By: Lawson Barkley
In the face of escalating environmental crises, a need for innovative legal approaches to address the destruction of Earth’s ecosystems has become apparent. Although there are arguments on both sides as to whether or not climate change is indeed real, or caused by human activity, there remains a need to hold accountable those who cause destruction to our environment.
In June 2021, an Independent Expert Panel (IEP), backed by the Stop Ecocide Foundation proposed a legal definition of “ecocide” to the International Criminal Court (ICC) to serve as a basis for an amendment to the Rome Statute. The amendment would make ecocide a fifth international crime. Doing so would put the crime of ecocide weighted equally to those of genocide, crimes against humanity, aggression, and war crimes, sparking newfound backing from consumer purchasers around the world.
The IEP 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.” The IEP further defines critical terms within the definition, leaving little ambiguity as to how to implement the new amendment.
Currently, international crimes against the environment are likely only to be prosecuted when they fall under Article 8(2)(b)(iv) of the Rome Statute which prohibits “[i]ntentionally launching an attack in the knowledge that such attack will cause… long-term and severe damage to the natural environment,” which is excessive to the overall military advantage anticipated. Without a new amendment, the ICC only has jurisdiction under the pretense that the economic harm was a result of military action. In the Anthropocene epoch, ICC wartime jurisdiction has not been enough to prevent large-scale economic disasters. The IEP wishes to expand the ICC’s jurisdiction to prosecute economic crimes even in times of peace.
Environmental damage does happen during times of war, such as when the U.S. military used chemical weapons like Agent Orange in Vietnam. But the most severe environmental damage often happens outside of wartime. For example — oil pipelines that release crude oil into Earth’s waters and toxic leakages from mines — lead to some of the most impactful changes to the environment. These happen during times of peace and due to the current standing of the Rome Statute, are largely untouchable in ICC proceedings. As of November 2023, the ICC has failed to amend the Rome Statute to include ecocide as a fifth international crime.
The ICC has limited personal jurisdiction. Under Article 25(1) of the Rome Statute, the ICC only has personal jurisdiction over natural persons. The ICC cannot prosecute corporations or governments. While this limits the ICC, it is arguably more effective in providing the necessary deterrence to important international actors like heads of governments and corporate executives.
It is important to note that the ICC has further limits to its jurisdiction, making widespread change a serious challenge. Only nationals of states that have ratified the Rome Statute, crimes committed on assenting state territory, and United Nations Security Council references can be prosecuted.
Luckily, technological advances in the late stages of the Anthropocene have given rise to a deeply interconnected global economy that operates with an increasingly integrated relationship of labor, capital flows, and consumer markets. Planet-wide electronic communications have allowed individuals around the globe to express their opinions and garner support for causes that may have gone unnoticed in the past. These drivers of global change take pressure off the ICC and its function of prosecuting crimes. Instead, they allow private citizens to speak out and seek the support of larger organizations to implement change. The key is the organization of these movements.
Ordinary consumers lack the time, motivation, and resources to organize causes for environmental change because the effects are not typically felt right away. Rather, the most consequential negative environmental effects come in the form of long-term deterioration. Though unorganized, ordinary consumers have strong bargaining power in where they choose to spend their money.
During peacetime disasters, large corporations seeking economic success are the main aggressors and abusers of the environment. Due to the ICC’s limited jurisdiction and refusal to adopt ecocide as a fifth international crime, ordinary consumers must target large corporations and be drivers of change. Instead of relying on large regulatory bodies, non-governmental organizations (NGOs) need to focus on organizing the large consumer purchasing power to deter large corporations from committing ecocide. NGOs can organize and educate consumers, influencing them to choose to purchase goods from corporations that use sustainable methods of production.
However powerful the consumer choice is, the ICC’s deterrence power is not put wholly out of perspective. By placing ecocide as a fifth international crime equal in weight to crimes like genocide, ordinary consumers would be more likely to support such causes.
The time has come to hold the heads of mega-corporations accountable for their blatant disregard for the longevity of our planet. When international criminals commit a crime, they can face legal ramifications under the ICC. But when individuals knowingly commit ecocide in times of peace, our children face the ramifications of a dying planet. The ICC amending the Rome Statute, in conjunction with NGOs organizing, motivating, and educating consumers in the Anthropocene are important steps to securing the longevity of our planet.
