Symposium Exploring the Crime of Ecocide: Climate Change Crisis in the Pacific–What Role Can International Criminal Law Play?

[Dr. Joseph D. Foukona is a Pacific Law and History Scholar, an Assistant Professor at the University of Hawaii Manoa.]

[This symposium was convened by Shirleen Chin, founder of Green Transparency.  Shirleen was inspired by attending an Expert Working Group on international criminal law and the protection of the environment at the Promise Institute for Human Rights at UCLA School of Law in Spring 2020. See here for the original Opinio Juris symposium which emerged from that meeting.]

Pacific Island countries remain vulnerable to climate change crisis amid the global pandemic. They are exposed to multi-dimensional climate change impacts such as the damage by tropical cyclones and erosion of islands due to sea-level rise. Pacific leaders under the Boe Declaration on Regional Security affirmed: “climate change remains the single greatest threat to the livelihoods, security, and well-being of the peoples of the Pacific.” Addressing this threat requires a global approach since countries’ commitments and actions to reduce greenhouse gas emissions remain woefully insufficient overall. Besides, anthropogenic pollution due to commercial and natural resource extractive development accelerates climate change effects. These effects create displacement of Pacific people in cases of atolls and low-lying areas, which are rendered uninhabitable. This article argues that Pacific Island countries can use international criminal law as a legal tool to explore how to address the climate change crisis and local environmental damage.

The Rome Statute provides the framework for applying international criminal law by the International Criminal Court (ICC). It grants the ICC substantive jurisdiction to deal with four core crimes: genocide, crimes against humanity, war crimes, and crime of aggression. Currently, 123 countries are State Parties to the Rome Statute of the International Criminal Court. Eight of these countries are Pacific Island countries: Cook Islands, Fiji, Kiribati, Marshall Islands, Nauru, Samoa, Timor-Leste, and Vanuatu. Fiji, Samoa, and Nauru have implemented provisions of the Rome Statute into their domestic legislation. The Solomon Islands signed the Rome Statute in 1998 but has not acceded or ratified it. All Pacific Island countries should accede or ratify the ICC treaty because of their vulnerability to climate change. Taking such a step allows Pacific countries to support the call for criminalizing ecocide under international criminal law.  

According to Polly Higgins: “Ecocide is the extensive damage to, destruction of or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished.” Although Higgins’ definition is a good reference point, the criminal liability principle suggests that only human conduct caused environmental harm can be subject to criminal law. Such environmental harm has a long Pacific historical trajectory. For example, the effects of nuclear testing in Kiribati, the Marshall Islands, and French Polynesia during the colonial period have affected people’s ecosystems and well-being. Most islands in Nauru are uninhabitable due to “over a century of phosphate mining .” Meanwhile, from 1906 phosphate mining on Banaba island in Kiribati has resulted in environmental disasters.  Nuclear testing and phosphate mining are two examples of ecocide that have created ongoing environmental issues contributing to the Pacific climate change crisis.

Another case of ecocide is ocean pollution. The Pacific Ocean covers “more than 30 percent of the Earth’s surface.” The Central and Western Pacific Ocean supplies most of the world’s tuna. The ocean is a sea of islands with Pacific people as inhabitants. Despite the ocean’s significance to Pacific people, it is under threat due to pollution. The Pacific Ocean is often referred to as the ‘great Pacific garbage patch‘ because of enormous trash, debris, oil, and hazardous waste collected by its currents. Such pollution contributes to the escalating of climate change because it affects the ocean’s “capacity to take in carbon dioxide emissions in the atmosphere.” It threatens Pacific people’s livelihood, well-being, and security. Hence, recognizing ecocide as a crime under international law is needed to prevent the Pacific Ocean’s pollution.

Pacific Island countries supporting the ICC’s work addressing serious international crimes promotes global governance. As Brigitte Suhr, Director of Regional Programs for the Coalition for the International Criminal Court, stated, Pacific Island countries joining the ICC “would increase support regionally [to prevent] and [address] grave crimes.” Pacific Island countries would also have “representation in the international legal order and at the International Criminal Court (ICC).” In this way, these countries can contribute towards shaping the ICC’s role in promoting international justice to address serious crimes, which may extend to include ecocide. The appropriate international forum for criminalizing ecocide is the Assembly of State Parties to the ICC, which can amend the Rome Statute to include the crime. International criminal law has scope to prevent ecocide and other environmental crimes despite the legal, practical and conceptual challenges (see Sarlieve 2020; Mackintosh 2020) It is a new area of international law with an evolving character.

Although Pacific Island countries have signed several international instruments to address climate change, this is insufficient to prevent ecocide and local environmental damage. Pacific Island leaders such as Josaia Voreqe Bainimarama, Prime Minister of Fiji, during the Seventy-third Session in September 2018, United Nations General Assembly highlighted that Fiji is “working to be a net-zero greenhouse gas emitter by 2050.” At the same time, he expressed “his impatience with other world leaders who proclaim their deep concern and then do little or nothing.” Bainimarama’s statement demonstrates that signing international climate change law is not enough to address the climate change crisis.  Pacific Island countries should support the criminalizing of ecocide to ensure there is attention to prosecute natural persons and corporate entities that prevent reducing greenhouse gas emissions (see, for example, Taylor and Watts 2019).

The ICC has a reserve justice mechanism. It is an institution established to end impunity, premised on the principle of complementarity as stipulated under Article 17 of the Rome Statute. Countries that are State Parties to the Rome Statute have to investigate and prosecute crimes created under the international criminal law treaty as part of their domestic laws, including giving domestic courts’ jurisdiction to deal with such crimes. These countries have an opportunity to explore questions relating to their obligations under the Rome Statute to criminalize activities that cause climate change damage to establish climate justice. They can take the necessary steps to draw on international criminal law as a device to prosecute international crime, including environmental harm domestically through a criminal process. Such an approach is essential because economic development activities that are profit-driven without conservation and sustainable safeguards continue to create anthropogenic pollution without anyone held accountable.

Achieving climate justice is possible if there is a real prospect of prosecution and conviction of those responsible for environmental decimation. Natasha Lennard expressed, “no climate justice will be possible without bringing down the powerful actors standing in the way of cutting emissions and production.” While there is a discussion regarding approaches to reduce greenhouse gas emissions, logging continues in Papua New Guinea and the Solomon Islands with devastating consequences for local communities and ecosystems. In 2019 there was waste spillage from a Ramu nickel processing plant in PNG’s Basamuk Bay. In the same year, Solomon Islands experienced massive oil spill near Rennell, due to a shipwreck that was part of a bauxite mining operation. These activities harm the environment, which contributes to escalating global warming. Both the local and global environmental destruction dimensions underscore the need to criminalize actions that cause climate change and other forms of severe environmental damage.

Some countries, such as France, have indicated potential support for the idea of criminalizing ecocide. As a Party to the Rome Statute, Vanuatu has made a bold statement that the ICC should criminalize ecocide (see Kaminski 2019). Other Pacific Island countries may need to take on more of a front-line role in adding their support behind the campaign for recognition by the ICC of ecocide as an international crime. Only then can there be climate justice.