Abstract
The Independent Expert Panel (IEP) in Article 8 of the core text conceptualized a definition of ecocide as an international crime. This article engages in a detailed analysis of the definition of ecocide as provided under the core text. In comparatively analyzing the definitions of ecocide under the core text and that of genocide under the Rome Statute, it is apparent that the definition of ecocide is narrower in scope than that of genocide. Moreover, the requisite mens rea for ecocide is of the probability of the occurrence of the event. The authors also analyze the lack of definition of the qualifier ‘unlawful’ in the core text and the eventual adverse effect on the applicability of the provision without the objective definition to such qualifiers. The scientific and technical nature of the threshold for constitution of the offence of ecocide, may affect the ability of the ICC judges in evaluating the impact of the environmental damage.
Introduction
In November 2020, the Stop Ecocide Foundation, organized an Independent Expert Panel (IEP), to re-define the concept of ecocide to that of a potential international crime and be included within the framework of Rome Statute. As per their draft, under Article 8 of the core text, ecocide is any "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."
This Article identifies critical flaws in the proposed concept of ecocide that would jeopardize its applicability and cast doubt on the International Criminal Court's (ICC) suitability, given the Court's particular jurisdiction over States that choose to be bound by it.
Rome Statue and the International Court of Justice
The ICC is the sole forum for investigating and prosecuting persons accused of international crimes. However, since the ICC is a court designed to supplement a nation's national system, it can only launch an inquiry when national courts refuse to charge individuals for international crimes. Notably, since the ICC is a product of the Rome Statute, it lacks jurisdiction over persons living in countries that are not recognized as organization members. The court has limited jurisdiction over citizens of its member states or crimes committed by the state. Additionally, the Court's jurisdiction is claimed to be supplementary to national judicial systems. It may use it only when relevant national legal systems are unwilling or unable to conduct meaningful investigations or prosecutions of people suspected of committing core crimes.
To include ecocide in the list of current core crimes, three key questions must be considered:
· Would States agree to be bound by the low threshold of the current definition of ecocide?
· Would the ICC, in adjudicating ecocide, use the same approach as it does with the other four international crimes, or would it also consider the liability of Non-State Actors (NSAs) such as businesses, oil producers, and extractive industries?
· Would the ICC prove to be the appropriate platform for pursuing climate justice, or would its selective application (to States that accept to be bound by it) undermine its objectives?
The authors have analyzed these three questions on the basis of 4 dimensions which are:
· Framing ecocide as an international crime
· ‘Unlawful’ Qualifier
· Threshold
· Mens Rea
Dimension I: Framing Ecocide as an International Crime
The IEP's core text strives to preserve the environment via the application of International Criminal Law. It is founded on international legal principles such as Article 26 of the International Law Commission's 1991 Draft Code of Crimes and Security of Mankind, which criminalizes willful and severe damage to the environment.”
Borrowing from the term genocide as defined under Article 8(2)(b)(iv) of the Rome Statute, the IEP while discussing environmental crime under the context of war crimes defines ecocide as the commission of “unlawful or wanton acts 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.”
Article 8 criminalizes such intentional conduct of an attack that are undertaken with the knowledge that it could potentially cause “widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated during an international armed conflict.”
Firstly, the authors believe that the proposed definition of ecocide extends the application of the aforementioned provisions to times of peace, while introducing important changes at the same time. The nature of ecocide as per Article 8 goes beyond military attacks as defined under Article 8(2)(b)(iv) of Rome Statute to cover any unlawful and wanton conduct.
Secondly, the environmental damage in question is narrower in scope, ensuring that the damage is either “severe and widespread or long-term”. In comparison, the provision of genocide as defined under the Rome Statute conceptualizes a broader application scope wherein the “widespread or long-term” damage would attract the penal provisions. In the absence of qualifying “severity” the governing courts could potentially be overburdened with the claims of environmental damage.
Thirdly, the mens rea in the crime of ecocide is based on the substantial likelihood of environmental damage, not its factual occurrence as under the Rome Statute. These considerations provide breadth to the application of ecocide and differentiates it in nature from the war crimes article, thereby justifying the need for a separate crime of ecocide.
Unfortunately, when intent is to be proven, the core terms of the definition of ecocide conflict with the remaining provisions of the Rome Statute. For instance, an aggressor country attacks its neighbouring State and the attack causes damage to the environment as a by-product. Thus, there are certain definitional challenges associated with the ecocide as an international crime, which will hinder its applicability in the practical realm.
Dimension II: ‘Unlawful’ Qualifier
In its core text, the IEP explains that the qualifier ‘unlawful’ captures environmentally harmful acts that are already prohibited in law.” However, the definition of lawfulness, or more precisely, what is deemed illegal, is omitted from the definition and is just referred in the explanatory core text. The absence of evidence to support the qualifier 'lawfulness' casts doubt on the proposed legislation.
The panel was hesitant in using the term “prohibited under international law”– arguing that international environmental law incorporated States' responsibilities in treaties and customary international law, but with fewer restrictions – so undermining the proposed crime's objective.
Secondly, international environmental law is influenced by almost 900 legal documents, including treaties that provide protection for flora and wildlife, endangered species, and climate change in general. We think that these documents provide a variety of processes and alternative approaches, such as pursuing tribunals like ICJ and ITLOS. Ecocide-related decisions from various forums may enlighten and aid in the definition of criminalized activity. These may be relied upon, or at the very least referenced, in the IEP's Core Text, but instead of incorporating these treaties into the structure of Article 8 ter, the Article depends nebulously and to its own detriment on an ambiguous illegal qualifier.
Dimension III: Threshold
The IEP established a threshold for the severity of ecological damage. The term 'severe' is defined in paragraph 2 (b). In framing these terms, the IEP was inspired from the provision of Article 8(2)(b)(iv) the Rome Statute, which defines the prohibited damage under Articles 35 and 55 of Additional Protocol I to the 1949 Geneva Conventions.
Firstly, the authors note that since these terms are not merely definitions under humanitarian law, but scientific terms, ICC Judges may not be able to effectively evaluate the impact of environmental damage, given the complex, scientific and technical nature of the evidence involved.
Secondly, the authors feel that concerns should be addressed about the qualitative and quantitative evaluation of environmental harm, mainly when the activity's adverse impact is not immediately apparent or quantifiable at the time of adjudication.
Dimension IV: Mens Rea
The IEP defines mens rea in Paragraph 1 of Article 8. The “knowledge” is different than the one found in Article 30(3) of the Rome Statute, which is framed as the “awareness that a… consequence will occur in the ordinary course of events.”
The mens rea element for ecocide is significantly different from the one currently in use by the Rome Statute - a distinction that the IEP makes in its core text as well.
The authors contend that the ICC’s jurisprudence has understood Article 30(3) to require an accused to be aware that his or her activities would unavoidably result in the prohibited consequence(s).
Firstly, reading Article 30 through the lens of Article 8 ter, a higher threshold requirement may be insufficient for ecocide cases since states seldom intend to damage the environment. However, the IEP's definition of knowledge brings it considerably closer to the idea of recklessness - which has a lower burden of proof in court than the former.
Secondly, the IEP Core Text recognises but does not overcome the problem surrounding the usage of the term "knowledge" when it refers to "recklessness." The Panel recommended unequivocally "a mens rea of recklessness or dolus eventualis, requiring awareness of a substantial likelihood of severe and either widespread or long-term damage."
This ambiguity regarding a significant component of the crime casts doubt on the concept of an all-encompassing fifth international crime and clouds the question of establishing intent in environmental crimes.
Recommendations
Given the gravity of the threat posed by environmental degradation and its irreversible nature, the authors propose a threefold solution:
1) Aggressively pursue domestic legal changes: Attempts should be made to change the domestic legal system by remedying victims and imposing environmental injunctions to prevent environmental damage. Moreover, States can also try and legitimize an alternative solution gaining traction in domestic legal systems that recognize nature's rights. This endows the environment with a legal identity and allows the court to take suo moto cognizance against the actors of environmental degradation.
2) Redefining Ecocide: Consideration could be given on including a new definition and name for ecocide, which should express the following characteristics of crime:
· Which fill the existing gap as claimed by the IEP;
· Which articulates and removes the faults present in Article 8.
3) Deposition of the current draft: The proposed idea should be disseminated to specialists for a comprehensive review. Re-drafting and circulation should be continued until all irregularities are ironed out. This procedure would result in creating a thorough commentary that may serve as a solid foundation for compelling the ASP to add ecocide as the fifth international core crime in the Rome Statue.
Conclusion
While the IEP resolved to define ecocide and advance the climate action agenda, its efforts fell far short of adequately criminalizing environmental crimes. Apart from definitional errors, the ICC's platform may be inappropriate for taking successful action against big polluters, including states and Non-State Actors such as large businesses. To this purpose, establishing ecocide as an international crime at the International Criminal Court may be more emphatic if seen as a symbolic gesture towards climate action. The IEP's work may be seen as a positive first step towards developing a practical definition of ecocide, but more refinement is required.
This post is authored by Anay Mehrotra and Anwesh Patnaik, First Year and Second Year, B.A. LL.B. (Hons.) students at West Bengal National University of Juridical Sciences, Kolkata and National Law Institute University, Bhopal
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