Recognising the crime of ecocide

Vanuatu, Sāmoa and Fiji want ecocide to become an international crime so the world’s biggest polluters can be held to account. They’ve asked the International Criminal Court to add it to the Rome Statute, where it would be recognised as one of the gravest crimes of concern to the international community, alongside genocide, war crimes, crimes against humanity and the crime of aggression.

Here, Teuila Fuatai speaks to Professor Leilani Tuala-Warren, Dean of Law at Waikato University, about the petition  submitted last month at the United Nations in New York.

 

Ecocide is legally defined as acts of unlawful or wanton environmental destruction, committed in the knowledge of their likely severe, widespread or long-term effects.

These acts could include oil spills, the emission of large amounts of greenhouse gases by fossil fuel companies, and deforestation of the Amazon.

In simple terms, it’s the widespread devastation of our environment by human action, which occurs with the knowledge that it will likely result in environmental harm.

To date, all international environmental obligations like the Kyoto Protocol and the Paris Climate Accords have been voluntary. Because of that, parties (states, organisations, corporations) know there are no real consequences for failing to abide by the environmental obligations they’ve committed to. As a result, we’ve continued to see our environment deteriorate along with increases in global temperatures.

In the Pacific, we live with the consequences of that lack of commitment and accountability every day. In Sāmoa, we can see the rising sea levels. Tuvalu and Kiribati are facing the future displacement of their populations. We’re also experiencing salination of the land in the region, making crops more difficult to grow and affecting our food sources. We also have overfishing, which disrupts marine ecosystems. Then there’s the warming of the ocean and extreme weather patterns.

For many of our people and communities, life under these increasingly hostile circumstances isn’t an option. It will result in the end of a way of life for the worst off. Some will be forced to leave their traditional homelands to survive.

That’s why Vanuatu, supported by Fiji and Sāmoa, has petitioned the International Criminal Court (ICC) for ecocide to be added to the Rome Statute. It’s an official way of drawing attention to the gravity of our current situation on the world stage. Most importantly, should the petition be successful, it would create an overarching global system of accountability that would, on several fronts, work to rein in the world’s worst polluters.

First, as part of the Rome Statute, ecocide could be used as a legal tool to assist those most vulnerable to the climate crisis to push for change. This is particularly important for Pacific nations like Vanuatu and Sāmoa because, realistically, we don’t have the robust and appropriate measures to prosecute crimes against the environment that occur within our borders. We also contribute very little to the climate crisis, yet suffer the most. Having the ICC step in and prosecute is an important part of securing accountability for the harm we’re experiencing.

Second, adding ecocide to the Rome Statute puts it on par with the most serious international crimes: genocide, war crimes, crimes against humanity and the crime of aggression. This creates a significant deterrent effect.

We know from the lack of sustained commitment to addressing global greenhouse gas emissions that states and multinational corporations don’t change their culture and behaviour voluntarily.

Because the ICC prosecutes individuals, top policymakers and business leaders who refuse to take responsibility for their part in the climate crisis will be at risk of being prosecuted for ecocide. They will therefore think twice about their environmental responsibilities.

I see this plank of the ecocide petition as targeting the mindset and culture among our decision-makers and industry leaders. We would be trying to force positive change on them.

Third, adding ecocide to the jurisdiction of the ICC would make it necessary for states to have robust frameworks around environmental responsibilities, especially the 124 countries that are parties to the Rome Statute. (Notably, New Zealand is a founding member of the Rome Statute.)

This follows the process associated with the prosecution of a crime. To determine culpability for ecocide, ICC member states would have to determine their own thresholds for the crime that are consistent with what the ICC has set under its ecocide framework. That would then determine the relevant government policies and industry and business standards.

Ecocide is a relatively new and untested area of law, even though, as a concept, it’s been around since the 1970s.

About a dozen countries already recognise ecocide as a crime within their borders. Among these are France, Ukraine, Russia and Vietnam. Mexico and Brazil have also considered adding ecocide to their criminal jurisdictions.

In 2021, France was the first EU country to make ecocide a crime. The following year, a test case involving huge amounts of carcinogenic chemicals found under a residential home was brought before its courts.

This year, Belgium became the latest country to make ecocide a crime. Under its jurisdiction, individuals can face up to 20 years imprisonment for ecocide, while corporations could be fined 1.6 million euros.

In international law, the submission regarding ecocide is significant because it signals a potential variation from the previous four crimes recognised under the Rome Statute (genocide, war crimes, crimes against humanity and the crime of aggression). These crimes are committed directly against humans, while ecocide is a crime against the environment. To date, the International Criminal Court has only prosecuted individuals, however, under the crime of ecocide, states and corporations can be held responsible as well as individual persons.

We should consider Vanuatu’s ecocide petition a longer-term legal and environmental goal.

The last time the Rome Statute was amended was in 2018, when the crime of aggression, the use of armed force by one state against another, was added. Amendments to the Rome Statute require agreement from at least two-thirds of member parties (currently 83 countries).

That’s not a simple or quick process. It’s taken years just to get to this point — Vanuatu first discussed ecocide as part of the Rome Statute in 2019. Persuading state parties to approve the ecocide amendment will be an exercise in diplomacy and lobbying. Throughout that, individual states will be thinking about their own economic and commercial interests.

It’s also important to note that even if ecocide is recognised as an international crime, some of the world’s biggest polluters aren’t member states of the ICC. For example, China, Russia, India, the US and Israel have never signed up to the Rome Statute, which shows that they don’t support the court or accept its jurisdiction.

This directly affects who can be prosecuted because the ICC is designed to complement the national criminal systems of its member states, not supplant them. Therefore, it prosecutes cases only when member states don’t prosecute, or are unwilling or unable to prosecute themselves. Importantly, for a prosecution to occur, a member state must refer a case for investigation to the ICC for an alleged crime. The UN Security Council can also refer a case to the court for investigation and potential prosecution. To date, war crimes have made up the bulk of prosecutions. And the court’s jurisdiction only covers acts that occurred on or after July 1, 2002.

New Zealand must recognise this petition for ecocide as coming from our most vulnerable neighbours. Now more than ever, we should understand and identify with what Vanuatu, Sāmoa and Fiji are trying to achieve — and support them.

New Zealanders are very aware of the devastating effects of climate change, especially with recent events like Cyclone Gabrielle and the flooding in Otago. We know the climate is changing for the worse, and that something must be done. We should also use this as an opportunity to discuss the moral and legal boundaries of actions that relate to ecocide, and what that could mean for our own domestic jurisdiction.

The International Criminal Court is often referred to as a last resort to try the most serious crimes. While some of the world’s biggest polluters may not be member states, the fact that the ICC is now considering adding ecocide to its jurisdiction is a huge step forward in the climate crisis. It means that, internationally, we’ll be able to discuss the legal and moral consequences for the widespread destruction of our environment.

Significantly, for Pacific nations, the ICC represents the last and only resort to prosecute ecocide.

 

Leilani Tuala-Warren is the Dean of Law at the University of Waikato. She is a former Supreme Court Justice of Sāmoa. She holds the matai title Tafaoimalo from her father’s village of Satalo in Falealili. Her other matai title of Tologata, is from Pata in Falelatai, another of her father’s villages.

As told to Teuila Fuatai and made possible by the Public Interest Journalism Fund.

E-Tangata, 2024