Ecocide: Criminalising environmental destruction

A global campaign is underway to include “ecocide” as an international crime falling within the jurisdiction of the International Criminal Court (the ICC).

So what is ecocide?

In June 2021, an independent panel of legal experts from around the world completed 6 months of drafting work to publish a legal definition of “ecocide”, that in short, is:

“Ecocide” means 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.

Stop Ecocide International, is leading the campaign and has put this definition to member states of the ICC for consideration to add to the list of international crimes.

But what does this mean and what happens next?

Who are the ICC?

The International Criminal Court was founded, and is governed by, a treaty called the Rome Statute. The ICC investigate and try individuals charged with four main crimes:

• Genocide;
• Crimes against humanity;
• War crimes; and
• The crime of aggression.
   

The ICC can only investigate and prosecute these crimes when they are committed by people from a member state, within member states or in a state that has accepted the jurisdiction of the ICC (meaning they have voluntarily agreed to co-operate with or take part in a specific ICC process), or when referred by the Unites Nations Security Council.

Currently there are 123 member states of the ICC, including Australia, which are subject to the jurisdiction of the ICC.

Adding “Ecocide” to this list will mean that the ICC can investigate and prosecute environmental destruction as an international crime, and would represent a historic shift from the presently human focussed jurisdiction of the ICC towards inter-species justice.

This could mean events like nuclear accidents, major oil spills and deforestation could be considered as crimes of ecocide.

What is the process?

The road to Ecocide becoming an international crime is a long one, and will involve the following steps:

1. One (or more) of the 123-member states of the ICC must propose an amendment to the Rome Statute to include the crime of Ecocide. So far, a number of states have expressed support for an amendment to the Rome Statute to include Ecocide, but it is not clear when, if at all, a formal amendment will be put forward.
   
   
2. To even be considered, the proposed amendment must be voted on and supported by a majority of the members of the ICC at their annual assembly, usually held in December each year.
   
   
3. If a majority supports the proposed amendment, it will move to a consideration phase, where member states will consider and negotiate the final text of the amendment. Once the final text of the amendment is agreed upon, two-thirds of the member states must vote in favour of it.
   
   
4. If that vote succeeds, the law will become enforceable in those states that ratify it, one year after ratification. If a state does not ratify the amendment it is not required to enforce the law in its domestic legislation.

If Ecocide becomes a crime, what will that mean in Australia?

If Australia ratifies an amendment to the Rome Statute making Ecocide a crime within the jurisdiction of the ICC, it will need to implement and enforce the new law in its domestic legislation within one year.

From that time onwards, Ecocide becomes a criminal offence in Australia. Furthermore, under principles of universal jurisdiction, Australia would be able to arrest non-nationals in Australia for ecocide committed elsewhere.

If Australia does not ratify the amendment and it still passes by a two-thirds majority, Australia will not be required to incorporate the law into its domestic legislation. This has happened before, in 2010 when Australia did not ratify amendments to the Rome Statute to add “the crime of aggression” to the ICC’s jurisdiction. Because of this, the crime of aggression (as defined in the Rome Statute) is not criminalised in Australian domestic law.

Whilst Australia could choose not to ratify a new ICC crime of ecocide (if proposed), a failure to ratify could have a marginalising effect on Australia, and countries that have ratified the crime may still seek to prosecute Australians accused of ecocide should they enter their territory.

So far, the Australian government has not indicated support or otherwise for the proposal, and enforceability is still many steps away. The next ICC annual assembly where an ecocide amendment could be proposed is scheduled for 6-11 December 2021. It is not clear yet whether a member party will be proposing an ecocide amendment, and how the Australian government would respond to that.  

What this movement does show, however, is the growing support around the world for a legal tool that will help governments address the urgent need to protect the environment on a global scale.

Maurice Blackburn Lawyers is concerned about climate change and environmental destruction in Australia and around the world. In addition to efforts by governments to address these issues in the international and criminal legal spaces, we are watching with interest as human rights and civil legal principles are increasingly used by individuals and groups to take action in the Courts to protect the environment.