16 Feb The Proposed Crime of Ecocide – Ignoring the Question of Liability
[Vrishank Singhania is a final year student at the National Law School of India University. He serves as the Editor-in-Chief of the National Law School of India Review. ]
In June 2021, an Independent Expert Panel (IEP) released a report, detailing proposed amendments to the Rome Statute, to include a fifth crime – ecocide. This proposal would criminalize at an international level, serious harm to the environment. The rationale is that the possibility of holding CEOs personally liable will deter corporate activities that harm the environment. Thus, the effectiveness of the proposal hinges on two conditions – first, CEOs can be held liable under the Rome Statute; and second, holding CEOs personally liable will change corporate behaviour.
Given that the IEP’s proposal does not specifically address liability, a question was raised regarding its necessity. According to Professor Voigt, one of the panelists, the IEP had deliberated on amendments to address liability – but found it unnecessary because the Rome Statute was sufficient in its current form. I disagree. I argue that the proposal would be ineffective for two reasons. First, the Rome Statute does not have the tools to hold CEOs liable. Instead, it is likelier that mid-level managers will be held liable. Second, without corporate criminal liability (CCL), corporations are unlikely to change their behaviour.
CEOs and the Modes of Liability under the Rome Statute
CEOs do not commit ecocide in their personal capacity, but through the corporations they manage. Thus, to hold them liable, the actions of corporations must be attributed to them. This can happen in one of three ways under the Rone Statute – indirect perpetration, aiding and abetting, and superior responsibility. Using the Exxon-Valdez oil spill, I will argue that each of these are insufficient to hold CEOs liable. The oil spill was caused due to a collision which was attributed to exhaustion of the crew and a failure by Exxon to fix the ship’s broken radar-system.
Article 25(3)(a) of the RS provides that a person can be liable acts committed through another person. This happens in those situations where a person dominates the will of the physical perpetrator. In Katanga, the ICC extended this to persons who commits a crime through an organization, in which they hold a superior position, and can accomplish the crime by ordering subordinates they control. Prima facie this would seem like a good fit to hold CEOs liable – they use their control over corporations and employees to commit ecocide. However, this standard would be difficult to meet in the context of corporations.
Indirect perpetration requires a high degree of control. This is because the rationale of the rule is that the indirect perpetrator exercises control over another person, to the extent that such person cannot be considered autonomous anymore. In an organizational context, this requires that subordinates have no room for independent decisions. In organisations like military juntas, which have tightly-controlled hierarchies, such degree of control exists.
However, the structure of corporations is far more complex – it is fragmented and compartmentalized. Moreover, unlike military juntas which operate through directions from superiors, corporations operate through delegation. The CEO is shielded by layers of hierarchies, and often through separate legal entities. For instance, in Exxon-Valdez, it would be difficult to show that the CEO ordered that the ship’s radar-system not be fixed or that he created the schedules that caused the crew’s exhaustion. At best, it could be shown that the CEO ordered all divisions to reduce costs. However, given the degree of autonomy this gives managers in the lower-rungs, it would not meet the standard of control required. It is thus unlikely that the standard of indirect-perpetration would be met in the context of CEOs. Even in Katanga, the ICC managed to use indirect-perpetration to only hold a mid-level commander of an insurgent group liable.
Aiding and Abetting
Article 25(3)(c) covers situations where a person aids or abets the commission of a crime. Unlike customary international law, the Rome Statute introduces a novel mens rea standard – a person’s contribution be “for the purpose” of facilitating the crime. In Bemba, the ICC held that ‘purpose’ denotes a higher mens rea standard. It is not enough to show that a person had knowledge that his act would facilitate a crime. It must be shown that he intentionally lent assistance “with the aim of facilitating the offence.”
In the Exxon context, consider now that the CEO approved a manager’s decision to not fix the radar – thereby facilitating the offence. It would not be enough to show that the CEO had knowledge that this authorization would lead to ecocide. It would have to be shown that the CEO intentionally gave the authorization, with the aim of facilitating a wanton act by his subordinates.
As the IEP itself noted, in the context of ecocide, it is challenging to establish intent. Thus, proving that a CEO intended to facilitate a wanton act (ecocide) by his subordinates will be quite difficult. Article 25(3)(c) then does not provide a useful standard to hold CEOs liable.
Article 28 provides that a superior in an organization would be liable for the acts of those under their command and control. This provides the greatest potential to hold CEOs liable. However, there are three challenges that prosecutors would face.
First, the provision has a higher mens rea standard for civilians than it does for military-commanders. For military-commanders, they either knew or “should have known” that their forces were about to commit a crime [Art.28(a)(i)]. However, for civilians, it must be shown that they either knew, or “consciously disregarded information”, that their subordinates were about to commit a crime [Art. 28(b)(i)]. In Exxon, one would have to prove that the CEO knew or consciously disregarded information that their subordinates would act wantonly and not fix the radar. Given the complex hierarchies within firms and the lack of access to documentation, it would be difficult to prove this.
Second, it must be shown that the crime “concerned activities… within the effective responsibility and control” of the superior [Art.28(b)(ii)]. This too is difficult to prove in corporations which have fragmented and compartmentalized hierarchies. In Exxon, it could be argued that the radar-system of one ship, is not an activity that comes within the control or effective responsibility of the CEO – but of a lower manager.
Third, it must be established that the superior failed to take all necessary and reasonable measures to prevent the crime [Art.28(b)(iii)]. In Bemba, the ICC’s interpretation poses two challenges in the corporate-context. First, the ICC held that a “remote” commander must be given a degree of deference because it would be difficult for him to take necessary actions. Given that CEOs of corporations are “remote” superiors in that they do not directly oversee actions of subordinates that lead to the crime – greater leeway would have to be given to them for the measures they are expected to take. Second, the ICC dropped the “all” measures requirement and instead held that the question of whether a commander took reasonable measures must be decided by a proportionality cost/benefit analysis. A commander can keep into mind disruption of planned activities and only take the least disruptive measure. This would give considerable leeway to CEOs. They could for instance implement measures like sustainability policies, safety protocols and environmental due diligence checks. They could then justify these as reasonable measures based on a cost/benefit analysis.
The common problem across all three modes of liability is that senior executives in corporations are exonerated due to labyrinth-like structures and the inaccessibility of internal documentation. Even in domestic jurisdictions which have lower standards of criminality, scholars have argued that there is a “responsibility gap” where senior executives are rarely punished for corporate conduct. This is also a trend visible in the ICC’s history wherein mid-level commanders of insurgent-groups are convicted, but high-level political-figures are acquitted. Thus, without any amendments, the RS does not provide the sufficient tools to hold CEOs liable.
Necessity of Corporate Criminal Liability
The Rome Statute only holds natural persons liable – excluding legal persons like corporations from its fold. During its drafting, France’s proposal for CCL was rejected because most domestic jurisdictions at that time did not recognize CCL Thus, if included, the ICC would have ceased to become a court of last resort. However, today, CCL is considered a general principle of international law. The rationale for its rejection does not stand.
There are two reasons why the inclusion of CCL is imperative in the context of ecocide: first, given its collective nature; and second, individual liability de hors CCL does not change corporate behaviour.
Collective Nature of Ecocide
A system of individual liability ignores the collective nature of ecocide. It is rarely the actions of a discrete individual, but rather the result of the aggregate actions of multiple actors within the corporation from shareholders, Board members, executives, and managers. Scholars refer to this as ‘system criminality’ – wherein corporate culture and structure induces criminality. CCL recognizes that the problem is with the specific corporation and not an isolated bad apple in the basket.
Moreover, as argued above, it is often difficult to identify an individual to hold liable. In such cases, the lack of CCL creates an accountability gap, wherein you have a corporation that committed ecocide, but do not have the evidence to hold an individual guilty. In such cases, CCL ensures that at least, the corporation is held accountable.
Even assuming individuals are held liable, this is unlikely to change corporate behaviour as the IEP hopes. This is for two reasons.
First, corporations face no consequences. When faced with a situation of ecocide, a corporation is likely to find a scapegoat, like in the Exxon spill, where the ship-captain was blamed. Given the power shareholders have, even CEOs are not indispensable. Thus, individual liability will do little to change the corporate culture that incentivizes recklessness. On the other hand, CCL can have significant reputational impacts on the corporation. Further, penalties such as winding-up of the corporation are likely to reign in shareholder-interests and create deterrence.
Second, in the absence of effecting corporate culture, individuals themselves are unlikely to alter their behaviour. A corporate executive already faces a disciplinary sanction within the corporation. If company performance is not up to the mark, they could be removed/sanctioned by shareholders. This sanction will then have to be weighed against being liability by the ICC. While the latter is more severe, its probability is much lower. Moreover, through clever structural design, the individual could insulate themselves from any wrongdoing. Thus, the corporate sanction is likely to outweigh liability by the ICC.
A combination of both individual and corporate liability is likely to be most effective – it aligns the interests of all stakeholders within a corporation more effectively than either do in isolation. The introduction of Ecocide is only a partial solution. The IEP needs to learn from systems of corporate liability in domestic jurisdictions to evolve a framework that can hold persons and corporations accountable for ecocide. Otherwise, even if the proposal is passed, it will be a paper tiger.