By Elishya Perera
(CU)_ French President Emmanuel Macron has been one of the few world leaders to have openly backed
the idea of turning the systematic destruction of the environment an international crime. Last year, he
said that world leaders who deliberately fail to protect the environment must be held accountable
before the International Criminal Court (ICC) in The Hague.
Now it has been revealed that the European Union may be seriously considering this proposal, with
French Green MEP Marie Toussaint having inserted a sentence in an European Parliament report calling
on the bloc to explore the idea, which received support from most of the legislature’s political groupings
last month. This means that if the proposal is adopted by the full Parliament, ecocide will be made a
crime which can be prosecuted by the international tribunal in Netherlands.
Toussaint points out that ecocide is the most serious of environmental crimes and since they are often
committed outside the borders of Europe, they go unpunished.
Although the European Parliament report is an important step towards this global effort, however, to
actually haul people before the ICC is one long process. In fact, advocates have been pushing the idea
for several decades, probably since the Vietnam War, when the United States used Agent Orange, which
had damaging environmental effects. Nevertheless, as ice sheets melt and sea levels rise, the issue of
climate change has taken center stage in many political and economic forums globally.
Yet it cannot be denied that there is resistance. For instance, the European Conservatives and
Reformists have expressed their opposition to the idea, as they believe it would open the floodgates to
environmental litigation. MEP Gunnar Günter Beck noted that the recognition of ecocide as a violation
of human rights and war crimes is yet another “grotesque inflation of the human rights doctrine”. On
the other hand, the oil and business industry, from where strong opposition is expected, is currently
watching closely, although they have not yet intervened.
Activists have already begun filing lawsuits against governments, for their inadequate climate policies,
and companies, for contributing to the climate crisis, often in European countries such as France and
Netherlands. However, only a few of them have been successful.
Experts note that while climate litigation is important to raise awareness and shame wrongdoers, yet it
is not sufficient to stop the practice. They point out that making such practices a criminal offense would
be far more effective, as political and corporate leaders would not want to be associated with criminal
responsibility. Moreover, if the ecocide is made to be on par with crimes against humanity, it would be
delivering a stronger signal, even a political message of some sort, disciplining wrongdoers who
otherwise wouldn’t care.
An important hurdle in this process is defining the crime, as there is no international criminal law that
can be directly applied to the worst of assaults on the environment. It is for this reason that Jojo Mehta,
the head of the Stop Ecocide campaign, created an international panel of top legal experts to come up
with an appropriate legal definition for ecocide which could sit alongside war crimes and crimes against
humanity. This would require the amendment of ICC’s founding document, the Rome Statute, and the
panel is due to come up with a proposal by June. Although the initiative is not an official one Mehta
hopes that it would trigger support among countries party to the statute to amend the legislation as
early as next year.
Here, it is noteworthy that the ICC has no jurisdiction to prosecute companies, meaning only physical
persons can be prosecuted. Unlike an oil spill or an illegal garbage dump, how exactly can a person be
held accountable for advancing climate change? According to experts, the challenge here is to
determine how the climate crisis would translate to individual criminal liability in order to capture and
slow the crisis, which is the main objective of the proposed law.
The other big challenge is to determine what level of environment destruction would amount to a crime.
“What level of harm to the environment would constitute a crime, would it be climate change, an oil
spill in Ecuador, is it biodiversity loss, destruction of species, is it a nuclear accident?” Philippe Sands, co-
chair of the international experts’ panel tasked with drafting a legal definition of ecocide, said during a
radio interview last month. “At what point do you cross a line, at what point is the environmental
destruction so terrible that it’s of interest to the whole of the international community?”
It is also of vital importance to determine the suitable definition while giving due consideration to the
appropriate level burden of proof. If the bar is too high, it would cripple possible cases under an onerous
burden of proof. On the other hand, if the bar is too low, it would risk a surge in crimes against
environment pollution.
There are several other challenges that have to be overcome in order to make this idea a reality. Firstly,
the ICC is already overloaded with other crimes against humanity. It is for this reason that it is a court of
last resort, meaning, it will be used only if there is a failure to prosecute these crimes in national courts.
Moreover, the international tribunal only has jurisdiction over nationals of countries part to the Rome
Statute, and over crimes committed on these territories even by citizens of non-member states.
Unfortunately, some of the world’s largest economies, including the US, China, India and Russia, aren’t
members. Although US President Joe Biden recently lifted sanctions imposed against ICC officials by his
predecessor, however, Washington does not appear to be budging in its refusal to recognise the court’s
jurisdiction over the US.
Nevertheless, some experts claim that despite the fact that the ICC would not capture non-signatories,
however, it is a lot better than creating a new international tribunal to tackle ecocide, as it would take
longer and would probably include even fewer members.
Despite the limitations many advocates are of the view that if Europe takes the first step, other major
economies may be encouraged to follow suit. Belgium has now joined the Maldives and Vanuatu, as
low-lying small island states whose very existence is threatened by the rising sea levels. Toussaint claims
that if several other European nations join these island states in demanding the amendment of the
Rome Statute to recognise ecocide, it would be a big first step in reaching the goal. Some EU countries,
such as Sweden, Netherlands and Belgium have already launched parliamentary initiatives to recognise
environmental destruction as an international crime. Meanwhile, France is attempting to include it in
domestic law. Therefore, it cannot be denied that as a region, Europe is pioneering in these efforts and
will therefore be an ideal testing ground for the initiative.
