The Crime of Ecocide: Expanding the Idea of Victims and Harm at the ICC

The International Criminal Court (ICC) allows for the prosecution of atrocities that cause human suffering and loss beyond repair. The ICC, although a relatively new institution, has taken on the responsibility of providing an avenue for justice for war crimes, crimes against humanity, genocide and aggression. This summer, a new proposal for codifying the crime of ecocide under the ICC’s jurisdiction has been presented.

The proposed definition, coined by criminal and environmental lawyers from all around the world, suggests the addition of the crime of ecocide as a fifth international crime and states that “‘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.”

The Proposed Crime of Ecocide Definition. Photo. Credit: Stop Ecocide Foundation

The novelty the crime of ecocide brings to the international criminal fora is that liability for ecocide does not necessarily require human harm as a precondition, which is largely the case with the other four crimes. This might explain why it has been proposed as an independent crime rather than another type of crime against humanity. The latter scenario was initially discussed as an option when the Rome Statute, which marked the establishment of the ICC in 1998, was drafted. Although ecocide can be applicable to suffering caused to human beings, this is not the full extent of victimhood recognition. It is an opportunity to put nonhuman species and nature at the forefront by granting them greater rights and recognition of their value. This is an opportunity to partially depart from modern anthropocentrism and focus on the primary and direct victim of the climate crisis which is the natural environment, including the land, the air, and the seas, and by extension the ecosystems contained within each of these.

The proposed definition of the crime of ecocide has invigorated a debate on the topic. Legal experts have offered constructive criticism pointing to, for example, the lack of clear elements of the crime such as threshold and type of harm, which could be a drawback of the proposal. This lack of clarity could make it more difficult to receive support from governments for the ratification of the crime of ecocide. However, the significant debate that has arisen indicates that the international legal community is engaged with the issue, which is a promising first step.

It is difficult to pinpoint what kind of actions, omissions, negligence, or harm in general will amount to ecocide judging purely on the definition. The other crimes under ICC jurisdiction largely have well-defined acts that fall under the scope for prosecution, but with ecocide the definition appears to be quite broad. As with many other international laws, domestic jurisdictions that have recognized the proposed crime in the past are often a good starting point. For example, in 2012 Kyrgyzstan made use of Article 374 of the Criminal Code to bring charges of ecocide against Kyrgyz state energy company which was found to have shipped radioactive waste. Guatemala held palm oil company Reforestadora de Palma de Petén S.A. guilty of ecocide due its involvement in the contamination of a river which kiled numerous fish and other animals. The international community can use domestic prosecutions as examples of how the prosecution of ecocide can work at the international level, as well as the types of actus reus (the physical elements of a crime) that can fall under it.

The Stop Ecocide Foundation (the NGO that organised the expert panel) has provided examples of what conduct or impact could fall under ecocide. Ocean damage caused by deep sea bottom thawing and industrial fishing, oil spills, and plastic pollution; deforestation for the purposes of livestock farming and mining amongst others; contamination of land and water and air pollution caused by multiple different harmful practices are but a few of the vast number of misconducts that can fall under the definition of ecocide. These types of harm may fall under the scope of ecocide if they are suffered by ecosystems, species or human beings, illustrating again how this is an opportunity to provide recourse against the primary harm to the natural environment in addition to the more easily prosecutable secondary harm to human beings.

Another complex issue in prosecuting the crime of ecocide will be whether one size fits all. According to Philippe Sands, the co-chair of the expert panel, certain incidents might be considered ecocide in some states whilst that same conduct might be viewed merely as an unfortunate by-product of economic development in a less developed country. While this proposal is opening the door to afford greater rights to the natural environment, it also opens up concerns about its practical use and implications.

Regardless of the current shortcomings of the definition, adding ecocide under ICC jurisdiction may have other benefits. It could become a preventative measure whereby corporations and investors will be deterred from engaging in harmful environmental practices if the country in which they operate is a party to the Rome Statute of the ICC, due to the threat of ecocide prosecution.

It is clear that criminalising environmental harm under the mandate of the ICC raises a number of concerns. However, given the severe effects of the ongoing climate crisis being felt throughout the world, it could be a step in the right direction. Criminalising actions that focus on damage done to the natural environment is certainly a novel approach which aims to tackle the climate crisis holistically by recognising first and foremost nature’s inherent value. Given that the proposal is still in its infancy, what is most important is the continuation of healthy debate and discussion from all member states that are signatories to the Rome Statute.