A new international crime: Ecocide
A new international crime: Ecocide
By Michelle Ernstsen

The care for and importance of our environment has been an increasing point of discussion over the past years. Especially climate change has been at the top of the world population’s agenda with several international attempts to halt CO2 emissions and protect ecosystems.[1] Recent developments have also focused on tackling this issue through International Criminal Law. More specifically, and independent expert panel created by the Stop Ecocide Foundation drafted a definition for the crime of Ecocide in June 2021.[2]

The purpose of this panel was to draft the definition of ecocide in such a way that it would satisfy the requirements for an amendment to be made in the Rome Statute, adding the crime of ecocide. Currently, the environment is only protected under War Crimes (Article 8(2)(b)(iv) of the Rome Statute). Hence, the additional purpose of the crime of ecocide would be to protect the environment also in times of peace. The proposed amendment would be as follows:

Article 8 ter Ecocide 
1. For the purpose of this Statute, “ecocide” means 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.

2. For the purpose of paragraph 1:
a. “Wanton” means with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated;
b. “Severe” means damage which involves very serious adverse changes, disruption or harm to any element of the environment, including grave impacts on human life or natural, cultural or economic resources;
c. “Widespread” means damage which extends beyond a limited geographic area, crosses state boundaries, or is suffered by an entire ecosystem or species or a large number of human beings;
d. “Long-term” means damage which is irreversible or which cannot be redressed through natural recovery within a reasonable period of time;
e. “Environment” means the earth, its biosphere, cryosphere, lithosphere, hydrosphere and atmosphere, as well as outer space.

As can be seen from the extract above, a new article would be added to the Rome Statute, as was done with the Crime of Aggression (Article 8bis) in 2010.[3] In the case that this article were to be inserted, in order for states party to the Rome Statute to be bound by it, they would have to formally accept it. In the case of the crime of aggression, 43 States out of the 123 States party accepted this new crime.[4] The question remains whether this newly defined crime would be formally accepted by a sufficient number of States party.

Although the effort to protect the environment from an International Criminal Law perspective is highly valued, scepticism has been raised regarding the definition of ecocide. Some blogs have focused on the lack of resemblance ecocide has to genocide.[5] Here it is questioned whether individuals can and should be held responsible for damaging the environment outside of an armed conflict. International Criminal Law targets individuals, it does not target States. Would this mean that prime ministers or presidents of a State can personally be held responsible if they do not meet the goals set out in, for example, the Paris Agreement? Is ecocide intended for the prevention of global warming or also climate catastrophes? Which cases were expected to be dealt with through the crime of ecocide?

By implementing ecocide in the Rome Statute, individuals would be targeted. One must seriously question whether it is the responsibility of an individual or a group of people to protect the environment. Perhaps, instead of building an entire new provision protecting the environment, more focus should be laid on the enforcement of existing mechanisms, such as the new goals within the Paris Agreement.[6]

Sources used

[1] ‘Key aspects of the Paris Agreement’, United Nations Climate Change. Retrieved from: https://unfccc.int/process-and-meetings/the-paris-agreement/the-paris-agreement/key-aspects-of-the-paris-agreement
[2] Stop Ecocide Foundation, ‘Independent Expert Panel for the Legal Definition of Ecocide’, June 2021. Retrieved from: https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d1e6e604fae2201d03407f/1624368879048/SE+Foundation+Commentary+and+core+text+rev+6.pdf
[3] The Crime of Aggression was inserted by resolution RC/Res.6 of 11 June 2010.
[4] ‘Amendments on the crime of aggression to the Rome Statute of the International Criminal Court’, United Nations Treaty Collection, last updated 18 March 2022.
[5] Kevin Jon Heller, ‘Skeptical Thoughts on the Proposed Crime of “Ecocide” (That isn’t)’, Opinio Juris, 2021. Retrieved from: http://opiniojuris.org/2021/06/23/skeptical-thoughts-on-the-proposed-crime-of-ecocide-that-isnt/ .
[6] See ‘Key aspects of the Paris Agreement’, United Nations Climate Change. Retrieved from: https://unfccc.int/process-and-meetings/the-paris-agreement/the-paris-agreement/key-aspects-of-the-paris-agreement

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