The phenomenon of climate change and its lasting impact all over the world is well-documented, scientifically proven and a critical concern in this day and age. The international community has been focusing on the impact of climate change and protection of the environment for decades – with multiple United Nations (UN) conventions, treaties and agreements all appealing for the protection of the environment on an urgent footing. Owing to this, climate action has become a cross-cutting intervention that is increasingly becoming integrated within policy formulation processes across the world, in multi-focal ways.
Within this ambit, the idea of expanding the mandate of the Rome Statute to include a fifth international crime based on criminalizing environmental damage becomes fundamental to explore. Recently, the Stop Ecocide Foundation organized an Independent Expert Panel for the Legal Definition of Ecocide (IEP)1IEP Core Text on Ecocide, 2021 to define the concept of ecocide as a potential international crime to be included within the Rome Statute. Deriving insights from lawyers from criminal, environmental and climate law backgrounds, the IEP worked to create a “practical and effective definition of the crime of ‘ecocide’.”2Ibid. However, this article finds critical gaps in the proposed definition of ecocide that would hinder its application, and also raises questions regarding the suitability of the ICC given its selective jurisdiction on States that agree to be bound by it.
Rome Statute and the International Criminal Court
The Rome Statute of the International Criminal Court (ICC) is an international legal treaty that sets up the ICC and lays out the functions and jurisdictions of the court. The ICC remains a hallmark institution, responsible for investigating and prosecution four core international crimes, namely: genocide, war crimes, crimes against humanity and crimes of aggression. State Parties are required to accept the terms of the Rome Statute3Rome Statute of the International Criminal Court https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf and agree to be bound by its mandate for the Court to have jurisdiction over the State.
Before the Court can exercise criminal jurisdiction over any particular individual, some form of State acceptance is required. When the UN Security Council refers a situation to the Court, this acceptance flows from the obligation of UN member states to carry out decisions of the Security Council under the UN Charter.
In the absence of a Security Council referral, acceptance must be provided by either the State of nationality of the accused or the State in the territory of which the crime was allegedly committed. States that are parties to the Rome Statute are automatically deemed to have so consented, although consent can also be given by a relevant non-party state on an ad hoc basis.
The Court’s jurisdiction is also said to be complementary to that of national judicial systems, in the sense that it may only exercise its jurisdiction when relevant national legal systems are unwilling or unable genuinely to investigate or prosecute individuals suspected of having committed genocide, crimes against humanity, or war crimes.
Within this framework, there are key questions raised regarding the application of ecocide, should it become an international crime. Firstly, would States agree to be bound by the low threshold of ecocide (as discussed below), which would make them vulnerable to ICC action? Secondly, would the ICC, when adjudicating on ecocide, operate on the State-centered model as with the original four international crimes, or would it also allow for culpability of Non-State Actors (NSAs) such as companies, oil manufacturers, extractive industries, etc.? Finally, would the ICC prove to be the correct forum for pursuing climate justice, or would its selective applicability (on States that agree to be bound by it) diminish its objectives? Though the aim of this article is to problematize and assess the effectiveness of the proposed crime of ecocide, these are key questions that warrant greater scrutiny regarding the suitability of the ICC as a forum for pursuing climate justice.
Framing Ecocide as an International Crime
In the Core Text,4IEP Core Text on Ecocide, 2021 the IEP aims to use international criminal law to protect the environment, relying upon international legal tenets such as Article 26 of the International Law Commission’s 1991 Draft Code of Crimes and Security of Mankind, which criminalizes the “wilful and severe damage to the environment.”5Draft code of crimes against the peace and security of mankind (Part II)
The IEP promulgate the inclusion of Article 8ter to the Rome Statute, which defines ecocide as the commission of “unlawful or wanton acts 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.”6IEP Core Text on Ecocide, 2021
Borrowing from the term genocide, ecocide in Article 8ter seemingly criminalizes unlawful and wanton acts that can result in environmental damage. The core terms of the definition are further explained in paragraph 2 – irrespective, there are multiple, at times conflicting, interplays between Article 8ter and the remaining articles of the Rome Statute – particularly when it comes to establishing intent. Article 8ter draws from the definition of Article 8(2)(b)(iv) of the ICC Statute discussing environmental crime under war crimes.7Rome Statute of the International Criminal Court https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf This article criminalizes intentionally conducting an attack with the knowledge that it could potentially cause “widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated” during an international armed conflict.8Protecting the Environment through International Criminal Law? https://www.ejiltalk.org/protecting-the-environment-through-international-criminal-law/
The proposed ecocide extends the application of the above article to times of peace, while introducing important changes. The nature of ecocide as per Article 8ter goes beyond military attacks (as per 8(2)(b)(iv) to cover any unlawful and wanton conduct. Additionally, the environmental damage in question is narrower in scope, ensuring that the damage is “severe and either widespread or long-term”9IEP Core Text on Ecocide, 2021 https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d1e6e604fae2201d03407f/1624368879048/SE+Foundation+Commentary+and+core+text+rev+6.pdf instead of broader in scope (“widespread or long-term”)10Rome Statute of the International Criminal Court https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf as per the war crimes article. Finally, the mens rea (or “knowledge”) in the crime of ecocide is based on the “substantial likelihood” or potential of environmental damage, not its factual occurrence as under Article 8(2)(b)(iv) of the ICC Statute.11Protecting the Environment through International Criminal Law? https://www.ejiltalk.org/protecting-the-environment-through-international-criminal-law/ These considerations provide breadth to the application of ecocide and differentiates it in nature from the war crimes article, thereby justifying the need for a separate crime of ecocide. However, there are certain definitional challenges associated with the ecocide as an international crime as envisioned by the IEP, which will hinder its applicability in the practical realm.
Environmental destruction is rarely willfully sanctioned or allowed by most States. Yet there are questions over what exactly the IEP’s ecocide entail when it criminalizes “unlawful environmental destruction.”12IEP Core Text on Ecocide, 2021 https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d1e6e604fae2201d03407f/1624368879048/SE+Foundation+Commentary+and+core+text+rev+6.pdf
In its Core Text, the IEP explains that the “the qualifier ‘unlawful’ captures environmentally harmful acts that are already prohibited in law.”13Ibid. However, clarity on what lawfulness entails, or rather what is considered unlawful, is not afforded in the definition under Article 8ter, and is merely referenced in the explanatory Core Text.
Furthermore, the Panel was hesitant in using the term “prohibited under international law” – claiming that international environmental law enshrined obligations for States in treaties and customary international law but with fewer prohibitions – which impacted the purpose behind the proposed crime.14Ibid.
This is a critical failing, given that international environmental law is informed by nearly 900 legal texts, including treaties that offer protection ranging from flora and fauna, to endangered species, and to climate change broadly. Michael Karnavas correctly notes that these texts include a range of procedures and alternative mechanisms, such as pursuing mediation, arbitration, and tribunals through forums such as the International Court of Justice (ICJ) and the International Tribunal on the Law of the Sea (ITLOS). The judgments from these forums can inform and assist in defining criminalized conduct under ecocide.15Ecocide: Environmental Crime of Crimes or Ill-Conceived Concept? http://opiniojuris.org/2021/07/29/ecocide-environmental-crime-of-crimes-or-ill-conceived-concept/ These can be relied upon, or at least referred to in the IEP’s Core Text but instead of integrating these treaties into the framework of Article 8ter, the Article nebulously and to its own discredit, relies upon an ambiguous unlawful qualifier.
Thresholds (Damage/Severe etc.)
The Panel also adopted a threshold concerning the seriousness of the damage caused. In Paragraph 2 (b), the term ‘severe’ includes “very serious adverse changes, disruption or harm to any element of the environment.”16IEP Core Text on Ecocide, 2021 https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d1e6e604fae2201d03407f/1624368879048/SE+Foundation+Commentary+and+core+text+rev+6.pdf In framing these terms, the IEP drew from provisions in Article 8(2)(b)(iv) the Rome Statute,17Rome Statute of the International Criminal Court https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf which describes the prohibited damage under Articles 35 and 55 of Additional Protocol I to the 1949 Geneva Conventions.18Additional Protocol I to the Geneva Conventions of 12 August, 1949 https://www.icrc.org/en/doc/assets/files/other/icrc_002_0321.pdf
Karnavas notes that these terms are not merely definitions under humanitarian law, but also scientific terms.19Ecocide: Environmental Crime of Crimes or Ill-Conceived Concept? http://opiniojuris.org/2021/07/29/ecocide-environmental-crime-of-crimes-or-ill-conceived-concept/ Therefore, ICC Judges may not be able to effectively evaluate the impact of environmental damage, given the complex, scientific and technical nature of the evidence involved. On the other hand, there are questions on how environmental damage can in fact be determined when its detrimental impact may not even by apparent or measurable at the time of adjudication.20Ecocide: Environmental Crime of Crimes or Ill-Conceived Concept? http://opiniojuris.org/2021/07/29/ecocide-environmental-crime-of-crimes-or-ill-conceived-concept/ Relying too heavily on experts could diminish the judicial authority offered to ICC judges within the Rome Statute. However, discounting experts in ecocide cases that are very likely going to be technical and scientific in nature may be well-beyond the expertise of the ICC judiciary.21Ibid. This is also likely to be an issue given the low threshold of the mens rea element of the term ecocide as presented by the IEP – which is discussed below.22Conceptualizing Accountability in International Law and Institutions https://www.jurist.org/commentary/2021/07/sarthak-gupta-ecocide-fifth-international-crime/
Mens Rea Element
The mens rea element for ecocide differs widely from the one already in use by the Rome Statute – and this difference is alluded to by the IEP in their core text as well. Experts have gone on record to call this element “deeply confusing”23Ecocide: Environmental Crime of Crimes or Ill-Conceived Concept? http://opiniojuris.org/2021/07/29/ecocide-environmental-crime-of-crimes-or-ill-conceived-concept/ and likely to be problematic in application.
The IEP frames the mens rea requirement in Paragraph 1 of Article 8ter as follows: “knowledge that there is a substantial likelihood” that the perpetrator’s actions will have detrimental impact.
This “knowledge” is different than the one found in Article 30(3) of the Rome Statute, which is framed as the “awareness that a… consequence will occur in the ordinary course of events.”24Rome Statute of the International Criminal Court https://www.icc-cpi.int/resource-library/documents/rs-eng.pdf According to Sarthak Gupta, the ICC judiciary has interpreted Article 30(3) to require the accused be cognizant of the fact that his or her actions will definitively result in the prohibited consequence(s).25The Proposed Definition of “Ecocide”: An Attempt to Constitute Fifth International Crime? https://www.jurist.org/commentary/2021/07/sarthak-gupta-ecocide-fifth-international-crime/ This is a higher threshold requirement, which may not be adequately appropriate for ecocide cases, since States rarely, knowingly intend to cause ill and harm the environment. However, the IEP’s framing of knowledge brings it much closer to the concept of recklessness – which requires a lower threshold than the former to prove in court.26Ibid.
This conundrum concerning the use of the word “knowledge” while it reflects “recklessness” is further noted in the IEP Core Text as well. The Panel clearly recommended “a mens rea of recklessness or dolus eventualis, requiring awareness of a substantial likelihood of severe and either widespread or long-term damage.”27IEP Core Text on Ecocide, 2021 https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d1e6e604fae2201d03407f/1624368879048/SE+Foundation+Commentary+and+core+text+rev+6.pdf This confusion regarding a core element of the crime discredits the notion of an encompassing fifth international crime, and confuses the issue of determining intent when it comes to environmental crimes.
There is no question that the demands of this day and age require prompt and decisive climate action in order to preserve the environment, and the potential lives and livelihoods of millions across the world. However, framing international crimes require meticulous drafting, as well as expanding the scope to appreciate the range of culpability that can be afforded.
While the IEP resolved to create a definition of ecocide and take forth the discourse on climate action, its efforts fell woefully short in effectively criminalizing environmental crimes. Apart from definitional fallacies, the platform of the ICC too may be unsuitable in pursuing effective action against major polluters, who comprise of not merely States, but Non-State Actors (NSAs) such as major corporations as well. To this end, instilling ecocide as an international crime at the ICC maybe more emphatic if it is taken as a symbolic gesture in promoting climate action. The IEP’s works can be taken as a welcome first step towards determining a workable definition for ecocide, but further fine-tuning is required.
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Noor Fatima is a Senior Research Associate at the Research Society of International Law, Pakistan (RSIL). She completed her BA Honours in Political Science and International Relations with a High Distinction from the University of Toronto in Canada and has a Masters in Global Affairs from the Munk School of Global Affairs and Public Policy from the same.