Why it is necessary to include ecocide in the Rome Statute

The Assembly of state parties of the International Criminal Court (ICC) held its annual meeting from 6 to 11 December 2021 where state parties to the Rome Statute, the observer states, invited states, international and regional organisations and representatives from civil society gathered to discuss key challenges facing the Statute. 

The most substantial headway, however, was made elsewhere and did not involve major powers like the US or China. Instead, in an event hosted by the Republic of

Vanuatu and the Independent State of Samoa, designated as a "collateral event", a new international core crime was defined and it is called 'ecocide'.

On 22 June 2021, the announcement of a new legal definition for the term ecocide emerged. A  panel of independent experts commissioned by the Stop Genocide

Foundation created the definition to establish a new prosecutable crime under the Rome Statute. 

The draft defines ecocide as, "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." 

In legal terms, ecocide refers to severely damaging or destroying the environment or its elements in a way to disrupt the residence, peaceful enjoyment of an ecosystem.

Ecocide is generally defined as the destruction of the natural environment or ecosystems by deliberate or negligent human action.

But can and should this be incorporated into the Rome Statute as well?

The International Criminal Court (ICC) was formally established in 2002 to prosecute the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression. 

Now, the Rome Statute does mention the environment, although only within the context of war crimes. While it is commendable to include a provision that recognises the environment as an object of international protection, such protection was not sufficient. 

Moreover, it can be mentioned that protection of the environment during 'war crimes' makes no sense, because serious environmental damage also takes place during times of peace. There is a necessity to go beyond military conflict and war-related crimes. As there is a correlation between environmental degradation and human rights, it should be addressed as an offence under the Rome statute. 

Industrially rich nations and their corporations have been working to gain profit. During the Vietnam war, 19 million gallons of powerful herbicides, including Agent Orange, were sprayed by the United States government over 10 years. Vietnam, Cambodia and Laos were badly affected during that period. 

Other powerful nations like China, India, Russia, and Germany are also liable for ecocide as they are responsible for polluting water bodies, damaging woodlands, driving plants, animals and entire ecosystems to the brink of extinction and destroying natural resources. 

As environmental hazards have accelerated, drastic and stringent actions are being taken. In 2015, the Dutch environmental group Urgenda Foundation and 900 Dutch citizens successfully sued the Dutch government for inaction on climate change. 

Recently, the French Parliament adopted the Climate and Resilience Law, which defined ecocide as a crime and made it punishable with up to 10 years in prison and a fine of €22.5 million ($25.8 million). 

Last year, All Rise, a group of climate lawyers, filed a dossier with the ICC because they wanted to launch an investigation into Brazil's president, Jair Bolsonaro, for crimes against humanity for fuelling the mass destruction of the Amazon.

Though there is no international legislation codified against ecocide, several countries took the initiative and started formulating strict laws against it. Vietnam was the first country to codify a National Ecocide Law in 1990.  There are other countries like Georgia, Armenia, Russia, Ukraine, Belarus, Ecuador and Tajikistan that also codified ecocide as an offence.

The process for making ecocide an international crime is elongated but straightforward. In December 2022, any of the 123 member nations may propose this draft law as an amendment to the Rome Statute in the Assembly of state parties. 

After that, a two-thirds majority at the ASP or a review conference is required for adoption. Progress on climate change will be far easier and innate to achieve at the ICC than at the annual UN Conference of Parties, the UN climate change summits. 

Great hope and expectations are poured into the annual COPs, but the  COP26 in Glasgow in November 2021 painfully transpired that a tiny number of powerful polluting nations could  derail the process and prevent any real progress. 

On the other hand, at the ICC Assembly, each nation receives only one vote and powerful bad actors do not have veto power.

Nevertheless, the initial barrier in the way of successful inclusion is time. The history of the Rome Statute reminds us that the amendments can take years from the first proposal to final ratification. Unfortunately, we do not have much of that luxury thanks to climate change. 

Some advocates argue that this lengthy process for insertion may be a blessing in disguise. Corporate behaviour will begin to change as soon as a nation submits a proposal. It is expected that businesses could use that time as a transitional period to change the way they operate. 

Investor-owned corporations like Chevron, Exxon, BP, and Shell who together have produced 10% of global carbon emissions will be especially vulnerable to charges of international ecocide. 

Even major powers like the US and China, which have not joined the Rome Statute, will not be released from the law's reach. Crimes committed on the soil of member nations are under the court's jurisdiction. It does not matter if the perpetrators hail from a country that is not a party to the Rome statute. 

In Bangladesh, a parliamentary committee headed by Saber Hossain Chowdhury has already insisted the government to bring the act of environmental destruction under the purview of the law by treating ecocide similarly to genocide. 

Bangladesh has started campaigning against ecocide. Development projects are now required to be greener, more inclusive and climate-resilient. The standard form to propose development projects was modified in 2012-2013 included specific poverty-environment–climate considerations in four key sectors like agriculture, water, rural development and transport.

In 2021, ecocide was incidental for the ICC. Next year, it will be the main event with enough public pressure and concern. Afterwards, the fight against climate abuse can begin in a more determined way. 

To ensure the effectiveness of the investigation and prosecution of this new crime within the Statute, there needs a concrete depiction of the procedural checks and balances within the ICC legal framework. 

It is necessary to make ecocide and aggravated ecocide become special crimes with a special procedure. Despite some challenges, the proposed crime of ecocide would point out a reliable solution by making polluters criminally accountable in case of massive destruction to the ecosystem if it is truly included as a core international crime. 

The crime of ecocide would accelerate the gravity of environmental harm by promoting the urgency to reduce massive destruction caused to the environment. Hence, it persuades that such an act of massive destruction to the environment and ecosystem should no longer be ignored. By adopting it as a core crime, it would avouch serious commitment from the international community as a whole.

Tarin Hasan is a student of the Department of Law at the University of Chittagong. 

Disclaimer: The views and opinions expressed in this article are those of the author and do not necessarily reflect the opinions and views of The Business Standard.