With the increasing urgency of the global climate crisis, a growing number of States and other stakeholders – including parliamentarians, corporate investors, global youth, the United Nations Secretary General and others – believe that ecocide should also be defined as a crime under international law, alongside genocide, crimes against humanity, war crimes, and the crime of aggression. The relevance of ecocide as the fifth crime will be discussed at an official side event at the Assembly of States Parties to the Rome Statute of the International Criminal Court this week.
Support from the UN Special Rapporteur on Human Rights in the Context of Climate Change
In his first-ever report to the U.N. General Assembly in October, the U.N. Special Rapporteur on human rights in the context of climate change has added his voice to this call. The position was established by the U.N. Human Rights Council in October 2021 and Ian Fry was appointed in March 2022. The creation of this new position reflects the growing importance of climate change in the international law space. The special rapporteur is tasked with recommending ways to address and prevent the adverse effects of climate change on human rights, and to integrate human rights concerns into climate policymaking and legislation.
In the first months of his mandate, the special rapporteur voiced alarm at the “catastrophically inadequate response” by States that have failed to meaningfully reduce their greenhouse gas emissions in the face of the “largest, most pervasive threat to the natural environment and human societies the world has ever experienced.” His October report to the General Assembly presses States to eliminate the use of fossil fuels, address the funding gap on loss and damage, and protect the rights of indigenous and environmental human rights defenders. The report highlights the human rights responsibilities of government decision-makers and businesses, and underscores the need for accountability for climate impact-related human rights violations.
The special rapporteur also urges States to recommend that the ICC include an indictable offense of ecocide.
UN General Assembly
The existential threat posed by human-induced climate change and environmental destruction is already squarely on the agenda of the General Assembly. In a landmark resolution in July, the General Assembly recognized the universal right to a clean, healthy, and sustainable environment for the first time and called upon States, businesses, and others to scale up efforts in this regard.
And in September, at the General Assembly high-level general debate, the secretary general referred to the ongoing “suicidal war against nature” and called for greater accountability for the moral and economic injustices of the climate crisis.
Yet most serious environmental damage is not covered under existing definitions of international crimes. The special rapporteur’s support for the establishment of a crime of ecocide under the ICC jurisdiction reflects the need to address this accountability gap for the most serious harms to the environment. His endorsement may be an important trigger to mobilize further support for an enforceable criminal law deterrent to environmental destruction.
State Support for an International Crime of Ecocide
In his statement to the General Assembly in September, the president of Vanuatu called on all States to “join the group of nations” in favor of recognition of an ICC crime of ecocide. His statement suggested there is some momentum towards this end. Other climate change-affected countries, including the Maldives, have expressed their support for an ICC crime of ecocide, noting that the ICC “has the capacity to contribute to the drastic changes in behavior that are needed to meet the Paris Agreement goals.” In Belgium, the Federal Parliament adopted a resolution in December 2021 in favor of criminalizing ecocide under both national and international law. Following a feasibility report by a commission of experts, the Belgian government announced in November that it intends to incorporate ecocide into its criminal code. The European Parliament has encouraged the European Union and its member States to promote the recognition of ecocide as an international crime under the Rome Statute and requested the European Commission to study the relevance of ecocide to EU law and diplomacy. The European Law Institute, meanwhile, is engaged in a project for the drafting of a model law for the EU to criminalize ecocide.
Criminalizing Ecocide at the ICC: Challenges and Implications
Interest in the criminalization of ecocide has been steadily growing since the Independent Panel of Experts released its proposed definition of the crime in June 2021. The panel was convened by the Stop Ecocide Foundation and composed of a diverse group of international lawyers headed by Philippe Sands and Dior Fall Sow and included one author of this piece. The panel drew on previous work in the area as well as developments in international criminal and environmental law. In their proposal, ecocide is defined 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.” It would be a stand-alone crime, joining genocide, crimes against humanity, war crimes, and the crime of aggression as the fifth crime in the Statute of the ICC (the Rome Statute).
Using the ICC system to prosecute ecocide has advantages and disadvantages. Commentators have pointed out that while sectors such as the oil and gas industry are among the most responsible for environmental destruction and climate change, only individuals can be charged with crimes under the ICC Statute. While senior corporate executives could be prosecuted if their actions amounted to ecocide, some argue that this might lead to scapegoating of individuals rather than the more structural changes that would be needed to remedy the most damaging business practices. At the same time, the risk of individual criminal responsibility might have a significant impact on boardroom decision-making.
Another obvious limitation of the ICC system is its less than global membership. One hundred and twenty-three States have accepted the jurisdiction of the court. Notable polluters who are not members of the ICC include the top world’s top four offenders: China, the United States, India, and Russia. However, the transboundary nature of much environmental harm could open up jurisdiction over acts whose effects manifest on the territory of States parties even if the decision triggering those effects is taken elsewhere. The nationality of the perpetrator is also relevant: a Canadian CEO of an Indian company, for example, would fall under the jurisdiction of the court as a national of an ICC member State.
One clear advantage of inserting a new crime into the Rome Statute is simply that the ICC already exists. Other alternatives on an international level, such as establishing a new international court for environmental crimes or producing a separate international treaty, would be welcome but costly and likely harder to get off the ground. Nonetheless, some commentators point out that the Court is already struggling with the crimes currently under its jurisdiction. The ICC can only deal with a small number of the gravest international crimes and is well-known to be overburdened.
A response might be that the credibility and survival of the Court depend on it being seen to confront the gravest threats that we face, and this surely includes the destruction of our shared home. The inclusion of the crime of ecocide in the Rome Statute could increase the Court’s relevance and improve its reputation, not least by helping it deal with the accusation that its investigations have skewed disproportionately towards Africa and the global south. Certainly the expressive value of including ecocide in the ICC statute – thus making ecocide among “the most serious crimes of concern to the international community as a whole” – should not be overlooked.
For ecocide to be included in the statute of the ICC, a State party must formally propose the amendment. It is too late for such an amendment to be discussed at this year’s annual meeting of the court, which is currently underway, as proposals must be put three months in advance. December 2023 might be a realistic target.
To be considered, the proposal must be supported by a simple majority of states present and voting. Under Article 121, a final proposal needs the support of two-thirds of states parties to be adopted. Once in the Statute, the crime can only be prosecuted if it is committed on the territory or by a national of a state which has specifically accepted it: the jurisdiction is not automatic.
Lessons from previous amendments are hard to draw. The activation of the Rome Statute’s fourth crime, the crime of aggression, was a long and slow process. But ecocide is categorically different if only because it deals with a global crisis which is both accelerating and existential. Time is of the essence.
Today, there is a clear appetite for legal avenues to address environmental destruction and climate change. In his report, the U.N. special rapporteur recommends the introduction of the crime of ecocide at the ICC. He also calls for the establishment of tribunals to prosecute violence against environmental defenders, and to hold governments accountable for the impacts of ongoing fossil fuel investment. Groups of States led by Vanuatu and by Antigua and Barbuda and Tuvalu, respectively, plan to request advisory opinions from the International Court of Justice and the International Tribunal on the Law of the Sea on State obligations in the face of climate change. Climate litigation cases have spiked at regional and domestic levels, giving courts an important role in addressing the climate crisis. Against this backdrop, the creation of an international crime of ecocide is increasingly realistic.
Meanwhile, the conversation about the crime is already having an impact. Insurers and investors are taking note. Businesses want to know what the implications will be for them. Irrespective of when ecocide enters the Rome Statute, the proposal to criminalize mass damage to the environment is, in itself, likely to influence the behavior of government and corporate decision-makers in positive ways. In light of the urgency of the climate crisis, this momentum is welcome – and, indeed, long overdue.