It’s not like international criminal justice has had an easy summer. Now it has a new bone to chew on – and it’s a particularly meaty one.
On Monday, 9 September 2024, Vanuatu, Fiji and Samoa jointly submitted a proposal to amend the Rome Statute of the International Criminal Court to the UN Secretary-General and the Working Group on Amendments of the Assembly of States Parties (ASP). The three Pacific Island States call upon the international community to add a new crime to the canon of internationally outlawed atrocities – the crime of ‘ecocide’.
If, and to what extent, environmental destruction should come within the purview of international criminal law is a debate almost as old as the discipline itself. The ecocide amendment proposal can be read as the preliminary culmination of a long saga engulfing social activists, academic experts, national legislators and international policy makers alike.
After years of tireless advocacy and proliferating discussions, it’s crunch time for ecocide. Are states ready to expand international criminal law’s protective scope to environmental concerns – or to kill this idea once and for all?
The answer to this question is relevant beyond ecocide’s fate alone. It speaks to the reformability of the Rome Statute, and ultimately to the status of liberal international criminal justice in an increasingly illiberal geopolitical landscape.
Previously on Ecocide & Co
The term ecocide has been around for more than five decades. Originating in a scientist-driven campaign to outlaw the use of herbicidal chemicals by the US Military (dubbed ‘Operation Ranch Hand’) during the Vietnam War, it has become a catch-all term to denounce various forms of environmental violence and destruction.
International criminal justice has so far demonstrated little regard for the natural environment. This is not so much a matter of accidental omission, but a political choice. For instance, during the preparations for what would later become the Rome Statute, the International Law Commission considered the inclusion of a separate crime of ‘willful and severe damage to the environment’ in the 1991 version of the Draft Code of Crimes against the Peace and Security of Mankind. The proposal failed to gain sufficient political support, and the Rome Statute only explicitly considers the natural environment in the context of Article 8(2)(b)(iv) on environmental war crimes.
In 2010, the late Scottish barrister Polly Higgins launched a new bid to contest the near-exclusive human focus of international criminal justice. Repurposing the ecocide label, she petitioned states and a wider public to amend the Rome Statute with a ‘fifth’ crime that would ban environmental atrocity. While Higgins’s definition of ecocide was legally outlandish (she was adamant about the need for a strict liability crime, for instance, which is clearly irreconcilable with the Rome Statute), her advocacy gave rise to a burgeoning activist network – the Stop Ecocide campaign.
While Higgins herself tragically passed away from an aggressive cancer in 2019, her legacy lives on. Only months after Higgins’s death, Vanuatu first raised the possibility of criminalizing ecocide during the general debate of the 18th Session of the ASP, the annual forum where parties to the Rome Statute discuss all things international criminal justice. Back then, this proposal was a new and radical intervention for most policymakers.
Five years on, ecocide is neither so new nor so radical anymore. In 2021, Stop Ecocide convened a stellar line-up of international lawyers, the International Expert Panel (IEP), to develop a more legally refined and politically palatable definition of ecocide. Just earlier this year, the EU condemned ‘acts comparable to ecocide’ in the preamble of its revamped Environmental Crimes Directive, and Belgian adopted a version of ecocide modelled on the IEP definition in its new penal code.
Given the growing momentum, the formal amendment proposal was not so much a question of if, but when. On September 9, Vanuatu, Fiji, and Samoa pulled the trigger.
What’s on the Table?
What exactly are the three Pacific Islands states asking for?
It’s not fully clear, as the text of the proposal has not yet been made publicly available. It is currently pending before the UN Secretary General, as demanded by Article 121(1) of the Rome Statute, who is required to ‘promptly’ circulate it to state parties.
Nonetheless, a press release by Stop Ecocide clarifies that the proposal squarely imports the IEP’s work, which defines ecocide as ‘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’. Each of these terms is further defined and explained in the ten-page document adopted by the IEP in June 2021. Essentially, the proposal would include ecocide as a separate crime under a newly created Article 8 ter, in addition to a new preambular paragraph and a modification of Article 5.
Unsurprisingly, IEP Co-Chair and international legal superstar Philippe Sands KC was one of the first to welcome the latest developments. Reactions from state officials and experts outside the ecocide bubble are still pending.
In the academic sphere, the reception of the IEP’s work has been decidedly mixed. While most commentators – with the exception of some outspoken critics – agree that the international criminalization of environmental harm at the ICC level is generally warranted, the IEP definition has been attacked both for being too ambitious and for being too conservative. With the formal proposal on the table, it is now for states to weigh in and carve out the details.
The proposal also coincides and competes with the Office of the Prosecutor’s (OtP) own green agenda. In February 2024, and following a flurry of Article 15 communications alleging internationally criminal environmental destruction around the globe, the OtP announced that it would develop a new policy on environmental crimes under existing provisions of the Rome Statute to address environmental wrongdoing. While the new policy has not yet been published, many practitioners critical of an ecocide amendment will point to this parallel process as an alternative.
Reforming the Rome Statute – Process…
What’s next for ecocide?
Article 121 of the Rome Statute stipulates that an amendment proposal should be discussed ‘no sooner than three months from the date of notification [by the UN Secretary-General]’ at the next session of the ASP, where states decide with a simple majority whether to ‘take up’ a proposal. The proposal’s timing prevents such a vote from taking place at this year’s ASP, convening from 2 to 7 December 2024 in The Hague.
In practice, however, the amendment process is rarely handled directly by the ASP’s plenary, but by its Working Group on Amendments (WGA). As per the WGA’s terms of reference, parties are strongly encouraged to submit their proposals informally to the WGA before lodging a formal notice with the UN Secretary-General and triggering the process in Article 121. Vanuatu’s decision to break with this practice by notifying WGA and the UN Secretary-General simultaneously must be read as an effort to keep ecocide on the ASP’s agenda and increase its political visibility. Whether this bold move will pay off or backfire remains to be seen.
Over the next months, the WGA will deliberate on the proposal during its intersessional and sessional meetings and decide whether and when to submit it for consideration by the ASP. Should the ASP (or rather, a majority of state parties) indeed vote to give ecocide a chance, it may either deal with the issue directly, or – more likely in this complex matter – decide to convene a Review Conference, as seen with the crime of aggression. In either case, a two-thirds majority is required to adopt the ecocide amendment in the end (which would only apply to those countries who have ratified such amendment).
… and Politics
So much for the formal procedure. But how would this roadmap likely play out in practice?
If previous attempts at amending the Rome Statute are any hint, Vanuatu, Philippe Sands, and Stop Ecocide have a long and bumpy road ahead. In 2009, Trinidad and Tobago, together with Belize proposed to criminalize international drug trafficking as a separate crime (an idea which had, in fact, revived the very effort of creating a permanent international criminal court in the first place). After various states proved to be highly sceptic of such far-ranging reforms during discussions in the WGA, the proposal was quietly dropped.
The only successful amendments to the Rome Statute’s material jurisdiction – with the exception of the special case of the crime of aggression – are relatively minor revisions to the definition of war crimes in Article 8(2). Both successful proposals in this vein hailed from powerful European states (Belgium and Switzerland, respectively) and were based on established international treaty and customary law.
Indeed, the WGA’s terms of reference stipulate that states are to give due account to ‘whether the crime can be characterized as one of the most serious crimes of concern to the international community as a whole and whether the crime is based on an existing prohibition under international law’. Since the proposed crime of ecocide has neither clear treaty law nor significant customary practices to rely on, this is a high hurdle to overcome – though not necessarily an impossible one, if political will to do so can be mustered.
This brings us to the final, all-important question of state support. Some countries have voiced consistent support for an ecocide amendment, first and foremost among them Vanuatu, followed by other island states such as the Maldives, Fiji, or Samoa. Indeed, Vanuatu’s leadership in this issue forms part of a wider strategy to pursue international environmental and climate justice through legal means. The small island state has also pioneered the successful request for an advisory opinion on the obligations of states in respect of climate change from the International Court of Justice (which is currently pending before the Court).
Although small islands states have had an outsized impact on the international scene as the world’s environmental conscience, their diplomatic capacities and material leverage remains somewhat limited. Some European states – first and foremost Belgium – have also supported the quest for ecocide, and activists hope that the UK under the new Labour government will follow suit. A backlash against environmental policies at the domestic level in many industrialized nations makes such support politically volatile, however.
Ecocide’s prospects at success, then, hinge on a so far largely silent majority. It is this silent majority that supporting states and ecocide advocates in civil society and academia will have to sway. The outcome is far from certain. States may either decide to kill the proposal once and for all, to take it forward and mold it in line with their own expectations, or to let it linger in the WGA limbo forever.
What’s ultimately at stake in the ecocide case is not only one particular proposal, but the possibility of injecting environmental sensibilities into a deeply humanitarian project. Vanuatu’s initiative is indicative of a strong push to review fundamental aspects of the international legal order in an age of environmental precarity. At the same time, this push meets with a general retreat from liberal international law in an increasingly illiberal geopolitical atmosphere. As such, ecocide’s fate could be a litmus test for the continued relevance and adaptability of liberal institutions and projects at large.
Should Ecocide be an International Crime? It’s Time for States to Decide
Written by Daniel BertramIt’s not like international criminal justice has had an easy summer. Now it has a new bone to chew on – and it’s a particularly meaty one.
On Monday, 9 September 2024, Vanuatu, Fiji and Samoa jointly submitted a proposal to amend the Rome Statute of the International Criminal Court to the UN Secretary-General and the Working Group on Amendments of the Assembly of States Parties (ASP). The three Pacific Island States call upon the international community to add a new crime to the canon of internationally outlawed atrocities – the crime of ‘ecocide’.
If, and to what extent, environmental destruction should come within the purview of international criminal law is a debate almost as old as the discipline itself. The ecocide amendment proposal can be read as the preliminary culmination of a long saga engulfing social activists, academic experts, national legislators and international policy makers alike.
After years of tireless advocacy and proliferating discussions, it’s crunch time for ecocide. Are states ready to expand international criminal law’s protective scope to environmental concerns – or to kill this idea once and for all?
The answer to this question is relevant beyond ecocide’s fate alone. It speaks to the reformability of the Rome Statute, and ultimately to the status of liberal international criminal justice in an increasingly illiberal geopolitical landscape.
Previously on Ecocide & Co
The term ecocide has been around for more than five decades. Originating in a scientist-driven campaign to outlaw the use of herbicidal chemicals by the US Military (dubbed ‘Operation Ranch Hand’) during the Vietnam War, it has become a catch-all term to denounce various forms of environmental violence and destruction.
International criminal justice has so far demonstrated little regard for the natural environment. This is not so much a matter of accidental omission, but a political choice. For instance, during the preparations for what would later become the Rome Statute, the International Law Commission considered the inclusion of a separate crime of ‘willful and severe damage to the environment’ in the 1991 version of the Draft Code of Crimes against the Peace and Security of Mankind. The proposal failed to gain sufficient political support, and the Rome Statute only explicitly considers the natural environment in the context of Article 8(2)(b)(iv) on environmental war crimes.
In 2010, the late Scottish barrister Polly Higgins launched a new bid to contest the near-exclusive human focus of international criminal justice. Repurposing the ecocide label, she petitioned states and a wider public to amend the Rome Statute with a ‘fifth’ crime that would ban environmental atrocity. While Higgins’s definition of ecocide was legally outlandish (she was adamant about the need for a strict liability crime, for instance, which is clearly irreconcilable with the Rome Statute), her advocacy gave rise to a burgeoning activist network – the Stop Ecocide campaign.
While Higgins herself tragically passed away from an aggressive cancer in 2019, her legacy lives on. Only months after Higgins’s death, Vanuatu first raised the possibility of criminalizing ecocide during the general debate of the 18th Session of the ASP, the annual forum where parties to the Rome Statute discuss all things international criminal justice. Back then, this proposal was a new and radical intervention for most policymakers.
Five years on, ecocide is neither so new nor so radical anymore. In 2021, Stop Ecocide convened a stellar line-up of international lawyers, the International Expert Panel (IEP), to develop a more legally refined and politically palatable definition of ecocide. Just earlier this year, the EU condemned ‘acts comparable to ecocide’ in the preamble of its revamped Environmental Crimes Directive, and Belgian adopted a version of ecocide modelled on the IEP definition in its new penal code.
Given the growing momentum, the formal amendment proposal was not so much a question of if, but when. On September 9, Vanuatu, Fiji, and Samoa pulled the trigger.
What’s on the Table?
What exactly are the three Pacific Islands states asking for?
It’s not fully clear, as the text of the proposal has not yet been made publicly available. It is currently pending before the UN Secretary General, as demanded by Article 121(1) of the Rome Statute, who is required to ‘promptly’ circulate it to state parties.
Nonetheless, a press release by Stop Ecocide clarifies that the proposal squarely imports the IEP’s work, which defines ecocide as ‘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’. Each of these terms is further defined and explained in the ten-page document adopted by the IEP in June 2021. Essentially, the proposal would include ecocide as a separate crime under a newly created Article 8 ter, in addition to a new preambular paragraph and a modification of Article 5.
Unsurprisingly, IEP Co-Chair and international legal superstar Philippe Sands KC was one of the first to welcome the latest developments. Reactions from state officials and experts outside the ecocide bubble are still pending.
In the academic sphere, the reception of the IEP’s work has been decidedly mixed. While most commentators – with the exception of some outspoken critics – agree that the international criminalization of environmental harm at the ICC level is generally warranted, the IEP definition has been attacked both for being too ambitious and for being too conservative. With the formal proposal on the table, it is now for states to weigh in and carve out the details.
The proposal also coincides and competes with the Office of the Prosecutor’s (OtP) own green agenda. In February 2024, and following a flurry of Article 15 communications alleging internationally criminal environmental destruction around the globe, the OtP announced that it would develop a new policy on environmental crimes under existing provisions of the Rome Statute to address environmental wrongdoing. While the new policy has not yet been published, many practitioners critical of an ecocide amendment will point to this parallel process as an alternative.
Reforming the Rome Statute – Process…
What’s next for ecocide?
Article 121 of the Rome Statute stipulates that an amendment proposal should be discussed ‘no sooner than three months from the date of notification [by the UN Secretary-General]’ at the next session of the ASP, where states decide with a simple majority whether to ‘take up’ a proposal. The proposal’s timing prevents such a vote from taking place at this year’s ASP, convening from 2 to 7 December 2024 in The Hague.
In practice, however, the amendment process is rarely handled directly by the ASP’s plenary, but by its Working Group on Amendments (WGA). As per the WGA’s terms of reference, parties are strongly encouraged to submit their proposals informally to the WGA before lodging a formal notice with the UN Secretary-General and triggering the process in Article 121. Vanuatu’s decision to break with this practice by notifying WGA and the UN Secretary-General simultaneously must be read as an effort to keep ecocide on the ASP’s agenda and increase its political visibility. Whether this bold move will pay off or backfire remains to be seen.
Over the next months, the WGA will deliberate on the proposal during its intersessional and sessional meetings and decide whether and when to submit it for consideration by the ASP. Should the ASP (or rather, a majority of state parties) indeed vote to give ecocide a chance, it may either deal with the issue directly, or – more likely in this complex matter – decide to convene a Review Conference, as seen with the crime of aggression. In either case, a two-thirds majority is required to adopt the ecocide amendment in the end (which would only apply to those countries who have ratified such amendment).
… and Politics
So much for the formal procedure. But how would this roadmap likely play out in practice?
If previous attempts at amending the Rome Statute are any hint, Vanuatu, Philippe Sands, and Stop Ecocide have a long and bumpy road ahead. In 2009, Trinidad and Tobago, together with Belize proposed to criminalize international drug trafficking as a separate crime (an idea which had, in fact, revived the very effort of creating a permanent international criminal court in the first place). After various states proved to be highly sceptic of such far-ranging reforms during discussions in the WGA, the proposal was quietly dropped.
The only successful amendments to the Rome Statute’s material jurisdiction – with the exception of the special case of the crime of aggression – are relatively minor revisions to the definition of war crimes in Article 8(2). Both successful proposals in this vein hailed from powerful European states (Belgium and Switzerland, respectively) and were based on established international treaty and customary law.
Indeed, the WGA’s terms of reference stipulate that states are to give due account to ‘whether the crime can be characterized as one of the most serious crimes of concern to the international community as a whole and whether the crime is based on an existing prohibition under international law’. Since the proposed crime of ecocide has neither clear treaty law nor significant customary practices to rely on, this is a high hurdle to overcome – though not necessarily an impossible one, if political will to do so can be mustered.
This brings us to the final, all-important question of state support. Some countries have voiced consistent support for an ecocide amendment, first and foremost among them Vanuatu, followed by other island states such as the Maldives, Fiji, or Samoa. Indeed, Vanuatu’s leadership in this issue forms part of a wider strategy to pursue international environmental and climate justice through legal means. The small island state has also pioneered the successful request for an advisory opinion on the obligations of states in respect of climate change from the International Court of Justice (which is currently pending before the Court).
Although small islands states have had an outsized impact on the international scene as the world’s environmental conscience, their diplomatic capacities and material leverage remains somewhat limited. Some European states – first and foremost Belgium – have also supported the quest for ecocide, and activists hope that the UK under the new Labour government will follow suit. A backlash against environmental policies at the domestic level in many industrialized nations makes such support politically volatile, however.
Ecocide’s prospects at success, then, hinge on a so far largely silent majority. It is this silent majority that supporting states and ecocide advocates in civil society and academia will have to sway. The outcome is far from certain. States may either decide to kill the proposal once and for all, to take it forward and mold it in line with their own expectations, or to let it linger in the WGA limbo forever.
What’s ultimately at stake in the ecocide case is not only one particular proposal, but the possibility of injecting environmental sensibilities into a deeply humanitarian project. Vanuatu’s initiative is indicative of a strong push to review fundamental aspects of the international legal order in an age of environmental precarity. At the same time, this push meets with a general retreat from liberal international law in an increasingly illiberal geopolitical atmosphere. As such, ecocide’s fate could be a litmus test for the continued relevance and adaptability of liberal institutions and projects at large.
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