Environmental activists are beginning to speak of "ecocide" as fit for the jurisdiction of the International Criminal Court

The establishment of international norms undoubtedly takes time, and the period between the initial appreciation of a need for change in acceptable standards of behaviour and its realisation is often frustratingly slow. Indeed, the genesis of the International Criminal Court (ICC) can historically be traced to the 1919 Treaty of Versailles, yet its first arrest warrants were not issued until 2005.

The question as to whether the current norms are malleable enough to recognise a new international crime appears to be being asked with increased fervour and determination from its proponents. Can a crime which punishes widespread “damage, destruction to or loss of ecosystems” realistically be promulgated? According to an increasingly number of environmental lawyers and activists, such regrettable actions amount to the crime of “ecocide”, which deserves its place as an international crime.

At a recent talk organised by Queen’s University Belfast, entitled “How law can save the world: eradicating ecocide”, the campaign’s brainchild, Polly Higgins, laid out the roadmap for the concept’s eventual realisation. Basing the ecocide model on the doctrine of erga omnes (towards all), Ms Higgins traced the history of the once “unremarkable” activity of slavery and noted how it is now globally recognised as egregious beyond peradventure.

The issue of the law’s codification, culpability under its auspices and international appetite for its provisions are all natural corollaries of the ongoing discussion. But aside from the understandable reservations, there remains an academic point which the ecocide debate does not seem to have adequately generated. This issue focuses on whether the ICC’s jurisdiction, currently over four groups of crime, is exhaustive and the ecocide lobbying efforts are consequently futile.

A suitable forum?

The movement’s proponents appear defiant in the international nature of the crime, and its salient characteristic is contained within its enforcement mechanism. The intimation that prosecutions will occur through the ICC gives the concept credence from that body’s global notoriety alone, but it also raises serious questions of that tribunal’s suitability as a prosecuting mechanism.

The website of one of its principal advocates, eradicatingecocide.com, unequivocally states that it can be put in place at “the very top, as an international crime, over and above all other laws”. Indeed, this overarching recognition is a hallmark of the very status that ecocide hopes to attain.

Dr Vesselin Popovski is an academic who appreciates the raison d’être of the campaign but has serious reservations regarding the propriety of the ICC in the ecocide discussion. He contends that comparisons between the recognised crime of genocide and ecocide are improper, and that the latter should be dealt with utilising “different legal processes”. A significant reason for Popovski’s view is the difficulty in identifying individual perpetrators and demonstrating criminal intent.

It is perhaps not overtly admitted, but a hierarchy of crimes exists and the exclusive jurisdiction of the ICC’s four crimes is clear evidence of that. The jurisdiction of the ICC is limited, and anyone half-seriously interested in the area must admit that it is necessarily so. But need recognition of the existing “most serious crimes of concern to the international community as a whole” equate to an acceptance that ecocide must accept its place as a very serious crime – but not quite serious enough?

Quite opposed to the ecocide campaign being a non-starter, its genesis can actually be traced back to the 1972 UN Conference on Human Environment. Considering that a draft International Convention on the Crime of Genocide was proposed the very next year indicates that the idea is not a whimsical 21st century notion hastily spawned from emotions of catastrophes of events such as the BP oil spill. Moreover, there is wide support for the notion of a dynamic, developing International legal system. In her book Eradicating Ecocide: Laws and Governance to Prevent the Destruction of our Planet, Higgins advances this argument through comparison with a multitude of credible academic opinions that are calling for the ICC to assume jurisdiction over crimes against future generations. With academic awareness of ecocide increasing and Higgins the main harbinger of change in the area, the campaign for an amendment to the Rome Statute appears to be resolute.

Global test

Ecocide is not the same as genocide, nor would the mechanics of its enforcement be identical. Indeed, Nicodeme Ruhanshyankiko from the UN has warned of such a comparison due to the “very distant connection” between the two. Recognition of this disparity, however, is certainly not a basis for rejecting ecocide as an international crime. The existing crimes that the court has jurisdiction over are different among themselves, and the semantics of crimes have often proved problematic. For example, China contended that the definition of “war crimes” is not compatible with customary international law.

As a completely new concept, there will inevitably be debate and discussion regarding the choice of words of any proposed definition. This is particularly true since quantifiable factors such as size, duration and impact, involved in gauging the impact of damage, will ultimately determine whether ecocide has been committed. Notwithstanding that, it is certainly helpful that the ecocide campaign has provided its own definition of the crime it seeks to establish:

“Ecocide is the extensive damage to, destruction of or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished.”

There is limited merit in attempting to equate ecocide with crimes such as genocide, and to do so is missing the point of what ecocide campaigners are seeking to achieve. The German concept of Weltanschauung, which thinks of overriding international interests from one global standpoint, is what should be the real litmus test. Is the extensive destruction of the very world we live in an issue that transcends languages and borders? The answer is clearly yes.

There is nothing to gain from attempting to create a hierarchy within the ICC’s jurisdiction, and the existing crimes can sit alongside ecocide without detracting from each other. Popovski’s claim that this would serve to “diminish genocide with ecocide” is a distorted view of issues of international concern. As former President of the ICJ, Sir Robert Jennings QC observed, there is no better system to deal with environmental problems “than that of international law”, and this assertion is only augmented by the increasingly global nature of environmental law.

The “contemporisation” of international law is not unfamiliar, with the ICJ declaring in the South-West Africa opinion (1955) that international law must adapt to fundamental constitutive changes. Global acceptance of the imperative of ending environmentally destructive, criminal behaviour demands action beyond individual governments. The ecocide lobby makes a powerful case, and its awareness of the legal steps necessary to realise the crime’s implementation can only serve to further its cause.

The Author
John Taggart BL is a practising barrister in The Bar Library, Belfast
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