“It is worse, much worse than you think.” These are the words of journalist David Wallace-Wells in his book The Uninheritable Earth. Vanuatan President, Nikenike Vurobaravu urged states in his official statement to the 77th United Nations General Assembly to support including an ecocide crime in the Rome Statute, telling the UN General Assembly that “acting with knowledge of severe and widespread or long-term damage to the environment can no longer be tolerated".
The industrial revolution, globalisation, and the global capitalist regime have made the lives of humans more comfortable. However, it has damaged the environment beyond reparability. Individuals, corporations, and governments are causing a slew of environmental disasters all around the world. The impact of environmental harm is not localised, and the actions of these critical stakeholders wreak havoc on communities across the globe. Despite the general agreement that the environment must be preserved, proper international legal enforcement procedures still need to be implemented.
At the Conference on War and National Responsibility, in Washington, in February of 1970, Professor Arthur W. Galston first used the word ‘ecocide’. More recently, an independent International Panel brought together by the Stop Ecocide Foundation, recommended a definition of the crime ‘ecocide’ in June 2021. Since the inception of the term ‘ecocide’, the Sub-Commission on Prevention of Discrimination and Protection of Minorities as well as the United Nations International Law Commission (ILC) have recognised the importance of including it in the Code of Crimes Against the Peace and Security of Mankind (the Code), popularly known as the Rome Statute. There is a lengthy history of debate over its criminalisation, with the earliest attempts to create a new crime dating back to 1973. While early attempts to incorporate a particular environmental crime in the International Criminal Court's Rome Statute failed, attempts to establish a new crime have been made on several occasions.
Combining international criminal law (ICL) with environmental law introduces new concerns that are not immediately apparent. While the effort to prosecute ecocide has indeed gained traction in recent years, activists will have to overcome many obstacles before ecocide is included in the International Criminal Court's mandate.
Firstly, state parties to the ICC must submit an amendment in line with Article 121 of the Rome Statute for such an inclusion. A majority of those voting must support any such proposal for discussion, which means it needs the support of a minimum of 82 countries. The proposed change would then go through numerous rounds of negotiation before being voted upon by the state parties. The amendment would need at least two-thirds of the state parties to vote in favour, indicating the necessary political buy-in. Even if the amendment is passed, governments may choose not to ratify it, limiting the ICC's capacity to exercise jurisdiction over their territories and people. States that are not parties to the Rome Statute would be similarly shielded from new crimes, narrowing the scope of ecocide even more. It is important to note here that the top polluters worldwide - the USA, China and India are not even parties to the Court.
Consider, for example, the Expert Panel’s definition and the requirement that the offender ought to have had “knowledge” of the harm caused. Knowledge is defined under Article 30(3) of the Rome Statute as “awareness that a… consequence will occur in the ordinary course of events.” This requirement implies that a prosecutor must prove the perpetrator's awareness of causing environmental harm. This burden is substantially high, making it a tremendous hurdle to overcome.
A simple reading of the Panel’s definition will show the use of the phrase “severe and either widespread or long-term damage to the environment.” The parallel provision in the Rome Statute, more specifically under Article 8(2)(b)(iv), uses the phrase “widespread, long-term and severe damage to the natural environment.” The asymmetry is logical because it is difficult to participate in an armed war without causing some environmental harm. In times of peace, there should be less tolerance for perpetrators. However, such a broad scope will make it difficult for States to agree to have two distinct formulations.
There is also a problem with imposing liability for perpetrators. Only natural persons can be held liable under the Rome Statute, effectively leaving legal persons out of its ambit. Therefore, a corporation causing harm cannot be held accountable as there is no scope for corporate criminal liability. France had recommended the inclusion of corporate criminal liability during the drafting of the Statute. However, this suggestion was rejected as many jurisdictions, at the time, did not recognise corporate liability.
The aforementioned problems are technical in nature; there are implementational challenges with including ecocide as the fifth crime as well. The Court simply does not have sufficient resources. The selection of cases and investigations would be influenced by practical considerations such as access to evidence and state cooperation. Further, the ICC has a dismally low rate of processing cases, having disposed of 30 cases in over 20 years. The ICC is tasked with hearing the most grievous crimes that affect the global community. It has continually prioritised cases of intense and acute violence above slow and venial violence, such as environmental harm. Moreover, unlike the 4 recognised crimes, ecological damage does not affect humans directly, reducing its intensity.
In conclusion, introducing ecocide as the fifth crime might play a significant role in ensuring responsibility for environmental crimes. However, it is critical to recognise the limitations of prosecuting ecocide under the Rome Statute. Clearly, there are challenges in criminalising ecocide within the Statute and subsequently moving proceedings against perpetrators. Systematic reforms are required to achieve the goal. Effective lobbying by interested Member States will ensure that the initial logistical barriers can be overcome. The technical requirements placed by the law, such as the burden of proof or liability, can be amended suitably. But these suggestions sound good on paper but might not be suitable. The international community should consider the critical question - Is the ICC sufficient to prosecute ecocide, or is the need of the hour for a need for a new legal system to be developed? Only time will tell, but the latter seems to be the more appropriate solution.
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