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.