ICL and Environmental Protection Symposium: Which Future for the Crime of Ecocide?

[Maud Sarlieve is a Human Rights and International Criminal Lawyer advocating for creative legal thinking to mitigate Climate Change and protect the environment and a lecturer at the university of Paris Nanterre. This is part of a series of blog posts examining International Criminal Law and the Protection of the Environment, and stems from an expert meeting group convened at the Promise Institute for Human Rights at UCLA School of Law in February 2020.]

It is now commonly accepted that climate change and the ongoing sixth mass extinction of species are largely attributable to human activities. Human conducts also cause an increasing number of environmental disasters, such as pollution on a global scale or massive deforestation. International Environmental Law, which consists of hundreds of multilateral or bilateral instruments, appears inadequate in front of these challenges. A UN report published in November 2018 describes it as “piecemeal and reactive,” “characterized by fragmentation and a general lack of coherence and synergy among a large body of sectoral regulatory frameworks” which means that “some issues remain without specific, legally binding regulation.”

Only three Multilateral Environmental Agreements (MEAs) set out a legal basis for certain types of environmental crimes: the 1972 “MARPOL Convention” (Article 4); the 1973 “CITES Convention” (Article 3.1.a); and the 1989 “Basel Convention” (Article 4.3). The scope of these provisions is limited to three sectors: marine pollution, endangered species of wild flora and fauna, and hazardous wastes. Each provision requires the intervention of the MEA’s Contracting Parties to be effectively implemented and enforced in domestic law. The content of the obligations they create, however, is unclear. That leaves a “convenient” and wide margin of discretion to the Contracting Parties to comply with these obligations. There is no mechanism or structure in place to control their implementation or to monitor their enforcement. Combined with the internationalisation of environmental crimes, this legal vacuum contributes to the exponential increase of environmental damage.

To address this environmental descent, a growing number of activists and environmental defenders consider that criminalising acts amounting to “ecocide” would be a solution, or at least, a step in the right direction. Two small island States, the Republic of the Maldives and the Republic of Vanuatu, supported by Tuvalu and Kiribati, recently relayed this position at the International Criminal Court (ICC). In December 2019, in the context of the 18^th Assembly of States parties of ICC, these archipelagos called for the 123 States Parties to consider an extension of the ICC jurisdiction to the crime of ecocide.

This proposal immediately raises two questions. First, which acts and/or omissions would fall within the scope of ecocide? Second, is the ICC the most appropriate forum to effectively investigate, prosecute and adjudicate this new international crime?

Defining “ecocide”

If the term “ecocide” ordinarily refers to the devastation and destruction of the environment to the detriment of life, there is no universally accepted legal definition of this concept. Some may not even accept that ecocide could be a crime, in light of the issues of economic development, equality or sovereignty at stake. Others may support the incrimination of ecocide provided that it assists in protecting humanity against the unprecedented challenges posed by the climate emergency as well as other related severe environmental threats.

The opportunity of a definition has been debated for almost 50 years with varying degrees of conviction and intensity. Each definition proposal, including the three most recent ones (Polly Higgins in 2010, Valerie Cabanes in 2013 and Laurent Neyret in 2015) has faced the same challenges as to their consistence with the principle of legality (nullum crimen sine lege) and the principle of sovereignty.

Pursuant to the principle of legality, the law must define the material and psychological elements of a crime, which must be clear, ascertainable and foreseeable as to the effects of the crime for an individual to understand what acts and/or omissions would make him/her criminally liable. In the case of ecocide, where we are discussing damages caused to the environment, the notion of “environment”, either natural or human, is dynamic and of a variable content. By its very nature, it is difficult to define with precision. The same applies to the notion of environmental damage. Should any act causing environmental damage be considered as ecocide? Or ecocide be characterised only when such an act goes beyond a certain threshold, below which the conduct would be considered as a “regular” environmental crime? Could such a threshold be defined with sufficient precision to be clear, ascertainable and foreseeable? All these questions are of fundamental importance to the material element or actus reus of the crime of ecocide. The definition of the psychological element or mens rea raises another series of questions: should a special intent be required? Would regular intent suffice? How would the contours of a regular intent be defined? Should it include environmental damage resulting from an omission, a negligence, a failure to comply with a duty of care? 

The nature of the crime of ecocide raises difficult additional challenges connected to the principle of sovereignty. Conducts considered as ecocide often have an international dimension. Their execution is rarely limited to a single location but rather involves different connecting points: the country where the original act was perpetrated will not necessarily be the country of the resulting damage, or the country of nationality of the author.  Similarly, this type of conducts rarely involves a single author but many. The authors are often legal entities rather than physical individuals. The use of legal business structures by criminal actors is an inherent feature of the area of environmental crimes and damages. In many cases, criminal actors and legal businesses are indistinguishable. Whether criminal or not, the activities of many corporate actors, such as Monsanto, Glencore or any of the Carbon Majors, cause massive environmental damages by nature.

Expanding the material scope of the ICC?

An amendment to the Rome Statute to include ecocide as a fifth crime under the jurisdiction of the ICC is one of the possible avenues to establish an international criminal protection for the environment. This avenue, however, is not free of challenges and obstacles.

The Rome Statute, adopted in 1998, defines the crimes under the jurisdiction of the ICC. Its mandate allows it to prosecute individuals for genocide, crimes against humanity, war crimes and crimes of aggression. Its provisions exclude corporate criminal responsibility, which is problematic in light of the above. It is also worth noting that the Court is already struggling to deliver justice for the four crimes under its current jurisdiction, to the point that the 18^th International Criminal Court Assembly of State Parties adopted a resolution establishing an Independent Expert Review to reform the Court with a focus on the Office of the Prosecution.

The procedure required to amend the Rome Statute is rather complex, in that it provides for four steps, defined under Article 121. First, a State Party proposes a draft. This must happen at least three months before the next Assembly. Second, the draft is presented at the next Assembly, which must agree to open negotiations at the majority of the States Parties present and voting. Third, the draft goes through one or more rounds of negotiations, until a final version is considered ready and submitted to a vote; that version will be added as an amendment to the Rome Statue only when two-third of the States Parties approve it. Fourth, amendments creating a new crime will only enter into force for those States Parties that have accepted the amendment, one year after their ratification. In other words, the ICC shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by a State Party’s nationals or on its territory, if that State Party has not accepted that amendment.

To each of these steps corresponds a wide range of diplomatic and political obstacles, the nature and size of which depend on the specific strategic interests of each State Party. For example, even if a draft amendment to include the crime of ecocide were to be proposed, States Parties whose economies depend on human-caused environmental disasters would probably oppose the opening of negotiations over such a proposal. Besides, it is difficult to imagine that powerful States not Parties to the ICC, such as China, Russia or the United States, would not use their diplomatic influence against such an initiative. None of these circumstances, whoever, have discouraged initiatives from States Parties directly concerned by an environmental or climate emergency to call for amendments to the Rome Statute, as discussed above.

Another possible option would be to negotiate a new MEA exclusively for the crime of ecocide: this multilateral agreement would include a definition of the crime, which States Parties would be compelled to implement in their domestic laws. Ideally, it would also have to provide for the creation of a supranational organ tasked to control its implementation and its enforcement at the domestic level. This alternative, which Laurent Neyret advocated for, also presents its range of challenges and obstacles. In a system based on States’ sovereignty, the binding force of most of the existing environment-related regimes and governance structures is weak since it largely depends on the number of signatory States and on their willingness to implement and enforce the resulting rights and obligations. The same limits would apply to a new MEA on ecocide.

Regardless of the approach retained, the priority should be to agree on a definition. To this end, it would be productive to select a group of experts in international environmental and criminal law, as well as scientists, climate experts and representatives of law enforcement authorities specialised in both fields, and task them with the mandate to review the issues raised by previous definitions proposals and creatively consider the best ways to address them.