Including Ecocide as a Crime of the ICC: Implications in International Human Rights
In Fall 2024, the Human Rights at Home Law Profs Blog is excited to feature a series of blog posts focusing on human rights and the environment written by students in the International Human Rights Clinic at UIC Law. This is the second post in that series. The first post in the series can be accessed here.
By Jacob Baron & Sara Nasif, 3Ls at UIC Law
September 9th, 2024 marked a pivotal moment in the purview of environmental justice: Ecocide was formally introduced to the International Criminal Court (ICC) for consideration as a punishable crime, a pivotal act that paves the way for environmental destruction to be recognized under international criminal law. The proposal aims to amend the Rome Statute to include Ecocide as the fifth ever international crime under the statute, joining the preexisting crimes of genocide, crimes against humanity, war crimes, and the crime of aggression. This proposal to the Assembly of States Parties to the Rome Statue formally made by Vanuatu, Fiji, and Samoa, three developing countries that advocated to create a means of prosecuting heads of State, leaders of polluting companies, and other powerful entities who have brought about environmental destruction. As such, the inclusion of Ecocide as a crime of the International Criminal Court is critical because it holds those in positions of power to the highest level of accountability for actions that have led and can lead to environmental harm. By recognizing Ecocide as the fifth international crime, ICC acknowledges that reckless environmental destruction is a serious offence and not a collateral—it is a crime and clarifies international obligations regarding rights impacted by environmental harm thus elevating environmental protections.
The Rome Statute outlines the governing framework for the ICC, defines crimes that fall within its jurisdiction, and provides rules for procedural mechanisms and State cooperation. States that have accepted these rules are colloquially referred to as “State Parties” and are represented in an Assembly of States Parties. A primary objective of the ICC is to prosecute the most serious crimes of international concern and enforce legal consequences by holding individuals accountable. Currently, the ICC prosecutes only the four aforementioned crimes under the Rome Statute. Through adding ecocide as a fifth, the ICC could both prosecute individuals for significant environmental destruction and establish a deterrent effect, encouraging greater degrees of responsibility toward the environment through clear and concise amendments.
Per these proposed amendments to the Rome Statute, the legal definition of ecocide is as follows: “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.” In this context, the term “wanton” means a reckless disregard for damage clearly excessive in relation to anticipated social and economic benefits. The word “severe” refers to damage involving serious adverse change, disruption, or harm to any element of the environment. “Widespread” refers to damage that extends beyond a limited geographic area and crosses State boundaries, and “long-term” signifies irreversible damage that cannot be naturally redressed within a reasonable amount of time. Under this same definition, the term “environment” has also been clarified to include the earth’s biosphere, cryosphere, lithosphere, hydrosphere, atmosphere, and outer space.
Under this definition, ecocide as a punishable offence would not implicate “ordinary” people, because “ordinary” people are not responsible for mass degradation of the natural world. Rather, it holds criminally liable only those with decision-making capabilities at the top levels of industry and government. Only when those with power fail to adhere to existing environmental regulations, or knowingly act without regard to detrimental environmental effects, does the environment face a substantial likelihood of “severe,” “widespread,” or “long-term” damage. Typical civilians simply do not possess the resources to pose comparable ecological threats.
Criminalizing ecocide is not a novel idea by Pacific Island countries. Rather, several States have declared explicit support for ecocide as a crime at the international level. Many of these States and more have enacted and proposed legislation criminalizing ecocide at the domestic level, as well. According to a recent survey of G20 countries, support for criminalizing ecocide is not simply institutional, either. 72% of civilians agree that “approving or permitting actions which cause serious damage to nature and the climate should be a criminal offense.” With growing State support, and nearly 3 out of four people supporting the criminalization of ecocide, there exists an undeniable international demand for environmental accountability that does not currently exist.
Until a global system of accountability is enacted, those in power will continue to abuse their positions for the benefit of themselves, and to the detriment of the planet from which they function. Efforts of Fiji, and Samoa to include ecocide among punishable offences under the ICC is a crucial step in the right direction. Only through criminalizing ecocide might those in power be legitimately dissuaded from contributing to environmental degradation.