“Nothing concentrates the mind better than the prospect of an individual being found criminally liable,” said barrister Phillipe Sands QC in a recent interview with the New Statesman. The eminent Sands is co-chair of an expert panel set up to draft a legal definition of “ecocide”. In the interview, he was arguing why the Rome Statute should be amended to include the crime of ecocide alongside the present four core crimes of genocide, war crimes, crimes against humanity, and aggression. Such a decision would make ecocide triable at the International Criminal Court (ICC).
Criminal liability for environmental offences is contentious. However, as the climate crisis gains traction in the global psyche, there is a sense that civil litigation and financial penalties are merely planned-for operating expenses for large corporate entities, and that more serious forms of liability are required.
International criminal liability for environmental crimes is even more contentious. Yet, the climate crisis is a global challenge requiring global solutions. Including environmental crimes in the Rome Statute would extend the offence across the 123 states parties to the statute under its universal jurisdiction principles. This has made such a move an increasingly attractive goal for proponents of climate justice, such as Stop Ecocide International.
There is debate as to what form such an inclusion should take. Some advocate for it to be accommodated within the existing core crimes. Others argue for a standalone offence of ecocide. I will argue for the latter approach, through a demonstration of the inadequacies of the current core crimes to accommodate effective accountability for environmental destruction.
ECOCIDE AS A WAR CRIME
Crimes triable at the ICC were originally intended to include “wilful and severe damage to the environment”. This phrasing was included in early drafts of the Draft Code of Crimes Against Peace—the document that would eventually become the Rome Statute—but was removed inexplicably in closed-door meetings from later versions of the treaty. Instead, a provision on environmental destruction was included within article 8 of the statute, which concerns war crimes. Article 8.2(b)(iv), states that war crimes may include, “widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”.
But scholars have pointed out a number of limitations in using this provision to prosecute environmental crimes. Most obviously, including environmental crimes under war crimes immediately removes from the ICC’s jurisdiction severe environmental destruction during peacetime or during internal conflicts, excluding incidents such as oil spills in the Niger Delta or Gulf of Mexico. Secondly, article 8.2(b)(iv) environmental destruction must be “clearly excessive in relation to the concrete and direct overall military advantage anticipated”. This measure, referred to by scholar Alessandra Mistura as a principle of proportionality, necessitates a subjective weighing up of various factors, not to mention the anticipated military advantage may not be the actual military advantage, leading to potentially needless destruction escaping accountability under this measure. Finally, the destruction must meet cumulative criteria of being “widespread, long term and severe,” which has been criticised as being too exacting and unclear.
ECOCIDE AS GENOCIDE OR CRIMES AGAINST HUMANITY
Environmental crimes are only explicitly mentioned in article 8, and so a green interpretation of the other crimes is based on what is implicit in the text. Some propose accommodating environmental crimes under article 7(1)(k), the article that sets out crimes against humanity. (“Other inhumane acts of a similar character causing great suffering or serious injury to body or to mental or physical health.”) There is an issue, however, with the similar character stipulation. The provision comes at the end of a list of acts: murder, extermination, and enslavement. The environmental offence would, therefore, need to be as serious as these crimes, which is a high bar. Scholars have suggested that this requirement does not completely shut the door on a subjective case-by-case assessment. However, the commentaries that accompany the Draft Code of Crimes against Peace state “the act must in fact cause injury to a human being,” and this likely precludes environmental damage.
A green interpretation for the physical element of the offence of genocide seems more amenable to accommodating environmental crimes. Article 6(c) of the Rome Statute provides that genocide may be found for “deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part”. As has been suggested, this provision could be indirectly applied to extractive mining practices or deforestation, which can deprive Indigenous groups of their way of life. However, there is usually a lack of intention to commit the offence of genocide or crimes against humanity in such circumstances. Article 6 of the Rome Statute sets the high threshold of genocidal intent—that is, intent to destroy a people group—and article 7 requires the intent to cause humanitarian suffering. This makes it difficult to accommodate environmental crimes under either offence.
Both of these offences point to the most fundamental issue with using the Rome Statute in its current state, that is its highly anthropocentric bent. To depart from such a clear textual leaning to accommodate environmental crimes could have rule of law implications, raising the possibility that someone could be found guilty of something they did not know was a crime. A standalone crime of ecocide would remove the key limitation currently faced by those bringing cases for environmental destruction, namely, the need to find a nexus between environmental destruction and human suffering. The symbolic power of this should not be underestimated. Consider the stigma around the term genocide, proposed by Raphäel Lemkin in 1944. Ecocide as a term for pure environmental crimes has the power to ferment in international law a value for the environment that is to be taken seriously.
The fact that these theoretical limitations are still theoretical is a point in itself for a standalone crime. Despite two statements from the Office of the Prosecutor (OTP) at the ICC, which have indicated an openness to accommodating some accountability for environmental crime within the existing set of crimes, scholars have pointed out that nothing has succeeded on that approach yet. In a 2013 Policy Paper on Preliminary Examinations, the OTP stated it would consider “environmental damage inflicted” when assessing the impact of crimes under the Rome Statute. A 2016 Policy Paper on Case Prioritisation suggested that the OTP would, "give particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in,… the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land".
In 2015, barrister Richard Rogers delivered a communiqué to the OTP detailing instances of systematic land-grabbing and deforestation in Cambodia, alleging crimes against humanity had occurred by the forcible transfer of Indigenous forest populations to make space for logging and other extractive industries. Despite broad civil society support and an open-letter from several leading civil society organisations in this area, at the time of writing no action has been taken on this submission. Thus, in addition to the theoretical frailties of accommodating environmental crimes within the existing statute, there is a pragmatic aspect that suggests that the accommodation approach has objectively failed to create accountability for such acts. Thus, calls to amend the Rome Statute to provide for a crime of ecocide appear correct.
Later this month, Sands QC and the expert panel will release the result of its public consultation and legal debate: a definition for the crime of ecocide for adoption as a core crime at the ICC. If the definition is adopted, the states parties to the Rome Statute will send a clear message to the perpetrators of the worst ecological harms. Environmental damage should no longer be viewed as the collateral damage of other human-centric crimes, to be accommodated within human-centric criminal offences, but will be seen as harms in themselves and a core crime ranking among the most serious.
Andrew Lane is an aspiring barrister and graduate legal researcher at Global Diligence
LLP, a law firm which advises on human rights and international criminal law.