warranted, prosecute and try individuals as a “last resort”, for instance, where proceedings are unduly delayed.
The proposed definition could be a historical development for the entire world as environmental damage is growing dramatically. The existence of “ecocide” will amplify the issue of the environment. If ecocide were to be recognised in international law, corporations, as well as governments, would be held responsible for environmental damage. They would be forced to take the issue seriously and would not escape the consequences without punishment. Immediate action should be taken by including “ecocide” as the fifth international crime against peace.
Did you enjoy reading this piece? Then read our article on why the UK Parliament considered joining an independent expert panel in recommending ‘Ecocide’ as a new crime for ICC.
Mary Rizk is currently undertaking the Bar Professional Training Course at BPP Law School. She holds an LLM from Queen Mary, University of London. Mary has a particular interest in international human rights, criminal, and social justice issues.
