Ecocide as a fifth crime at the International Criminal Court
This criminal law route can therefore provide an enforceable deterrent to underpin and support UNFCCC agreements (Paris, Glasgow). Indeed, while ecocide was not on the official agenda at COP26 it was a word and theme that cropped up repeatedly across Glasgow last month, both inside and outside the official conference. As we can clearly see from the lukewarm results of COP26, goodwill and ambition are simply not enough to shift humanity back into a safe operating space. Ecocide law offers a new parameter that enables governments and corporations to go beyond efforts to just play the same game better. It enables them to start playing it differently.
The remit of the International Criminal Court (ICC) is to deal with the crimes which most “threaten the peace, security and well-being of the world” (Rome Statute, Preamble).
Our global community is facing twin threats at this time – the interlinked threats of climate change and biodiversity loss, at levels so serious that the recent IPCC report described changes already being set in motion – such as continued sea level rise – which are irreversible even over many centuries. The report also noted that the internationally agreed threshold of global heating (of 1.5 degrees above pre-industrial levels) was perilously close. But these are not naturally occurring threats or changes. They share a key root cause in the mass damage and destruction of ecosystems, and they seriously threaten the peace, security and well-being of the world in a number of ways already becoming apparent, in the form of extreme weather events, drought-based conflicts, soil depletion and rising sea levels to name but a few. This mass damage and destruction is now increasingly being referred to as the crime it should be: the crime of ecocide.
Two years ago at ICC’s annual Assembly of States Parties (ASP) in 2019, two of the most climate-vulnerable countries in the world, Vanuatu and the Maldives, called for serious consideration of including ecocide as a crime under the Rome Statute. This call was supported by Belgium in 2020. Meanwhile in the wider world, there has been a rapidly growing interest in this possibility.
In direct response to a request from Swedish parliamentarians in the summer of 2020, last year, our charitable arm (the Stop Ecocide Foundation) convened an Independent Expert Panel of 12 renowned international criminal and environmental lawyers from around the world with different – yet all acutely relevant – backgrounds, experience and focus. The panel was chaired by British/French lawyer Professor Philippe Sands QC and Senagalese jurist Dior Fall Sow, and its remit was to collaboratively draft a clear and robust legal definition of ecocide as a 5th international crime.
Supported by expert input and a broad public consultation, the drafting panel engaged in 6 months of research and discussion and met in 5 plenary sessions as well as numerous sub-groups over that time, finally reaching consensus in June of this year. The resulting text is concise, balanced, and strongly based on precedent. The core text is this: “ecocide” means 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.
Climate change and biodiversity loss share a key root cause in the mass damage and destruction of ecosystems, and they seriously threaten the peace, security and well-being of the world.
This text has been well received in the political world. Parliamentary or government-level discussion of criminalising ecocide is now on public record in at least 18 of the ICC’s member states. In early December 2021, the Belgian parliament passed a resolution by an overwhelming majority calling on its government to recognise ecocide both nationally and internationally.
There is now broad and significant civil society support for recognising this crime internationally. From the Global Citizens Assembly to faith leaders Pope Francis and Patriarch Bartholomew (see 1hr17m); from the indigenous Alliance of Mother Nature’s Guardians to the youth movement Fridays For Future, it is already an explicit demand. The world of corporate finance is also beginning to appreciate the value of deterrent legal frameworks: a recent statement to the COP26 presidency from the International Corporate Governance Network, an investor-led group of firms managing over $59 trillion in global assets, specifically recommended governments to “collaborate internationally to criminalise ecocide”. UN Secretary-General Antonio Guterres has commented that he considers it “highly desirable” for ecocide to be included among the crimes under the ICC’s jurisdiction.
There are some who consider other approaches to be preferable, aiming rather at an international court for the environment, or a treaty on ecocide. These, we believe, are valuable approaches and we don’t doubt they will come into existence in the future, but for now we must acknowledge that time is extremely short, and that creating a completely new institution or treaty can be a lengthy process often stretching to decades. There is also a tendency for those parties with the most wealth and influence at their disposal to dominate that process.
By contrast, the Rome Statute has an amendment procedure already in place (Rome Statute, art. 121) that provides for any signatory state or states (however small) to table and drive proposals, and it has been successfully used in the past.
For now we must acknowledge that time is extremely short, and that creating a completely new institution or treaty can be a lengthy process often stretching to decades.
There are also a number of other advantages to pursuing the ICC route.
Firstly, it adds a new “ground rule” to an existing system – a rule to prevent serious harm to nature – that applies across many jurisdictions. This is important as the worst polluters are often transnational corporations.
Secondly, the adoption process will take some time (not as long as creating an entirely new treaty but nonetheless a period of years) and a lot of support. This entails a period where the law is not yet in place but can be seen gathering momentum – approaching over the horizon, so to speak, provoking positive behavioural change in anticipation of its arrival. Indeed it is already beginning to do so, as we can see from the response of the investment community, for example.
Thirdly and potentially most powerfully, it is a strategic legal intervention that helps to create a shift in mindset – one could describe it as a new moral taboo. We all know you can’t apply to a government to kill people for your new business – it wouldn’t even cross our minds to do so – but we don’t yet recoil in the same healthy way from destroying the natural world. Criminalising serious harm to nature at the highest level provides a strong moral foundation for that, by creating individual criminal responsibility for key decision makers at the highest level.
Moreover, as ecocidal activities often take place in the global south or in poorer communities, while the key decisions are taken in the wealthy north, this law presents a useful tool for addressing climate justice, and also acts as a strong complement to the newly acknowledged human right to a clean and healthy environment. Our right to life is protected by the fact that to take that life is a crime. In the same way, the right of communities to a healthy environment will be protected by the fact that serious damage to that environment will become criminal.
And once the law is in place, prosecutions will be able to be taken in any ratifying jurisdiction, not just in the Hague, so the breadth of possibilities for prosecution is considerably greater than might be assumed at first glance.
This criminal law route can therefore provide an enforceable deterrent to underpin and support UNFCCC agreements (Paris, Glasgow). Indeed, while ecocide was not on the official agenda at COP26 it was a word and theme that cropped up repeatedly across Glasgow last month, both inside and outside the official conference. As we can clearly see from the lukewarm results of COP26, goodwill and ambition are simply not enough to shift humanity back into a safe operating space. Ecocide law offers a new parameter that enables governments and corporations to go beyond efforts to just play the same game better. It enables them to start playing it differently.
Criminalising serious harm to nature at the highest level provides a strong moral foundation for that, by creating individual criminal responsibility for key decision makers at the highest level.
We recently organised an official virtual side event Ecocide: a fifth crime defined at the 20th session of the Assembly of States Parties to the Rome Statute of the ICC to present the recently drafted legal definition in the context for which it was intended. We had the honour of co-hosting with three of the world’s most climate-vulnerable states: Vanuatu, Samoa and Bangladesh, all of which provided statements for the occasion warmly acknowledging the work of the drafting panel and urging continued conversation at the ICC on ecocide. They were joined during the event by Belgium, stepping in with a diplomatic intervention: to update on recent developments in Brussels and to express strong commitment to raising international awareness of what is needed to effectively address ecological destruction.
The event, we suspect, broke ICC records with 1400+ registrants and nearly 700 actually attending, and shows the seriousness with which the diplomatic world is now considering this potential fifth international crime. As Philippe Sands, Co-chair of the definition drafting panel said during the event: “I’m absolutely convinced that this crime of ecocide will be adopted. The only issue is not whether, but when and in what form.”
We strongly urge inclusion of support for this criminal law route in the 2022 Declaration, to address ecocide as a key root cause of the climate and ecological crisis.
