Ecocide

In December 2019, in the context of the 18th Assembly of States parties of ICC, these archipelagos called for the 123 States Parties to consider an extension of the ICC jurisdiction to the crime of 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. The text of the full definition intends to incorporate the following sentence into the preamble of the Rome Statute: “Concerned by the constant threat to which the environment is subjected as a result of the serious destruction and degradation that seriously endangers natural systems and humans all over the world… ”. Subsequently, it clarifies the terms of the definition as follows .:


 * 'Arbitrary' shall be understood as the act of reckless negligence with respect to damages that would be manifestly excessive in relation to the anticipated social or economic advantage;
 * 'Serious' shall be understood as the damage that causes very adverse changes, disturbances or notorious damage to any element of the environment, including serious effects on human life or natural, cultural or economic resources;
 * 'Extensive' shall be understood to mean damage that goes beyond a limited geographical area, goes beyond state borders, or affects the entirety of an ecosystem or a species or a large number of human beings;
 * 'Durable' shall mean irreversible damage or damage that cannot be repaired through natural regeneration within a reasonable period of time;
 * 'Environment' shall be understood as the Earth, its biosphere, cryosphere, lithosphere, hydrosphere and atmosphere, as well as outer space.

This avenue, however, is not free of challenges and obstacles. 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.

Resources

 * Ecocide: Emerging Norms and Litigation - Webinar from the Climate Litigation Accelerator