In September this year, Vanuatu, Fiji, and Samoa formally proposed that the International Criminal Court, the ICC, should look into introducing ecocide as a crime. On December 5th, they and the Democratic Republic of Congo hosted an official side event on ecocide legislation at the 23rd Session of the Assembly of States Parties to the Rome Statute of the International Criminal Court. The event was moderated by the ICC Deputy Prosecutor, Nazhat Shameem Khan, who is herself from Fiji and has spoken positively about an international crime of ecocide.
The International Criminal Court’s current ability to deal with the environment is in effect, ‘close to non-existent,’ said Philippe Sands, KC, specialist in international law, Professor of Laws at and Director of the Centre on International Courts and Tribunals at University College London. Regarding the value of adding a crime of ecocide he said: ‘It’s essentially about changing consciousness,’ about recognizing that ‘a system of rules that has as its sole objective the protection of the human is not enough’.
Furthermore, said Professor Sands, there is a need to recognize that ‘the protection of the natural world as an end in itself is a shared societal objective’.
Although it is clearly impossible to know the time frame, professor Sands sees the addition of a crime of ecocide to the Statute of the International Criminal Court as ‘inevitable, and I would say even certain’.
Professor Margaretha Wewerinke-Singh, Associate Professor of Sustainability Law, Amsterdam Law School, said that the proposal to amend the Rome Statute to include ecocide as an international crime addresses a ‘critical gap in international law’. Without mechanisms to hold individuals criminally responsible, there is impunity for ‘those who orchestrate and benefit from environmental destruction’.
Fascinatingly, Professor Wewerinke-Singh said that ‘it can be argued, and indeed has been argued before the International Court of Justice, that criminalizing ecocide is an obligation under international law’. She mentioned three aspects on how there may be such an obligation.
‘First, as an obligation under international human rights law, states must have positive obligations to take measures, including legislative measures, to protect against human rights violations.’ One of several ways in which such obligations arise is from the human right to a healthy environment, established by the UN General Assembly in 2022.
Secondly, the obligation can be held to arise because, while states have discretion as to the means they use to protect human rights, that discretion is significantly reduced where there are such massive violations of human rights occurring as a result of, in this case, the harm that climate change has already caused. Criminalization of ecocide can be held to be mandatory, because it may be the only effective way at this point to A: ensure that the breaches of human rights violations are put to an end B: offer reassurances of non-repetition.
Thirdly, ‘the obligation to not cause damage to the climate system and other parts of the environment, has now a jus cogens status in international law’, meaning that it cannot be set aside. The inclusion of ecocide as a distinct crime in the Rome Statute would create a very important legal deterrent against environmental harm, signaling that the international community will not tolerate actions that threaten the very foundations of life on Earth, said Professor Wewerinke-Singh.
All speakers:
H.E. Volker Türk – United Nations High Commissioner for Human Rights
Professor Philippe Sands KC – Professor of Laws, Director of the Centre on International Courts and Tribunals, University College London.
Professor Margaretha Wewerinke-Singh – Associate Professor of Sustainability Law, Amsterdam Law School
Sandrine Dixson-Declève – Co-President, Club of Rome
Debbie Buyaki – Co-Lead, Youth for Ecocide Law
Professor Darryl Robinson – Queen’s University Faculty of Law (Canada)
The full session can be viewed here.
Professor Sands: https://youtu.be/AgLNjtOP5fo?t=1530
The event was made available in association with partners: Stop Ecocide International, Stop Ecocide Foundation, UCLA Law Promise Institute Europe, Climate Counsel
