By Llewellyn Botha, ESRAG Africa Chapter
This is an explanation of the background to the concept of ecocide as well as the provisions of the Rome Statute that would apply should the Statute be amended to include ecocide as the fifth crime under the jurisdiction of the International Criminal Court (ICC). The body that decides on whether or not to amend the Rome Statute is the group of 125 countries that are States Parties to the Rome Statute.
Ecocide: a growing concern
As a concept, ecocide has been around for several decades. It essentially deals with the destruction of the environment by human activities. However, it is only in fairly recent times that moves have been made to define it properly and to make it an international crime – and the move to do the latter is growing wider and stronger.
Please read and discuss the explanation that follows with fellow Rotarians and your networks. You and your Club can contribute to this advocacy by signing on as Supporters of Stop Ecocide International. An array of eminent humanitarian, government, and scientific leaders have endorsed the quest to make ecocide a crime, including UN Secretary-General Antonio Guterres, Pope Francis, and Jane Goodall. You can also help through Stop Ecocide International’s sector-specific networks, which include lawyers, scientists, students, the faith community, and educators.
The Rome Statute, Polly Higgins and Stop Ecocide International
During the formulation of the Rome Statute of the International Criminal Court in the 1990s, it was proposed that ecocide should be included as a crime. However, this proposal was not successful.
The ICC’s website currently states that it “investigates and, where warranted, tries individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression.”
In or around 1990 a Scottish barrister, Pauline Helene (“Polly”) Higgins started to campaign for the inclusion of ecocide in the Rome Statute. She was joined in this venture by another barrister, Jojo Mehta. In 2017 the two barristers founded the organisation Stop Ecocide International. After Polly’s untimely passing in 2019, Jojo has continued to expand the profile and activities of the organisation. The Stop Ecocide Foundation was also established in 2017 as Stop Ecocide International’s philanthropic arm.
War as a factor
Probably the most, and widest, types of destruction of the environment occur during the course of wars. Unfortunately, it is not clear the extent to which this issue was canvassed or dealt with, if at all, during the Nuremberg Trials after the Second World War.
However, the war in Vietnam in the 1960s gave rise to concern about the destruction of the environment through the use of the defoliant called “Agent Orange” by the United States of America. In 1972, Olof Palme, the then-Prime Minster of Sweden, described the use of Agent Orange in Vietnam as “ecocide.” This environmental disaster was still discussed some 50 years on.
In more recent times – during the current hostilities between Russia and Ukraine – one of many acts of ecocide was committed when an explosion destroyed the Kakhovka Dam in the southern Kherson region in June 2023.
Legal Definition of Ecocide
The Stop Ecocide Foundation – on the request of interested parliamentarians from the governing parties in Sweden – convened the Independent Expert Panel for the Legal Definition of Ecocide (“Expert Panel”) in November of 2020. The Panel completed its work, by consensus, in June 2021. Their definition (below) has become the source of discussions on ecocide internationally:
“ecocide” means unlawful or wanton acts committed with the knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.
Relevant elements of ecocide
Acts of ecocide require “knowledge … (of the) … likelihood of … damage to the environment being caused by those acts.” This means that, at least, one natural person must have that knowledge when the acts are committed.
Further, the Expert Panel, in its comment on the core text of the definition, at paragraph 4: Endangerment (on p. 12) states that
“Culpability for the crime of ecocide attaches to the creation of a dangerous situation, rather than to a particular outcome. It is the commission of acts with knowledge of the substantial likelihood that they will cause severe and either widespread or long-term damage that is criminalised. The crime of ecocide is thus formulated as a crime of endangerment rather than of material result.”
This means that the anticipated damage does not to have had occurred for the crime of ecocide to have been committed: it arises from the creation of a situation where there is a substantial likelihood that either widespread or long-term damage will occur. Thus, the crime arises in anticipation of the damage, not after it has occurred. This also means that the proposed or actual existence of the crime in the Statute could act as a deterrent and have a “chilling effect” on anyone contemplating activities that could result in the commission of the crime.
Jurisdiction
Article 11, 1. of the Rome Statute provides that the ICC “has jurisdiction only to crimes committed after the entry into force of this Statute.” Thus, the ICC will have jurisdiction over the actions that constitute ecocide that were taken only after the Rome Statute has been amended to make ecocide a crime in terms of the Statute – not such actions taken before the amendment.
Liability for ecocide
There could, of course, be more than one person with the same relevant knowledge and all acting in unison – such as within or through a corporate company or an organization. However, Article 25 of the Rome Statute sets out that the ICC has jurisdiction over natural persons only and that such persons will be held individually criminally responsible and liable for the appropriate punishment (see the attached extracts from the Statute). This means that one or more of the significant or responsible persons of any company, organization or State structures committing ecocide (with the relevant knowledge) could be the ones that would be charged, as individuals, under the Statute.
Thus, it is important to note that the ICC does not have jurisdiction over companies, organizations or States, as such, but rather over the individuals who run them. For example, former President Bolsonaro of Brazil was proposed as someone who would be charged with the commission of ecocide in the Amazon Forest.
Penalties
If the natural persons concerned were to be found guilty of committing ecocide, they would be liable to the penalties set out in Article 77, namely, imprisonment for up to 30 years, or for life, and, in addition, to a fine and forfeiture of proceeds, property and assets derived from the crime. It is important to note that the fine and forfeiture are additional penalties, not alternative ones, to the imprisonment.
Types of acts targeted
It is also important to note that the acts of ecocide that will be targeted are not those that are committed on a large scale by the many individuals of the public (such as plastic littering and the resultant pollution) but, rather, acts of ecocide of a significant nature – as per the provisions of the above definition – and those that can be attributed to specific and identifiable individual natural persons.
Persons (nationals) from Non-State Parties
Finally, under universal jurisdiction principles, any ratifying nation (that is, a nation that has signed and formally accepted the Statute) may, on its own soil, arrest a non-national for ecocide committed elsewhere, as long as they consider the crime to be serious enough. Thus, even nationals from countries which are not States Parties (for example the United States of America and China) would be liable to arrest and prosecution, based on paragraph 4 of the Preamble to the Rome Statute.
LLEWELLYN (LEW) BOTHA studied law at Rhodes University, Grahamstown, South Africa, and was admitted to practice as an attorney and notary public in South Africa in January 1971. He also holds two degrees in geography from the University of South Africa and a master’s degree in environmental science from the University of Cape Town. Lew founded the first environmental law consultancy in Southern Africa in 1991 and consulted to a range of companies such as mines, refineries and breweries, as well as manufacturers of items ranging from paper to motor vehicles and pharmaceuticals. He retired from the consultancy in 2014.
Lew was a Rotarian for 30 years. During this time he chaired the D9350 Environmental Committee for a few years and was also a member of the ESRAG Africa Chapter when he assisted with establishing Environmental Champions in Clubs within D9350. Lew currently promotes the circular economy and supports and motivates for the inclusion of ecocide as the fifth crime for adjudication by the International Criminal Court in terms of the Rome Statute.
ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT
EXTRACTS: ARTICLES 25 AND 77
Article 25
Individual criminal responsibility
- The Court shall have jurisdiction over natural persons pursuant to this Statute.
- A person who commits a crime within the jurisdiction of the Court shall be individually responsible and liable for punishment in accordance with this Statute.
- In accordance with this Statute, a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person:
(a) Commits such a crime, whether as an individual, jointly with another or through another person, regardless of whether that other person is criminally responsible;
(b) Orders, solicits or induces the commission of such a crime which in fact occurs or is attempted;
(c) For the purpose of facilitating the commission of such a crime, aids, abets or otherwise assists in its commission or its attempted commission, including providing the means for its commission;
(d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either:
(i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or
(ii) Be made in the knowledge of the intention of the group to commit the crime;
(e) In respect of the crime of genocide, directly and publicly incites others to commit genocide;
(f) Attempts to commit such a crime by taking action that commences its execution by means of a substantial step, but the crime does not occur because of circumstances independent of the person’s intentions. However, a person who abandons the effort to commit the crime or otherwise prevents the completion of the crime shall not be liable for punishment under this Statute for the attempt to commit that crime if that person completely and voluntarily gave up the criminal purpose.
3 bis. In respect of the crime of aggression, the provisions of this article shall apply only to persons in a position effectively to exercise control over or to direct the political or military action of a State.
- No provision in this Statute relating to individual criminal responsibility shall affect the responsibility of States under international law.
Article 77
Applicable penalties
- Subject to article 110, the Court may impose one of the following penalties on a person convicted of a crime referred to in article 5 of this Statute:
(a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or
(b) A term of life imprisonment when justified by the extreme gravity of the crime and the individual circumstances of the convicted person.
- In addition to imprisonment, the Court may order:
(a) A fine under the criteria provided for in the Rules of Procedure and Evidence;
(b) A forfeiture of proceeds, property and assets derived directly or indirectly from that crime, without prejudice to the rights of bona fide third parties.
