The latest report of the Intergovernmental Panel on Climate Change provides chilling reading. “The scientific evidence is unequivocal: climate change is a threat to human wellbeing and the health of the planet,” said Hans-Otto Pörtner, one of the report’s authors. “Any further delay in concerted global action will miss a brief and rapidly closing window to secure a livable future.” Against this backdrop, efforts to create a new international crime of ‘ecocide’ are more urgent than ever.
In June 2020, an international panel of experts drew up a proposal for the crime of ecocide to be included in the statute of the International Criminal Court in The Hague. I was part of the group. If adopted, ecocide would become the fifth crime to be prosecuted at the court, alongside genocide, war crimes, crimes against humanity and aggression.
What is Ecocide?
The idea of ecocide dates back to the 1970s and the Vietnam War. In 1977, the first additional protocol to the Geneva Conventions included a prohibition on causing widespread, long-term, and severe damage to the natural environment in armed conflict, and this has been translated into a war crime at the International Criminal Court.
But the accelerating climate and biodiversity crises have given new impetus to the idea of ecocide as an international crime in time of war or peace. An international crime because, like genocide or crimes against humanity, acts of ecocide harm us all, wherever they are committed.
Our definition proposes that acts likely to cause severe and either widespread or long-term damage to the environment be classified as international crimes, where they are either unlawful or completely disproportionate to any social and economic benefits anticipated. To be guilty of the crime, individuals would need to have knowledge of the substantial likelihood of the environmental damage resulting from their acts. We drew upon established notions in international law in crafting the definition.
The qualifiers “widespread,” “long-term,” and “severe” are recognizable from the existing war crime in the international court system. We used the terms “unlawful or wanton” to encapsulate the criminal behavior, following the language that prohibits pillage, or destruction of property, in armed conflict.
And in crafting the proportionality test—a structure which mirrors that of the existing environmental war crime—we drew upon the foundational international environmental law principle of sustainable development.
How Would It Work in Practice?
As part of the International Criminal Court system, ecocide could be prosecuted either at the court in The Hague, or domestically. Individuals who are nationals of the States that have signed up to the court statute, or who are responsible for ecocide committed on their territory, could be transferred to trial in The Hague. States that sign up to the court system also agree to incorporate the statute crimes into their domestic criminal law systems, and under the principle of subsidiarity, domestic systems have priority. So ecocide could also be prosecuted in national criminal courts, giving incorporation of the crime a multiplier effect and making ecocide illegal across all states who accept the amendment.
Only individuals can be held responsible before the court. Neither states nor corporations can be prosecuted, but the people making decisions and giving instructions in those entities can.
CEOs, corporate board members, environment ministers or others in a position to cause, through their own actions and decisions, environmental damage that is sufficiently severe and either widespread or long-term will find themselves open to investigation, prosecution, and imprisonment upon conviction.
This should significantly change the risk analysis, and help steer decision-makers away from the kind of destructive practices that we so urgently need to change. Indeed, it may be that the deterrent effect of international criminal law is significantly higher on corporate actors, who are driven by rational calculations about reputation and share price, than it is upon the ideologically driven political actors more customarily found in the dock at The Hague.
What’s Next?
Our proposal has attracted support from a broad spectrum of opinion, from the Pope to the U.N. secretary-general and major investors. The International Corporate Governance Network, a global investor network representing $59 trillion, has called upon governments to criminalize ecocide in order to level the playing field and contribute to healthy and sustainable economies. A small but significant number of the 123 states parties to the International Criminal Court system have likewise shown interest or support, from small island states like Vanuatu and the Maldives, to Canada, Bangladesh, and Belgium. In February, the European Parliament recommended that member states support the proposal.
We now need one member state to formally propose the amendment. A simple majority is required for the amendment to be considered, and a two-thirds majority for adoption. The first opportunity for ecocide to be proposed comes up in September. If this deadline is met, the Assembly of States Parties to the court—its legislative body—will debate its inclusion at their annual meeting in New York in December.
We know our window for meaningful climate action is closing—an international crime of ecocide may be the guardrail we need to realign behavior before it’s too late.
This article does not necessarily reflect the opinion of The Bureau of National Affairs, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Kate Mackintosh is the executive director of the Promise Institute for Human Rights at UCLA School of Law. She was deputy co-chair of the Ecocide Law Drafting Panel and on the Counsel of Advisers reporting on the application of the Rome Statute of the ICC to cyberwarfare.