Legal Challenges and Prospects for the Rome Statute – Cambridge International Law Journal

Within the Seventies, famend biology professor Arthur W. Galston launched the idea of ecocide through the Vietnam Conflict, as he protested the U.S. Military’s use of the chemical herbicide “Agent Orange” to destroy vegetation cowl and crops aiding enemy forces. Immediately, fifty years later, the time period ecocide has gained renewed relevance as environmental destruction accelerates on a world scale. Because the impacts of local weather change and environmental hurt grow to be ever extra obvious, the decision to recognise ecocide as a world crime grows louder.

On 9 September 2024, Pacific Island nations, specifically, Vanuatu, Fiji and Samoa submitted a proposal to the UN Secretary-Common and the Working Group on Amendments of the Meeting of States Events (ASP) to amend the Rome Statute of the Worldwide Prison Courtroom (ICC), looking for the popularity of ecocide as a world crime alongside crimes in opposition to humanity, battle crimes, genocide, and aggression.

An identical choice was thought-about in 1991 through the drafting means of the Code of Crimes Towards the Peace and Safety of Mankind that will finally grow to be the Rome Statute: the Worldwide Legislation Fee proposed together with a substantive crime of “willful and extreme harm to the atmosphere” within the  Draft Code. As Bertram reminds us, this proposal didn’t obtain sufficient political assist. Consequently, the Rome Statute solely explicitly addresses the pure atmosphere in relation to Article 8(2)(b)(iv) regarding environmental battle crimes as an act that’s dedicated that entails ‘deliberately launching an assault within the data that such assault will trigger … extreme harm to the pure atmosphere which might be clearly extreme in relation to the concrete and direct general army benefit anticipated’.

To what extent is that this definition terminologically in step with the above-mentioned proposal by the island states to the Rome Statute? Vanuatu, Fiji and Samoa have put ahead a proposal for the ICC to formally recognise ecocide as a world crime, outlined as: ‘illegal or wanton acts dedicated with data that there’s a substantial chance of extreme and both widespread or long-term harm to the atmosphere being attributable to these acts’.This definition was first launched in 2021 when a panel of authorized specialists, convened by the Cease Ecocide Worldwide Basis, proposed the normative content material of the crime of ecocide.

If profitable, this could be the primary modification to the checklist of crimes over which the ICC has jurisdiction. Extra importantly, it might allow the prosecution of people answerable for environmental destruction, together with leaders of main polluting companies and/and even heads of State (though this opens one other debate in worldwide felony regulation, see right here and right here).

Why ought to ecocide be a world crime?

The necessity to recognise ecocide as a world crime below the Rome Statute arises from the escalating severity of environmental destruction and its severe implications for world peace, safety, and human rights. Criminalization of ecocide would tackle vital gaps in worldwide regulation and present the worldwide neighborhood’s dedication to environmental safety by shifting from procedural obligations, like reporting and transparency, to enforceable substantive commitments; holding people and companies accountable reasonably than focusing solely on state accountability; strengthening enforcement mechanisms past voluntary compliance; and making a deterrent to stop environmental destruction, reasonably than counting on post-damage reparations.

The United Nations has acknowledged that environmental degradation can exacerbate conflicts and threaten human safety. As Sands argues, ‘the time has come to align worldwide felony regulation with the fact of what environmental destruction does to folks, ecosystems, and species.’

Present worldwide authorized frameworks inadequately tackle large-scale environmental hurt, significantly in peacetime. The ICC has not but prosecuted extreme environmental harm throughout armed battle, regardless of its mandate below Article 8(2)(b)(iv). The Rome Statute lacks provisions for prosecuting extreme environmental harm occurring outdoors armed battle. This authorized void permits people and companies to trigger vital hurt with out concern of worldwide prosecution. Criminalising ecocide would shut this hole, enabling the ICC to carry perpetrators accountable.

The proposal expands prosecution for environmental hurt past battle, shifting from an anthropocentric to a nature-centric focus, which develops ecosystem safety however poses challenges in enforcement, authorized readability, and growth conflicts. In February 2024, ICC Prosecutor Khan introduced a brand new coverage initiative to spice up accountability for environmental crimes below the Rome Statute, signaling the Courtroom’s dedication to addressing environmental hurt as a severe worldwide crime. The ICC’s incoming coverage will possible enhance the chance of prosecution for extreme environmental harm throughout armed battle, presumably starting with the scenario in Palestine, the place such harm doubtlessly quantities to battle crimes.

The ICC has jurisdiction over people, however many ecocidal acts contain company entities. If ecocide was against the law over which the ICC had jurisdiction, this provision would facilitate the prosecution of these in management positions of companies that orchestrate environmental hurt, bridging the accountability hole for company actions.

Prosecuting ecocide on the ICC would additionally unlock prospects for victims to obtain reparations. Though the ICC’s mandate for reparations is a much less examined side of the ecocide motion, it holds vital potential. Because of profitable prosecutions, victims might obtain compensation for the lack of pure sources, in addition to assist for reforestation and different environmental restoration efforts. These measures not solely present justice to affected communities however may very well be used to bolster efforts to revive the atmosphere.

Moreover, by means of the doctrine of common jurisdiction, member States that recognise ecocide as against the law might prosecute offenders inside their nationwide authorized methods. This may enable States to carry people accountable, no matter their nationality or the place the crime occurred.

Past authorized concerns, there’s a ethical obligation to guard the atmosphere for current and future generations. The idea of intergenerational fairness emphasises our accountability to protect the planet’s well being. Criminalising ecocide would mirror the worldwide neighborhood’s moral dedication to intergenerational fairness, guaranteeing that extreme environmental hurt is confronted with acceptable authorized penalties.

The problem of jus cogens

The rules of the Working Group on Amendments require States to evaluate whether or not the crime in query qualifies as probably the most severe human rights violations of worldwide concern. This threshold is a excessive one. The opposite listed crimes over which the ICC has jurisdiction align with jus cogens (peremptory norms) of worldwide regulation.

Compared to genocide, which is outlined within the standalone Conference on the Prevention and Punishment of the Crime of Genocide (Genocide Conference) and shares some conceptual similarities with ecocide, it is very important observe that ecocide has not been recognised as current below customary worldwide regulation, that’s, it’s not binding on States with out worldwide treaty obligations. In Reservation to Genocide Conference, the Worldwide Courtroom of Justice (ICJ) recognised that ‘the ideas underlying the Conference are ideas that are recognised by civilised nations as binding on states, even with none standard obligation’. Moreover, in Armed Actions on the Territory of the Congo (Democratic Republic of the Congo v Uganda), the ICJ affirmed that the prohibition of genocide constitutes a norm of jus cogens, which the Courtroom reaffirmed later in its Software of the Genocide Conference (Bosnia and Herzegovina v. Serbia and Montenegro) judgment. Different classes of jus cogens codified within the Rome Statute – comparable to battle crimes, crimes in opposition to humanity, and the crime of aggression – have equally had their jus cogens standing established by means of ICJ selections (see right here, right here, and right here).

As ecocide just isn’t recognised in customary worldwide regulation and established case regulation, not to mention not a jus cogens norm, it’ll battle to coexist with different worldwide crimes within the Rome Statute, which had already been thought to be jus cogens norms lengthy earlier than the Statute’s adoption.

The problem of ratione personae

A good portion of acts falling below the proposed definition of ecocide are dedicated by companies. This presents a ratione personae problem for the ICC, as its present jurisdiction doesn’t lengthen to authorized individuals.

Since worldwide felony regulation solely applies to people, the ICC has jurisdiction solely over people. Nevertheless, there’s a method to cowl people main companies. Article 25(3)(c) of the Rome Statute establishes particular person felony accountability for facilitating against the law the place a person assists within the tried fee of against the law, together with offering the means for its fee. This may very well be utilized to seek out people main companies committing ecocide liable below worldwide felony regulation.

The present proposal to amend the Rome Statute to cowl ecocide entails extending the ICC’s jurisdiction to authorized individuals and thus is of explicit curiosity to answering the ratione personae problem for the ICC. Nevertheless, such an modification might not be crucial. Article 25(3)(d) of the Rome Statute stipulates that particular person felony accountability is incurred when a person deliberately contributes to the fee of against the law throughout the ICC`s jurisdiction dedicated by ‘a bunch of individuals appearing with a typical objective’. Therefore, as Andrew Clapham famous, ‘the idea of criminalising the person participation in against the law dedicated by a collective entity is subsequently current and operative within the Statute of ICC…’. It may be assumed that this text of the Statute shall be related if ecocide is recognised as a world crime, and to some extent, it’ll assist tackle the hole within the Courtroom’s jurisdiction over authorized entities.

In conclusion, recognition of ecocide as a Rome Statute crime is a crucial step towards safeguarding the environment, guaranteeing justice for affected communities comparable to indigenous peoples and people in battle zones, and holding highly effective actors like companies and governments accountable for environmental destruction. Such criminalisation can be vital progress in direction of addressing the authorized gaps that enable people and companies to evade accountability for large-scale environmental hurt. It will additionally grow to be a pathway for victims to obtain reparations and promote sustainable growth by deterring harmful practices. Within the coming days, as delegations from Rome Statute events convene in The Hague, we urge them to make use of this chance to have interaction in significant discussions on ecocide and to decide to voting for its recognition as a world crime subsequent yr, given procedural timing constraints stopping a vote this time. Because the world faces a triple planetary disaster, it will be important that worldwide regulation evolves to guard the planet and future generations.

Dr. Najiba Mustafayeva is an knowledgeable in worldwide human rights regulation, and environmental regulation. 

Javid Rahimli is an LL.M. candidate in Worldwide Legislation on the College of Cambridge. He additionally holds an LL.M. in U.S. Overseas Relations Legislation from the George Washington College Legislation Faculty.