Ecocide and International Law: Taking it to the Court

Legal experts have come together to agree upon a  legal definition of ecocide (literally, killing the environment) that would determine criminal culpability at the International Criminal Court. The ‘ICCi s a permanent judicial body established in 1998 to prosecute individuals for one of the ‘core criminal crimes’ enshrined in its founding text, the Rome Statute. Although it is currently possible to prosecute environmental crimes in the ICC, this ability is restricted to prosecuting them in the context of the core crimes: genocide, crimes against humanity, war crimes, and crimes of aggression. An international law on ecocide would not be easy to implement by any means, and there are benefits to working within the current international criminal law framework as opposed to establishing a novel crime of ecocide. Thus, this article discusses the history of legal campaigns to criminalise ecocide, evaluate current routes of ‘greening’ the current core crimes, and consider other measures the ICC could adopt to counter the dire threats posed by climate change.

​Debates about incorporating an ecocide law prosecutable by the ICC have been alive since the 1970s. Olaf Palme, the former Swedish Prime Minister, brought the idea forward at the 1972 UN environmental conference in Stockholm. A year later, during the review of the International Genocide Convention, a draft Convention on the Crime of Ecocide was presented to the UN by Professor Richard Falk, focusing on environmental crimes committable in times of war or peace. Although neither of these proposals was ever adopted due to political resistance, the momentum for harsher penalties for those who harm the environment have kept building. Discussions on an international criminalisation of ecocide were reignited by John Licht in December 2019, ambassador of Vanuatu to the European Union, who suggested that it is time that powerful infrastructures, such as the ICC, act with more ferocity. Various parties in Belgium and Sweden have supported ecocide bills at the domestic and international level; in 2020, a great majority of the French Citizens’ Assembly even voted to criminalise ecocide. 

​What would a definition of ecocide entail? British Barrister Polly Higgins described ecocide as “extensive damage … to such an extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished.” Campaigners from the Stop Ecocide foundation hold that ecocide pertains to the most serious harms to the environment, such as oil spills, deep-sea mining, and industrial livestock farming. However, the draft law prepared by the international coalition terms ecocide as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and widespread or long-term damage to the environment being caused by those acts.” Such a crime would be the first that carries a non-anthropocentric approach, placing the environment at the heart of a legal ‘duty of care’.

​Commentators such as Freeland maintain that the prosecution of environmental crimes within the existing jurisdiction under the Rome Statute is possible. For example, environmental destruction could fit into the act-categories within a crime against humanity. Environmental destruction could also be factored into inter-state aggression, as damage by a military is the use of armed force by a state against another sovereign state. Genocide –inflicting harm on group (environmental) conditions of life for indigenous peoples specifically – could be another avenue to acknowledge the ‘genocide-ecocide’ nexus that will become recurrent due to climate change. The Office of the Prosecutor has arguably already encouraged investigating core crimes through an environmental lens in its 2016 Policy Paper on Case Selection and Prioritisation, giving attention to “crimes that are committed by means of, or that result in […]  the destruction of the environment, the illegal exploitation of natural resources or illegal dispossession of land.”

​However, prosecution within the existing core crimes inexorably limits the ability of the ICC to respond to and indict environmental degradation. The core crimes were designed with specifically human victims in mind. With this perspective, a new ecocide crime is attractive not only for its hyper-focus on the environment, but also for the wider cultural and moral shift such an inclusion would inspire. Climate change is accelerating at a perilous pace and it is imperative to acknowledge all the ways violence and environmental destruction transect. Means of food, water, and shelter are common targets in conflict or human rights violations, used to directly attack a deprived population. Such occurred, for instance, when Saddam Hussein burned 600 oil wells during his invasion of Kuwait, causing atmospheric pollution to extend as far as the Himalayas. Importantly, the act took place with an unambiguous intent to cause harm to the environment. It is the author’s belief that only a crime of ecocide made to address the legal lacuna in the Rome Statute can effectively apply accountability to those who target the environment.

​As progress requires a country to formally back an ecocide proposal at the Hague and then the approval of a 2/3 majority vote, the road to criminalising ecocide is not easy. Neither is it straightforward for the ICC to prosecute capitalist corporations, the main drivers of climate change. A solution has to be novel and innovative, identifying the high environmental costs of the core crimes in the first place. That is the only way to address the intersections between conflict and environmental atrocity, as well as the long-term and severe implications it has for individuals, indigenous communities, and the future viability of our planet.