Ecocide was proposed to be the fifth crime within the International Criminal Court (ICC) jurisdiction in its constitution in 1998, along with genocide, war crimes, crimes against humanity, and the crime of aggression. However, opposition from the US, the UK, and the Netherlands prevented it from being carried out, leaving these as the known four Crimes Against Peace. Despite this rejection, has continued to push for its inclusion, and platforms such as Stop Ecocide are working for the modification of the Statue of Rome so it can be investigated and prosecuted internationally.
The term ecocide refers to “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”. Practices that would fall under this offense would be oil spills, deforestation, tar sands, or plastic pollution. We have all seen examples of these in the news: it was just at the beginning of this year when a massive oil spill happened on the coast of Peru, contaminating wildlife, beaches, and protected areas, as well as affecting the livelihood of 5,000 families. Practices that although the public can perceive as immoral still happen. And nothing is done to stop them. Until now.
Image of the oil spill in Peru. (Photo: Municipality of Ventanilla) through IAEA
The inclusion of ecocide among international crimes would mean the possibility of individualized responsibility and accountability for their acts. Current national laws have mostly been based on a system of monetary payments by companies or countries, which in practice are subsequently translated into payment by citizens through price increases. However, by allowing the ICC to prosecute this type of crime, the responsibility will lie solely with the person who has carried out such acts. This means holding companies accountable for polluting activities and thus starting to create the urgent systemic change we need to protect our planet. In this sense, we will be tackling corporate immunity, and companies that have taken advantage of legal limbo to profit at the expense of the environment – among other things – would be redirected away from harmful and polluting practices. No company or CEO would want to find themselves on trial at the ICC, where war criminals and genocidaires are tried. Nor would consumers or investors want anything to do with them. It is not a question of singling out all companies for the sole reason that they are companies, but only those that contribute to polluting our planet the most without any consequences.
Therefore, recognizing ecocide as an international crime would encourage the climate action the Earth needs, especially in the current climate emergency. The process for inclusion in the Rome Statute is not difficult but requires time and consensus. Any of the 123 “States Parties” can propose the amendment at the next ICC Annual Assembly, which must be admitted. The advantage of this procedure is that the ICC Assembly operates on the basis of one State, one vote. Therefore, the small islands of Asia-Pacific can make a difference in this case: they suffer the most from the consequences of climate change, and their vote would count as much as those of the larger countries. Indeed, Vanuatu and the Maldives already agreed in 2019 to make ecocide an international crime, countries that are already at risk from rising sea levels. Thereafter, a two-thirds majority – currently 82/123 – is required to be adopted into the Statue.
Tuvalu foreign minister, Simon Kofe, address Cop26 knee-deep in water (photo: the Guardian)
If the amendment is approved, ecocide will begin to exist as a crime, with legal and moral power. A transition period would officially open – although it has most likely already begun – in which we will see companies change their behavior to bring their practices into line with the legal system. In parallel, States Parties can ratify and introduce international law within one year into their national systems. Even nationals of non-parties, such as the United States or China, could be held liable in some cases under the principles of universal jurisdiction.
This procedure seems to be an essential step to change the current trend of allowing unaccountable ecocide within the current international system. Annual conferences on climate change issues grab media attention, but then turn out to be a dead letter, as COP26 in Glasgow showed us. Even when a commitment is agreed, as was the case in Paris, no real action is ever taken afterwards to change the way our world works. And the declaration that a clean, healthy and sustainable environment is a human right by the UN Human Rights Council has not proven to be implemented in practice. Big capitalist corporations maintain their modus operandi. And this has to stop now.
The clock is ticking, but climate change waits for no one.
THE GLOBAL VISION 