A drafting panel of 12 legal experts from across legal jurisdictions released this week a “historic” proposal for a legal definition of “ecocide”, which could inspire new environmental legislation and liability regimes.
The announcement marks the culmination of years of progress on pushing legal imagination to contemplate the crime of ecocide, which would punish the most serious offenses against the environment.
The new definition is only a draft, but States can now consider its language and pursue it at international fora, particularly the Assembly of States Parties of the International Criminal Court.
An outcome of six months of work, the proposal defines ecocide as an additional crime under Article 5 of the Rome Statute of the International Criminal Court (the current four crimes are genocide, crimes against humanity, war crimes and the crime of aggression).
This new definition is urgent in the context of the current environmental collapse, explained Valérie Cabanes, international jurist and human rights expert (France) and member of the Expert Drafting Panel commissioned by the Stop Ecocide Foundation.
“By destroying the ecosystems on which we depend, we are destroying the foundations of our civilization and mortgaging the living conditions of all future generations. This is no less serious than war crimes, crimes against humanity, or the crimes of genocide or aggression,” Cabanes said in the press release by the Stop Ecocide Foundation this week.
The panel proposed that primarily, Article 5(1) of the Rome Statute be amended to include the fifth crime of “ecocide”. This crime 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.”
Professor Alex Whiting of Harvard Law School, another member of the expert drafting panel, explained through the press release that this initial definition is only a “first step on a path of discussion, debate, and, one day, ratification.”
“The hope is that the process will energize states to think about how to use international criminal law to target the most grave environmental crimes, while at the same time deploying domestic criminal and regulatory law to address a broad range of environmental harms that threaten our planet,” Whiting added.
Is this new?
Some previous efforts have also proposed their own definitions for “ecocide”. In 2010, the environmental lawyer Polly Higgins, submitted a proposal to the United Nations Law Commission to define the crime.
Her proposal defined “ecocide” as “extensive damage to, destruction of or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.”
Several legal experts have proposed varying definitions and proposed amendments to international criminal law to include the crime of ecocide over the years. What makes the drafting panel’s definition significant is not because it is the first, rather it is a culmination of years of progress on pushing legal imagination to contemplate the crime of ecocide.
The definition also comes at a time of increased backing for the criminalisation of ecocide, with 20 nations and the European Union having already expressed their support only in the past two years. Back in 2019, the island nation of Vanuatu called for the Assembly to consider amending the Statute to include ecocide as an international crime.
The last time a crime was added to the Rome Statute, the crime of ‘aggression,’ it was in 2010, seven years after the initial proposal. It is likely however, that given the existing support of States Parties, the inclusion of ecocide may proceed at a faster pace.
How does this affect international criminal law?
Currently, the definition has no binding value or acceptance as is. However, what it does is open a space for conversation among governments, civil society, legal experts and the general public on how to codify the crime of ecocide.
There are 123 States Parties to the Statute, and they constitute the Assembly of States Parties. Under Article 121 of the Rome Statute, any of these Parties may propose amendments to its text, which must be first submitted to the Secretary-General of the United Nations, who then circulates it to the other States Parties.
Any definition would see significant debate at the Assembly. The current definition provides Parties with a foundation on which to further their political will within international law.
If Parties do succeed in amending the Statute, the ICC may then exercise jurisdiction over cases of ecocide if they have been referred to the Prosecutor by a State Party, by the Security Council or by investigations initiated on their own by the Prosecutor based on information received.
So the cases referred to the ICC would still be limited by these constraints, especially by the membership of States Parties. For instance, the United States and India are both not Parties to the ICC, so cases of ecocide committed within their jurisdictions would not necessarily attract the jurisdiction of the ICC.
Beyond jurisdiction, there is also the issue of admissibility. Among other things, a case can be determined to be inadmissible if “it is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is unwilling or unable genuinely to carry out the investigation or prosecution” or if it “has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute.”
An important implication of the admissibility requirements of the ICC then is that if ecocide were to become part of the Statute, States Parties would have to introduce legislation and institutional infrastructure to provide willingness and ability to prosecute those accused of ecocide domestically, if they do not wish those individuals to tried directly at the ICC.
Who can be held responsible?
The words in the definition have been carefully chosen and further defined, so there’s a broad scope of environmental damages to be considered within the legal ambit of ecocide.
For example, it defines the term “wanton” as “reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated.”
By “widespread” damage, they mean “damage which extends beyond a limited geographic area, crosses state boundaries, or is suffered by an entire ecosystem or species or a large number of human beings.”
Carbon emissions that result in climate change would seemingly be placed squarely within the scope of these definitions.
However, one of the core general principles of law under the Statute include the principle of “Non-retroactivity ratione personae,” under which no one “shall be criminally responsible under this Statute for conduct prior to the entry into force of the Statute.”
Therefore, even if the crime of ecocide were to be included, it would take extremely skilled evidence gathering and prosecution to prove causation and then establish guilt for ecocide if committed prior to the amendment, if at all.
Another crucial aspect of criminal prosecution of ecocide would be the identity of the accused. The ICC follows the general principle of “individual criminal responsibility” under which it only has jurisdiction over “natural persons”.
Ecocide, as a crime, is particularly tenuous with respect to this principle. In most cases, ecocide would not be committed by a single individual, but largely by States or corporations which are both artificial or legal persons.
Because of this, it will be important to clarify who within artificial legal persons could be held liable. This, in turn, will be a mammoth undertaking in international law-making.
Further, there is also the question of intention or ‘mens rea’, a requirement under criminal law to establish guilt and liability.
The language in the Rome Statute under Article 30 makes it clear that “a person has intent where … that person means to cause that consequence or is aware that it will occur in the ordinary course of events.”
When talking about ecocide, the panel said that, based on previous decisions, this language refers to “an awareness of a near certainty that the consequences will occur.”
The panel has proposed that in order to establish guilt for ecocide, a requirement for “recklessness” should be introduced, where actions would require “awareness of a substantial likelihood of severe and either widespread or long-term damage.”
However, it remains to be seen how individual responsibility of officers or decision-makers within corporations and States would be implicated under the definition, while also maintaining the individual criminal responsibility principle under the ICC.
What happens next?
In the past few years, domestic courts have increasingly held governments liable for their failure to take adequate steps to meet their climate targets under the Paris Agreement.
In this context, international environmental law is having domestic legal impacts through legislation, litigation and civil society participation.
As international environmental law also becomes an advocacy tool, the attempt to include ecocide within the Statute could give way to new liability regimes for environmental harm.
This could also help victims of environmental harm to seek new remedies under criminal law, and lead to deterrence among perpetrators of ecocide, which ultimately is one of the core goals of criminal law.
*Mrinalini Shinde, B.A., LL.B. (Hons.), M.Sc. is a lecturer of International Environmental Law and Project Manager at the Environmental Law Center, University of Cologne. Her doctoral research focuses on corporate liability and environmental crime. She is also Vice-Chair of the Board of Directors at Student Energy. She previously worked as a lawyer at the UNFCCC secretariat and has served as Legal Advisor to Climate Tracker.