Unpacking “ecocide”: a note of caution for international criminalization

On 22 June 2021, the announcement of a new legal definition for the term “ecocide” emerged after a panel of independent experts (IEP) commissioned by the Stop Ecocide Foundation created the definition with the aim of establishing a new prosecutable crime under the Rome Statute, thus within the jurisdictional mandate of the International Criminal Court (ICC).

Amid praise from environmentalists, critical questions arise about how the crime of ecocide can be prosecuted in practice. It is useful to examine if the practice would be harmonious with the spirit in which the legal definition was drafted – namely, the intent of the law.

In December 2019, a written statement by Maldives Member of Parliament Ahmed Saleem implored state parties to the ICC to recognize climate victims “as part and parcel of the international criminal justice system.”

Saleem explained that even as countries like the Maldives were in a race against time to prevent a climate catastrophe, indifference and climate inaction on the part of the world’s largest emitting countries remained. “[T]he time is ripe,” he stated, “to consider an amendment to the Rome Statute that would criminalize acts that amount to Ecocide.”

It is against this backdrop and what the Stop Ecocide Foundation characterizes as the failure of treaties, agreements and civil lawsuits to prevent large-scale damage to ecosystems that the move towards criminalizing ecocide was resurrected, decades after its original use in the early 1970s.

Ecocide as crime

Since the announcement in June, scholars and news outlets have prepared an array of relevant and insightful commentary contemplating the potential and challenges of amending the Rome Statute to include a fifth crime. Such analyses have critiqued the definition for its purported ecocentric ideals while still adopting caveats that amount to a cost-benefit approach rooted to anthropocentric understandings of development.

Other criticisms, such as that of jurists like Kai Ambos, have focused on the utility of the definition from the practitioner’s perspective, particularly whether the addition of a new crime will better protect the environment than “the existing international core crimes which have an environmental ingredient and on which the draft definition of ecocide partly draws.” Ambos refers specifically to Rome Statute, Article 8(2)(b)(iv), which characterizes as a war crime “[i]ntentionally launching an attack in the knowledge that such attack will cause . . . widespread, long-term and severe damage to the natural environment.”

However, as Christina Voigt points out in her personal reflections on the IEP’s process, the Rome Statute’s current reference to environmental harms, including those related to war crimes, was considered by the IEP as too limiting as it would not address harms that occur during peacetime.

Beyond the technical critiques described above, it is worth delving further into questions about the function of the ICC as an institution, including a deliberation of what it would actually mean (morally and consequentially) to prosecute individual actors for the crime of ecocide.

If the Rome Statute is successfully amended, ecocide would take its place next to such offenses as genocide (Article 6), crimes against humanity (Article 7), war crimes (Article 8), and the crime of aggression (Article 8 bis) – crimes described as being “the most serious crimes of concern to the international community as a whole” (Article 5). Although climate change and environmental destruction are, on their face, grave existential issues, as a matter of law, determining which individuals should be held criminally accountable and subject to prosecution under the ICC would not be unambiguous.

Liability in climate litigation

Indeed, matters of liability have long been contemplated in the sphere of climate litigation, generally. In 2009, a United Nations report on the relationship between climate change and human rights explained that “it is virtually impossible to disentangle the complex causal relationships linking historical greenhouse gas emissions of a particular country with a specific climate change-related effect.”

Perhaps most striking and unsettling to the discussions around the criminalization of ecocide is the general acceptance that allocating individual responsibility for an international crime of this nature could be viewed optimistically as a method to prevent and deter future environmental damage.

As Ambos notes, this desired “change of consciousness” pursued through the use of criminal law is not supported by empirical data, which “in fact points to a less hopeful direction.” Further, while it seems certain that the IEP’s intentions were nothing less than altruistic for a future that could be, the proposed crime of ecocide simply ignores the ongoing criticisms of the ICC that centre around racial injustice and structural inequality.

In contemplating the ICC’s relationship to structural forms of racism, DeFalco and Mégret observe that the court has been relatively antagonistic towards criticisms of this nature. As the authors note, the question here is not merely one of whether the ICC is a deliberately racist institution, but rather how the “systemic, pervasive, often obscure perpetuation of racially-based inequalities through the totality of society and its institutions” has impacted the prosecution of international criminal justice.

Law, the authors explain, “often plays a crucial role in carrying some of the prejudices of one era forward into another, not least an international law that sees broad fidelity to its past as a validation of its pedigree.” In support of these observations, DeFalco and Mégret point to the US criminal justice system – a system with laws that employ a formal equality approach, but that in practice has perpetuated a “systemic focus on racialised minorities”, an outcome that is frequently denied by the nation’s law and policymakers.

The resistance of international legal actors to confront structural criticisms should cause alarm for any who support adding new crimes to the ICC’s purview. As Johnson notes, “[t]o establish a fair and unbiased justice system . . . we must reckon with the central role race plays in systemic outcomes.” Indeed, of the 46 indictments issued by the court, all defendants have been Black and/or Arab Africans. There are 123 state parties to the Rome Statute. Among others, this number does not include China, India or the US, three of the world’s largest contributors to greenhouse gas emissions and home to some of the largest multinational corporations. As Dubey expounds, this means that unless the alleged crime (ecocide) occurred in the territory of a member state, the ICC “may only exercise jurisdiction if such a state willingly submits to the jurisdiction of the ICC or if the case is referred to the prosecutor by the United Nations Security Council.”^1

Additionally, the ICC only has jurisdiction over natural persons (Article 25). Allocation of responsibility for an act amounting to ecocide must thus be assigned to an individual or individuals: in this case, those persons working for a company, such as a chief executive officer. A corporation itself cannot stand before the court as it is a juristic entity, not natural person. This begs the question of which corporate officers may be held accountable for the alleged crime of ecocide and whether such individuals should become criminally liable for the various levels of decision making entailed with an activity that might otherwise be legal. The current definition of ecocide states that an act need be either unlawful or wanton, not both. As Heller describes, establishing the wantonness of an act could lead the prosecution down a rabbit hole of subjective argumentation in an effort to establish whether an act (Heller uses the example of a coal-fired power plant) was pursued with “reckless disregard for damage . . . in relation to the social and environmental benefits anticipated.”

The ICC is a self-described “court of last resort.” Its purpose is not to act in lieu of national justice systems, but to complement them. When envisioning the potential of adding a fifth crime of ecocide to the Rome Statute, it is difficult to foresee how such a crime would have the intended effect that its promoters desire. As Maxine Clarke aptly points out, the ICC is restrained by temporal limitations, meaning the court only has jurisdiction over those crimes committed after the Rome Statute entered into force in 2002. Even if the remaining outlier states were to become parties to the statute, jurisdiction would only extend to the date of entry into force for that state (Article 11).

The legitimacy of international institutions as effective and equitable tools to address global challenges is frequently in question. For example, Doutaghi and Ramasubramanyam describe a pattern of using “global legal institutions such as the International Criminal Court to continuously persecute and demonize the global South.” As the proposal to add a fifth crime to the Rome Statute is celebrated, we should simultaneously question the systemic structural issues that continue to hinder inclusive equitable development and taint the perceived fairness of international law. As long as such issues go unaddressed, we risk a gradual decline in the fabric and legitimacy of the law itself. This does not mean that all is lost or that international law and legal institutions do not have a valuable role to play in the struggle to protect the environment from increased destruction. Quite the contrary, but we must be increasingly introspective and mindful of the criticisms of these structures and institutions, especially in light of the move towards greater criminalization. The world will be watching as the ICC navigates a recent appeals chamber decision to allow investigations into alleged war crimes committed by the US in Afghanistan. While such an investigation will not be easy, it will certainly be a testament to understanding how the court might grapple with powerful state actors and how the crime of ecocide, if successfully added to the Rome Statute, might be prosecuted in practice.

Note: A draft protocol for an International Court for the Environment has also been created. See the ICE Coalition for more information.