In April 2019, Polly Higgins, a British barrister, passed away after devoting ten years of her life to a campaign for a new law of ‘ecocide’ – a law that would make corporate executives and government ministers criminally liable for the damage they cause to the environment. In this blog, we consider the current framework for punishing environmental crime at international level, and what the proposed crime of ecocide might look like.

In the 1970s, on the back of an emerging trend of ‘earth law’ and jurisprudence, consideration was first given as to whether or not to include the crime of ecocide in the Rome Statute, which governs the jurisdiction of the International Criminal Court (“ICC”). One of the key developments in the move towards the recognition of ‘earth law’ was the identification by the International Court of Justice (“ICJ”) of a category of international obligations owed by states to the international community as a whole (erga omnes obligations) – including those relating to the environment. However, in 1996 the framers of the Rome Statute decided to exclude ecocide from its scope, thereby limiting the ICC’s jurisdiction to war crimes, crimes against humanity and genocide.

Current international law

The ability of the ICC to prosecute environmental criminal offences is limited to those acts which fall within the definition of Article 8(2)(b)(iv) of the Rome Statute, where environmental damage is listed as an example of a war crime. Specifically, the war crime of environmental damage is defined as the:

intentional [launch of] an attack in the knowledge that such an attack will cause…widespread, long-term and severe damage to the natural environment which would clearly be excessive in relation to the concrete and direct overall military advantage anticipated”.

The requirement for the damage to be “widespread, long-term and severe” sets the criminality threshold very high, and it is therefore unsurprising that no individual has yet been prosecuted under this provision. Further, the reference to environmental damage as a war crime limits the ICC’s jurisdiction of environmental offences to those committed during times of war. As currently drafted, the Rome Statute contains no provisions to protect non-human inhabitants of a given territory, indigenous or cultural rights, and nor does it cover environmental loss, damage or destruction to the environment during times of peace

Other international agreements, such as the Paris Agreement and UN Sustainable Development Goals, collectively set ambitious targets to combat climate change. However, none of these agreements are reinforced by international criminal law. They do not prohibit ecocide or impose any legal responsibilities on states, corporates or individuals. Rather, they are dependent on the cooperation and good faith of those states who are party to the agreements.

Introducing an international crime of ecocide would impose criminal liability on those individuals said to be responsible. The ‘Eradicating Ecocide’ website provides the following definition of ‘ecocide’, which campaigners would like to see adopted:

an act or omission committed in times of peace or conflict, by any senior person within the course of State, corporate or any other entity’s activity which cause, contribute to, or may be expected to cause or contribute to serious ecological, climate or cultural loss or damage to or destruction of ecosystems or a given territory, such that peaceful enjoyment by the inhabitants has been or will be severely diminished”.

Under this definition, a perpetrator must have had, or ought to have had, knowledge of the likelihood of the harm. Significantly, the definition also seeks to criminalise omissions, which would have the practical effect of incentivising individuals to take positive action to preserve the environment. Introducing criminal liability for omissions would significantly broaden the scope of the definition of ecocide from that considered in 1996, whilst at the same time placing a duty on governments and businesses to ensure that industry does not cause large scale damage to the environment.

Individual or corporate liability?

Notably, one of the key purposes of ecocide is to criminalise those of ‘superior responsibility’, including CEOs and government ministers. This emphasises the enhanced responsibility of those at the head of corporations which have a significant environmental impact.

Interestingly, the current wording of the definition does not impose responsibility on corporate entities themselves. In fact, nowhere in the Rome Statute is there any provision by which to hold corporates to account for international crimes. But with the recent publication of the International Law Commission’s draft Convention on Crimes Against Humanity, which includes a provision for imposing responsibility on corporate entities, there is perhaps space to argue that this could be extended to the crime of ecocide. However, bearing in mind the range of theories of corporate liability across domestic legal systems, agreeing a common basis of corporate liability in the context of international criminal law would be a significant achievement.

The ICC – a change in focus?

At present, the ICC’s jurisdiction is limited to war crimes, crimes against humanity, genocide and (since 17 July 2018) crimes of aggression. However, a policy paper published by the ICC in September 2016 announced its new focus towards prosecuting environmental crimes that are committed by means of, or that result in “the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land”. This shift towards prosecuting environmental offences suggests that the time is now ripe for the ICC to consider extending its jurisdiction to the crime of ecocide – but how would a new crime be introduced into the Rome Statute?

Process

Amendments to the Rome Statute must be proposed, adopted and ratified in accordance with Articles 121 and 122 of the Statute. Provided that one or more State Parties submit a proposal to incorporate the crime of ecocide into the Statute, the amendment would be open to other State Parties to consider. Upon attainment of a two thirds majority vote by the State Parties, ecocide would become an offence capable of prosecution by the ICC under international criminal law.

The introduction of a crime of ecocide will therefore require a certain level of political will. However, whether or not there will be enough political will to kick-start the process of amending the Rome Statute remains uncertain – particularly given that the creation of a crime of ecocide could expose government ministers and heads of state to the risk of prosecution for their failure to enact domestic legislation preventing environmental harm. Which begs the question: how many governments would want to leave themselves open to potential prosecution by the ICC in this way?

The future

Whilst some of the world’s biggest polluters are not parties to the Rome Statute, there is reason to remain positive about the future. A recent rise in environmental activism, combined with the work of numerous organisations (including ‘Stop Ecocide’) is pressurising governments across the world to tackle climate change. As a result, democratic governments are now starting to take environmental issues seriously, and as the demographic of their electorate changes, more change is likely to follow. However, whilst this has highlighted our collective responsibility to protect our planet, it is without doubt that any significant change can only be born from a collective political will to address the issue.