The words ‘climate emergency’, ‘climate change’ and ‘ecocide’ have been the buzzwords in the international diaspora for the last few years. However, when it comes to obligations under international law and collective responsibility to protect nature, the term ‘ecocide’ has gained much traction in international political discourse. The neologism ‘ecocide’ derives from the Greek word ‘oikos’, meaning ‘house or home’, and the Latin word ‘caedere’, meaning ‘to kill’, which means “killing our home.”
The term “Ecocide” traces its origin from the Vietnam War in the 1950s. The United States military combined the chemicals and developed a herbicidal warfare program that targeted entire ecosystems in Vietnam during the war. Enraged by the misuse of science to destroy the ecosystem, the American scientist Arthur Galston coined the term “ecocide” to describe the weaponization of defoliants. The term received public attention when he proposed a new ‘international agreement to ban ecocide’ about environmental warfare and cross-border pollution.
During the phase of progressive codification of international law, the United Nations International Law Commission considered the inclusion of environmental destruction and associated crimes within the Draft Code of Crimes Against the Peace and Security of Mankind in 1980. This Draft Code eventually became the Rome Statute of the International Criminal Court, adopted in 1998 and entered into force on 1 July 2002. The final draft however did not include destruction of the environment and associated environmental crimes. Today, the Rome Statute under Article 5 codifies four core international crimes – genocide, war crimes, crimes against humanity, and acts of aggression.
Since 2017, Netherlands-based ‘Stop Ecocide Foundation’, along with a group of environmentalists, lawyers and human rights advocates, has been pushing to make ecocide a crime prosecutable by the International Criminal Court, along with the other four crimes. This inclusion would enable the international criminal court to hold accountable perpetrators responsible for major ecological harms, including business and government leaders.
In this direction, in 2020 the Stop Ecocide Foundation convened an ‘Independent Expert Panel for the Legal Definition of Ecocide’ comprising of twelve lawyers from around the world, with a balance of backgrounds, and expertise in criminal, environmental and climate law. The Panel was assisted by outside experts and public consultation from around the globe to prepare a practical and effective definition of the crime of ‘ecocide’. The panel reached a consensus on a core text of a definition of ecocide in June 2021.
The Independent Expert Panel for the Legal Definition of Ecocide has proposed Amendments to the Rome Statute to add ecocide as a new crime. Three main recommendations proposed by the Panel are:
First, the Addition of preambular paragraph 2 bis: “Concerned that the environment is daily threatened by severe destruction and deterioration, gravely endangering natural and human systems worldwide.
Second, Article 5 of the Rome Statute lays down the Crimes within the jurisdiction of the Court. The Article states “The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes: (a) The crime of genocide; (b) Crimes against humanity; (c) War crimes; and (d) The crime of aggression.” The Panel has recommended the addition of Article 5(1) (e): ‘The crime of ecocide’.
Third, Addition of Article 8 ter which would define Ecocide as: “For the purpose of this Statute, “ecocide” means 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.”
The Panel’s recommendation to the Preamble with the formulation ‘the environment is daily threatened’ is drawn from the International Court of Justice in its 1996 Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons. The Court in this case held that “environment is not an abstraction but represents the living space, the quality of life and the very health of human beings, including generations unborn’ and further confirmed that that ‘the general obligation of States’ to ensure the protection of the environment forms a part of the corpus of international law.”
The panel’s definition will undoubtedly add impetus to the ongoing debate of codifying ecocide law. With an outline of the core text, any of the 123 member states of the Rome Statute can propose it as an amendment to the Rome Statute. The inclusion of ecocide in the Rome Statute would add a new crime to international criminal law. The absence of international consensus in this direction is mysterious, as inaction further weakens climate policies. However, selective political interests have not prevented the States from taking proactive measures in their national legislations. Several states have adopted ‘ecocide’ as a Crime Against Peace in their national penal codes. Due to damage Vietnam suffered during its war with the United States, it was the first member state to make ecocide a national crime in 1990. Several other states have also incorporated the provisions relating to ecocide into the national mandate.
Ecocide has the potential to become the new genocide and the international community at several times have deliberated about the economics of the environment, but the global community has shown minimal efforts to draft a law to hold destructors of the environment accountable and responsible. As I have argued elsewhere, the need of the hour is, first, the inclusion of humanism in eco-centred realpolitik, and second, depoliticization of environmental governance.