Ecocide Law: The Background.
The term and concept of ecocide originated with the Vietnam War and the use of ‘Agent Orange’ and other herbicides. The function of these agents was to reveal enemy combatants by deforestation of cover and also to deplete food supplies of the enemy. According to Olson and Morton (2019), ‘the strategy had intended and unintended consequences on South Vietnam soils and sediments, agricultural and forested landscapes, civilian populations, and US, South, and North Vietnamese military personnel.’ The ‘intended and unintended consequences’ is a key point in the background to the definition of ecocide as it was originally coined as a term in the context of war, rather than a definition of environmental destruction that stood alone. Much of the thinking at the time justified environmental destruction as part of military necessity and the Vietnam War was not an isolated incident in terms of large scale environmental damage inflicted as part of a military strategy. The term itself is attributed to Dr. Arthur W. Galston who was instrumental in the discovery of the defoliant properties of 2,4,5-T, one of the main components of Agent Orange (Hough, 2016) and in 1970, at the Conference on War and National Responsibility’, Galston suggested a ban on ecocide. The term was then used by Arthur Westing, one of the main academic critics of the U.S. policy in Vietnam and in 1972, at the United Nations Conference on the Human Environment, the Swedish Prime Minister, Olaf Palme, also used the term in his criticism of the defoliation programme (Hough, 2016).
Ecocide and Climate Change.
Ecocide and climate change are interconnected in many ways. The scientific consensus is that the warming of our planet has been caused by human activity and that we need to work towards warming of not greater than 2 degrees in order to avoid the most damaging effects of climate change. The most recent IPCC Report ‘recognizes the interdependence of climate, ecosystems and biodiversity, and human societies’ (IPCC, 2022). Fossil fuel extraction, for example is not only at the root of carbon emissions, but also plays a part in the decimation of ecosystems. For example, ‘the Athabasca ‘tar sands’ stands as an example of the artificial division and fragmentation of the local ecosystem in an attempt to extract oil with no regard for the anti-ecological effects this unnatural throughput and transfer of energy and materials has on the local environment and, critically, the local population’ (Crook and Short, 2014). With greater knowledge of some of the negative effects of industrial activity on human populations, and the consequences of extreme weather events which are correlated to climate change, an awareness of climate justice has also developed. Activities such as fossil fuel extraction have had an adverse effect on indigenous communities around the world. ‘As a result of colonialism, many of the traditional adaptation practices that allowed indigenous communities to endure environmental changes are no longer possible’ (Norton-Smith et al., 2016).
In the context of climate justice, and with regard to the health and safety of populations around the globe, protecting our valuable ecosystems plays a key role in climate mitigation. With regard to climate adaptation, a recognition of ecocide as a legal policy instrument may also offer a protection against maladaptation which is defined as ‘action taken ostensibly to avoid or reduce vulnerability to climate change that impacts adversely on, or increases the vulnerability of other systems, sectors or social groups’ (Barnett and O’Neill, 2010).
The adaptive capacities of indigenous peoples is both an ecological and a climate justice issue. The role of ecocide in diminishing adaptive capabilities is significant and there are instances where climate adaptation efforts are creating ecological problems and furthering climate injustice. An example is wind energy development in the Tehuantepec region of Oaxaca, Mexico, which was the subject of a study by Dunlap, (2018). Dunlap relayed that, according to those interviewed, land use changes ‘altered agricultural and livestock patterns, but necessitated the clearing of animal habitat, compacting of soil for roads, loss of birds, transforming the ground water into concrete for wind turbine foundations and, finally, leaking oil into the ground, which people claimed contaminated both the ground water and animals’.
The evolution of ecocide law.
So how did the proposal to implement ecocide law at the International Criminal Court evolve?
Although the movement to add ecocide to the Rome Statute has been growing since 2010, when Polly Higgins, an English Barrister, presented a definition to the UN Law Commission (Stop Ecocide International), ecocide was, in fact, on the agenda in much earlier years. According to Mehta and Merz, (2015), ‘three options were discussed to incorporate ecocide into the draft Code of Offences against the Peace and Security of Mankind, precursor to the Rome Statute establishing the ICC, as a stand-alone crime, included under Crimes against Humanity or under War Crimes’. The crime of ecocide, however, was not included at that time, the reasons being unclear although it may have been political expediency. There was a suggestion from Christian Tomuschat, ‘Rapporteur of the working group on environmental crime’, that nuclear arms may have played a part in the final decision (Mehta and Merz, 2015). Despite this original outcome, there has been a growing body of work and activity around the campaign to have ecocide included in the Rome Statute.
In 2016, the Office of the Prosecutor of the ICC issued a policy paper which seemed to open the door for a closer examination of ecocide law. Under Case Selection Criteria 5 (41) it is outlined that
‘the Office will give particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land’ (The Office of the Prosecutor, 2016). It should be noted that although there is provision for damage to the environment in a military context, Pereira, (2020), remarks that ‘even though serious environmental damage often accompanies armed conflicts and there is a well-established international legal framework governing environmental damage in armed conflicts, so far there have been very few prosecutions for environmental damage since the Second World War’. However, the 2016 policy paper recognises that environmental damage can be a prosecutable offense.
In November 2020, the Stop Ecocide Foundation convened an Independent Expert Panel. This was an opportunity for wide ranging consultation with multiple stakeholders and for gathering input from experts. As Jojo Mehta outlined ‘the resulting definition is well pitched between what needs to be done concretely to protect ecosystems and what will be acceptable to states’ (Stop Ecocide International). See figure 1 below for the proposed amendments that were agreed by the expert panel.
In June 2021, the Expert Panel concluded its work and in December 2021, the Foundation presented a statement to the 20th Assembly of States Parties to the Rome Statute of the International Criminal Court.
Limitations of adding ecocide as a 5th Crime.
(I) Whilst adding ecocide to the Rome Statute is likely to be a step forward in tackling widespread intentional environmental damage, it must be recognised that there are some limitations. Firstly, the Rome Statute of the International Criminal Court has 123 signatories but there are significant absences, like the United States, China and India wherein reside some of the world’s largest multinational corporations (Phillips, 2021).
(II) The ‘principle of complementarity’ governs the jurisdiction of the International Criminal Court. This means that the Court will only prosecute crimes which are not being addressed by the States themselves. According to a report by the ICC ‘The ICC may only exercise jurisdiction where national legal systems fail to do so, including where they purport to act but in reality are unwilling or unable to genuinely carry out proceedings’ (International Criminal Court, Office of the Prosecutor, 2003). This could result in long delays to prosecution of ecocide, as the intent of ecocide would need to be established, as well as assigning responsibility for the crime. The possibility of moral conflict could also arise in the impetus of states to prosecute ecocide, in the event of there being an economic gain to citizens in the implementation of industrial activity which has an environmental impact.
(III) There is a possibility that it may be superfluous to other environmental protection.
Instruments which are already in place, in the form of international treaties and national law.
(IV) ‘The ICC only has jurisdiction over natural persons’ (Phillips, 2021), which means that individuals will be prosecuted rather than corporate entities - is this an overreach in terms of individual responsibility for ecocide on a widespread scale?
(V) The complexity of ecosystems and the environmental damage caused to them may be difficult to correlate to particular industrial activity at a particular point in time. Whilst the immediate environmental impacts may be obvious, longer term consequences on land, water and living species can only be estimated and therefore, it could potentially create ambiguity around intent to cause widespread harm.
However, despite the limitations outlined above, the case for implementing ecocide as part of the Rome Statue is strong and likely to influence behaviour and attitudinal change around environmental damage. Outlined below are the main points in favour of implementation.
The case for implementation.
(I) The acceptance of its addition as a 5th crime by signatories of the Rome Treaty may signify a cultural change in terms of how we deal with environmental damage. The anthropocentric weighting of the Rome Treaty would benefit from an addition of ecocide and a recognition, that in this time of climate crisis, a fundamental change in treatment of the natural environment is key to addressing climate impacts.
(II) The authority of the ICC is widely recognised and likely to influence legal policy globally. The addition of an ecocide law at this level may add an increased gravity to prosecution of environmental crimes around the world. Furthermore, given that legal instruments can influence policy making, this is likely to be a significant instrument in terms of future policy making.
(III) It is a symbolic and practical shift from the current anthropocentric world view to a different societal paradigm where planetary and human needs are better balanced. Given that human systems have led to climate breakdown and have shown themselves to be ill equipped to tackle climate change in a timely manner, it is important that changing needs begin to be embedded in law and policy.
(IV) The definition of environment as outlined in Figure 1 above is ‘the earth, its biosphere, cryosphere, lithosphere, hydrosphere and atmosphere, as well as outer space’. This comprehensive definition could potentially be significant in terms of future carbon removal technologies which might possibly create unknown impacts.
(V) The limitations of dealing with environmental crime within the Rome Statute as it currently is, could be addressed by adding the crime of ecocide. Although the Statute recognises environmental destruction, this is within the context of military operations and the consequences thereof. It can be argued that environmental crime is an issue within itself, outside of war time and that the human consequences are so significant that it merits its own addition, particularly in order to tackle environmental damage which is contributing to climate change and biodiversity loss.
In conclusion, there is a strong case for adding ecocide as a crime to the Rome Statute. According to Stop Ecocide International, ecocide ‘is a root cause of the climate and ecological emergency that we now face’. The act of making this a crime, rather than simply a matter of civil suits, is likely to be a deterrent for corporations who are answerable to their shareholders. Some of the potential crimes of ecocide are those that might result from the actions of fossil fuel companies, such as fracking and other extractive processes. The process of implementation requires that an amendment is proposed by one of the signatory countries to the Rome Treaty. A majority vote is then required to approve and enact the amendment. This process in itself would be a clear signal that ecocide is to be seriously considered and once ratified, ecocide must be implemented in each of the ratifying countries (Stop Ecocide International).
Under laws of international jurisdiction, even though there are countries who are not signatories, citizens of those countries may still be prosecuted within the ratifying countries if the crime of ecocide is committed on their soil. This means that the opportunity to cause environmental harm will be more restricted and that the consequences of embarking on damaging projects will need to be seriously considered. In short, implementation of ecocide will give a clear and unequivocal message to potential polluters that there will be consequences and potentially criminal prosecution if environmental damage is likely to occur and there is an awareness of same, as a result of industrial projects. In conclusion, implementing an ecocide law is likely to play an important part in tackling climate change.
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