American Society of International Law, 2 July 2021:
A group of legal experts, in a collaborative effort to confront environmental destruction, have proposed an amendment to the ICC Rome Statute that would add the crime of ‘ecocide’ to the Court’s jurisdiction. The proposal defines ‘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.” As reported by JURIST, the legal experts believe that the policies and precedents that are currently in place to address similar issues are “inadequate.” While the ICC maintains a history of delivering sentencing and legal precedents in war crimes cases, this amendment could alter the concept of accountability and extend it to the pressing issue of human contributions to climate change. If an ICC member state issues a recommendation for the proposal of the amendment to go forward, a vote will be taken on whether to execute the amendment. To succeed, two-thirds of the total vote are required. [my yellow highlighting]
STOP ECOCIDE FOUNDATION, Independent Expert Panel for the Legal Definition of Ecocide, COMMENTARY AND CORE TEXT, June 2021, excerpts:
It is widely recognised that humanity stands at a crossroads. The scientific evidence points to the conclusion that the emission of greenhouse gases and the destruction of ecosystems at current rates will have catastrophic consequences for our common environment. Along with political, diplomatic and economic initiatives, international law has a role to play in transforming our relationship with the natural world, shifting that relationship from one of harm to one of harmony.
Despite significant progress, the inadequacies of current global environmental governance are widely acknowledged. National and international laws are in place to contribute to the protection of the natural systems upon which our well-being depends, yet it is apparent that such laws are inadequate and more is needed.
It is against this background that in late 2020 the Stop Ecocide Foundation convened an Independent Expert Panel for the Legal Definition of Ecocide (‘Panel’). It comprises twelve lawyers from around the world, with a balance of backgrounds, and expertise in criminal, environmental and climate law. They have worked together for six months, charged with preparing a practical and effective definition of the crime of ‘ecocide’. The Panel was assisted by outside experts and a public consultation that brought together hundreds of ideas from legal, economic, political, youth, faith and indigenous perspectives from around the globe.
Between January and June 2021 the Panel convened for five remote sessions. Panel sub-groups were tasked with specific research and drafting tasks. A consensus on a core text of a definition of ecocide as an international crime was reached in June 2021.
It is the hope of the Panel that the proposed definition might serve as the basis of consideration for an amendment to the Rome Statute of the International Criminal Court (ICC). The Statute addresses crimes that are deemed to be of international interest and relevance, and the time has come to extend the protections for serious environmental harm, already recognised to be a matter of international concern.
The inclusion of ecocide in the Rome Statute would add a new crime to international criminal law. This would be the first to be adopted since 1945. It would build on the existing crime of severe damage to the environment during armed conflict, whilst reflecting the fact that today, most severe environmental damage occurs during times of peace, a situation that currently falls outside the jurisdiction of the ICC. This definition of ecocide offers the States Parties to the Rome Statute the opportunity to meet current challenges.
Proceeding to agree a crime of ecocide could contribute to a change of consciousness, in support of a new direction, one that enhances the protection of the environment and supports a more collaborative and effective legal framework for our common future on a shared planet. It offers a new and practical legal tool.
The work has been inspired by earlier efforts, in 1945, to forge definitions of new international crimes, including ‘genocide’ and ‘crimes against humanity’. Ecocide draws from both terms, in form and substance.
Taken with these two crimes, and with war crimes and the crime of aggression, we hope that ecocide might take its place as the fifth international crime…..
II. Proposed Amendments to the Rome Statute
To add ecocide as a new crime to the Rome Statute, the Panel recommends the following amendments. We note that consequential amendments may also be required for other provisions of the Rome Statute, such as Article 9, and to the ICC Rules of Procedure and Evidence, and the Elements of Crimes.
A. Addition of a preambular paragraph 2 bis
Concerned that the environment is daily threatened by severe destruction and deterioration, gravely endangering natural and human systems worldwide,
B. Addition to Article 5(1)
(e) The crime of ecocide.
C. Addition of Article 8 ter
Article 8 ter
Ecocide
1. For the purpose of this Statute, “ecocide” means 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.
2. For the purpose of paragraph 1:
a. “Wanton” means with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated;
b. “Severe” means damage which involves very serious adverse changes, disruption or harm to any element of the environment, including grave impacts on human life or natural, cultural or economic resources;
c. “Widespread” means damage which extends beyond a limited geographic area, crosses state boundaries, or is suffered by an entire ecosystem or species or a large number of human beings;
d. “Long-term” means damage which is irreversible or which cannot be redressed through natural recovery within a reasonable period of time;
e. “Environment” means the earth, its biosphere, cryosphere, lithosphere, hydrosphere and atmosphere, as well as outer space.
NOTE: This was signed by all twelve members of the Independent Expert Panel.
