A law professor from Queen Mary University in London has called a proposal to make “ecocide” the fifth international crime the “most credible and advanced” effort to date to expand the jurisdiction of the International Criminal Court in The Hague.
Phoebe Okowa’s remarks earlier this month at a conference marking the ICC’s 20th anniversary signaled a turning point in which governments, academics and lawyers have begun critically debating the political feasibility of an international environmental crime.
Okowa said the debate could divide developed and developing nations and leave the highest polluting nations, including the United States, China, Russia and India—none of which recognize the court—trying to “immunize” themselves from the court’s jurisdiction.
Okowa spoke during a turbulent moment at the court with human rights advocates and world leaders accusing Russia of war crimes, aggression and crimes against humanity in Ukraine, and climate activists expressing increasing alarm at runaway carbon dioxide emissions, biodiversity loss and worsening pollution.
The momentum behind the movement to add an ecocide crime to the court’s jurisdiction has grown louder in recent years with support from Pope Francis, Dr. Jane Goodall, and U.N Secretary General Antonio Guterres, among others.
While the anniversary event’s speakers, including the court’s prosecutor Karim Khan, focused on how to improve core legal functions, like leveraging technology for evidence collection and analysis, other panelists spoke pointedly about how to expand the court’s reach over its current slate of crimes and potential new crimes. In the past, efforts have been made to add terrorism and transnational drug trafficking to the court’s jurisdiction.
Since the Rome Statute entered into force on July 1, 2002, the court has had jurisdiction over just four crimes: genocide, crimes against humanity, war crimes and aggression, which is waging illegal war (the crime of aggression was added to the Rome Statute in 2010).
Over 20 years, with more than a billion dollars in funding, the court has overseen just 31 cases, with 10 convictions (six of which stemmed from witness tampering in the same case) and three acquittals. Whether that scorecard is evidence of success or failure is a matter of debate. Defendants remain at large in 10 cases while other cases are ongoing. Meanwhile, new investigations have been opened into possible crimes in Ukraine, Venezuela, the Philippines and Georgia. The court’s 2012 conviction of Thomas Lubanga Dylio for war crimes, including enlisting child soldiers in the Democratic Republic of the Congo, marked a milestone as the court’s first conviction. Lubanga served his 14-year sentence and was released in 2020.
Legal analysts consider the court’s most controversial case to be the conviction, and later acquittal on appeal, of former Congolese Vice President Jean-Pierre Bemba for crimes against humanity and war crimes including rape and murder, committed by troops under Bemba’s command in the Central African Republic. Bemba was later convicted, along with five others, of witness tampering in the case. He was sentenced to one year imprisonment, which he had already served.
Some critics of the court have faulted the institution for taking on too much responsibility, while others have criticized it for doing too little. At the same time, the court has been denounced for pursuing cases in politically weak nations, particularly those in Africa, while others have condemned the court for unfairly pursuing powerful countries. Meanwhile, a 2020 independent review took the court to task for internal operational problems.
Supporters of the court say that despite contradictory demands, the institution has achieved what was once unthinkable—it has held perpetrators of war crimes and crimes against humanity to account, catalyzed criminal justice efforts at the national level and served as a deterrent to war lords, heads of state and other powerful people.
At the anniversary conference, speakers focused on how to steer the court through today’s challenges while maintaining its relevance as the leading institution for justice in the world.
“For all the wonderful work that’s been done, for all the debts we owe to those that have served the court, we must believe that the best days of the court are ahead of us,” Khan, the court’s prosecutor, said. “Because that’s the only hope, indeed that’s the only prayer, if the worst days of humanity are finally to be behind us.”
Towards an Ecocide Crime
During the last of three panel sessions at the 20th anniversary conference Okowa spoke at length about making ecocide the court’s fifth crime and said “given the times that we’re living,” ecocide would be the “most consequential” if included in the Rome Statute.
Okowa focused her comments on a proposed definition for ecocide that was put forth by an independent expert panel last summer. That panel, convened by the non-governmental organization Stop Ecocide, defined 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.”
Okowa, who is a newly elected member of the U.N.’s International Law Commission, offered her own critical analysis of the definition, including potential political sticking points between countries in the Global North and Global South.
“The present environmental crisis has largely been the result…of deliberate and unsustainable patterns of resource use by states in the Global North,” she said. “Some of those states are not parties to the Rome Statute and others may choose not to opt-in and accept the court’s jurisdiction over ecocide.”
Currently, the United States, China, Russia, India and some of the world’s other highest-polluting nations are not members of the court. In the context of climate change, which is just one aspect of mass pollution, the United States is the largest historical emitter with about 20 percent of world emissions. China has now become the leading nation for carbon emissions, with the United States in second place followed by the European Union, Russia and India.
Countries that have contributed little to the world’s pollution crises could be reluctant to bind themselves to rules that top polluting countries evade, Okowa said.
She also said that countries in the Global South might take issue with a new ecocide crime only applying prospectively—thus, prohibiting developing countries from engaging in the same environmentally harmful behaviors that wealthy nations undertook to amass wealth and develop.
“The Global South may be reluctant to push for an ecocide regime in circumstances where those who’ve contributed the most to the current environmental crisis remain essentially unaccountable for their past conduct,” Okowa said.
The potential division between industrialized and developing countries over an ecocide crime is a familiar sticking point in global environmental governance. Similar problems have plagued international climate talks for decades.
In discussions under the U.N. Framework Convention on Climate Change, progress has come mainly through voluntary national action with commitments that increase over time, such as in the Paris Agreement. Ratifying an international ecocide crime, on the other hand, would be a binding commitment that cedes an element of national sovereignty to the International Criminal Court—a higher stakes commitment for governments, but not an impossible one.
Those advocating the addition of ecocide as a fifth crime note that world governments mustered the political will 24 years ago to create the International Criminal Court in the wake of large-scale tragedies in the former Yugoslavia, Rwanda and elsewhere.
Okowa’s remarks on ecocide sparked debate over who the court has jurisdiction over and whether that would need to change should an ecocide crime be added. As written, the Rome Statute only gives the court jurisdiction over individuals. Opinion is split on whether there should be an expansion of the court’s jurisdiction to include the ability to prosecute corporations.
Some lawyers and academics argue that individual responsibility is the strongest of deterrents and would still allow the court’s prosecutor to investigate the actions of corporate officers. But, Okowa pointed out that remedial environmental measures may only be feasible if “corporations are brought into the equation.”
Okowa also expressed concern about the institutional capacity of the International Criminal Court, and of nations which would be required to enact their own ecocide laws, to uniformly and consistently apply an ecocide law to polluting conduct. Those concerns cut straight to heart of why adoption of an ecocide crime is so politically fraught: there is no straightforward or agreed upon answer for how to balance economic development with environmental harm. That issue has been hotly contested for decades.
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The independent expert panel’s proposed definition for ecocide contains the term “wanton,” which the panel defined as “reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated.” Within that definition is an inherent balancing test that would allow judges to weigh environmentally harmful activity against its anticipated “social and economic benefits.”
That aspect of the definition gives judges flexibility and makes the definition adaptable to a changing world. But, as Okawa pointed out, that balancing test could make it difficult to ascertain what exactly constitutes an ecocidal act, leading to a degree of uncertainty.
Okawa concluded by saying her criticisms of the definition were meant to “move the environmental agenda forward” so that others can be “very clear-eyed about what’s possible” and what obstacles stand in the way of adding ecocide to the Rome Statute.
Amending the Rome Statute to add ecocide would first require one of the court’s 123 member counties to formally propose it. Then, a multi-step process would require two-thirds of the court’s members (currently about 82 countries) to approve the amendment. Then, individual countries would have to ratify the new crime at the national level to accept the court’s jurisdiction over ecocide.
Silvia Fernández de Gurmendi, president of the Assembly of States Parties (the legislative body of the court), called the Rome Statute “a living document” and said that “ecocide does deserve a very serious discussion.” But, she said, ultimately it is for nations to decide whether they want to add new crimes through a process that requires “very broad agreement.”
To date, at least 23 countries have discussed the prospect of an ecocide crime, including most recently Kenya, which announced at the U.N. Ocean Conference in June that it was pursuing national legislation that would include “the recognition and protection of defenders of environmental rights, protection of forests and green spaces, recognition of the right to nature and, most importantly, creation of the crime of ecocide.”
Jojo Mehta, the co-founder and executive director of Stop Ecocide, called the ecocide discussion at the anniversary event a sign that the institution has paid close attention to the growing calls for an ecocide crime and is taking those calls very seriously.
“That’s huge,” Mehta said. “If you had asked five years ago whether there were other issues the Rome Statute would address, everyone would have said no. Ecocide has completely changed that conversation.”