Inspired by a recent proposal by legal experts in June 2021 to introduce a new international crime of ecocide, this article argues that a new International Environmental Criminal Court (IECC) should be established to specifically handle ecocide cases. It explains why ecocide attains a better balance between feasibility, viability, and desirability compared with other possible legal avenues to address egregious environmental destruction. Even if the new court may initially have a limited number of Member States, it could nonetheless influence environmental protection substantially by deterring corporations and individuals from committing ecocide on the territory of its Member States. The establishment of an IECC could also convey a stronger ecocentric message: the protection of fauna and flora deserves specific attention and should not merely be assimilated into existing frameworks of humanitarian crimes. Ultimately, the IECC initiative could aspire to help hold ecocide perpetrators accountable and strengthen environmental protection efforts.
I. Introduction
On 22 June 2021, an Independent Expert Panel (IEP) commissioned by the Stop Ecocide Foundation published a proposal of the definition of the crime of ‘ecocide’,1 which they suggested could be added to the Rome Statute2 as a fifth core international crime3 under the jurisdiction of the International Criminal Court (ICC). The proposal has since sparked heated academic debate. Some commentators questioned whether environmental destruction should be addressed by international criminal law at all (see Section III).4 Others pointed out the difficulty of amending the Rome Statute and suggested further developing existing international crimes with an environmental ingredient instead (see Section IV).5 There were also concerns about the IEP’s proposal, which included a relatively low mens rea for ecocide inconsistent with the generally high requirements of criminal intention under the Rome Statute (see Section V(c)).6
Inspired by the IEP’s proposal, this article advocates for establishing a new International Environmental Criminal Court (IECC)7 specifically adjudicating ecocide cases. Although this idea has been previously discussed by academics,8 such discussions are relatively brief and the concept generally receives scant attention.9 This article therefore aims to enrich the academic debate by further exploring the benefits and limitations of introducing and adjudicating ecocide through a new IECC. The focus will be on ecocide as a suitable legal avenue to address environmental destruction, not substantive issues like a suitable definition of ecocide. This article will particularly illustrate that the option of creating an IECC and a new ecocide offence would best achieve a balance between the factors of feasibility, viability, and normative desirability (see Section V(d)).
This article is structured as follows: First, a general background to ecocide will be given in Section II. Subsequently, Section III explains why ecocide should be introduced via international criminal law. Section IV evaluates why further developing existing offences is less desirable than creating a separate ecocide offence. Section V then explores reasons justifying the establishment of an IECC and states its limitations. Finally, Section VI will conclude the article.
II. Background
The IEP aims to introduce ‘ecocide’10 as the fifth international crime under ICC jurisdiction by adding Article 8 ter to the Rome Statute.11 The proposal 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’.12 The words (i) ‘severe’, (ii) ‘widespread’ and (iii) ‘long-term’13 are then respectively defined as (i) ‘involv[ing] very serious adverse changes, disruption or harm’, (ii) ‘extend[ing] beyond a limited geographical area’, and (iii) ‘is irreversible or which cannot be redressed through natural recovery within a reasonable period of time’.14
Currently, only individuals, such as corporate executives, can be prosecuted for international crimes.15 However, environmental destruction is often perpetrated by corporations,16 and a corporate entity should itself be liable for ecocide in addition to its corporate executives.17 This is because penalties imposed on the corporate entity itself,18 such as confiscation of assets, closure of the corporation’s establishments or even corporate dissolution,19 would more likely stimulate an overall change of corporate policies and deter problematic corporate practices than penalties imposed on individuals, especially when the environmental harm is created by an overall policy, system or decision-making process.20 21
Possible examples of ecocidal conduct include oil spills, mass deforestation, chemical disasters, and radioactive contamination, as suggested by the Stop Ecocide Foundation.22 These acts of environmental destruction could create serious damage to both the environment and the human community. For example, from 2011 to 2017, the oil company Shell allegedly spilled 17.5 million litres of oil into the Niger Delta,23 and pollution from its gas flaring practice reduced the average life expectancy in the region to 41 years.24 The collapse of the Fundão tailings dam in Brazil in 2015, allegedly due to the companies’ reckless failure to take preventive measures,25 also unleashed 60 billion litres of toxic mud waste into nearby regions.26 It is therefore essential for international law to develop a response to address such environmental tragedies.27 The following sections will evaluate different possible legal responses, and explain why introducing ecocide via the IECC attains a suitable balance between feasibility, viability, and desirability.
III. Why international criminal law?
One may question whether ecocide should be addressed by international criminal law which is more ‘blunt’ and coercive than regulatory regimes that encourage voluntary compliance or private law regimes that impose non-criminal sanctions.28 In particular, ecocide is different from other core international crimes in several aspects: (i) it is seldom committed intentionally, (ii) it has corporations as its primary perpetrators more often than other crimes, and (iii) it emphasises environmental damage (see Section V(c)). Instead of wrestling with how international criminal law may address these special features of ecocide, one may say that ecocide should be dealt with by private law and international regulatory guidelines. However, this article argues that international criminalisation of ecocide is justified and preferrable.
Firstly, ecocide should not be merely addressed by domestic tort or criminal law, as it often involves transboundary harm which warrants an international legal response. For example, gas flaring in the Niger Delta releases toxic sulphur dioxide into the atmosphere, which contributes to global climate change,29 and the combined effect of mass deforestation in individual States accounts for 15% of global greenhouse gas emissions.30 These activities could damage the general shared habitat on which humans collectively depend. The issue is too serious and important to the world to be completely left to domestic law.31 Ecocide deserves wider institutional condemnation from an international criminal court.
Secondly, ecocide should be criminalised, instead of being dealt with under private law (where victims sue a foreign corporation in a foreign court)32 or regulatory regimes (e.g., treaties where States pledge to prevent environmental destruction). Since ecocide involves severe and potentially irreversible harm to the environment and humanity,33 its criminalisation is justified by the harm principle, according to which societies should minimise intrusion to individuals’ liberty and only criminalise conduct that creates harm.34 Alternatively, ecocide can be regarded as a public wrong that evinces disrespect for collective values, thereby meriting public punishment rather than mere provision of private remedies to particular victims.35 Environmental protection is a value widely held by humanity,36 and ecocide violates this collective value by causing grave harm to the planet. Mere private compensation to victims is therefore insufficient, and public condemnation via criminal convictions is necessary.
Additionally, criminalisation of ecocide is instrumentally justified, as the scale of these environmental tragedies calls for a stronger deterrent effect that international criminal law can provide.37 Environmental treaties and regulatory regimes often rely on soft incentives and voluntary compliance, which would fail to stop polluters who do not care enough to comply with environmental laws.38 These regimes also generally provide low or no hard penalties.39 Inter-State treaties cannot by themselves impose sanctions on corporations, and international guidelines are also non-binding.40 The gravity of ecocide would justify a more deterrent criminal regime to bridge the current gap through penal means under international environment law.
Indeed, introducing the ecocide offence could make substantial contributions to environmental protection by holding perpetrators accountable and stopping persisting ecocidal conduct with penalties such as confiscation of assets.41 Perpetrators of ecocide could also be required to provide reparation to the victims.42 Furthermore, international criminal judgments would exert larger pressure on perpetrators by causing greater damage to their public image. The use of international criminal law is therefore necessary and preferrable to address ecocide.
IV. Why a new ecocide offence?
One may also question why a new ecocide offence should be introduced, as opposed to interpreting existing international crimes more broadly43 to cover acts of environmental destruction.44 The Office of the Prosecutor of the ICC, for example, issued a report in 2016 that set out a goal of prosecuting Rome Statute crimes that result in environmental destruction.45 This approach would utilise existing offences without amending the Rome Statute or creating a new court, and could thus be more accomplishable.46
Nevertheless, it is normatively undesirable to develop environmental crimes within the framework of offences of a mainly anthropocentric nature. Ecocide would not only harm humans, but also flora and fauna. For instance, the Brazilian dam collapse incident has not only displaced local communities and caused economic losses,47 but also caused fish from 21 different species to die in large numbers.48 Such environmental harm justifies criminalisation by itself, even if one does not consider the harm it causes to humans.
If ecocide became a new crime against humanity, the emphasis would be shifted to damage to humanity. Conversely, the criminalisation of ecocide as a separate offence could be based on its environmental harm, not the fact that the relevant conduct also resulted in human harm. The element of ‘severe damage’ could also be assessed by environmental factors like damage to biodiversity, rather than merely anthropocentric parameters like the loss of human lives. Labelling ecocide as a crime against humanity would risk downplaying the significance of its environmental harm.
This does not mean all anthropocentric traces should be removed, because damage to the environment will always impact human health and wellbeing, too.49 For example, the agrochemical company Monsanto has been accused of manufacturing and selling environmentally damaging herbicides50 which have reportedly also caused humans health problems upon exposure to their toxic ingredients.51 Human harm could still be part of the definition of ecocide, or an aggravating factor, despite not being the sole and core element of the offence. Nonetheless, environmental harm would still be the focus of the crime of ecocide. Having ecocide as a separate environmental crime (and under IECC jurisdiction) would therefore send a stronger ecocentric message: the protection of fauna and flora deserves our specific attention and should not merely be assimilated into existing frameworks of humanitarian crimes.
V. Why an IECC?
Having justified the international criminalisation of ecocide, this section now discusses how it should be implemented. Although there have been past proposals for an international environmental court,52 in the discourse on ecocide, most commentators only discuss the option of amending the Rome Statute without considering the possibility of establishing an IECC. This section therefore explains why ecocide should be tried in a new IECC, rather than the ICC.
(a) Ratification threshold and feasibility
According to Article 121(3) of the Rome Statute, an amendment to the statute so as to add the ecocide offence to the ICC would need to be adopted by a two-thirds majority of States parties, i.e. 82 out of 123 State members at the time of writing.53 Professor Philippe Sands of the IEP estimated that the amendment of the Rome Statute would take ‘somewhere between five and fifty years’.54 This has led some academics to highlight the unfeasibility of the IEP’s proposal.55
On the other hand, establishing an IECC, while still an ambitious proposal, could be more realistic than amending the Rome Statute. An international convention establishing the IECC could require a lower, albeit still substantial, number of ratifications as a condition of its entry into force. The number would be determined by the States during negotiation, but it could likely be higher than that required for regional human rights courts (such as 10 for the European Court of Human Rights56 and 15 for the African Court of Justice and Human Rights),57 and lower than that for other international courts (such as 60 for the ICC)58 due to a particular need for the IECC to start operating sooner.
One potential concern is whether an IECC with a limited number of State parties could properly represent the international community and have a sufficient legal basis to address global challenges of environmental harm. However, the IECC would represent an important effort by a substantial number of States to tackle ecocide, even if it is not collectively established by a ‘vast majority of States’.59 Any potential instance of ecocide similar to the Brazilian dam collapse or Niger Delta oil pollution incidents would be detrimental and should be stopped and prevented as early as possible, especially if they cause irreversible environmental harm. Some incidents may even exacerbate climate change,60 which is an urgent environmental threat.61 If the IECC could stop or deter any instance of ecocide, it would already have made a difference to the international legal regime. Furthermore, despite its lower initial ratification threshold, the IECC could still gradually gain wider acceptance. A lower ratification threshold therefore enables the IECC to start combatting ecocide a long time before acceptance of the offence by as many as 82 States (two-thirds majority under the Rome Statute) is achieved, provided that the IECC has jurisdiction over the relevant perpetrators (see Section V(b)).
Ultimately, realisation of the IECC proposal would depend on the political will of the States which is difficult to surmise. Nonetheless, as global environmental problems exacerbate,62 more States could be expected to be interested in combatting ecocide. Transboundary environmental harm from ecocide in one State could cause economic loss to another State, so it is in the latter’s national interest to support an IECC which would penalise ecocidal conduct. For example, Indonesian wildfires, which resulted from human land-clearing activities, created severe transboundary air pollution, causing Malaysia to close hundreds of schools and the Singaporean pollution index to reach unhealthy levels.63 Climate change is also estimated to reduce global economic output by $23 trillion by 2050.64 When the possible damage of ecocide to States’ national interests outweigh the countervailing disadvantages of ratifying the IECC Convention, States may be convinced to support the IECC and a new ecocide offence.
Indeed, there has already been recorded interest in internationally criminalising ecocide from some island nations and European States, such as Vanuatu, the Maldives, France, Belgium, Finland, Spain and Luxembourg.65 A committee of the European Parliament also resolved to encourage the EU Member States to recognise ecocide as a new international crime under the Rome Statute.66 As the concept of IECC has not yet received much attention in recent years, the States’ stance towards it is unclear. However, given the advantages of an IECC proposal over amending the Rome Statute, the supporters of ecocide could potentially back an IECC proposal as a means to introduce the offence.
One factor that may deter ecocide proponents from also supporting an IECC could be the costs associated with establishing a new court. However, investigation and prosecution costs currently take up a large part of ICC’s budget,67 and such costs would arise regardless of whether ecocide cases are tried in the ICC or a new IECC. Hence, in terms of costs, establishing an IECC and amending the Rome Statute may not differ too much in practice.
The IECC Convention could therefore be a more feasible and effective forum to introduce ecocide, compared to amending the Rome Statute.
(b) Jurisdiction
Despite potentially having fewer State parties initially, the IECC could have substantial influence in environmental criminal enforcement due to its territory-based jurisdiction similar to that of the ICC. The ICC has jurisdiction over crimes committed by nationals of State parties and those committed on their territories, the latter potentially applicable to nationals of non-party States. The prevailing justification is the delegation of States’ domestic jurisdiction to the ICC: States have the sovereign power to prosecute crimes committed by their own nationals, or that by a foreign national within their territories without the consent of that person’s State of nationality.68 States have then delegated this power of prosecution to the ICC through the jurisdiction clause in the Rome Statute.69 Similarly, the IECC Convention could include such a jurisdiction clause which would enable the IECC to prosecute corporations and corporate executives when they commit ecocide within an IECC party State, or when they are corporations and individuals from such a Member State.
This would especially create a deterrent effect on multinational corporations operating in multiple nations and their corporate executives. The IECC Convention could provide for the parent corporation to be held liable when it fails to reasonably prevent its subsidiaries from committing ecocide, or when it has substantial control over the subsidiaries whose conduct would be attributable to the parent.70 Corporations like Monsanto, which had a huge presence in over 150 countries71 before its merger with Bayer,72 could thus hypothetically be held liable for their activities or their subsidiaries’ activities in some national territories, even if the relevant State of incorporation has not joined the IECC. Although there is also the option of relocation to non-IECC party States to avoid prosecution, it would likely be impractical for such large corporations to cease operations in all IECC party States when there is a considerable number of them. This risk of prosecution could thus compel them to comply with the IECC Convention, avoid committing ecocide within IECC party States, and even change their overall corporate practice. Whether this jurisdiction clause would be accepted by the States depends on the actual negotiation processes. Yet, this at least illustrates the potentially substantial impact the IECC could have, even if it has a limited number of State parties initially.
The IECC would be complementing, not replacing national courts.73 Ecocide could therefore still be prosecuted at local levels. However, where a State does not have existing legal frameworks to deal with ecocide, its prosecutors lack the resources to investigate the cases, it prefers a stronger condemnatory effect, or the issue is transboundary in nature, then it could refer the case to the IECC. Alternatively, the IECC prosecutor could initiate an investigation if States are unwilling or unable to prosecute the case.74
(c) Special features of ecocide justifying an IECC
Ecocide is substantially different from other international crimes, and its ecocentric nature and lower mens rea would particularly justify the establishment of an IECC.
(i) Mens rea
The IEP has adopted a mens rea threshold of ‘recklessness or dolus eventualis’ but not ‘intention’ for ecocide.75 This low threshold has been criticised as being inconsistent with the Rome Statute.76 The default mens rea under Rome Statute Article 30 requires all offences to be committed ‘with intent and knowledge’ unless otherwise provided. This has been interpreted by academics as imposing a generally high mens rea threshold for Rome Statute offences.77 Genocide requires even more specific intent.78 The Statute adopted a lower mens rea than the default standard in two areas only, namely commander responsibility and military wartime actions.79 If ecocide, as a new core international crime, also uses a lower threshold, this would pose a major departure from the general requirement of high mental culpability under Article 30 of the Rome Statute. The lower mens rea can therefore be considered as incoherent and incompatible with the ICC.
The incoherence relates particularly to the stigma attached to the defendant. Convicted defendants of the ICC would arguably be subject to the highest possible level of stigma for intentionally committing the gravest crimes against humanity. They would be labelled as among the most culpable criminals of the world. If ecocide adopts a lower mens rea, it will still involve a high level of stigma as it evinces disrespect for important collective values and deserves public condemnation via criminalisation (see Section III). The lower mental culpability involved would mean its level of stigma is only ‘high’ but not the ‘highest’ as in intentionally committed Rome Statute crimes. Including a lower mens rea for a new ecocide offence in the ICC would therefore be disproportionate to the level of stigma attached to the offence.
However, ecocide is arguably meant to be different from the other four international offences, and its incompatibility with the Rome Statute could be a justification for establishing an IECC under a separate convention rather than a reason against a lower mens rea threshold for ecocide.
As an environmental crime, ecocide involves mental processes which are often different from existing international humanitarian crimes. Commonly cited examples of ‘ecocide’ have not resulted from deliberately targeted environmental destruction, but from people acting with disregard to the substantial likelihood of environmental damage.80 For example, Shell’s oil spillage practice in the Niger Delta is closer to a reckless practice than a deliberate attempt to destroy the environment: Shell’s main goal is to profit, and environmental pollution is a reckless side effect.81
The reprehensibility of ecocide also depends more on the consequence of an action than the mental culpability of the perpetrator because the eventual goal is to protect the environment. Acts that meet the high threshold of causing ‘severe and either widespread or long-term damage to the environment’, as envisaged by the IEP,82 would be so dangerous, harmful, and morally deplorable that they deserve condemnation, even if merely committed recklessly.
Recklessness would provide a balanced and suitable mens rea threshold: it is not excessively high to the extent of excluding most ecocidal instances, and it is also sufficiently ‘onerous’ to prevent casting the net too wide by criminalising acts which were done in good faith or were unpreventable.83
Ecocide should therefore be tried in a new specialised IECC that could accommodate mens rea standards lower than those of the ICC, without disrupting the generally high level of stigma attached to ICC convicted defendants.
(ii) Ecocentrism
Moreover, given that ecocide should place more emphasis on environmental harm than on human harm (see Section IV), establishing a new IECC to specifically address ecocide would provide an even stronger indication of the significance of environmental protection independent of impacts to humanity.
The mission of the ICC is largely to address serious humanitarian atrocities. For example, its preamble highlights the large number of human victims of egregious atrocities and the importance of protecting the ‘delicate mosaic’ of human unity.84 While ecocidal conduct could also cause grave harm to human victims, its harm to fauna and flora deserves independent attention even if few humans are directly affected. Instead of adding environmental protection to the mission of the ICC or framing ecocide as a type of atrocity against humanity and incorporating it into the ICC’s current mission, a new IECC should be established, dedicated to environmental conservation while retaining ICC’s humanitarian focus. Therefore, a new court with an ecocentric mission would fit ecocide better than the ICC.
(d) Limitations
Nonetheless, the IECC proposal would admittedly have considerable limitations. It can be expected that the States which refuse to join the ICC, including China and the US,85 would similarly reject the IECC, meaning that ecocidal activities committed on their territories cannot be tried in the IECC. States may also be deterred from ratifying the IECC Convention by the risk of causing investors to relocate to States with more lenient environmental standards, which would result in potential economic losses. The initially low number of State parties would inevitably limit the jurisdiction and reach of the IECC, thereby reducing its viability. There would also be other flaws and issues that this article cannot address given its limited scope.
Indeed, the political reality is that States and corporations often prioritise economic interests over the environment. There could be ‘free-riding’ States which are reluctant to commit to environmental obligations and would rather shift the burden of environmental protection to other States. Such practical difficulties are not unique to the debate of ecocide and the IECC, and apply to international environmental initiatives in general. States would also likely face the same pressure from corporations that are against ratifying an amendment of the Rome Statute to introduce ecocide. There is no perfect solution to this problem, but the international community should work with an option that would best achieve a balance between the factors of feasibility, viability, and desirability – the option of establishing an IECC to adjudicate ecocide.
VI. Conclusion
In conclusion, ‘ecocide’ should be criminalised internationally to deter individuals and corporations from destroying the environment which humans collectively depend on. Ecocide should become a separate offence tried in a specialised IECC, to signify the importance of protecting fauna and flora independent of harm to humanity. The IECC could also require a lower ratification threshold and start contributing to environmental protection earlier, as compared to an amendment of the Rome Statute. In light of its comparative benefits, the option of establishing an IECC would deserve greater consideration by the international community
[1] Stop Ecocide Foundation, ‘Independent Expert Panel for the Legal Definition of Ecocide – Commentary and Core Text’ (June 2021) <https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d1e6e604fae2201d03407f/1624368879048/SE+Foundation+Commentary+and+core+text+rev+6.pdf> accessed 31 December 2021.
[2] Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) 2187 UNTS 3 (Rome Statute).
[3] ibid art 5. The other four core international crimes are the crime of genocide, crimes against humanity, war crimes, and the crime of aggression.
[4] Emmanuelle Josse, Interview with Catherine Larrère, ‘Ecocide: “It’s not through criminal law that we can achieve reform”’ (ID4D, 4 January 2021) https://ideas4development.org/en/ecocide-reform-criminal-law/ accessed 31 December 2021 (although this was written before the IEP’s proposal); Michael Karnavas, ‘Ecocide: Environmental Crime of Crimes or Ill-Conceived Concept?’ (Opinio Juris, 29 July 2021) <https://opiniojuris.org/2021/07/29/ecocide-environmental-crime-of-crimes-or-ill-conceived-concept/> accessed 31 December 2021.
[5] Donna Minha, ‘The Proposed Definition of the Crime of Ecocide: An Important Step Forward, but Can Our Planet Wait?’ (EJIL:Talk!, 1 July 2021) <https://www.ejiltalk.org/the-proposed-definition-of-the-crime-of-ecocide-an-important-step-forward-but-can-our-planet-wait/> accessed 31 December 2021; Kai Ambos, ‘Protecting the Environment through International Criminal Law?’ (EJIL:Talk!, 29 June 2021) <https://www.ejiltalk.org/protecting-the-environment-through-international-criminal-law/> accessed 31 December 2021.
[6] Karnavas (n 4); Anastacia Greene, ‘Mens Rea and the Proposed Legal Definition of Ecocide’ (Völkerrechtsblog, 7 July 2021) <https://voelkerrechtsblog.org/mens-rea-and-the-proposed-legal-definition-of-ecocide/> accessed 31 December 2021; Kevin Jon Heller, ‘Skeptical Thoughts on the Proposed Crime of “Ecocide” (That Isn’t)’ (Opinio Juris, 23 June 2021) <https://opiniojuris.org/2021/06/23/skeptical-thoughts-on-the-proposed-crime-of-ecocide-that-isnt/> accessed 31 December 2021.
[7] This name is inspired by: R Venkatasamy and Michael White, ‘Justifying the Creation of an International Environmental Criminal Court (IECC) to Protect World Biodiversity’ (The Biodiversity Alliance, 25 January 2015) < http://biodiversity-alliance.org/wp-content/uploads/2015/01/Justification-for-an-IECC_-Venkatasamy-White_-January-2105.pdf> accessed 29 January 2022.
[8] Anastacia Greene, ‘The Campaign to Make Ecocide an International Crime: Quixotic Quest or Moral Imperative?’ (2019) 30 Fordham Environmental Law Review 1; Marco Colacurci, ‘The Draft Convention Ecocide and the Role for Corporate Remediation. Some Insights from the International Monsanto Tribunal and a Recent Research Proposal’ (13 January 2021) 21 International Criminal Law Review 1; Laurent Neyret, Des écocrimes à l’écocide – Le droit pénal au secours de l’environnement (From ecocrimes to ecocide – Criminal law to the rescue of the environment) (1st edn, Bruylant 2015).
[9] For example, Venkatasamy and White (n 7) advocated for the establishment of an IECC without explaining the advantages of such an initiative over amending the Rome Statute and letting the ICC adjudicate environmental cases. Greene (n 8) 44 only briefly described the alternative option of establishing a new International Environment Court to introduce ecocide, without discussing the details of such a court.
[10] The concept of ecocide first appeared in a 1970 conference titled ‘War Crimes and the American Conscience’, where Arthur Galston coined the term to describe the use of the herbicide Agent Orange in the Vietnam War. There has since been a number of attempts to criminalise egregious environmental destruction, such as the International Law Commission’s proposal of a crime of ‘willful and severe damage to the environment’ in 1991 and Barrister Polly Higgins’ proposal to add ecocide to the Rome Statute in 2010. The IEP’s proposal in June 2021 is the latest attempt to introduce the ecocide offence. See also David Zierler, The Invention of Ecocide: Agent Orange, Vietnam, and the Scientists Who Changed the Way We Think About the Environment (University of Georgia Press 2011) 15. Ecocide Law, ‘History’ <https://ecocidelaw.com/history/> accessed 31 December 2021. Polly Higgins, Eradicating Ecocide: Laws and Governance to Stop the Destruction of the Planet (2nd edn, Shepheard-Walwyn Publishers 2015).
[11] Stop Ecocide Foundation (n 1) 5.
[12] ibid 5.
[13] ibid 8. These three terms were also used, inter alia, in Article 8(2)(b)(iv) of the Rome Statute (n 2) prohibiting military attacks damaging the natural environment. Instead of adopting the same conjunctive formulation ‘widespread, long-term and severe damage’ as the Rome Statute, the IEP employed a mixed formulation of ‘severe and either widespread or long-term damage’. The IEP’s formulation is arguably more suitable because it strikes a better balance in terms of the strictness of the threshold. The mandatory requirement of ‘severity’ keeps the threshold sufficiently onerous. Meanwhile, the disjunctive expression ‘either widespread or long-term’ ensures that ecocide also covers environmental harm in a single country, or temporary but widespread environmental harm, the scale and effects of which would still warrant international criminalisation.
[14] ibid 5.
[15] Currently, corporate executives are subject to the ICC’s jurisdiction as they are natural persons under Article 25(1) of the Rome Statute (n 2). They are normally not the principal perpetrators of the existing international crimes like crimes against humanity or war crimes, but they can be prosecuted for their complicit conduct. The Stop Ecocide Foundation also envisages that corporate executives as individuals could be prosecuted for ecocide. See Caroline Kaeb, ‘The Shifting Sands of Corporate Liability under International Criminal Law’ (2016) 49 Geo Wash Int’l L Rev 351, 374; Stop Ecocide Foundation, ‘FAQs – Ecocide & The Law’ <https://www.stopecocide.earth/faqs-ecocide-the-law> accessed 31 December 2021.
[16] Juliette Jowit, ‘World’s top firms cause $2.2tn of environmental damage, report estimates’ The Guardian (18 February 2010) <https://www.theguardian.com/environment/2010/feb/18/worlds-top-firms-environmental-damage> accessed 31 December 2021.
[17] This would not violate the rule against double jeopardy which generally aims to preserve the finality of a legal judgment and avoid continual re-litigation. In this context, the corporation and corporate executives would be separate defendants in the same trial and no double trial would occur that threatens the finality of the conviction or acquittal. See Robert E. Wagner, ‘Corporate Criminal Prosecutions and Double Jeopardy’ (2019) 16 Berkeley Bus LJ 205, 227.
[18] Colacurci (n 8) 173. Kaeb (n 15) 390.
[19] Although foreign investments may be protected under Bilateral Investment Treaties, States are justified to impose such corporate penalties against foreign investors given that they have the right to adopt ‘in a non-discriminatory manner bona fide regulations that are aimed at the general welfare’. As the IECC’s jurisdiction is based on a delegation of domestic jurisdiction from State parties (see section V(b)), the IECC similarly has the right to impose such corporate penalties which would be enforced by the State parties. The IECC could assess whether the penalty is proportionate to the circumstances of the ecocide case before determining which exact sanction is suitable. It should be noted, however, that corporate dissolution can only be imposed if the State of incorporation of the company is a State party to the IECC. See Saluka Investments BV v. The Czech Republic, PCA Case No. 2001-04, Partial Award, 17 March 2006, para 255.
[20] Kaeb (n 15) 382.
[21] Whether States should also be prosecuted is outside the scope of this article. Some commentators, such as Karnavas (n 4), suggested that States should also be liable for environmental crimes like ecocide. However, this is highly controversial: States have the authority to impose criminal sanctions over individuals and corporations, but there is no international body with the authority to impose criminal sanctions over States. International criminal liability of States, if it exists, would have to be based on violation of some higher ‘natural’ law of States, norms which may have to be substantially more serious than jus cogens. It is questionable whether the prohibition of ecocide has achieved jus cogens status to justify prosecuting States for ecocide. For present purposes, prosecuting individuals and corporations would already have a substantial impact on environmental protection. See Geoff Gilbert, ‘The Criminal Responsibility of States’ (1990) 39 The International and Comparative Law Quarterly 345, 350.
[22] Stop Ecocide Foundation, ‘What is Ecocide?’ <https://www.stopecocide.earth/what-is-ecocide> accessed 31 December 2021.
[23] Amnesty International, ‘Niger Delta Negligence: How 3500 activists are taking on two oil giants’ <https://www.amnesty.org/en/latest/news/2018/03/niger-delta-oil-spills-decoders/> accessed 31 December 2021.
[24] Mélissa Godin, ‘Lawyers Are Working to Put “Ecocide” on Par with War Crimes. Could an International Law Hold Major Polluters to Account?’ Time (London, 19 February 2021) <https://time.com/5940759/ecocide-law-environment-destruction-icc/> accessed 31 December 2021.
[25] Dom Phillips and Davilson Brasileiro, ‘Brazil dam disaster: firm knew of potential impact months in advance’ The Guardian (Rio de Janeiro and Ponte Nova, 1 March 2018) <https://www.theguardian.com/world/2018/feb/28/brazil-dam-collapse-samarco-fundao-mining> accessed 31 December 2021.
[26] Keila McFarland Dias, ‘Environmental Destruction, Business and Human Rights’ (For The Climate EU, 26 April 2021) <https://fortheclimate.eu/blog/environmental-destruction-business-and-human-rights/> accessed 31 December 2021.
[27] Examples cited in this article are only included to give readers a flavour of what may constitute ecocide, but these particular incidents may not be triable by the ICC or IECC. The jurisdiction of an international court like the ICC is non-retrospective (under Rome Statute (n 2) art 24) so the ICC or the IECC cannot review these incidents which have already occurred. Some of these incidents have also been settled in national courts, at least partially. For example, in January 2021, a Dutch court has ordered Shell to pay monetary compensation to Nigerian communities for the oil spills, although the judgment is said to have come 30 years late. See Mimi Mefo Takambou and Bello Muhammad, ‘Shell to pay $111 million for 1970 Niger Delta oil spills’ (Deutsche Welle, 12 August 2021) <https://www.dw.com/en/shell-to-pay-111-million-for-1970-niger-delta-oil-spills/a-58697881> accessed 31 December 2021; Four Nigerian Farmers and Stichting Milieudefensie v Shell The Hague Court of Appeal, 29 January 2021, ECLI:NL:GHDHA:2021:132 (Oruma), ECLI:NL:GHDHA:2021:133 (Goi) and ECLI:NL:GHDHA:2021:134 (Ikot Ada Udo).
[28] Darryl Robinson, ‘Your Guide to Ecocide: Part 1’ (Opinio Juris, 16 July 2021) <https://opiniojuris.org/2021/07/16/your-guide-to-ecocide-part-1/> accessed 31 December 2021.
[29] American Association for the Advancement of Science (AAAS), ‘Eyes on Nigeria: Gas Flaring’ (AAAS, 2011) <https://www.aaas.org/resources/eyes-nigeria-technical-report/gas-flaring#1> accessed 31 December 2021.
[30] World Wildlife Fund, ‘Forest Habitat’ <https://www.worldwildlife.org/habitats/forest-habitat> accessed 31 December 2021.
[31] Frédéric Mégret, ‘The Problem of an International Criminal Law of the Environment’ (2011) 36 Colum J Envtl L 195, 239; Robinson (n 28).
[32] Generally speaking, private remedies are rarely available in international law. There is no existing forum in international law for individual victims to sue corporations or other individuals for transboundary environmental damage. Individuals can at most seek private remedy from a foreign court provided the latter admits their claim. For example, in the case of Michie v Great Lakes Steel, residents of Ontario, Canada tried to bring action against several American companies in the US courts for the transboundary air pollution from these companies’ plants. See Karen A. Mingst, ‘Evaluating Public and Private Approaches to International Solutions to Acid Rain Pollution’ (1982) 22 Natural Resources Journal 5, 16-17; Michie v Great Lakes Steel 1 Envir. L. Rep. 65150, 65151 (1971).
[33] Stop Ecocide Foundation (n 1) 5.
[34] Mégret (n 31) 229.
[35] Grant Lamond, ‘What is a crime?’ (2007) 27 OJLS 609.
[36] Preamble, Rio Declaration on Environment and Development (Rio Declaration), Report of the United Nations Conference on Environment and Development, Annex I (12 August 1992) UN Doc. A/CONF.151/26, (1992) 31 ILM 874.
[37] There is empirical evidence showing that criminal sanctions are effective in deterring acts of environmental destruction. In the international context, ICC has also been shown empirically to have a deterrent effect on violations. See Christian Almer and Timo Goeschl, ‘Environmental Crime and Punishment: Empirical Evidence from the German Penal Code’ (2010) 86 Land Economics 707, 718; Benjamin J. Appel, ‘In the Shadow of the International Criminal Court: Does the ICC Deter Human Rights Violations?’ (2018) 62 Journal of Conflict Resolution 3,19.
[38] Mégret (n 31) 233.
[39] ibid.
[40] For example, the non-binding soft law instrument ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’ provides that transnational corporations shall carry out their activities in accordance with international environmental principles and standards.
See ECOSOC ‘Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights’ (26 August 2003) UN Doc. E/CN.4/Sub.2/2003/12/Rev.2.
[41] Colacurci (n 8) 173. Kaeb (n 15) 390.
[42] This could be similar to that provided under Article 75 of the Rome Statute (n 2).
[43] For example, ecocide could be interpreted as an ‘inhumane act … intentionally causing great suffering’, committed ‘as part of a widespread or systematic attack directed against [a] civilian population’, and could thus fall under Article 7(1)(k) of the Rome Statute (n 2). Whether such an interpretation is justified is outside the scope of this article.
[44] Ambos (n 5); Minha (n 5).
[45] The Office of the Prosecutor, International Criminal Court, ‘Policy paper on case selection and prioritisation’ (15 September 2016) para 41 <https://www.icc-cpi.int/itemsdocuments/20160915_otp-policy_case-selection_eng.pdf> accessed 31 December 2021.
[46] Ambos (n 5); Minha (n 5).
[47] Phillips and Brasileiro (n 25); Flávio Fonseca do Carmo and others, ‘Fundão tailings dam failures: the environment tragedy of the largest technological disaster of Brazilian mining in global context’ (2017) 15 Perspectives in Ecology and Conservation 145, 148.
[48] Do Carmo and others (n 47) 148.
[49] Darryl Robinson, ‘Your Guide to Ecocide – Part 2: The Hard Part’ (Opinio Juris, 16 July 2021) <https://opiniojuris.org/2021/07/16/your-guide-to-ecocide-part-2-the-hard-part/> accessed 31 December 2021.
[50] International Monsanto Tribunal, ‘Advisory Opinion’ (18 April 2017) 47, <https://www.monsanto-tribunal.org/upload/asset_cache/189791450.pdf> accessed 31 December 2021.
[51] Stuart Braun, ‘Did Monsanto know its weed killer could be deadly to people?’ Deutsche Welle (17 August 2018) https://www.dw.com/en/did-monsanto-know-its-weed-killer-could-be-deadly-to-people/a-45116915 accessed 31 December 2021.
[52] In 1989, a conference titled ‘Congress on a More Efficient International Law on the Environment and Setting Up an International Court for the Environment Within the United Nations’ was held in Rome discussing the potential setting up of an International Court for the Environment, which resulted in a Draft Convention in 1992. This Draft Convention was presented to the United Nations Conference on Environment and Development (UNCED) in Rio de Janeiro, but was taken off the UNCED agenda due to state opposition for undisclosed reasons. There have subsequently been other proposals, including a recent notable proposal by Professor Neyret, for an IECC that would be founded by two separate conventions for ‘ecocide’ and ‘ecocrimes’ respectively. See Colacurci (n 8); Neyret (n 8); Venkatasamy and White (n 7) 11-12; Amedeo Postiglione, ‘A More Efficient International Law on the Environment and Setting up an International Court for the Environment within the United Nations’ (1990) 20 Envtl L 321, 326; Jeffrey L. Dunoff, ‘Institutional Misfits: The GATT, the ICJ & Trade-Environment Disputes’ (1994) 15 MichJIL 1043, 1107.
[53] International Criminal Court, ‘The States Parties to the Rome Statute’ <https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx> accessed 31 December 2021.
[54] Minha (n 5).
[55] Karnavas (n 4); Minha (n 5); Heller (n 6).
[56] Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended by Protocols No. 11 and No. 14) (ECHR) art 59(3).
[57] Protocol on the Statute of the African Court of Justice and Human Rights (adopted 1 July 2008, not entered into force) (2009) 48 ILM 337 art 9(1).
[58] Rome Statute (n 2) art 126(1).
[59] Monique Cormier, The Jurisdiction of the International Criminal Court over Nationals of Non-States Parties (Cambridge University Press 2020)56.
[60] For instance, gas flaring in the Niger Delta releases toxic sulphur dioxide into the atmosphere which contributes to global climate change. See AAAS (n 29).
[61] United Nations Environment Programme, ‘Facts about the climate emergency’ <https://www.unep.org/explore-topics/climate-action/facts-about-climate-emergency> accessed 31 December 2021.
[62] Intergovernmental Panel on Climate Change (IPCC), ‘Climate change widespread, rapid, and intensifying – IPCC’ (IPCC, 9 August 2021) https://www.ipcc.ch/2021/08/09/ar6-wg1-20210809-pr/ accessed 31 December 2021.
[63] Simon Scarr and others, ‘Shrouded in smoke as Indonesia burns again’ Reuters (19 September 2019) <https://graphics.reuters.com/SOUTHEASTASIA-HAZE/0100B2B91DS/index.html > accessed 31 December 2021.
It is suggested by the Stop Ecocide Foundation (n 22) that large-scale deforestation caused by palm oil and wood production industries in Indonesia could potentially constitute ecocide.
[64] Christopher Flavelle, ‘Climate Change Could Cut World Economy by $23 Trillion in 2050, Insurance Giant Warns’ The New York Times (22 April 2021) <https://www.nytimes.com/2021/04/22/climate/climate-change-economy.html> accessed 31 December 2021.
[65] Stop Ecocide Foundation, ‘European Parliament Votes to Take Ecocide Law Seriously’ (Stop Ecocide Foundation, 21 May 2021) <https://www.stopecocide.earth/press-releases-summary/european-parliament-votes-to-take-ecocide-law-seriously> accessed 31 December 2021.
[66] European Parliament, Committee on Foreign Affairs, Report on the Effects of Climate Change on Human Rights and the Role of Environmental Defenders on This Matter, A9-0039/2021, 10 March 2021.
[67] Jonathan O’Donohue, ‘Financing the International Criminal Court’ (2013) 13 International Criminal Law Review 269, 275.
[68] Cormier (n 59) 61.
[69] ibid 57, 70.
[70] Jonathan Clough, ‘Punishing the Parent: Corporate Criminal Complicity in Human Rights Abuses’ (2008) 33 Brook J Int’l L 899, 917-919.
[71] Adam Jones, ‘Monsanto Has a Huge Presence in Over 150 Countries’ (Market Realist, 30 December 2016) <https://marketrealist.com/2016/12/monsanto-giant-present-150-countries/> accessed 31 December 2021.
[72] Braun (n 51).
[73] This is in line with the complementarity principle under Rome Statute (n 2) Preamble and art 17(1).
[74] ibid.
[75] Stop Ecocide Foundation (n 1) 11. Heller (n 6) and Karnavas (n 4) have pointed out that ‘recklessness’ and ‘dolus eventualis’ should not be conflated, because the former has only a cognitive element and the latter has both cognitive and volitional elements, so the IEP should have used only one of these words for better clarity. This issue is outside the scope of this article and would not be discussed in detail, but for simplicity purposes the following discussion would focus on ‘recklessness’ but not ‘dolus eventualis’.
[76] Karnavas (n 4).
[77] For example, the IEP commented that, ‘most decisions and commentators have concluded that [Article 30] requires an awareness of a near certainty that the consequences will occur’. The IEP therefore found this mens rea threshold to be too high and departed from the Article 30 threshold in its proposed Article 8 ter.
See Stop Ecocide Foundation (n 1) 11; Greene (n 6).
[78] Greene (n 6).
[79] ibid.
[80] ibid.
[81] It should be emphasised that it is ‘recklessness’ (such as recklessness in the maintenance of the site), but not an ‘intention to profit’ which constitutes the mens rea.
[82] Stop Ecocide Foundation (n 1) 11.
[83] ibid.
[84] Rome Statute (n 2) Preamble.
[85] International Criminal Court (n 53).
Michael Lam Ching Wang
LLB (The University of Hong Kong) ’22