Lambert here: Interesting, but surely the International Criminal Court isn’t the forum to worry about. Rather, the ISDS system would be.
By Theodore Whyte, who writes for DeSmogBlog. Originally published at DeSmogBlog.
A team of international lawyers has unveiled a definition of “ecocide” that, if adopted, would treat environmental destruction on a par with crimes against humanity.
After six months of deliberation, a panel of experts yesterday published the core text of a legal document that would criminalise “ecocide” if taken on by the International Criminal Court (ICC).
“This is an historic moment,” said Jojo Mehta, chair of the Stop Ecocide Foundation which commissioned the team of lawyers. “This expert panel came together in direct response to a growing political appetite for real answers to the climate and ecological crisis.”
In the draft law, the panel of 12 lawyers defined 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”.
If ratified by signatory states, ecocide would become the fifth international crime investigated and prosecuted by the ICC, alongside genocide, war crimes, crimes against humanity and the crime of aggression.
During a webinar marking the release of the document, panel co-chair Philippe Sands QC said the proposed definition would “cause us to think about our place in the world differently and it causes us to imagine the possibility that the law could be used to protect the global environment at a time of real challenge”.
“None of our international laws protect the environment as an end in itself and that’s what the crime of ecocide does,” Sands added.
Mehta described the draft law as a “necessary guardrail that could help steer our civilisation back into a safe operating space”.
“Without some kind of enforceable legal parameter addressing the root causes of these crises, it’s hard to see how the Paris targets and the UNSDGs [United Nations Sustainable Development Goals] can possibly be reached,” she said.
The panel said that the idea of “unlawful or wanton” acts would allow judges and prosecutors to balance consideration of these elements. This idea of balance could be vital to the law’s success if it is to be agreed to by the states that subscribe to the ICC, according to co-chair Sands, who said it avoids “setting the bar too low and frightening states who we need to adopt the definition, or setting the bar so high that it becomes effectively useless in practice”.
A team of lawyers published its proposed definition of ‘ecocide’ on June 22, 2021. Credit: Stop Ecocide Foundation.
Mehta acknowledged that ecocide legislation was likely to meet resistance from some richer nations, as it would inevitably force changes in corporate practice, “by making severe and reckless damage to nature illegal, and therefore unlicensable and uninsurable”.
This would close the door on “the old polluting ways”, she said. At the same time, Mehta argued, adopting ecocide legislation may be economically beneficial for stimulating innovation in green industries.
Sands said that oil spills, deforestation, and the authorisation of new coal fired power stations could all potentially be considered ecocide under the definition.
However, specific acts such as these were left out of the final document, Mr Sands said, as doing so could run the risk of unintentionally omitting certain practices from the definition.
“This is not about catching every single horror that occurs in relation to the environment, but those horrors that cross a threshold and are of international concern,” he said, adding that it would be up to prosecutors and judges to form a view on whether a particular act is ecocide.
The campaign to criminalise ecocide, a term which was first coined in the 1970s, faces a number of further obstacles, with the entire process expected to take at least four years.
As a next step, any of the ICC’s 123 member states can propose the core text as an amendment to the Rome Statute treaty, before the annual assembly holds a vote on whether it can be considered for future enactment. It will then have to be approved by two thirds of the member states to go ahead, ahead of it being adopted by individual members into national jurisdiction.