The Proposed Definition of the Crime of Ecocide: An Important Step Forward, but Can Our Planet Wait?

Last week, an independent expert panel (“IEP”) published a proposed definition of ecocide as a potential fifth international crime to be added to the Rome Statute.

The introduction of such a definition in the Rome Statute and placing crimes against the environment at the same level with “the most serious crimes of concern to the international community as a whole,” could be a huge step forward towards accountability for environmental harm. The importance of this development lies also in its symbolic value, as well as in the transformative nature inherent in declaring certain behavior as criminal in nature. As Professor Philippe Sands, co-chair of the IEP, explained: “For me the single most important thing about this initiative is that it’s part of that broader process of changing public consciousness, recognising that we are in a relationship with our environment, we are dependent for our wellbeing on the wellbeing of the environment and that we have to use various instruments, political, diplomatic but also legal to achieve the protection of the environment.”

The proposed definition has already prompted a lively discussion, with regard to various aspects and components of the definition (see here, here, here and here). However, and regardless of the exact wording to be ultimately adopted by States Parties, one may assume that amending the Rome Statute so that it includes the crime of ecocide will not be an easy task, to say the least, due to the difficulties of building broad political support and global cooperation around the definition. Additionally, even if two thirds of States Parties were to agree to amend the Statute, as required by Article 121(3) of the Rome Statute, achieving this might take time. When asked, Prof. Sands estimated that amending the Statute so that it includes the proposed crime of ecocide would take “somewhere between five and fifty years”. Also, the amendment will most probably not apply retroactively and – according to article 121(5) of the Rome Statute – it will enter into force only for those States Parties which have accepted the amendment.

By contrast, as I have explained elsewhere, the ICC and the core crimes already listed in the Rome Statute may provide – in suitable cases – a ready-made solution for the time being. As Professor Kai Ambos mentioned in his post: “[i]t is arguably more sensible, especially from a practical point of view, to further develop in case law those elements in the existing international core crimes which have an environmental ingredient and on which the draft definition of ecocide partly draws”.

Undoubtedly, the wording of the core crimes listed in the Rome Statute presents several significant hurdles to prosecution of environmental crimes in peacetime. Also, one should bear in mind that as a source of international criminal law, the Rome Statute is governed by the principle of nullum crimen sine lege (“no crime without law”) (see Article 22(2) of the Rome Statute and article 7(1) of the ICC Elements of Crime regarding crimes agaisnt humanity). Hence, any attempt to expand the scope of existing crimes to cover environmental harm should be examined with caution.

Amongst the Rome Statute’s different categories of crimes, the category of crimes against humanity is probably the most relevant to the prosecution of environmental crimes in peacetime, since, inter alia,  it does not require any nexus to an armed conflict.

It seems that the language of the different elements of this category of crimes, and of some of its punishable acts, grants some leeway for creative interpretations, thus making it heavily dependent on the willingness of the Prosecutor and the Court to go the extra mile and expand the scope of existing international crimes to cover new forms of harm.

This approach is supported by the most recent “Policy Paper on Case Selection and Prioritisation” ,issued in September 2016 by the Office of the Prosecutor (“OTP”) of the International Criminal Court, which set forth, inter alia, the goal of prosecuting Rome Statute crimes that result in the destruction of the environment. Hence, the need to adapt international law to contemporary challenges is reflected in the priorities detailed in the OTP Policy Paper.

Additional support for this notion lies in the well-established link between environmental degradation and human rights, in particular, the right to life (see Human Rights Committee’s General Comment 36, Portillo Cáceres v. Paraguay, Teitiota v. New Zealand). One may claim that since environmental harm and human rights are in many cases indivisibly intertwined, the crimes listed in the Rome Statute should be interpreted as applying to environmental crimes when those affect human beings and their most fundamental rights. According to this approach, if environmental crimes produce the same outcome as other international crimes in terms of the threat they pose to human existence, and the different elements of an existing crime are satisfied through purposive interpretation, then, arguably, environmental crimes should not be treated differently.

Indeed, the use of such an anthropocentric approach to the criminal prosecution of environmental harm is not ideal, and may raise several concerns and difficulties. Nonetheless, this approach has the advantage of making use of existing offences to bring immediate action against perpetrators. Given the urgency of the challenge posed by environmental degradation and its irreversible nature, the exploration of the possibility of using existing crimes listed in the Rome Statute for the prosecution of environmental crimes should not be abandoned, at least at this stage.