Mainstreaming the Concept of Ecocide within the International Criminal Court
With the backdrop of rampant power conflicts globally, is the International Criminal Court able to extend its role to combat another crisis - the ecological one? Considering the recently concluded Assembly of State Parties, there are reasons for optimism, writes MP Simon Holmström and MEP Marie Toussaint.
A large hall with neat rows of benches on a red carpet. Poured glasses of water on the podium. Well-intentioned officials arranging the last details. Delegates register, pass the security, take off their coats, are offered coffee, greet familiar faces and enter the hall.
On December 5-11, the International Criminal Court's (ICC) Assembly of State Parties (ASP) convened for its 21st session in the Hague at the venue World Forum. Being the highest decision-making body of the court, its 123 state parties met to reaffirm the important role of the ICC, decide on technical and budgetary matters and host and participate in side-events to highlight the need for reform in international cooperation to end the impunity for the most serious crimes.
Ecocide during war-time
The role of the ICC has recently received renewed attention as a result of Russia's brutal war of aggression in Ukraine. Understandably, many discussions at the ASP revolved around how to hold political and military leaders accountable for the crime of aggression. Up until now, however, one critical aspect of this war has been left unrecognised by the international community, namely the huge loss of nature.
“Wars are amongst the worst things that can happen not just to mankind, but also to nature”, wrote a number of engaged academics, politicians and NGO representatives in the EU Observer this summer, calling for international efforts to hold perpetrators accountable. In the midst of the ASP, Ukraine’s president Volodymyr Zelensky released an announcement accusing Russia for the first time of conducting ecocide in Ukraine. This topic was not forgotten at the ASP. For instance, according to the Finnish Minister of Foreign Affairs Pekka Haavisto, who spoke at the general debate, warfare highlights the need of ecocide as an international crime.
Currently, within the governing instrument of the ICC - the Rome Statute - there are various war crimes provisions that protect the natural environment (for example, as a civilian object). But only one specifically mentions the natural environment and protects it irrespective of human harm (Article 8(2)(b)(iv)). The article has, yet, never been invoked, which according to experts is due to the high threshold. Furthermore, there was no mention of the environment at all from the Chief Prosecutor Karim Khan during the ASP, and sources say the prosecutor’s office has no resources or willingness to conduct any investigation on that article either.
Ecocide during peace-time
What is more surprising is that ecocide is not considered an international crime during peacetime. Even though the concept of ecocide has been on the table for a long time, the crime has yet to be included into the Rome Statute of the International Criminal Court as a standalone crime.
This very matter was covered in depth at the ASP in an official side-event hosted by the Republic of Vanuatu and Stop Ecocide Foundation in association with Parliamentarians for Global Action and No Peace Without Justice, moderated by HRH Princess Esmeralda of Belgium. In her introduction, Esmeralda stressed that protecting the environment should be important for the global community both during wartime and peacetime. As human beings depend on our life-support system – nature – there should be legal systems in force to protect ourselves in turn. Recognising ecocide as an international crime would be an integral part of that protection.
Pacific Island states, such as Vanuatu, have been frontrunners in the campaign to include ecocide in the Rome Statute. This cannot come as a surprise; they are on the very frontlines of the negative consequences of climate change, as described on the side-event by Honorary Counsul Elly van Vliet. Realising the power small states could have within the ICC, as one state has one vote irrespective of population, their interest of acceding to the Rome Statute has increased recently. According to internal sources, the campaign to include ecocide as a crime appears to be one of the more prevalent reasons as to why more states would be prone to join the court. This point was also one of the main arguments brought forward by Jojo Mehta, Director of Stop Ecocide Foundation, submitting that this would increase the relevance of the court.
Large-scale international institutions take time to change, however. It took the ICC 20 years to finally include the Crime of Aggression in the Rome Statute, a fact that renowned international lawyer Philippe Sands was nevertheless quick to brush aside. Reflecting on the fact that reinvigoration of criminal law has been coming and going in cycles historically, he now sees the contours of a new cycle upcoming. Currently, we experience a real movement on crimes against humanity and the discussion on a special tribunal on the crime of aggression is as already mentioned ongoing. Considering the vast support from youth, indigenous people, NGOs and world leaders, ecocide can certainly be seen as part of this new cycle of reform, in Sand’s view.
The role of the EU
The European Union can play and is playing a leading role in paving the way for progressive international lawmaking on the environment. In the EU, multiple Member States, in particular Belgium, have already engaged in political and technical debates in order to include ecocide in national law and/or push for its recognition in the Rome Statute. In order to discuss the current developments, an off-site event was held in the House of Europe during the ASP, organised by Stop Ecocide Foundation and the Ecocide Alliance.
Representatives of MEP Marie Toussaint described the ongoing negotiations on the EU’s Environmental Crime Directive revision which in its first draft, proposed by the European Commission, did not include ecocide. There is, however, so far parliamentary support for doing so as three committees have already voted in favour of an amendment initially proposed by Toussaint. The European Council is yet to officially declare their support.
In parallel, the European Law Institute is underway to propose a model ecocide legislation for Europe. Renowned legal experts Robert Bray and professor Fausto Pocar, who are spearheading the project, explained there is a need of making ecocide an autonomous crime in current legislation regimes, both domestically and internationally. If only continuing with the tinkering of administrative and criminal law provisions, we would just continue the impunity of severe environmental destruction.
Conclusions
Despite the official silence of the ASP and the Court on ecocide or consideration of the environment in its decided resolutions, I would like to submit that the vocabulary of ICC officials and state delegations has been widened. Some years ago, ecocide was considered fringe. Now, the topic is allowed to be discussed in the main hall. Also, what we can see is that there is an increased readiness from more states, with New Zealand being the most recent one, to show curiosity in the topic officially. This holds true unofficially too considering the attendance on side-events and meetings where ecocide was discussed. Suffice it to say, there is serious diplomatic development in this field.
In a world of rampant climate crisis and extinction of species, and with increasing pressure from states, NGOs, youth and indigenous communities, I am convinced that we are soon approaching a moment in time when ecocide will be seen as self-evident as the other most serious international crimes. Indeed, ICC has a decisive role to play in addressing the greatest challenge of our time.
Simon Holmström
Finnish delegate to the ICC ASP
Member of the Åland Parliament and the Ecocide Alliance
Marie Toussaint
Member of the European Parliament and the Ecocide Alliance
