A group of leading international law experts has defined a new super-crime.
They’re calling it “ecocide”.
They plan to submit a draft of their new law to the governing body of the International Criminal Court, in the hope that the ICC will adopt it for future prosecutions.
If successful, ecocide will become the court’s fifth jurisdictional responsibility, alongside genocide, crimes against humanity, war crimes and crimes of aggression.
The group behind the proposal, Stop Ecocide, argues that climate change knows no borders and the destruction of local ecosystems can have huge global consequences.
“In this day and age, it’s no longer possible to say that one is destroying large swathes of nature without realising what one is doing,” Stop Ecocide’s Jojo Mehta says.
She, and the expert panel she’s assembled, want governments, companies and individuals to be brought to account for the environmental destruction they knowingly allow.
And that sense of knowing is important, she says, because most destruction occurs not by accident, but in support of commercial gains.
A growing momentum
Prominent environmental activist Greta Thunberg is onboard, as is the French President, Emmanuel Macron, who’s raised the possibility of incorporating the concept of ecocide into domestic French law.
Though not an official member of the Stop Ecocide movement, he’s also leant his weight to the idea of charging the ICC with oversight of international prosecutions.
President Macron’s involvement began in 2019, when large swathes of the Amazon caught fire under suspicious circumstances. Macron personally accused the Brazilian government of not doing enough to protect the forests from destruction.
Brazil’s populist leader, Jair Bolsonaro — a self-proclaimed climate change denier — initially ridiculed the idea of an ecological emergency and refused to accept international assistance.
“This is an issue that concerns the entire world,” President Macron responded.
Pope Francis has also spoken of what he calls the “sins of ecology”, explicitly describing his understanding of ecocide as:
“The massive contamination of air, land and water resources, the large-scale destruction of flora and fauna, and any action capable of producing an ecological disaster or destroying an ecosystem.”
The pros and cons
Queens University Law lecturer, Rachel Killean, says the concept of ecocide dates back to the Vietnam War and debates over the American military’s use of the Agent Orange defoliant.
It also briefly gained attention during early discussions on the role and function of the International Criminal Court.
So, Dr Killean says, it makes historical sense to adapt the ICC’s brief, rather than establish a new environmental court.
She says International Law experts such as University College London’s Philippe Sands, former ICC judges and climate change experts are talking about it as “something that is possible and tangible.”
Ms Mehta says the ICC is the only global mechanism that directly accesses the criminal justice systems in all of its member states.
“So, effectively if you make something a crime there, any member state that ratifies that crime must then include it in their own domestic legislation within a year.”
This means it’s likely the most efficient way to make a rule that stays similar across international borders.
“That’s very important with ecosystem destruction because the biggest perpetrators are big transnational companies which operate in many jurisdictions,” Ms Mehta says.
But, Dr Killean warns, despite renewed interest in the ecocide concept there are big hurdles to overcome, the first being sufficient political will.
Any change to the ICC’s mandate will have to be approved by a two-thirds majority of member states.
“This is a crime that has implications for economic expansion and the relationship between very powerful people in the natural world, so you can imagine the kind of political pushback you’re going to have,” Dr Killean says.
Almost all governments, she says, validate some form of large-scale environmental destruction. For example, the mass clearing of land for agriculture, or the destruction of natural ecosystems for mining.
That adds a complexity that even environmentally responsive nations may find difficult to deal with.
“We all accept that a genocide is something incredibly awful,” Dr Killean says.
“Crimes against humanity, these are easy to get on board with as crimes against the conscience of mankind.”
But ecocide, she says, is different.
Three of the biggest geo-political players, the US, China and Russia are not ICC members and refuse to recognise its authority.
Jojo Mehta agrees that’s a problem, but says the current court structure allows for the prosecution of people from non-ratifying states.
“Prosecutions can happen anywhere where the crime is ratified,” she says.
“If you are a war criminal, the likelihood is that your own state can’t or won’t prosecute you, and so you will end up in the court of last resort, which is the ICC.
“So that principle, if you like, of universal jurisdiction can be applied, as long as a crime actually exists.”
Who can and can’t be prosecuted?
A second major challenge in giving the International Criminal Court a specific environmental mandate is that the ICC can only prosecute people, not corporations or governments.
Jojo Mehta prefers to see this as a strength.
“Currently those in decision-making positions in corporations or in banks that are financing destructive projects can hide behind the corporate veil — they don’t have to take personal responsibility,” she says.
She says Stop Ecocide want the individuals responsible for environmental destruction to be held accountable.
“Research has shown that when you change regulation, you tend to change corporate budgeting — whereas if you change criminal law, you actually change behaviour,” she says.
“By putting it in the criminal sphere it pushes it below that moral red line and creates an important cultural shift.”
Race and the baggage of the past
Perhaps the biggest obstacle to securing effective ICC involvement relates to global inequality and the court’s own reputation.
Of the 34 individuals indicted in the ICC since its inception in 2002, all have either been African or from the Middle East.
No indictments have been issued against any Europeans, Americans, or members of other Western countries.
That track-record has seen the heads of several developing countries brand the ICC a “neocolonial institution”.
Others, like Keele University Law lecturer Awol Allo, say it is simply shortsighted.
In an opinion piece for Aljazeera Online he wrote: “The point is not that the court is racist, nor is it that it lacks objectivity in the sense that it is biased against Africa.
“The point is that the ICC … is Eurocentric and the world views, perspectives and stand points it reflects and embeds are uncompromisingly European.”
So, if the International Criminal Court began indicting people for ecocide would it eventually become more global in its focus?
Dr Kilean thinks not.
“Powerful ‘Global North’ states are likely to be able to avoid the ICC, as they have done for some time”, she says.
But that’s not to say Dr Killean sees no value in Stop Ecocide’s campaign to create a workable legal definition of ecocide.
She believes such a definition could better inform national laws in countries that are genuinely committed to fighting climate change, and may eventually help lead to the establishment of a standalone international environment court.
Jojo Mehta says she’s convinced establishing ecocide as a global crime would provide a “guardrail for humanity” in seeking to limit future widespread damage to the environment.
“We are heading into a time where governments are not really going to want to be seen refusing to discuss this because we are all aware of the extremity of the global crisis that we are in environmentally.” she says.
“We hope that this law will be a foundational piece. Not a ‘fix everything’ panacea, but a foundational piece towards a new way of operating with nature.”
The expert legal panel assembled by the Stop Ecocide campaign is due to complete its first draft mid-year. It will then be submitted to the International Criminal Court’s membership assembly for consideration.
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