In 2019 at the International Criminal Court in the Hague, John Licht, Vanuatu’s ambassador to the European Union, proposed the establishment of a crime reflecting the destruction of the environment.
Vanuatu is a small island state particularly susceptible to the adverse effects of rising sea levels. Climate change is a looming and existential crisis in the country, yet the actions responsible for rising temperatures – such as burning fossil fuels – have almost entirely taken place elsewhere, to serve other nations, with the blessing of state governments.
Small island states like Vanuatu have long tried to persuade large powerful nations to decrease their emissions, but since their attitude and policy change has been slow, Licht suggested that it might be time to change the law itself. An amendment to a treaty known as the Rome Statute, which established the International Criminal Court (ICC), could criminalise acts that amount to ecocide, he said, arguing “this radical idea merits serious discussion”. Currently the court recognises four international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression.
What is ecocide?
Ecocide refers to the mass-scale damage and destruction of the living world. Stop Ecocide International defines it as follows:
"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."
Put literally, it means “killing one’s home” and it is meant to address any kind of activity which knowingly brings about major environmental damage– burning large quantities of fossil fuels, cutting down swathes of climate-critical forest, etc. It’s targeted at taking on the very worst culprits while emphasising the obligation of states to take steps to stop the destruction of the environment.
Why is a new crime needed?
The current legal framework renders it cumbersome to pin legal charges on those who are causing or contributing to environmental destruction. While there have been previous attempts to sue fossil fuel corporations in civil court for covering up evidence that their activities were causing global warming, the defendants have largely been able to get away unscathed.
One of the reasons for this development, as aptly put by the environmental lawyer Farhana Yamin in her recent ‘Manifesto for Justice’ at COP26:"The atmosphere, ocean, soils and forests don’t get to negotiate. Smaller countries and indigenous people are nature’s custodians. Mother Earth may be mentioned in the Paris Agreement, but she lacks any legal standing, hence it doesn’t have the ability to bring legal action for harm caused to it. To the contrary, damages to people or private property protected by law appear to have been the “triggers” to legal accountability so far. That tends to perplex the situation when polluters are contributing to a broader destructive system which causes damage at a global level.
Criminalising ecocide would fill this legal gap, and allow individuals to be prosecuted for engaging in acts with knowledge that they are largely likely to cause harm to the environment, without the need to show harm to any individual person. This way, not only will it give the most vulnerable in society a voice, but also it will give nature a voice.
Additionally, ecocide should be an international crime, since the climate crisis is a global problem. Its causes and consequences cannot be limited within national boundaries, and often the parts of the world suffering the most environmental damage, and those responsible for the greatest destruction, are in completely different jurisdictions. Introducing ecocide as an international crime could be a decisive step towards alleviating this legal disparity, allowing environmental accountability across the borders of ICC member states. Of course, it’s hoped that once established at an international level, ecocide will be adopted by national governments.
The establishment of such a legal mechanism, although promising, comes with its own pitfalls. To illustrate the point, as pointed out by David Whyte, professor of socio-legal studies at the University of Liverpool and author of a book called Ecocide, corporations cannot be prosecuted under international criminal law, which only applies to individuals. In other words, bringing down a CEO may not make much difference in controlling and changing the overall stance and behaviour of a business itself. “It’s really important to change our language and the way we think about what’s harming the planet – we should push through this crime of ecocide – but it’s not going to change anything unless, at the same time, we change the model of corporate capitalism,” he said in BBC. Furthermore, many convoluted legal questions arise which include but are not limited to: how will we be able to pinpoint the exact individual responsible for the ecocide? How can we prove intention-critical in establishing a criminal action- for the destruction of a territory? Also, on the practical side, even if all the theoretical legal challenges get resolved, will there be a government brave enough to submit a formal proposal to amend the Rome Statute to the ICC?
In any case, ecocide has proved to be a powerful idea capable of bringing about big changes in our perception of environmental destruction. It has crystallised the fact that environmental harm is a two-sided concept having adverse effects on both the abiotic and the biotic factors of multiple ecosystems at the same time. It also serves as a reminder that environmental damage is not a victimless act and those responsible should be held accountable. Finally, along with political, diplomatic and economic initiatives, the law has a role to play in transforming our relationship with the natural world. Establishing ecocide as an international crime would be a crucial step towards shifting it from one of harm to one of harmony.