Ecocide

An amendment to the Rome Statute to include ecocide as a fifth crime under the jurisdiction of the ICC is one of the possible avenues to establish an international criminal protection for the environment. This avenue, however, is not free of challenges and obstacles. The Rome Statute, adopted in 1998, defines the crimes under the jurisdiction of the ICC. Its mandate allows it to prosecute individuals for genocide, crimes against humanity, war crimes and crimes of aggression. Its provisions exclude corporate criminal responsibility. It is also worth noting that the Court is already struggling to deliver justice for the four crimes under its current jurisdiction, to the point that the 18th International Criminal Court Assembly of State Parties adopted a resolution establishing an Independent Expert Review to reform the Court with a focus on the Office of the Prosecution. The procedure required to amend the Rome Statute is rather complex, in that it provides for four steps, defined under Article 121. First, a State Party proposes a draft. This must happen at least three months before the next Assembly. Second, the draft is presented at the next Assembly, which must agree to open negotiations at the majority of the States Parties present and voting. Third, the draft goes through one or more rounds of negotiations, until a final version is considered ready and submitted to a vote; that version will be added as an amendment to the Rome Statue only when two-third of the States Parties approve it. Fourth, amendments creating a new crime will only enter into force for those States Parties that have accepted the amendment, one year after their ratification. In other words, the ICC shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by a State Party’s nationals or on its territory, if that State Party has not accepted that amendment. To each of these steps corresponds a wide range of diplomatic and political obstacles, the nature and size of which depend on the specific strategic interests of each State Party. For example, even if a draft amendment to include the crime of ecocide were to be proposed, States Parties whose economies depend on human-caused environmental disasters would probably oppose the opening of negotiations over such a proposal. Besides, it is difficult to imagine that powerful States not Parties to the ICC, such as China, Russia or the United States, would not use their diplomatic influence against such an initiative. None of these circumstances, whoever, have discouraged initiatives from States Parties directly concerned by an environmental or climate emergency to call for amendments to the Rome Statute, as discussed above.