In December 2019 at the 18th Assembly of State Parties of the International Criminal Court (ICC), ambassadors of the Maldives and Vanuatu called for 123 nations to extend the Court’s jurisdiction to ecocide. While the Maldives and Vanuatu acknowledged that an ecocide amendment was still somewhat of a “radical idea,” the time was ripe, given how serious the threat of climate change is to their soon-to-be submerged small island nations. Pope Francis, Emmanuel Macron, Greta Thunberg and Malala Yousafzai have joined those calling on world leaders to make ecocide the fifth crime against peace, alongside genocide, war crimes, crimes against humanity and the crime of aggression. With the devastating impacts of climate change becoming more apparent by the day, is it time for an ecocide amendment to be passed, more than 20 years after the ICC was established?
Ecocide’s Early Origins
Colloquially, ecocide refers to the “devastation and destruction of the environment to the detriment of life,” but no legal definition has yet been agreed upon among states. While ecocide has gained traction recently, it is an idea that has been floated for decades. Ecocide was first introduced by biology professor Arthur W. Galston in the 1970s during the Vietnam War, when he was actively protesting the US military using Agent Orange to destroy the foliage cover and crops of enemy troops. Indeed, environmental destruction often occurs during human conflict, a modern example being the 1991 Gulf War, when Iraqi forces sett alight oil fields as they withdrew from Kuwait
The idea of ecocide was then picked up by law professor Harry W. Pettigrew, who argued in 1971 in his article “A Constitutional Right of Freedom from Ecocide” that the Ninth Amendment of the US Constitution supports the existence of a right to freedom from ecocide. He posited that, since we have an absolute right to protection of life, and due process is needed to secure our rights against the state, we should also enjoy a right to freedom from ecocidal acts which substantially threaten life itself. Ecocide was initially included in the draft of the Rome Statute in 1991, but was dropped because of strong resistance from the Netherlands, France and the UK.
Towards an Ecocide Amendment
Since then, many civil society organisations and lawyers have supported the criminalisation of ecocide in international law. In 2010, Scottish barrister and environmentalist Polly Higgins introduced a proposal to the UN Law Commission to amend the Rome Statute to include ecocide. Her proposed amendment covered acts or omissions committed in peacetime or war by any senior person within the course of State, corporate, or other entity, which causes widespread or long-term “ecological, climate or cultural loss” or “damage to or destruction of ecosystems and territories” that severely diminishes inhabitants’ peaceful enjoyment of these ecosystems and territories.
In 2016, the ICC Office of the Prosecutor in its “Policy paper on case selection and prioritisation” declared that it would prioritise the prosecution of the four Rome Statute crimes committed by means of “illegal exploitation of natural resources,” “land grabbing,” and the “destruction of the environment.” While the policy paper was significant as it entrenched a “green” approach to interpreting the Rome Statute, the Office of the Prosecutor ultimately could not extend the ICC’s jurisdiction without a formal amendment to the Rome Statute, which has not yet been forthcoming.
Failures of Current International Environmental Law Regime
Given that ecocide is currently only considered a war crime under Rome Statute Article 8(2)(b)(iv), only environmental damage in times of war can be prosecuted. However, no charges have been filed, possibly due to the very high threshold of injury required under the Article – there must be an intentional attack that causes “widespread, long-term and severe damage to the environment which would be clearly excessive.” Corporate and state criminal responsibility is also excluded under the Rome Statute. Thus, corporations and states that cause water and air pollution, or participate in illegal deforestation and cause oil spills during peacetime cannot be prosecuted for their environmental damage.
International environmental law also lacks frameworks to deal with mass environmental damage and destruction. A 2018 UN Report found the environmental law regime we currently have to be fragmented, piecemeal, unclear and reactive. With no single overarching legal framework or institution and largely voluntary and non-binding obligations, international environmental law cannot be used to prosecute ecocide. Although at least two environmental treaties – the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal – require states to create domestic criminal laws on specific subjects, they are “episodic and limited in scope,” only applying within state boundaries, and do not extend to ecocide more generally.
Why Should Ecocide Become a Crime?
According to environmentalist George Monbiot, criminalising ecocide is the “difference between a habitable and an uninhabitable planet.” By making ecocide a crime, individuals, corporations and states can be held criminally liable for their destructive anthropogenic environmental degradation and damage, that result in the irreversible transformation of natural environments. Currently, there is a missing responsibility to protect both the Earth and humanity, which allows “state-sanctioned industrial and corporate immunity” for ecocidal acts. An international crime against ecocide would force culpable CEOs and heads of state to accept personal accountability for ecocide and climate change, compelling them to consider the environmental consequences of their actions, even if and especially when there are transboundary effects. This proactive approach to preventing environmental disasters and their attendant human rights violations from occurring goes some ways to remedying the shortfalls of the international environmental law regime.
Normatively, listing ecocide as a crime against peace sets an ideological and “moral red line” for destroying the environment which perpetrators cannot fall below, even if they ultimately are not prosecuted by the ICC. It is an expression of international intolerance and moral outrage towards ecocide and provides tools for lawyers and civil society to speak out against this unacceptable crime. It also accurately reflects existential threat that ecocidal activities pose to the very existence of humanity, and underlines that we live in a state of emergency – with only 10 more years left to prevent irreversible damage from climate change – and are in dire need of what Pope Francis calls a “moral awakening.”
Amending the Rome Statute is no easy feat. Any member state can propose an ecocide amendment, which cannot be vetoed and must then be passed by a two-thirds majority. This two-thirds majority may be difficult to achieve, given that powerful states’ economies – think China, Russia, or US – depend on anthropocentric environmental damage, and despite not being parties to the ICC, they can exert their influence over other smaller states to vote against an amendment. At the same time, the amendment process may be advantageous to smaller countries, as all countries have an equal vote regardless of their size.
Before an amendment can even be made, a definition of ecocide must be agreed upon. We can draw inspiration from states that have already criminalised ecocide within its borders, like France, Kazakhstan and Moldova.
So where do we go from here? Your voice is important. You can read more about ecocide on Stop Ecocide and look at their helpful summary of ways you can take action, including signing their international petition to voice your support for making ecocide an international crime. At the end of the day, the more we talk about ecocide and other “radical” environmental movements, the less “radical” these ideas become and the more likely our leaders will begin to rally behind them.
Featured image by: Flickr