Ecocide Before the International Criminal Court: Simplicity is Better Than an Elaborate Embellishment

Abstract

In 2021, with their proposals of a new definition of ‘ecocide’, the Independent Expert Panel for the Legal Definition of Ecocide (‘IEPLDE’) and the Promise Institute for Human Rights (‘UCLA’) Group of Experts reignited the discussion on expanding the International Criminal Court’s (‘ICC’ or ‘Court’) jurisdiction over the gravest instances of environmental degradation. The proposed definitions form part of the broader campaign towards the international criminalisation of ‘ecocide’ and its prosecution before the ICC. This discussion challenges such ambitions, arguing that, in its current form, the Court would be unable to produce environmentally-satisfactory results. It underscores that the human-centric fundaments of modern international criminal law (‘ICL’) prevent the ICC from fusing different approaches and values governing international environmental law (‘IEL’) into its institutional design. A middle-ground is proposed instead: rather than surrendering the pursuit of environmental justice before the ICC or risking a ‘symbolic’ revolutionisation, the focus should be re-oriented on maximising the ‘environmental’ potential of the current statutory framework. This approach aligns with the strive towards greater ‘internationalisation’ of international courts and tribunals, encouraging more eager analysis of their statutory provisions from multiple perspectives and in the context of a variety of cross-sectoral international law norms, objectives, principles, and approaches. Two possible directions for progression in that regard are proposed: (i) more resourceful translation of environmental realities into the substantive prohibitions of war crimes and (ii) more active reliance on and application of a ‘greened’ scope of Articles 21(3) and 7(1) of the Statute.

Perspective Chapter: The International Criminal Court in Service of Sustainable Global Society

“…The importance of any cultural heritage is also determined by its extent towards the people as opposed to the location where it is situated [40]. Under Article 8(2)(a)(iv) of the Statute, it criminalizes during IAC any conduct which takes place against property by extensively using such power that aims at destroying property which has been protected under Geneva Conventions 1949 and has not been justified by military necessity [41]. The term destruction includes but is not limited to setting objects on fire, attacking or seriously damaging, appropriation taking, obtaining or withholding property, theft, requisition, plunder, spoliation or pillage [42].…”

“…Due human-centric fundaments of modern international criminal law limit ICC from exploring newer branches governing environmental law which is why it has been proposed to amend current statutory frameworks in a manner which maximizes the protection of the environment as this will allow a chance to reform statutory provisions from multiple perspectives. The reason why this is becoming a growing necessity is that the environment and heritage are continuously jeopardized during conflicts [73] and are left as a silent casualty of war affecting future generations [41]. The reason why discovering and improving this side of international criminal law is important is because aside from the direct toll on civilian life it has also led to many environmental abuses.…”

“…The power that ICC holds has the authority to influence individual States and draw policy attention to recognize these challenges by optimizing the potential of the safety of the environment by drawing policy attention. The lack of its inclusion is because the 1954 Draft Code of Offenses against the Peace and Security of Mankind [41] failed to include any new crimes which were not mentioned in the Nuremberg Principles [75] until later in 1995 when the Draft Code was revised the International Law Commission finally took the initiative in criminalizing any offense committed against the environment [41].…”

Armed Conflict, Ecocide and Climate Change at a Crossroad: Some Legal Perspectives

“…[Greene, 2019] or Promise Institute for Human Rights (UCLA) Group of Experts [Proposed Definition … 2021]. D. Palarczyk observes that such 'list' technique is more practical and desirable from the perspectives of certainty and predictability, and thus might be relatively easier to gain states' acceptance [Palarczyk, 2023].…”

“…But the question is what level of knowledge is needed to trigger responsibility for environmental crime. Some authors pay attention to the beginning of the cited paragraph 1 of the Article 30 of the Rome Statute: D. Palarczyk thinks that the component '[u]nless otherwise provided' allows departures from the general standard prescribing both knowledge and intent [Palarczyk, 2023].…”