The small island of Vanuatu in the South Pacific, radically introduced the crime of ecocide to the 18th Assembly of State Parties of the International Criminal Court (“ICC”) in December 2019. Vanuatu, along with the Maldives, firmly supported the consideration of ecocide as an international crime. Both island nations have long advocated in the past for voluntarily measures from both state and private actors to reduce the effects of climate change. But, with the severe threat of rising sea levels in their home countries and the immient threat of climate change, Vanuatu ambassador John Licht argued that “this radical idea [of ecocide] merits serious discussion.”
Since the Rome Statute, the document that created the ICC, entered into force in 2002, the court has only been able to hear a limited number of cases — that of war crimes, crimes against humanity, genocide, and in some cases, crimes of aggression. If the crime of ecocide were to be adopted by the court, it would be the first crime to be added to the courts jurisdiction that was not originally considered during the drafting of the Rome Statute.
Unsurprisingly, introducing a new crime to the court’s jurisdiction is not easy nor efficient. Lawyers are expected to complete the drafting of the law, defining the crime of ecocide, this spring. Once formally introduced by a member to the ICC, 50% of the ICC member states will need to approve it. Thereafter, a series of debates will interpret, and likely narrow, its definition until eventually adopted and ratified, potentially taking up to 5 years.
The ICC may already prosecute environmental crimes within the context of the crimes in which they already have jurisdiction. For example, destruction of the environment is already a recognized war crime. However, this may only be prosecuted when committed during periods of armed conflict and does not account for any environmental degradation that occurs during times of peace.
Some high profile advocates have already put their voices and political will behind the recognition of ecocide. The President of France, Emmanuel Macron announced the government’s support after more than 99% of the French citizens’ assembly voted to make ecocide a crime. The Belgium and Swedish governments have similarly introduced ecocide bills which would make ecocide a crime at the national level. Other actors in support of an ecocide crime at the ICC include Pope Francis, Greta Thunberg, and Malala Yousafzai.
What is Ecocide?
Polly Higgins, who died last year from cancer, was a British barrister who first came up with a definition of ecocide to be widely accepted. She defined ecocide as “extensive damage . . . to such an extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished.”
As lawyers gather to flesh out the definition before its introduction to the ICC, they will attempt to adopt language that will both garner political support and be robust enough to ensure prosecutions when necessary.
When adopting the definition of “genocide” in 1944, the crime was intended to prosecute individuals for the killing of a large number of people from a particular national, ethnic, racial, religious, or political group. But, when the drafting began, some countries, sensitive to their own histories, heightened the burden of genocide, making it necessary that the individual intend to kill with the aim of destroying that particular group. Today, most genocide trials result in a finding of not guilty given the high burden.
Will an Ecocide Crime Stop Ecocide?
The ICC was created to try the most responsible individual offenders of international atrocities. For ecocide, this is relevant because a corporation itself will not be able to be tried by the ICC, but rather a CEO might.
Trying a CEO may, but does not guarantee, that the corporate practice will stop. It is fair to consider whether, even if ecocide was adopted by the court, it would have any impact on individual and corporate behavior. The ICC is currently in a reputational crisis. A number of states have threatened to withdraw from the court, two having actually done so, and its trials, investigative choices, and procedures are consistently questioned. Adding a crime may be viewed as politically risky, when the ICC is still learning how to best prosecute the crimes under its current jurisdiction. Some member states may view the introduction of a new crimes as biting off more than the court can chew, risking its overall effectiveness and reputation.
However, environmental advocates stress that the adoption of ecocide into the court’s jurisdiction will have a a positive effect. First, it is believed that it will be a powerful deterrent against future environmental destruction. It should be noted however, that the ICC does not have universal territorial jurisdiction. Crimes of ecocide could only be investigated where they occur within the territory of member states or where crimes are committed by national of members states. This means, for example, because the United States is not a member to the ICC, any crimes of ecocide committed by a U.S. corporation in the U.S. would not fall within the ICC’s jurisdiction. However, the law can still be effective within the territory of the 123 other member states.
The law can also be beneficial in setting a legal precedent for individual countries to enact their own domestic laws against ecocide, while also being able to prosecute environmental crimes that fall outside of national jurisdiction. Specifically for developing countries that may not have the infrastructure to prosecute large, foreign corporations, the ICC can serve as a venue to hold perpetrators accountable.
Most significantly, the recognition of ecocide as an international crime would help spur a culture shift, putting the crime of ecocide on par with crimes against humanity, war crimes, and genocide, making ecocide morally repugnant and inexcusable.
Even the most enthusiastic of advocates know that ecocide will not be a cure-all in addressing climate change. But, they see it as one important step towards protecting the planet, one that not only holds individual accounts for environmental destruction, but also has trickle down effects in influencing national laws and creating a culture that rejects acts of ecocide.