Introduction
A significant breakthrough in the context of climate crisis arose recently in the form of Resolution 2546 “Towards Council of Europe strategies for healthy seas and oceans to counter the climate crisis” stemmed from a meeting of the parliamentary wing of the Council of Europe in 2024. It called for addressing alarming issues related to ocean well-being and included asking member and non-member States of the Council of Europe to augment the creation of a legal framework with the aim to define ‘ecocide’ at local, regional and worldwide stages. The authors delves into the question of whether classifying ecocide as an international crime represents profound efforts to achieve environmental justice or if it is an empty rhetoric lacking substantive outcomes.
The term ‘ecocide’ was conceived by Professor Galston at the Conference on War and National Responsibility in Washington, where a new global convention was also suggested to outlaw this menace. Attacks with ‘Agent Orange’, a potent herbicide employed by the US army as a chemical weapon that claimed hundreds of thousands of lives sparked the international debate around ecocide at the 1972 UN Environmental Summit in Stockholm, wherein the representatives of various nations even proposed that the depredation of the biosphere ought to be regarded as a crime against humanity. This article is aimed at analysing whether the designation of ecocide as an international crime would be a milestone in the direction of environmental justice or merely a bunch of malarkey.
Understanding Ecocide and its Urgency
Although the term ‘ecocide’ lacks a globally accepted legal definition, it generally refers to wanton acts committed with the knowledge of there being a substantial likelihood of severe or long-term impairment to the environment being caused by those very acts. The recognition of the interrelation between environmental preservation and human rights has broadened the Since then, its definition has been enlarged to include the rights of indigenous and local communities, who rely on the natural biosphere for their livelihoods and survival.
In March 2023, the Intergovernmental Panel on Climate Change (“IPCC”) emphasized the alarming situation. Their reports underscored the increasing use of fossil fuels, rising pollution from plastic waste and fertilizers in both terrestrial and marine habitats, and the extinctions of numerous vulnerable species. These trends indicate the beginning of a new geological epoch, the Anthropocene. These reports have never been more crucial at a time when the Amazon is disappearing unabatedly, having already reached the critical point of 20% of its surface, and over five million hectares of Australia have burned in recent months due to unwavering heat waves brought on by climate change.
Existing Legal Framework
At present only four types of crimes, namely the crime of genocide, the crime against humanity, war crimes, and crimes of aggression fall under the ambit of the Rome Statute of the ICC. Lately, ecocide has been declared unlawful in a handful of nations, but the menace of ecocide is a worldwide threat and its impact on states is disproportionate to their respective contributions to environmental degradation. As a result, the ICC should classify it as a fifth crime so that those who commit it can be held accountable.
Furthermore, the existing legal framework falls short of acknowledging ecocide as a jus cogens norm. Elevating ecocide to the status of jus cogens would be a momentous step in the area of international law, demonstrating how vital it is to preserve the environment for both present and future generations. Moreover, because of the changing global conversation about environmental protection and the growing awareness of the disastrous effects of ecological destruction, this concept may eventually become a peremptory norm in international law, despite obstacles to its formal recognition as the fifth international crime.
Challenges Ahead
The Rome Statute, which governs the ICC, requires a head of state to propose an amendment to the present legal framework. An amendment proposal must be considered with a simple majority at a meeting of state parties convened at least three months prior to the proposal. The next step in the negotiation process would be the calling of a Crime Review Conference or continuing talks amongst state party representatives informally and formally. The amendment can be then inserted into the statute and ratified and enforced with the consent of at least two-thirds of the member states.
There is also a precedent for the amendment in the Rome Statute of ICC by way of which crime of aggression was added to the list of international crimes and there have been multiple minor amendments under War Crimes to include starvation of civilians, use of chemical weapons etc. But a major initial challenge is to build consensus among the nations over the legal aspects and scope of the term ecocide. It is the need of the hour that the term must be well defined in order to avoid ambiguity and to ensure enforceability. While some nations advocate for treating ecocide as a heinous crime, others argue for a gradual approach of incorporating it as a crime.
Another challenge pertains to the mens rea or mental element requirement for the potential international crime of ecocide. The intention to cause harm is an indispensable requirement to establish criminal liability. The opponents argue that the corporations which cause environmental degradation do so for their commercial profit and not with the intention to harm the environment. However, this argument does not hold ground because the proposed definition of ecocide needs recklessness, not intent, to establish an offence.
There has also been a consistent hue and cry around the claim that the making of ecocide would be an impediment to economic growth. But in reality, it will certainly be harmonious with a robust economy, in fact, it will soon become necessary for one to function. This is due to the fact that ecological reality cannot be avoided as any economic system has a finite lifespan in the absence of thriving ecosystems. Ecocide law enables us to recognize this and to stay aware of it. It is true that initial challenges and inhibitions would be encountered while bringing this reform but it is necessary to overcome them and look at the larger ecological scenario.
Conclusion
To conclude, the discourse surrounding the potential penalization of ecocide underscores the pressing necessity of adopting vital steps to shield the environment. Some see it as a bold shift, but others warn that it might just be lip service. In any case, the discussion highlights the necessity of taking sturdy actions to progress on the road towards sustainable development. Ultimately, this deliberation raises more pertinent issues regarding environmental anthropology. It furthers compels us to examine the moral and ethical connotations of environmental conservation and the consequences of human activities.
There is a daunting journey ahead for ecocide to be recognised as an international crime. A significant breakthrough in this direction would be the strict penalization of environmental crimes in domestic jurisdictions. It is only when governments, international organisations, civil society members, and other stakeholders make a coordinated effort, will the target of criminalizing ecocide at a global level be achieved. Lastly, ecocide is even more rampant than other recognized international crimes because those affect a limited populace and have ramifications for the present generations while ecocide has the potential to wipe out the entire human race as well as shake up future generations. Thus it should certainly find a place as the fifth form of crime under the Rome Statute.
The post is written by Yash Kaushik and Sameer Goyal, third year B.A. LL.B. students in NLUO.