A few days ago, The Economist reported extensively on the hypothesis that “ecocide” – the destruction of ecosystems and the environment – could be recognized as an international crime. He pointed to the momentum unleashed by an international group of lawyers to briefly submit the International Criminal Court (ICC) to the adoption of a definition of the type of a new type of ecocidal crime.
It is important to know that a mission of this type is very complex for two reasons (formal and political). First, due to issues related to the changes required. Currently, the Rome Statute allows the ICC to investigate and condemn four different types of crimes: aggression, crimes of genocide, war and against humanity. These crimes were not chosen at random: they were the result of lengthy negotiations between states and, in practice, are the codification of international customs and the repetition of crimes already provided for in international conventions.
However, many are not aware that the ICC was first conceived at the UN level as an international court that can convict and prosecute cross-border organized crime groups in connection with drug trafficking, and that attempts have been made quickly to expand the range of material competencies of the ICC . In the end, the minimum consensus was only possible by abandoning the predicted crimes of interference, colonial rule, international terrorism and, above all, environmental damage.
Therefore, the International Law Commission (CDI) in the version of the draft code of crimes against peace and security for humanity of 1991 provided for an article 26, which constitutes a “crime of serious and willful damage to the environment” and an international crime is behavior by which someone ” has caused or arranged serious, widespread and long-term environmental damage “. With this crime, the CDI intended both the use of methods or means with the deliberate intention of attacking the environment, as well as sanctioning those that, although intended to reach people or material goods, may at the same time have harmful effects against them Environment.
By the time the final wording of the crimes that would come under the jurisdiction of the ICC was voted on in 1996, the text of the crime against the environment had already been changed, making it conditional on the health and survival of a population were severely impaired. Even so, the crime fell entirely on the objection of several national governments, many of whom fear that incidents like the Chernobyl tragedy could determine international criminal liability for members of an executive branch.
The ecocide would eventually fade and be punished by the ICC only in the context of war or as a crime against humanity if the environmental destruction is politically motivated and targeted at a specific group of people. Ecocide is therefore extremely difficult to punish. However, to be aware of the difficulties involved in introducing any type of crime into the Rome Statute, one must be aware that international terrorism is still being proposed today to incorporate the crimes affected by the ICC . Despite the emphasis on the activities of Al Qaeda and Daesh for the past 20 years, it has not been possible to incorporate this crime.
The reasons are formal and political. On the one hand, changes to the Rome Statute require a two-thirds majority of the contracting states and past experience with ecocide. The process of approval and effectiveness of amendments to the crime of aggression shows that the wording cannot be too ambitious, nor does it run the risk of withdrawing support from states. On the other hand, if a definition of some type of ecocide crime is approved when it is enshrined in the Rome Statute, it will be difficult to see changes for decades to come and exclude its application by non-contracting states. This includes the major powers that contribute significantly to global pollution, and at the same time they are accused of fueling activities that contribute directly to global warming.
Thirdly, states have even refused to recognize the legally enshrined status of “climate refugee” for all those who are forced to leave their countries of origin because their survival is at risk as a result of climate change.
Finally, it is estimated that in the case of crimes of international terrorism there are currently more than 250 definitions among all UN member states, and there is no interest in entering into an international treaty to achieve a definition. Therefore, states prefer to maintain the prerogative to define and interpret the phenomenon in terms of the way terrorism is internally perceived.
Here, however, a challenge arises for those who defend the typification of ecocide in the Rome Statute. In the case of terrorism, given the multitude of concepts and the impossibility of obtaining an instrument with universal scope, the Security Council has taken the initiative to include in its resolutions a specific definition of terrorism which serves as an inspiration for the delimitation of terrorism, a useful margin for all international actors, as the resolutions of this UN body (without exception) have binding effects on all.
Is this a path for ecocide or should the international community rely on vague wording and questionable application to traditional ICC “customers”, as should countries with less international significance?