An expert panel brought together by the Stop Ecocide Foundation proposed this week to amend the statutes of the International Criminal Court and include ecocide alongside other international crimes such as war crimes, crimes against humanity and genocide.
The proposal follows a decision in beginning of June by the European Parliament to support the implementation of the EU Biodiversity Strategy by among others encouraging the EU and the member states to promote the recognition of ecocide as an international crime under the Rome Statute of the International Criminal Court (ICC).
In February, when the European Commission adopted a new EU strategy on adaptation to climate change, setting out the pathway to prepare for the unavoidable impacts of climate change, it did not address EU’s position on criminalising intentional damage to the planet, such as the fires in the Amazon rainforests and the destruction of ecosystems.
In beginning of March, a number of MEPs across the major political groups sent an open letter to the presidents of the European Council and the European Commission to support the recognition of the right to a healthy environment, both internationally and at the European level.
The letter, initiated by French MEP Marie Toussaint (Greens/EFA), was also addressed to the current Portuguese Presidency and its successor during the second half of 2021, Slovenia. “This is a crucial step for the international movement for the recognition of ecocide,” she commented. “As parliament members, it is now our duty to support this definition in our Parliaments.”
The proposed amendment was presented at a press conference on Tuesday (22 June) by among others law professor Philippe Sands, one of the co-chairs of a diverse group of legal experts. He underlined that the proposal had been adopted by consensus, taken into account the views in an extensive consultation process and was firmly based on texts and precedencies in existing criminal law.
Himself a practicing barrister with experience of international criminal and environmental law, he is more known for the general public for his bestselling book “East West Street/Retour a Lemberg”, which is part a family history and part a legal thriller on the origins of the laws on genocide and crimes against humanity.
There were no international conventions against genocide on the eve of WWII and governments were “free” to commit mass atrocities against their own populations. Only retroactively were crimes against humanity – defined as war crimes committed on a vast scale against civilians – included in the statutes of the Nuremberg trials.
And only in 1948, did the United Nations adopt the convention on the prevention and punishment of the crime of genocide. Genocide is defined as killing and other acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group.
The existence of international laws against mass killings of civilians and genocide might not have prevented the Holocaust but at least they would have raised awareness of the crimes and sent a signal to the perpetrators that they would be punished. The non-existence of any legislation made it easier for by-standers not to believe that such crimes could take place.
“I have been influenced by my own background,” Philippe Sands said when explaining why ecocide should be added to the already existing international crimes. “The mere adoption of a legal text does not stop horrors from occurring but it does change our consciousness about them. It causes us to thing differently about our place in the world and how the law can be used to protect the environment.”
What has been missing until now is an international law on the protection of the natural world and the environment in its widest sense, he said.
A new article is proposed to be added to the statues of the ICC where ecocide is defines as follows:
“For the purpose of this Statute, “ecocide” means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.”
Philippe Sands explained that two thresholds need to be met for the court to start investigating alleged ecocide.
The first is that an act has been committed with knowledge that there is a substantial likelihood of damage. The other one is that the act is unlawful in domestic or international law or wanton, meaning that it has been committed with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated.
The wording is taken from existing elements in the statutes. The bar for severe damage is set reasonably high, according to Sands. The ICC is intended as a court of last resort for severe environmental crimes of international concern. The crime must have either a geographical dimension which extends beyond a limited geographic area or a temporal dimension causing long-term and irreversible damage.
In formulating the definition of ecocide, the panel did not have any particular act in mind. According to Sands, the expert panel decided on defining ecocide in general terms without listing the specific crimes for two reasons.
Firstly, if the law would list the crimes, some acts would inevitably not be included, signalling that they might be permissible. Secondly, for political reasons, the panel did not want to target any specific country by listing the acts. However, he underlined that only individual persons and not states or organisations can be brought to court by the ICC.
The new law will target “crimes of endangerment” of the environment and is expected to have a preventive effect.
What is next step?
“At the international level, what we need is for some states to bring the proposed amendments to the next General Assembly of the ICC in December. The Members of the Ecocide Alliance have committed to push for this within their countries. Several of them have already expressed interest in pushing for ecocide at the ICC level. It's now time for them to take action,” MEP Marie Toussaint commented.
“At the European Parliament level, we’ll be revising the environmental crime directive by the end of the year, which will be a crucial opportunity to push for the recognition of ecocide,” she told The Brussels Times. “We will base our work on this definition, and adapt it to the European level. It’s a crucial moment for the EU to show it can be a leader on the matter of ecocide, and we intend not to let this opportunity go wasted.”
The Brussels Times