«Ecocide» as an international crime: Personal reflections on options and choices

On 22nd June 2021, the “Independent Expert Panel for the legal Definition of Ecocide” – on which I had the honour to serve – launched a proposal for a legal definition of “ecocide” for the purpose of amending the Rome Statute of the International Criminal Court (ICC) with the addition of a 5th international crime. In the following, I attempt to set out some of the general choices the panel made against the options that were considered. In doing so, however, I share my personal reflections and am writing in my personal capacity only, not on behalf of other panel members. We were 12 international lawyers with different backgrounds and areas of expertise. The discussions we had over the course of 6 months were intellectually challenging and led us to considering diverse options, but they united us in the support for the proposed definition.

The proposed definition has since stimulated academic discussion and debate (see, for example, here, here, here, here, here, here and here); something that the panel had hoped to ignite. Fully aware of the wide range of possible choices to define the crime of “ecocide”, the work on the definition was guided by certain parameters. While not agreed specifically, it is my understanding that they can broadly be described as: 1. pragmatism and realism, 2. precedent, 3. deference and respect, 4. environmental integrity, and 5. legal effectiveness. An overall guiding element was ICC´s ratione materiae jurisdiction over the “most serious crimes of concern to the international community as a whole». These parameters guided the work toward the proposed definition; and certainly informed my choices, yet many other options and views exist.

1. Taking a realistic approach was important, as it was considered necessary to propose a pragmatic definition that (at least conceptually) would stand a chance to be supported by state parties to the Rome Statute. In other words, the definition should not venture beyond the boundaries of legal concepts which states are familiar with in international law. In my view, a definition adopting an exclusively ecocentric approach or an explicit reference to planetary boundaries could perhaps have given a stronger environmental signal but might have been detrimental to the likelihood for being adopted. Fully aware of the procedural and diplomatic challenges and the up-hill battle that any proposal for amending the Rome Statue (as explained here) would face, it was an important choice to put forward a definition that seemed pragmatic and therefore not unrealistic. Other views are, of course, possible.

2. Another guiding element was “precedent”; understood not in its narrow legal definition, but as an attempt to being able to trace back key terms and concepts in the proposed definition to authoritative, legal sources. Again, while not putting a straitjacket on its work, the panel carefully analysed and drew inspiration from the jurisprudence of international courts including the ICC, ICJ, ITLOS, existing international treaty law and custom. The only exception being the definition of the “environment”, which currently does not exist in international law, and which was therefore based on scientific sources, adapted to a legal context.

3. The work was further conducted with deference and respect to the existing crimes in the Rome Statute, as well as to the existing work on “ecocide”, done by many scholars and proponents over decades. An amendment of existing crimes was for this reason not an option to be pursued. The four crimes currently listed in the Rome Statute all have a long and difficult history. Bringing them under the jurisdiction of the ICC was no small feat. Any amendment of those crimes could potentially open them up to further negotiations. It is my understanding that this was a risk the panel was not willing to propose.

Moreover, three of the existing crimes require human harm, either in the intent to destroy in whole or in part a national, ethnical, racial or religious group (genocide, art. 6), an attack on a civilian population (crimes against humanity, art. 7), or an act against the territorial integrity of a state (crime of aggression, Art. 8 bis). While the impact on humans caused by environmental damage was to be included in the crime of “ecocide”; it was agreed that this should not be an exclusive condition. Rather, it was considered important to capture certain categories of damage, including damage to the environment per se, independent from harm to human life. None of those three existing crimes seemed to provide a conceptual basis for such purely environmental damage. (see an excellent discussion here)

War crimes (art. 8), on the other hand, do. They potentially include an attack in the knowledge that such attack will cause widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated (Art. 8, paragraph 2(b)(iv)). The attack, however, has to occur in the context of an international armed conflict. Also, in war crimes the natural environment is protected because it is seen as a civilian object. This was considered too limiting, since much of most severe environmental destruction occurs during peacetime. The panel was therefore undivided in its intention to address non-military related environmental damage.

For the reasons above, the choice fell on the proposal of a new, additional crime; Art. 8 ter.

Having said this, there are some cases (in peace or in war) where the same situation involves both severe environmental damage and serious human harm. In those circumstances, the prosecutor could potentially use the existing international crimes. In fact, as a matter of case selection policy, the Prosecution has indicated to prioritise cases where crimes (within the Statute) 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. (Office of the Prosecutor, Policy paper on case selection and prioritisation, 2016) (see also here)

4. It was further important to ensure what I call “environmental integrity” of the definition; a solution that would meaningfully address the specific challenges posed by environmental destruction. This led to several choices. First, it informed the architecture of the proposed crime which consists of two paragraphs: the first setting out the crime and the second providing definitions for key terms. An alternative would have been to provide a catalogue of various acts covered by the crime. Even though such a catalogue would not be exhaustive, there was the fear that it would be too limiting, and potentially carrying the notion of “justifying” acts that are not explicitly listed. The architectural choice fell therefore on a definition which is dynamic, abstract, and general and thereby would capture a wide range of possible perpetrators and acts; some of them might not even be foreseeable from our current state of knowledge. Second, environmental damage is based on two disjunctive thresholds: “severe and widespread” or “severe and long-term”. This deviates from the requirement in Art. 8, paragraph 2(b)(iv), but is more in line with the use in the ENMOD Convention (although there the thresholds are fully disjunctive). A conjunctive threshold, while appropriate for environmental harm during military attacks, was considered too high for the crime of ecocide. While the harm always must be severe, a spatial or a temporal dimension of that harm – but not a combination of both – was considered adequate and sufficient. Third, and perhaps most importantly, “ecocide”, as explained above, includes pure environmental damage. This required a definition of the environment, which was successively provided in paragraph 2 (e). This definition is new, as “environment” is not legally defined in international law (with the exception perhaps of the statement of the ICJ in its Advisory Opinion on the Legality of the Threat or use of Nuclear Weapons). To ensure that all aspects of the environment, including its interlinkages and interconnections, are included, an earth-system science definition was adopted, based on the five main spheres of the earth. Environmental integrity also guided the panel´s work in the definitions of (i) “severe” – for example by including “any” element of the environment; (ii) of “widespread” by recognizing the interconnectedness and un-bound(ary) nature of the environment, as well as the adoption of an ecosystem approach; and (iii) of “long-term” by recognizing irreversible damage as well as natural resilience and recovery. All these aspects are defined such as to allow, at any time, for the use of best available science to provide more specific clarification, on a case-by-case basis.

5. Perhaps the most difficult choices were informed by the requirement of legal effectiveness, or, in other words, by aiming to ensure that the definition “works”. First, the issue of lawfulness. The challenge with respect to environmental damage – as compared to the existing crimes in the Rome Statute – is that much of the damaging behaviour (acts and omissions) is not criminalized, and only partly prohibited under international law, national law, or both. At the minimum, the definition captures illegal acts, if they meet the other thresholds mentioned above. The more difficult issue, however, was how to deal with acts that are not prohibited and where the perpetrator acted lawfully. Also lawful acts can entail severe, widespread, or long-time environmental harm, but that in some cases such serious damage might be legitimate for reasons of social or economic development. In the latter case, in particular situations in the global south were given consideration. Other views are, of course, possible (and are advocated here). But the panel was cautious of a definition that would “leapfrog” any and every act that causes severe and either widespread or long-term environmental damage to the level of an “international crime of ecocide”. In respect for the ICCs jurisdiction over the most serious crime of concern to the international community as a whole, and for reasons of clarity, predictability, legitimacy, but also to address this challenge with a certain degree of realism, the choice was made that for lawful acts, the wantonness of the act would be the “criminalizing” element. In this situation, an additional, “unjustifiability” threshold was included: the disproportionality or excessiveness of the environmental damage in relation to anticipated social and economic benefits, and the reckless disregard for such.

Another effectiveness consideration led to the proposal of mens rea as knowledge of a substantial likelihood of the environmental damage. The requirement of intent was considered too narrow, as perpetrators may not necessarily mean to cause environmental damage, but rather take it knowingly into account. The requirement of knowledge is understood as “awareness” (see the panel´s commentary) of the significant likelihood of serious damage in the sense of being aware or could have been aware based on publicly accessible information and data.

As mentioned in the beginning, the proposal for a definition of “ecocide” as put forward by the panel, is one of many different, thinkable alternatives. Being guided by the abovementioned parameters, it is, however, the one the panel found most suitable. The discussion and discourses it has initiated are hopeful signs of engagement with it. Such engagement is crucial for the concept of “ecocide” to take shape and gain foothold, hopefully on the radar of states, too.