Should the International Criminal Court expand its jurisdiction to prosecute ecocide?
Recently, in February 2024, the Prosecutor of the International Criminal Court (ICC) in the Hague - Mr Karim A.A. Khan KC - announced a new policy initiative - a policy paper on environmental crimes - with the aim of advancing accountability for environmental crimes under the Rome Statute. According to the ICC, this policy paper will be developed on the basis of the Rome Statute in addition to existing environmental treaties, current norms of customary international law, and the jurisprudence of other international and national courts. While the policy paper is undoubtedly a sign of the ICC’s progress regarding its jurisdiction over environmental crimes, the initiative casts doubt about the Court’s hesitance to implement a more disruptive proposal which members of the international law community have called upon for years - amending the Rome Statute to add ecocide to its list of international crimes, of which there are currently four: genocide, crimes against humanity, war crimes, and crimes of aggression. Since 2017, international groups such as Stop Ecocide International have urged ICC member state parties to propose an amendment that would add the fifth crime of ecocide, arguing that its inclusion as an international crime under the ICC’s jurisdiction is crucial given the widespread ecological destruction that human beings have committed to the planet. According to such supporters of ecocide law, which includes figures like United Nations Secretary General Antonio Guterres, environmental activist Greta Thunberg, former ICC Judge Tuiloma Neroni Slade, and former ICC President Chile Eboe-Osuji, making ecocide a crime would finally create an “arrestable offence” through which individuals responsible for severe environmental degradation would be “liable to criminal prosecution”.
However, not all international criminal law practitioners nor scholars agree that the Rome Statute should be amended to include ecocide as a crime. Some argue that the ICC already has enough crimes under its jurisdiction and there is a limit to what it can reasonably prosecute; others assert that adding ecocide to its jurisdiction would undermine the ICC’s legitimacy by criminalising an action upon which its definition lacks consensus and is difficult to prove. All of these factors raise an important question: Should the International Criminal Court expand its jurisdiction to prosecute ecocide? This paper will explore why adding the new crime of ecocide is so complicated, and will address whether it is a worthwhile endeavour to prevent future environmental destruction or provide justice to those who have committed it.
Firstly, it is critical to establish what actions actually constitute the proposed crime of ecocide. While by no means a universal definition, one explanation that may be readily accepted is that put forth by Stop Ecocide International: “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”. Although this definition seems comprehensive at a first glance, there are several issues that are omitted from it which perhaps make it less authoritative. For instance, groups believe that the prosecution of ecocide should include corporate criminal responsibility. However, to implement this idea would contravene the very principles underpinning the International Criminal Court, which only prosecutes individuals. To change this system would require an additional amendment, one which is much more unlikely to pass.
Beyond the lack of agreement on the definition, there are many issues surrounding the complexity of proving ecocide has been committed. For instance, one matter over which different ecocide law supporters disagree is culpability or the appropriate mens rea standard of the proposed crime. Before delving into these different proposals on the mens rea, it would be useful to describe what is already noted in the Rome Statute. According to Article 30 s1, “unless otherwise provided, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge”. According to Article 30 s2(a), “a person has intent where…in relation to conduct, that person means to engage in the conduct” or “in relation to a consequence, [where] that person means to cause that consequence or is aware that it will occur in the ordinary course of events”, as stated in 2(b). According to Article 30 s(3), "’knowledge’ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events”. In Article 8(2)(b)(iv), which is currently the only reference to environmental damage in the Rome Statute, the mechanism at present for discharging the burden of proof as required to demonstrate the elements of intent and knowledge for mens rea is for the ICC Prosecutor to “prove that the accused had, …with regard to the general intent…knowledge that the attacks would cause clearly excessive’ environmental damage”. Some scholars have asserted that the ‘fault standard’ currently maintained by Article 8(2)(b)(iv) is useless because it makes it impossible for the prosecution to prove that the alleged perpetrator had knowledge of their actions causing ‘disproportionate’ damage.
Therefore, some groups have proposed new standards deemed to be more comprehensive in their coverage of culpability. For example, the Independent Expert Panel for the Legal Definition of Ecocide (IEPLDE) emphasise the necessity of a “‘knowledge’ element that requires only a substantial likelihood’ of environmental damage”, while similarly the Promise Institute for Human Rights (UCLA)’s Group of Experts proposes that there should be a “standard of knowledge of likelihood”. Furthermore, the the Independent Expert Panel (IEP) established by the Stop Ecocide Foundation, which also agrees with a proposed standard of substantial likelihood, refuses to entertain the notion of introducing “a negligence standard”, which could have convicted perpetrators “who should have known that their actions would result in ecocide”, or an absolute liability standard, which could have convicted those regardless of whether they had the relevant knowledge or should have had it. For most of these groups - other than the Eradicating Ecocide project, which supports the inclusion of absolute liability - environmental justice through ecocide should be limited to perpetrators who prosecutors can prove had knowledge of the consequences of their actions on environmental destruction, without the requirement for knowing with certainty that the consequences would happen.
The issue, though, is that all of these proposed standards are far lower in scope than the threshold required to prove genocide and than that of the knowledge of consequence standard from Article 8(2)(b)(iv), in addition to failing to meet the requirements for men rea as defined in Article 30. Moreover, the expectations for the burden of proof are completely different, as the proposed concept solely requires a substantial likelihood of environmental harm, as opposed to the current law which states that it is necessary to show the accused had certainty that their actions would produce severe consequences for environmental damage. All of these elements are important because depending on the definition or inclusion of different standards, the requirements to prove mens rea for ecocide could be “both too high and too low”. A relevant challenge is that if a perpetrator causes environmental harm, they may simply state that they believed there would be no consequences because they were pursuing mitigations for the benefit of the environment, i.e. through “greenwashing”, allowing them to hide from criminal responsibility.
In addition to the challenge of determining the mens rea, there are several other factors that make the inclusion of ecocide difficult. One issue is the argument that adding ecocide to the ICC’s jurisdiction undermines the Court’s legitimacy in the wider international community. Given that international criminal law only covers the gravest of crimes which are generally agreed to represent the worst possible actions of humanity, it may be argued that lowering the burden of proof for prosecuting ecocide would make the Court less important to member states as a result of restricting its authority, both in a judicial and a moral sense. Moreover, states may be less inclined to turn to the ICC for assistance if it is deemed that there is no logical reasoning for determining which kinds of environment destruction would be regarded as ecocide. Another argument is that if states are already not prosecuting environmental crimes in their domestic courts, over which they have supreme authority, there is no reason to believe that they will start prioritising environmental justice when the ICC adds ecocide to the incredibly “narrower field of serious international crime”. Furthermore, it is also necessary to consider the dangers of over-criminalising environmental damage, as states might not be willing to introduce the prospect of criminal responsibility for their own government’s environmental inaction in the climate crisis. Finally, it is worth highlighting that the procedures of the International Criminal Court are already not followed by all UN-recognised states; only 124 states are parties to the Rome Statute. If some states object to the inclusion of ecocide, possibly as a result of environmental harm being committed in their own jurisdictions, it is possible that they might remove their ties to the Rome Statute, as states like the Philippines, the United States, and Russia have done.
Another challenge of prosecuting ecocide is delineating which environmental crimes are so severe that they may be categorised as an international crime, and which are can simply be left to national courts to handle. There have been different approaches proposed to resolve this. One proposal is to establish a holistic ‘disjunctive test’, whereby the environmental damage does not necessarily need to be ‘severe’ but poses a long-term threat, which inevitably results in continual destruction over time. However, this is perhaps the least logical proposal of them, mainly because any long-term environmental destruction could be considered an international crime; for instance, deforestation and construction would both constitute ecocide if this approach was taken. The threshold for such activity would therefore be too extensive to justify the provision of a serious international crime. Another proposal is to create a list of clearly defined actions which would comprise ecocide, as is performed for most crimes in international criminal law. According to UCLA’s Group of Experts, a possible list might include the most severe environmental dangers - i.e. land, sea, and air pollution, ecosystem destruction, hazardous waste, the use of ozone-depleting substances, etc. - which would result in an ‘ecological disaster’. The complexity with creating an exhaustible list, however, is that international environmental law in its current form differs from international criminal law in that “prohibitions are largely addressed to states and not individuals”, and there are no codified rules on who is liable for environmental harms. Conversely, a different proposal is to create a ‘general formula’ that specifies the overall principles of what ecocide is, but leaves the implementation and exceptions up to the discretion of the Court. The lack of consensus over what actions constitute ecocide are arguably one of the greatest hindrances to the cause for its inclusion in the Rome Statute, as no state would vote in favour of the amendment if it is not clear what prosecutors can consider ecocide.
Furthermore, it is critical to emphasise that if the crimes under ecocide are not explicitly noted, there is a risk of vague language reducing the admissibility of evidence to support this prosecution of environmental damages. According to Article 22(2) of the Rome Statute, “the definition of a crime shall be strictly construed and shall not be extended by analogy. In cases of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted, or convicted”. This priority of favour to the accused in cases of ambiguity, denoted by the principle of “dubio pro reo”, means that for ecocide to truly be enforced, it cannot remain a mere concept with differing interpretations and definitions. While such a concept may be acceptable in international environmental law, it will not be useful for implementation according to the standards that international criminal law requires.
Moreover, with regards to practical implementation, it should be highlighted that since its formation in 2002, the International Criminal Court has only prosecuted 31 cases, with trials often taking years until completion. The ICC has limited resources to prosecute the four crimes it already has jurisdiction over, and unless the Court obtains further funding and support from member states, it is arguable whether the addition of another international crime would make its prosecutions more or less efficient.
Finally, it is worth considering the use of alternative mechanisms to enforce responsibility and justice for environmental harms. For instance, a growing number of environmental and legal stakeholders, such as the ICE Coalition, are calling for the creation of an International Court for the Environment. Such a court would establish its own international environmental rule of law that may be more impactful than existing international courts like the International Court of Justice (ICJ), the International Tribunal for the Law of the Sea (ITLOS) or the Permanent Court of Arbitration (PCA). All of these deal with a wide variety of challenges, preventing a larger focus on environmental issues. Creating an environmental court solely for the challenge of environmental damages would not only make such problems a priority in international law, but would also allow for the further development of international environmental law norms, without the constraints imposed by international criminal law’s standards for international crimes. This is not to argue that an international environmental court is preferable or more useful than the inclusion of ecocide in international criminal law; perhaps, both of these systems could be developed concurrently. However, it is clear that such a court would remain a viable alternative given the issues plaguing the implementation of ecocide.
In conclusion, it is difficult to provide a definitive answer that would settle the following question: Should the International Criminal Court expand its jurisdiction to prosecute ecocide? Although it is clear that there is a current gap in international law for environmental justice, it is not as certain as to whether adding ecocide to the Rome Statute’s list of international crimes is the right step, at least not at present. In order for ecocide to be a more decisive solution, there must be further consensus from the international community on what crimes actually constitute ecocide, whether it should only consist of severe harms or if long-term damage is sufficient, and what elements are necessary to prove the mens rea of the accused. It is also important to consider whether the inclusion of ecocide would undermine the ICC’s legitimacy, given that the Court only prosecutes the most heinous of humanity’s crimes. Although ecocide may one day be an efficient mechanism for serving justice to perpetrators of environmental destruction, it is necessary that there is further discussion and elaboration on some of these elements before states party to the Rome Statute vote on its inclusion. Until then, it might be useful to explore other options for addressing environmental justice, like a possible International Court for the Environment, to ensure the development of a distinct body of international environmental law.
Roma Beke
Works Cited
International law instruments:
UN General Assembly, Rome Statute of the International Criminal Court 2187 U.N.T.S. 90, entered into force 01 July 2002.
Journal articles:
Branch A and Minkova L, “Ecocide, the Anthropocene, and the International Criminal Court” [2023] 37:1 Ethics and International Affairs
Palarczyk D, “Ecocide Before the International Criminal Court: Simplicity is Better Than an Elaborate Embellishment” [2023] 34 Criminal Law Forum
Panigaj J and Bernikova E, 'Ecocide - a New Crime under International Law?' [2023] 13 Juridical Trib
Robinson D, “Ecocide — Puzzles and Possibilities” [2022] 20:2 JICJ
Websites:
ICE Coalition, “ICE Coalition: Creating the International Court for the Environment” (ICE Coalition) https://www.icecoalition.org/ accessed 10 April 2024
International Criminal Court, “About the Court” (International Criminal Court) https://www.icc-cpi.int/about/the-court accessed 10 April 2024
“The Office of the Prosecutor launches public consultation on a new policy initiative to advance accountability for environmental crimes under the Rome Statute” (International Criminal Court, 16 February 2024) https://www.icc-cpi.int/news/office-prosecutor-launches-public-consultation-new-policy-initiative-advance-accountability-0 accessed 10 April 2024
McMillan A, “Time for an International Court for the Environment” (International Bar Association, 03 November 2019) https://www.ibanet.org/article/71B817C7-8026-48DE-8744-50D227954E04 accessed 10 April 2024
Stop Ecocide International, “Legal Definition of Ecocide” (Stop Ecocide International) https://www.stopecocide.earth/legal-definition accessed 10 April 2024
“Making Ecocide A Crime” (Stop Ecocide International) https://www.stopecocide.earth/making-ecocide-a-crime accessed 10 April 2024
“Supporters of Ecocide Law” (Stop Ecocide International) https://www.stopecocide.earth/supporters accessed 10 April 2024
“Who We Are” (Stop Ecocide International) https://www.stopecocide.earth/who-we-are- accessed 10 April 2024