In a recent comment about the Nova Kakhovka Dam destruction here on Just Security, I suggested that the dam’s destruction was bound to reinforce calls for the International Criminal Court (ICC) to focus more on environmental crimes and would further energize the ecocide movement. It surely did. Since then, Ukrainian authorities have reportedly engaged the ICC, providing the Court with evidence on the dam’s destruction. Although the ICC Prosecutor has not issued any statement at the time of this writing, members of his team are reported to have taken active steps towards investigating the incident. Importantly, Ukrainian authorities have also opened their own investigation into the incident, with reference to the country’s own criminalization of “ecocide” set out in Article 441 of its criminal code.  

These are important developments which raise broader and more strategic questions about how to achieve more meaningful accountability for “ecocide” and other serious crimes against the natural environment. 

Reflecting that ICC adoption of the Independent Expert Panel (IEP) ecocide proposal is the main objective of the Stop Ecocide campaign, current debates about environmental justice tend to be framed around that objective (see, e.g., here and here). While some commentaries question the ICC’s capacity to meaningfully enforce a potential adoption of the IEP ecocide proposal, due to resource restraints or lack of technical capacity, or point to specific issues with the IEP’s definition of ecocide that make it hard to give effect to it at ICC level, still most (though admittedly not all – see, e.g., here and here) commentaries assume that expanding the ICC’s jurisdiction over environmental crimes is ultimately the best answer to our problem here. 

I question that assumption for two main reasons: 1) predominantly directing attention towards pushing for the ICC’s adoption of the IEP ecocide proposal could be disproportionate, perhaps even misplaced, because of the substantial challenges and risks associated with trying to adopt the proposal at ICC level, and – even if that ultimately does happen – the expected difficulties delivering meaningful accountability outcomes for ecocide and other serious environmental crime at ICC level; and 2) national legal systems are already quite responsive to – or perhaps rather, form part of – the ecocide “momentum,” as Darryl Robinson has explained here on Just Security

The Essence of The Norms-Adoption/Enforcement Paradox

The essence of “the norm adoption/enforcement paradox” is that many advocates and scholars alike, especially perhaps those with a background in international criminal law (ICL), appear to take for granted – almost as if it were a natural law – the superiority of the ICC system in the context of norm building, and, with it, the desirability of expanding criminalization at ICC level. That inclination, arguably, goes with a tendency for proponents of expanding the ICC’s jurisdiction for particular crimes or actors to sometimes submerge insights from critical ICL scholarship about the shortcomings of the ICC system in terms of its ability to actually enforce the relevant norms. 

In simpler terms, might the prospects of meaningful norms enforcement of ecocide at ICC level be disproportionate to the investments needed – and challenges associated with – norms-adoption, especially when other enforcement options seem quite promising?

Ecocide Norms-Adoption at ICC Level Will … Not Be Easy!

Ecocide proponents are quick to point to the various actors that appear to currently support the IEP proposal – and going by the public statements, that does indeed involve a broad and exceptionally quickly growing range of influential actors. Less rigorous analysis, in turn, has surrounded the questions of where likely opposition to expanding ICC jurisdiction over environmental crimes will come from, why, and with what possible consequences.

Despite the support and centrality that the ecocide proposal has recently achieved in ICL debates, some key stakeholders in the so-called “rules-based international order” (RBO) will expectably prove disinclined to ultimately support an amendment which, if adopted in its current form, would not just substantially expand the Court’s jurisdiction over environmental crimes – including to situations outside armed conflict – but also the type of actors that could potentially be subject to ICC jurisdiction. Such opposition may refer to a variety of reasons, but much of it will presumedly be grounded in a simple fact, namely that some key stakeholders ultimately prefer an ICC system that continues to focus on the type of crimes and actors that it has effectively prosecuted to date, namely “core atrocity crimes” committed in conflict situations in the global south (or crimes by States seen to operate outside – and to challenge – the RBO, such as Russia, although successful prosecutions are yet to materialize in such situations). This is a fact that, whether one likes it or not, needs to be taken into account in the debates about prosecuting ecocide!

The UK, a State normally exercising significant influence over treaty developments in ICL, is a case in point. Even if the British government’s opposition to the ecocide proposal appears at present to have not been stated in clear terms outwardly, the current government has made it clear that it is not planning to support it any time soon (though this could possibly change if the Labour Party comes to lead government). Should the UK and other like-minded States Parties keep up that understanding, this would almost certainly complicate the ICC Statute amendment process, a hugely complex one which creates a high bar for success – and necessarily involves compromises to balance different interests and demands. 

The United States, which despite not being a State Party exercises substantial influence on the ICC system and relevant ICL treaty developments, has so far remained generally quiet about the possible expansion of ICC environmental crimes jurisdiction, but the Biden administration appears to take a similar view to the UK, namely that the ICC should focus on its “core mission of serving as a court of last resort in punishing and deterring atrocity crimes.” It is worth here of course to keep in mind the United States’ generally fluctuating approach to the ICC which tends to turn from accommodating to not accommodating depending on whether perceived American interests are experienced to be advanced or not by ICC activity. 

So, whether one likes it or not, some key players will expectably oppose or – perhaps more realistically as the ecocide movement gains increased traction among many ICC State Parties – try to substantially water down an amendment process involving suggestions for significantly expanding ICC jurisdiction over environmental crimes. The latter option, involving some form of “compromise” solution which provides for more modest jurisdictional expansion, could – depending on how it looks and is being perceived – potentially be the biggest risk for environmental justice: How the ICC frames ecocide would serve as a reference point and could possibly lead some States to adopt less comprehensive ecocide legislation than what is currently the trend. 

Of course, the fact that there is resistance – and that more is to be expected if the IEP ecocide proposal is formally considered by the ICC’s governing body, the Assembly of States Parties – does not in by itself imply that the efforts should be put to rest. But it is a reflection that must be kept in mind when considering what the Court is likely to achieve if the IEP ecocide proposal was to be ultimately adopted in the ICC Statute – and what could potentially be achieved outside the ICC system.  

Ecocide Norms Enforcement at ICC Level Will … Also Not Be Easy!

The ICC’s adoption of the IEP ecocide proposal is seen by many of its supporters as important, not only because it would permit the ICC to increasingly focus on a specific category of crimes seen to be particularly worthwhile of attention, but also because it is seen to permit focus on a specific category of offenders that are deemed particularly important for the ICC to target, namely powerful elites in the global north. Darryl Robinson summarizes the mainstream perception among ecocide campaigners well:

Whereas one of the main criticisms of [ICL] today is that it often focuses disproportionately on persons in developing countries, proponents of ecocide observe that ecocidal acts are often committed by wealthy elites in the global North, whereas the harms are most commonly borne by persons in the South. Thus, it has been suggested that ecocide may help maintain a spotlight on crimes of the powerful and help to ‘decolonize’ international law.

These premises are in my view broadly accurate in terms of the current functioning of the ICC system, the structure of environmental crimes and existing accountability gaps for “the powerful.” However, expectations that the difficulties experienced at ICC level when challenging “the powerful” will be somehow miraculously cured by adding a new crime are, at best, optimistic. Logically, a jurisdictional expansion which permits increased focus on crimes that often involve powerful actors does not in by itself facilitate that “the powerful” are held to account. 

Whereas the potential ICC adoption of the IEP ecocide proposal could indeed create more space for focusing on crimes by powerful actors, including those aligned with countries in the RBO, technically there already is quite significant space for exactly that within the ICC’s legal framework. Torture and other forms of detainee abuse is a case in point. Although facts likely exist to bring claims for such crimes against powerful actors from the global north, it has proven hard to utilize this space in ways that produce actual accountability outcomes at ICC level for crimes by actors associated with Western powers (see here and here). The main challenge here is that the ICC tends to be ultimately pushed back, as Adam Branch and Liana Minkova phrase it, to “align with existing structures of global political and economic power instead of challenging those structures.” This is because the Court is perceived both by itself (see, e.g., here and here) and relevant States (see, e.g., here) to “belong” in the RBO. That central condition of its existence permits the Court to investigate environmental (and other) crimes by, for example Russia, but makes it a much more daunting task to challenge the interests of key players that position themselves in the RBO. 

I have seen no convincing explanation why we should believe these basic conditions of the ICC system would fundamentally change simply by virtue of making ecocide a crime under the ICC Statute.

So, if the expectation is that adding the “fifth international crime” of ecocide to the ICC Statute will enable the Court to prosecute the type of offenders most commonly associated in public opinion with ecocide – such as executives in large business enterprises operating out of global north countries, for example, involved in massive pollution or unlawful extraction of natural resources, or the political leaders who draw advantage from these and other types of environmental crimes (see, e.g., here, here, and here) – hopes could unfortunately likely be broken. 

What, then, could the ICC realistically achieve, and in what circumstances? 

Although only a very limited number of convictions have been achieved after more than 20 years of operation involving members of non-state armed groups in the global south (five such convictions as of June 2023), one could say that the ICC has demonstrated some level of efficiency as an enforcer of ICL norms in cases concerning members of non-state armed groups committing core atrocity crimes in conflict zones in the global south. It is by now well acknowledged that a key factor permitting accountability outcomes in such situations is that the territorial government is supportive of the ICC’s concrete efforts towards accountability for specific crimes and actors, and that major players in the RBO embrace – or at least do not oppose – these efforts (see, e.g., here, describing what happened with the Kenya investigation once that support vanished). 

But would ecocide campaigners be even remotely satisfied if the Court continues to produce successful accountability outcomes mainly for the same type of more marginal actors that it has successfully prosecuted to date? 

The symbolic or “expressive” value of making ecocide the fifth ICC crime – and any potential environmental crimes prosecutions before the Court – should not be understated. But the challenges that will expectedly be encountered trying to adopt and potentially enforce the ecocide norm at ICC level need to be at least acknowledged – and so does the potential of enforcement elsewhere.

What’s the Alternative?

These expected challenges at ICC level must be contrasted with the opportunities elsewhere. 

The work of the Stop Ecocide campaign has, as other commentators have recently pointed out here on Just Security, induced a large number of States to strengthen accountability frameworks for environmental crimes at the domestic level and may likely induce many more going forward. And that’s a significant achievement, even if, as Kevin Heller points out, the level of resemblance with the IEP proposal clearly varies and may in some cases be overstated. 

Arguably further displacing the need for an ICC “drop-down effect” that many proponents of adopting the proposal at ICC level emphasize, the EU’s new Environmental Crimes Directive, agreed to by the European Parliament earlier this year, would, if adopted, require EU Member States to criminalize much of the same conduct entailed in the IEP ecocide proposal. If that happens, it would be a significant achievement – and one which for a good part could be attributed to the efforts of the ecocide campaign.

And enforcement for crimes involving environmental harms, even with its challenges, do indeed look quite promising in strong national legal systems, as suggested by cases being brought in for example Switzerland and Sweden involving business representatives with alleged responsibility for serious crimes involving environmental harm in conflict zones abroad. 

Further, many States – unlike the ICC – now permit criminal prosecution of corporations as legal entities under certain circumstances, often including crimes committed outside their jurisdiction. Although existing practice concerning prosecution of corporate actors appears to have only rarely focused directly on environmental harm, some recent high-profile cases – for example, the one against LaFarge – have focused on crimes committed abroad by the type of large, multinational business enterprises that ecocide campaigners want to see held to account.

Domestic courts’ extraterritorial application of tort law presents another potentially rewarding accountability avenue for corporate actors’ responsibility for environmental crimes, as illustrated by recent practice from Canada and some European jurisdictions as well as the introduction of a bill in U.S. Congress which, if enacted, could open the door to extraterritorial environmental crimes litigation under the Alien Tort Statute (which has so far been difficult – see more about that here and here). The ecocide movement could conceivably help boost these and related developments in environmental justice, if the right strategies are deployed.

Taken together, national and regional legal foundations for advancing accountability for ecocide and other serious environmental crimes, including those with extraterritorial dimensions, have thus drastically improved in recent years – and seem bound to further expand in the years ahead. 

Just like the ICC, national legal systems regularly face pushback when attempting to give effect to accountability norms in situations involving powerful actors – most clearly perhaps demonstrated in the context of attempts to exercise universal jurisdiction over serious crimes by officials of major powers in the West (see, e.g., here and here). Yet, there are some examples at national level of relative success holding to account such actors, perhaps reflecting that governments, generally speaking, have less ability to resist accountability processes driven by national courts, compared to what is the case with international courts.

Against that backdrop, might the best bet for advocates be to focus on national legal systems to create more meaningful accountability for ecocide and other serious environmental crimes?

IMAGE: In an aerial view, residential districts in the flooded area of the city on June 8, 2023 in Kherson, Ukraine. (Photo by Yan Dobronosov/Global Images Ukraine via Getty Images)