In September, Vanuatu proposed to the Assembly of States Parties to the Rome Statute of the International Criminal Court (ICC) that ecocide be formally classified as an international crime, equal to, for example, genocide.

‘We are taking bold and necessary action to address these challenges and encourage other vulnerable states to take note of our newly tabled proposal to bring ecocide to the ICC,’ said Ralph Regenvanu, Vanuatu’s Special Envoy for Climate Change and Environment. ‘Legal recognition of severe and widespread environmental harm holds significant potential to ensure justice and, crucially, to deter further destruction.’

Among those jurisdictions that are most vulnerable to the effects of the climate crisis but who have contributed the least to the problem, ‘this is an issue that’s fundamental to the survivability of their country,’ says J Michael Showalter, Programme Officer on the IBA Environment, Health and Safety Law Committee and a partner at ArentFox Schiff in Chicago.

Around a dozen countries, including Belarus, France and Vietnam, already view ecocide as a crime, while the EU’s Environmental Crime Directive entered force in May and includes measures to prevent and combat environmental crime.

An issue with national level laws is that they’re not very well enforced, says Jojo Mehta, co-founder and Executive Director of Stop Ecocide International. ‘And we have lots of multilateral environmental agreements, none of which are really binding,’ she adds. 

The Paris Agreement, which was adopted in 2015 by 196 countries and aims to hold global temperatures well below 2°C above pre-industrial levels, has accountability mechanisms built into it, such as the Enhanced Transparency Framework, but these aren’t criminal mechanisms, and they’re directed to the conduct of states parties rather than individuals. Showalter says that the Agreement is ‘relatively soft law’, asking ‘what happens if France [for example] doesn’t meet its commitments?’ The Paris Agreement and other international treaties don’t directly provide for criminal punishment of individuals who destroy the environment, and introducing ‘ecocide’ into the Rome Statute could help fill the gap.  

‘There is an increasing awareness that something a bit more muscular and with a bit more teeth needs to be put in place,’ says Mehta. Including ecocide in the Rome Statute would force transnational corporations to take environmental regulations more seriously, she says. The ICC could then also hold individuals involved in large-scale environmental damage to account with criminal charges and potential imprisonment. 

Mehta suggests that post-amendment of the Rome Statute, ratifying states would change their own penal codes. ‘And, because it’s largely a corporate crime, it could be prosecuted in any ratifying jurisdiction where there’s a connection to the case and so the potential breadth of prosecutability is actually quite high,’ she explains.  

The IBA International Criminal Court and International Criminal Law Programme, in the second edition of its report Strengthening the International Criminal Court and the Rome Statute System: A Guide for States Parties, recommends that ‘States Parties should support amending the Rome Statute to ensure that the Court is able to exercise jurisdiction effectively over all forms of genocide […] and fully consider proposals to add core crimes.’

There’s also the ‘symbolic effect’ of the ICC, whereby corporations labelled as supporting ecocide would potentially see a negative impact on their investments and revenue, says Matthew Gillett, a lawyer and senior lecturer at Essex Law School, who has published on prosecuting environmental harm before the ICC.

‘Big corporates, in my experience, want to do the right thing […] but they want help on how to do it because it actually helps the bottom line of the company and is the right thing to do. It also, obviously, helps to try and protect the environment,’ says Gerard Forlin KC of Cornerstone Barristers in London, who has worked extensively on issues of corporate governance.

Following Vanuatu’s proposal, the next step is for a wider debate on what the specific legal elements would entail. These could take several years. However, Showalter believes it may not actually lead to any change at the ICC. Even if the change was pushed through, he adds, many of the countries needed to meaningfully address this issue as a crime aren’t even states parties to the Rome Statute of the ICC. For example, China, India, Russia and the US are not. 

Stephen Hockman KC, who specialises in environmental, health and safety and planning practice and is Head of Chambers at Six Pump Court Chambers, believes that in practice ecocide as an ICC crime wouldn’t work as it would be too difficult to prove beyond reasonable doubt that a person had committed ecocide. ‘Let’s assume that you can identify someone […] then you’ve got to find them, you’ve got to arrest them, you’ve got to bring them to court. These things are not easy.’

Instead, Hockman KC says it would be more effective to create an entirely separate environmental court with the power to enforce domestic or public international laws in this area. The creation of such a court was also a long-term recommendation of the IBA Climate Change Justice and Human Rights Task Force in its 2014 report Achieving Justice and Human Rights in an Era of Climate Disruption.

Forlin KC, however, believes the ICC will add ecocide to the Rome Statute and ‘much quicker than people think’. In this respect, he highlights the recent changes in Belgium, for example, which became the first European country to recognise ecocide as an international crime. ‘The [ICC is] seriously looking at this,’ he says, and adds ‘it’s only a question of time.’

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