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New Zealand Journal of Environmental Law |
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New Zealand Journal of Environmental LawLast Updated: 14 May 2024
221
The Case for an International Crime of Ecocide
Anna Jenkin*
This article explores the possibility of an international crime of ecocide, explaining that while it is not a silver bullet its inclusion in the Rome Statute is desirable for Earth, its inhabitants, and the law. An international crime of ecocide could provide an accountability framework and clear reference point to guide individuals’ behaviour globally. It would morally condemn the ecological destruction occurring daily outside of war, which is currently lawful. Because ecological destruction is often an unintended but anticipated secondary effect of corporate or State action, the crime of ecocide faces the challenge of obtaining States’ international agreement on the appropriate mens rea standard, and challenges State sovereignty more broadly. But it also has the potential to strengthen the international response to our changing planet and help us justly transition into a green global economic order. While some States have included ecocide in some form in the national penal codes, this article’s focus is international. However, it ends by recommending Aotearoa New Zealand should begin the amendment process of the Rome Statute to include the crime of ecocide.
1. INTRODUCTION
The science is irrefutable: Earth is facing imminent and catastrophic ecological destruction. Recent studies suggest that current policies, or “business as usual”, will lead to global warming of nearly four degrees Celsius in the next 100
*LLB(Hons)/BGlobalSt student at Auckland Law School, Waipapa Taumata Rau. Email: ajen605@aucklanduni.ac.nz.
years.1 Earth is on track to become uninhabitable.2 Although climate change has received particular attention, the battle is on all ecological fronts. Biodiversity loss and deforestation, pollution, and resource extraction for economic gain are rapidly destroying the Earth’s ability to sustain itself.In the face of this destruction, a movement has amassed reinvigorating a relatively well-established, but as yet unsuccessful, concept: that ecological damage should be internationally criminalised. The proposed means is by amending the Rome Statute of the International Criminal Court to add in a fifth Crime Against Peace: ecocide. But what “the crime of ecocide” means, precisely, is contentious. Whether the amendment is plausible or worthwhile is also highly contentious. This article will explore the past, present and future of an international crime of ecocide, explaining that while it is not a silver bullet its inclusion in the Rome Statute is desirable for Earth, its inhabitants, and the law.
Part 2 of this article will position ecocide as a potential solution to the silence of international criminal law, and unenforceability of international environmental law, regarding environmental damage. Part 3 will discuss the development of “ecocide”. This involves considering different formulations of the crime depending on whether it is used to protect humans first, or Earth itself (an ecocentrism–anthropocentrism debate). Part 4 will discuss the most recent definition of “ecocide”, the suggested basis of amending the Rome Statute. The article then moves on in part 5 from the need for ecocide law and what that means precisely, to how ecocide law will effect change if implemented. This ranges from narrower legal matters like duties of care and individual liability, to broader implications for the flow of finances and ecological destruction. Part 6 narrows in on corporations specifically, and the impacts on the worst ecological offenders, followed by part 7 which discusses the potential effects of ecocide law on States and State sovereignty. Having demonstrated that amending the Rome Statute to criminalise ecocide is a worthwhile pursuit, this article will propose in part 8 that Aotearoa should suggest the amendment to the International Criminal Court (ICC), affirming its place as a world leader on global environmental matters.
1 World Economic Forum The Global Risks Report 2022 (17th ed, January 2022) at 31. 2 At 31.
2. THE ARGUMENT TO CRIMINALISE HARM TO THE ENVIRONMENT
2.1 The Problem
Current laws and policies, both national and international, are driving Earth onwards towards its demise. International agreements like the Paris Agreement recognise that ambitious targets are required, and the behaviours of both the public and private spheres must change to meet these targets.3 Yet the Paris Agreement is marked by voluntary compliance measures to be determined by States themselves.4 This model of voluntary compliance and deregulation, alongside the common use of reporting obligations,5 is quintessential of current governance measures.6
One of the reasons the international legal order is failing to combat Earth’s ecological crisis is that it is dominated by the principle of State sovereignty.7 Based in the Western liberal tradition, the legal entity that constitutes a State has a realm of freedom from interference, and can do as it pleases except where limited by international law or the equal sovereignty of other States.8 Inherent in the concept of State sovereignty is that it has the right to use, exploit and destroy the natural resources within its own jurisdiction.9 Thus, States set minimum environmental protection standards over their own territory, and similarly international law is only as effective in protecting the environment as States will implement. Why, then, do we not have a legal framework that sufficiently protects the Earth, knowing — as the individuals who work under the legal title of “the State” know — the science?
Part of the answer lies in Western liberal and neoliberal traditions. Globally, States are intertwined with a neoliberal capitalist economy born of, and dependent on, environmental destruction.10 The basic concepts of neo- liberalism are individual liberty and that non-interference in the private sphere
(Edward Elgar Pub, Cheltenham, 2015) at 6–8.
9 At 83.
10 Klaus Bosselmann and Stephen Picard When Two Worlds Collide: Society and Ecology (RSVP, Auckland, 1995) at 65.
(and the market, in particular) will ensure economic growth. Higgins, Short and South explain that the international legal order’s failure to enforce obligations against States, or any legal entities in fact, in the sphere of environmental destruction is “based on the belief that the market will provide effective and efficient remedies”.11 This neoliberal, anti-regulatory tradition belies both the public and private spheres, which brings us to an obvious but fundamental point. The main perpetrators of damage to the environment are not States themselves, although we will discuss States’ responsibility. Nor are they individuals with an explicit agenda to destroy the rainforests. They are powerful legal entities like corporations, who clear rainforests for farmland and drill for oil to sell. Crucially, most of the ecological destruction is not intentional per se but a by-product of the global capitalist economic system; a negative business externality.12 The corporations responsible for most ecological damage are usually transnational and potentially have more resources than some States.13 Just one corporation might directly operate in one region, but have environmental impacts on the other side of the world, and headquarters elsewhere again.For example, the fossil fuel industry is one of the worst offenders in destroying Earth’s ecological integrity, from carving into the Earth and polluting ecosystems to inevitable toxic emissions into the atmosphere.14 Yet without adequate alternatives, global society relies on fossil fuels for the basics of modern human subsistence: to power cities, trade, and transport food and people. Each of these factors engage the role of the State. Thus, when considering both how at the national level States will protect the environment itself, and whether international law can compel States to protect the environment further, the interconnection of economic forces with the modern concept of the State is fundamental. Rosemary Gillespie writes that in the rise of neoliberalism:15
Greed and exploitation were proclaimed virtues. Corporate superstructures ... eventually replaced nation-states as the dominant global power and brought governments to heel. Democracy was subverted by corporate dictatorships that wielded more power and money than their host governments. A global
11 Higgins, Short and South, above n 6, at 254. 12 At 260.
corporate empire is now emerging that is more powerful, less visible, and more dangerous than the former empires of nation-states.
If most ecological destruction is caused by corporations, yet States are reluctant to interfere with (and rely on) the corporate sphere, and many of the worst offenders are transnational, how do we hold those who are seriously damaging the environment accountable? Damaging the Earth itself is only currently strictly prohibited in the context of war crimes,16 where severe impacts on human, economic, or natural resources affect land longer than 200 km or last over three months.17 Yet, Higgins, Short and South explain “during peace-time such damage occurs daily to our soils and seas, whether as a consequence of the business of agrochemical companies or heavy extractive industry”.18 Moreover, in peacetime environmental destruction has been socially normalised by giving out pollution permits, for example.19 The unfortunate fact is that any ecological destruction which is not unlawful, is lawful.
2.2 The Solution
There is a limited but invaluable exception to the principle that the subjects of international law are sovereigns: international criminal law. International criminal law looks through legal entities like the State and, as we will see, corporations. Still in the liberal tradition, it considers individuals’ liability. International crimes are set out in the Rome Statute, which establishes and governs the International Criminal Court.20 In light of the Second World War and the Nuremberg trials, genocide, crimes against humanity, and war crimes were universally prohibited.21 The crime of aggression has since been added to this list.22
While ecological destruction may not be the point of a corporation’s operation, people working for these entities also know and understand the damage they are causing. This gives rise to the simple but powerful claim that engaging in this behaviour is morally wrong and as such should be prohibited; it is criminal. Indeed, moral abhorrence is at the very core of international criminal law.23 The preamble of the Rome Statute is mindful that “unimaginable
From Nine to Noon <www.rnz.co.nz>.
atrocities ... shock the conscience of humanity”. It affirms “that the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured”.24This article is about the merits of creating — or rather recognising — a crime of “ecocide” in the Rome Statute. It has received significant attention by lawyers, academics and the international community in recent years and is still a viable option now. The remainder of this article will consider exactly what “ecocide” is, and whether it is a suitable method of criminalising harm to the environment. It is premised on the underlying moral judgement that a person who destroys the Earth is contributing to something so morally abhorrent it should be prohibited.
3. DEVELOPMENT OF THE CONCEPT OF ECOCIDE
3.1 The Origins of Ecocide
The concept of “ecocide” comes from a grassroots movement by scientists and lawyers during the Vietnam War.25 In Operation Ranch Hand the United States military defoliated approximately 5 million acres of Vietnamese land using “Agent Orange”, to expose National Liberation Front guerrilla fighters.26 In 1970 at a conference on “War Crimes and the American Conscience”, Arthur Galston first coined the term. The scientist alluded to the developing post-war international criminal order, explaining:27
After the end of World War II, and as a result of the Nuremburg trials, we justly condemned the willful destruction of an entire people and its culture, calling this crime against humanity genocide. It seems to me that the willful and permanent destruction of environment in which a people can live in a manner of their own choosing ought similarly to be considered as a crime against humanity, to be designated by the term ecocide.
Accusing an opponent of crossing normative boundaries that supersede the conflict itself — that is, war crimes — is a tactic as old as war itself.28 Yet the movement to end ecocide was novel: at the height of the Cold War, the
27 At 19.
28 At 14.
accusations were levelled by citizens of the United States against their own government.29 Zierler posits that using ecocide as just one of the many angles used by grassroots movements to end the war “transcended — and helped to discredit — the bipolar cold war divisions that engendered herbicidal warfare in the first place”.30
3.2 Development of International Criminal Law
Since the Vietnam War, ecocide has been intermittently discussed by legal scholars. Correspondingly, the concept of international criminal law itself has been developing. In battle, environmental destruction is a central and overt consequence, and even a tactic itself (as with Agent Orange). Hence, ecocide was first conceived as a war crime.31 Moreover, a United Nations (UN) Sub- Commission considered whether ecocide might be a means of genocide.32 Ultimately it found extending genocide to include ecocide would “prejudice the effectiveness of the genocide convention”.33
Ecocide could have been included in the Rome Statute from its inception. In 1947 the International Law Commission (ILC) was convened to create “‘the principles ... recognised in the charter of the Nuremberg Tribunal ...’ and to ‘prepare a draft code of offences against the peace and security of mankind’”.34 The ILC considered including an environmental crime in the Draft Code of Crimes Against the Peace and Security of Mankind (the Code).35 In 1982 the draft included an environmental crime, art 26: “an individual who wilfully causes or orders the causing of widespread, long-term and severe damage to the natural environment shall, on conviction thereof, be sentenced”.36 There was extensive debate over the following 10 years about, in particular, mens rea.37 There were also criticisms that ecocide was not referred to explicitly, but instead considered as a war crime.38 Instead of removing the element of intent, however, art 26 was dropped from the draft entirely; why is uncertain, but Short notes that it was not based on States’ agreement.39 The Code eventually became the Rome Statute of the International Criminal Court, adopted in 1998 and
29 At 14.
30 At 3.
31 At 14–15.
32 Short, above n 14, at 42–43.
33 At 43.
34 At 44.
35 At 44.
36 At 44–45.
37 At 44–45.
38 At 45.
39 At 45–46.
entering into force in 2002. Hence, the only environmental protection afforded by the Rome Statute currently is the war crime of:40
Intentionally launching an attack in the knowledge that such attack will cause ... widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.
3.3 Development of the Mens Rea Debate
As discussed, the most serious ecological destruction Earth is facing is often for economic purposes, or other human needs, and not because a particular corporation arbitrarily despises the rainforests. This makes mens rea a contentious and divisive issue because international criminal law punishes only the most morally abhorrent acts. Some theorists argue that only wilfully causing ecological damage can meet this moral standard. In 1972, international lawyer Fried explained that ecocide included “various measures of devastation and destruction which ... aim at damaging or destroying the ecology of geographic areas to the detriment of human life, animal life, and plant life”.41 This involves intentional damage. Others argue a lower standard of intentionality is abhorrent. One such person was Richard Falk, the earliest influential international lawyer to join the ecocide movement, who created a Draft Ecocide Convention.42 Yet despite Falk’s recognition that “man has consciously and unconsciously inflicted irreparable damage to the environment in times of war and peace”,43 his draft convention set the standard of mens rea as “intent to disrupt or destroy, in whole or in part, a human ecosystem”, a uniquely high standard similar to the dolus specialis of genocide.44 Despite moving the definition from outside the bounds of wartime to peacetime as well, the draft nevertheless envisioned ecocide as a military offence.45 As mentioned, disagreement over the appropriate mens rea has subsequently continued, and caused the ILC not to include ecocide in the Code.46 Belgium and Australia are recorded as believing “wilful damage” was too high a standard.47 Austria expressly stated that “since perpetrators of this
42 At 41–42.
46 At 46.
47 At 44.
crime are usually acting out of a profit motive, intent should not be a condition for liability to punishment”.48 Notably while there was no consensus, these States supported greater accountability for ecological damage. Implicit and fundamental to the discussion of mens rea is that the more intentionality is required, the less the environment itself is protected. Where any level of intent is required, the law might punish one perpetrator but not another for identical destruction.
3.4 Development of Ecocentric Jurisprudence
The formulations of ecocide we have seen so far are anthropocentric. This means they prioritise the needs of humans over non-humans.49 For example, Galston, who coined the term ecocide, was deeply critical of the environmentalism movement and explained that: “If Ranch Hand was an operation of resource extraction, it would not be ecocide.”50 In such a viewpoint, ecocide is a means of human protection.
There is, however, another conception of ecocide, better linked to the development of international environmental law than international criminal law: an “ecocentric” conception. In 1972 Stone published his seminal article “Should Trees Have Standing?”51 He argued that the Western legal and philosophical tradition is marked by the continual extension of concern, and thus rights, to expanding classes of persons.52 This has even gone so far as to extend legal rights and protections to fictional entities, such as States and corporations.53 Stone explains, “each successive extension of rights to some new entity has been, theretofore, a bit unthinkable”.54 He continues: “This is partly because until the rightless thing receives its rights, we cannot see it as anything but a thing for the use of ‘us’ — those who are holding rights at the time.”55 Thus, Stone suggested extending legal rights to the natural world itself.56 Since Stone, a body of this type of “Earth jurisprudence” has been developing in international environmental law.57 This view of the natural environment as a potential rights-
48 At 44.
52 At 450–451.
53 At 452.
54 At 453.
55 At 455 (emphasis in original).
56 At 456.
57 Higgins, Short and South, above n 6, at 255.
holder, or even without rights as having intrinsic value (independent of, and superior to, its usefulness or value to humans), is “ecocentric”.58
3.5 The Height of Ecocentrism: Higgins
Ecocide having been excluded from the Rome Statute at the turn of the millennium, when British lawyer Polly Higgins recommended amending the Rome Statute to the United Nations in 2010, she gave new life to a seemingly expired ecocide law movement. While the terminology and language continued in the spirit of those other, anthropocentric international crimes, Higgins offered an ecocentric ecocide law. She starts with etymology, explaining the term ecocide is a mixture of “eco” — from the Greek oikos, meaning household — and “cide” from caedere, meaning to kill or destroy.59 She defines ecocide as:60
... the extensive damage to, destruction of or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.
Under this definition, ecocide could be caused by humans, or by natural causes.61 Higgins thus reconceptualised ecocide as a crime of consequence, not cause.62 Moreover, recognising that most ecological damage is ancillary to economic purposes, Higgins attached strict liability to the crime.63 Recalling that international criminal law is fundamentally about moral reprehensibility, this means the transgression of Earth’s inherent value is the morally abhorrent action justifying criminal liability. Though not strictly in terms of the “rights” of nature, it reiterates Stone’s argument that the legal system must extend concern to non-humans. There is no need for any level of intentionality. This is a fundamentally different concept than prior conceptions of ecocide, which attached moral abhorrence not to the environmental destruction itself but to whether the destruction was intentional or not.
318–319.
62 At 262.
63 At 262.
4. INDEPENDENT EXPERT PANEL DEFINITION OF ECOCIDE
This article now moves on from the development and conceptual bases of ecocide law, to consider the currently suggested crime of ecocide. Higgins’ modern, ecocentric concept of ecocide has obvious appeal when considering the ecological crisis Earth is facing. But it is States who are asked to amend the Rome Statute, not environmentalists. Naturally, States have reservations about imposing a new international crime; part 7 will discuss this. For now, a precise definition capable of guiding individuals’ behaviour in accordance with the rule of law, which States can agree to, is needed if amending the Rome Statute is to succeed.
In 2021 the Stop Ecocide Foundation convened a multilateral Independent Expert Panel (IEP/the Panel) of lawyers to formulate such a definition of “ecocide”. The Stop Ecocide Foundation is the charitable arm of Stop Ecocide International, co-founded by Polly Higgins and Jojo Mehta in 2017.64 While the IEP definition has no legal force, and it is not universally accepted, once the amendment process for the Rome Statute is triggered this definition is intended to be “the basis of consideration”.65 The Panel propose a simple addition to art 5(1) Rome Statute: “(e) The crime of ecocide”.66 As the most recent and influential commentary on what would constitute that crime, their definition is set out in full:67
Ecocide
4.1 The IEP Definition is Broadly Ecocentric
In terms of the environment itself, recognising the urgent need for law capable of guiding us out of the ecological disaster facing all life on Earth, the Panel defines “environment” in terms of its “spheres”. Crucially, it is not defined in terms of the human environment. While there is no direct reference to the interconnectivity of Earth’s spheres, the definition deliberately implies this fact.68 The Panel also uses the terms “widespread”, “severe” and “long-term” to maintain consistency with art 8(2)(b)(iv) Rome Statute.69 In that provision, the conjunction used is “and” — all three must be risked. This is a high standard of harm, the precise scope of which is unclear, engaging issues of whether it would ever be possible to prove, and the principle of legality.70 It is likely that the use of “severe and either widespread or long-term” is in recognition of this issue.
More importantly, where Higgins pursued an ecocentric ecocide law through strict liability, the IEP has instead pursued ecocentrism through endangerment liability. Hence, while the IEP definition does require intent, it does not require ecological damage. The Panel used endangerment liability to maintain consistency with existing international crimes, and in particular the war crime of excessive environmental destruction under art 8(2)(b)(iv) Rome Statute.71 Inconsistency with that provision, as we have discussed, was a source of disagreement ultimately leading to ecocide being left out of the original Rome Statute.
Environmental damage being superfluous, the actus reus is instead an “unlawful or wanton” act. Unlawfulness is straightforward: where an act might attract civil liability, it is also criminally prohibited. This is ecocentric, as it recognises the moral reprehensibility of damaging the Earth itself without reference to whether the destruction is useful for humans. On the other hand, wanton acts are only criminalised if they were done with reckless
disregard for damage which would be clearly excessive in relation to social and economic benefits expected, which means if it was useful enough to humans the ecological damage is permitted. Kevin Jon Heller heavily criticises this as anthropocentric.72 In his words: “Either we criminalize the knowing destruction of the environment or we don’t. Either the environment exists to serve humans or it doesn’t.”73 Robinson describes this as the “definitional full-stop” approach.74 We see that Heller perceives “ecocide” as inherently ecocentric, and therefore any definition which weighs the protection of Earth against human socioeconomic pursuits is not ecocide. This view is also taken by Kai Ambos, who argues the term “ecocide” necessarily implies ecocentrism but allowing for a cost–benefit analysis is inherently anthropocentric; therefore, the IEP definition fails to deliver an appropriate legal framework for a crime of ecocide.75 For reasons we will return to in part 7, it may indeed be that the IEP included a more anthropocentric element to this crime, to intimidate States less. However, we must consider what “ecocentrism” really demands of our laws. Would a full commitment to ecocentrism look like the prohibition of most human activity, as walking over the grass damages that ecosystem? Of course, it would not. There are limits to how much human activity can be restricted. Thus, even in an entirely ecocentric legal system there will be considerations of what human beings need in order to survive, like other species in the community of life on Earth. The problem with the IEP formulation is that it allows even severe and long-term or widespread ecological damage if that is not unlawful and is genuinely needed for human economic purposes. Nevertheless, the criticism that this definition is fatally anthropocentric should be regarded with some caution.
4.2 Further Criticisms of Mens Rea
The core definition has a mens rea requirement of “knowledge that there is a substantial likelihood” of the environmental damage. Contrastingly, the Rome Statute has a generally applicable mens rea standard: art 30(1) sets out that unless otherwise provided, criminal responsibility is only attached to knowing and intentional acts or omissions. Article 30(3) continues that “‘knowledge’ means awareness that a circumstance exists or a consequence will occur in the ordinary course of events”. Heller explains that the ICC has interpreted “knowledge” in art 30 as knowledge of the virtual certainty of the
prohibited consequence occurring.76 Knowledge of a substantial likelihood is a significantly lower threshold than near-certainty. Heller’s objection continues, the effect of the core definition and the definition of “wanton” read together is that not only must the individual know of the substantial likelihood of damage to the environment, but they must also have been aware that damage would be clearly excessive in relation to social and economic benefits.77 Ambos joins Heller in finding this nearly impossible to prove.78
5. HOW MIGHT ECOCIDE LAW EFFECT CHANGE?
Heller and Ambos’ criticisms raise an important point. Is ecocide law worth- while if it might be so difficult to prove? This article argues that ecocide is indeed worth adding to the Rome Statute. Even if one took the argument to the extreme and believed nobody would ever be convicted, it would still be symbolically important that our international law reflects the intuitive and compelling moral claim that destruction of the environment such that the Earth — or even humans therein — cannot survive. Recognising the validity of moral claims is the ICC’s stated purpose. Moreover, Higgins, Short and South explain:79
... by levying responsibility on persons, not legal entities (the corporate body), the cycle of destruction and accrual of silent rights to destroy is halted. Thus, instead of “the polluter pays” (if caught), the new governing principle becomes “the polluter does not pollute” and the protection of interests shifts from those few who have ownership to the many who are at risk of suffering.
In this quote are the concepts of individual liability and pre-emptive action, which this article will discuss next. Beforehand, the reference to “accrual of silent rights to destroy” is important. The authors recognise that where our law is silent on an activity, the international community in effect gives implicit consent. For example, a corporation which has mined for decades without any legal challenges might argue they have gained the right to continue to do so. Ecocide law is worthwhile for its abolition of this consent-by-prescription.
On a practical level, ecocide law as envisioned by the IEP is about influ- encing and altering the behaviours leading to ecological damage, perhaps even more so than it is about punishing perpetrators. We know that most ecological
destruction is caused by corporations, both private and public, and that this destruction is generally legal. We also know the international legal order is rooted in the Western liberal tradition, marked by freedom from interference rather than positive obligations to act. Thus in current international law, as in many national jurisdictions, there is no duty of care for any particular entity to “throw a lifeline”, despite the evidence of the ecological and climate crisis.80 Even where the destruction is unlawful, corporations can simply budget for potential civil liability — that is, being fined or sued for unlawful ecological damage. In a system dominated by profit motives, there is no genuine incentive to reduce ecological damage where greater profits overall are reaped by accounting for environmental fines as a business expense. Ecocide law has two main offerings here. These are that a crime of ecocide deals with individuals’ liability — natural persons, not legal persons — and that the liability is pre- emptive.
5.1 Individual Liability
The element of individual responsibility makes ecocide powerful. There is a credible threat of personal sanction hanging over someone considering actions which might harm the environment. The psychological difference between a possible prison sentence and a possible business expense speaks for itself. Moreover, this would be a crime sitting alongside, inter alia, crimes against humanity. It is even argued that “ecocide” garners social capital from its etymological similarity with “genocide”.81 Thus, ecocide proponents argue that there is serious moral condemnation associated with even being accused of, or charged with, ecocide — let alone successfully prosecuted for it.82 The prosecution would be of international public interest, bringing additional stigma.
5.2 A Pre-emptive Duty of Care Towards Earth
Ecocide’s second offering is its pre-emptive nature. As shown by the IEP’s definition, the moral culpability arises for ecocide before any actual harm to the environment occurs. Indeed, that harm may never eventuate. The individual is still liable. While the crime does not expressly impose a positive legal duty to act to prevent ecological damage, States and corporations must nevertheless make major behavioural changes.83 In this sense, it implicitly imposes a duty
80 At 257.
of care towards the environment itself. The rule of law itself has a key role to play here in guiding behaviour: the existence of ecocide law, with the clear and decisive threat of criminal sanctions attached (imprisonment), acts as a deterrent to even risking ecological damage.84 Decision-makers considering for example whether a particular economic pursuit is worthwhile will have a very clear bottom line: severe and long-term or widespread damage to the environment will at least engage the crime of ecocide, regardless of whether a particular jurisdiction permits the activity.The effect is not limited to those directly involved in the destruction, either. In fact, the existence of this crime has the potential to radically reorient the global neoliberal order. As for shareholders in corporations, alongside banks and insurers, Higgins argues that ecocide law provides “surety of investment” to redirect resources and funds from current fossil fuel and extractive industries into the clean, green energy needed for an ecologically sustainable future.85 Such action is effectively mandated, since banks will not be able to finance criminal activities; nor will States be free to support policy that involves criminal risking of environmental damage.86
6. ACCOUNTABILITY AND CORPORATIONS
A corporation is not a natural person. With the IEP’s ecocide law, any individual within that corporation who can be proved to meet both the actus reus and mens rea is susceptible to prosecution. If a worker on an oil rig performs a wanton act which they knew would likely cause severe and long-term damage to the surrounding marine environment (hydrosphere), they might be liable. The Rome Statute, like the origins of ecocide law itself, comes from the precedent of the Nuremberg trials.87 In that spirit, there is no defence for the worker that they were simply following their boss’s orders. But what of the bosses themselves? If ecocide required actual ecological damage to eventuate to trigger liability, there would be a causation issue here. Climate change, for example, is a global phenomenon. It would be difficult to prove that the decisions of one CEO at a transnational corporation’s headquarters in London are causally responsible for ecological damage in the Pacific Islands. To its credit, the endangerment liability aspect of the IEP definition avoids this difficulty. Furthermore, the act of making a particular decision and giving the order which sets that course of action in motion, with the requisite mens rea, might itself be the unlawful or
84 At 263.
85 Interview with Polly Higgins, above n 19. 86 Interview with Polly Higgins, above n 19. 87 Zierler, above n 25, at 19–20.
wanton act giving rise to personal ecocide liability. The potential liability of the corporate boss, however, is twofold under the IEP’s crime of endangerment: for their own decisions; and for their failure to prevent ecocide’s commission by employees under the principle of “superior responsibility”.88“Superior responsibility” is engaged not by the crime of ecocide itself, but because of its proposed addition to the Rome Statute. Article 28 therein sets out that persons in a position of superiority can be held criminally responsible for the international crimes of subordinates under their effective authority or control. Article 28(a) relates specifically to military commanders, but (b) extends to “superior and subordinate relationships not described in paragraph (a)”. Therefore, the principle includes civilian superiors. Some commentators observe that art 28(b) is not intended to include the corporate context. Williamson argues art 28(b) is a small extension of military liability to “civilian superiors [who] clearly played a substantial role in overseeing and directing violations of [international humanitarian law], crimes against humanity and genocide”, encompassing primarily political figures.89 Particularly, this implicates heads of State and ministers.90 This view reflects the Rome Statute preamble’s reference to the “unimaginable atrocities” of the 20th century.91 Moreover, van den Berg explains that ICC cases have struggled to convict military commanders based on art 28, let alone cases involving civilians, most of which have led to acquittals.92 Nevertheless, Higgins argues that international criminal law, and thus the proposed law of ecocide, rightly includes corporate chief executives and directors within the class of eligible civilian superiors.93 Either way, corporate decision-makers are liable to prosecution.
7. STATES, STATE SOVEREIGNTY AND ECOCIDE
Though international criminal law applies to individuals, it is States who are parties to the Rome Statute. States would therefore be responsible for suggesting, agreeing to, and implementing the new crime. Their relationship with the International Criminal Court must be considered.
90 At 309.
The ICC investigates and prosecutes international crimes; however, it is a complementary court, so only takes action where States Parties cannot or are unwilling to.94 The Rome Statute itself is a treaty, so only has legal effect over States which have signed it. Its jurisdiction is over people in the territories of States Parties, nationals of those States Parties committing crimes on non-State Party territory, or anywhere pursuant to a referral from the United Nations Security Council.95 Currently, China, the United States and Russia are all non-signatories.96 This is an issue with the ICC’s efficacy, although nationals from those States can be arrested and charged on States Parties’ territories. To amend the Rome Statute, all that is needed is for one State Party to suggest the amendment, and two-thirds of States Parties to agree.97If added to the Rome Statute, in dualist nations like Aotearoa ecocide will only take legal effect once the State ratifies it into domestic law.98 Heller therefore notes that States most likely to commit ecocide themselves would not ratify the amendment.99 States themselves are key economic actors, with dominion over the natural resources within their own territory. They are therefore also perpetrators of ecological destruction. On the one hand, an argument States may be wary of a law is not an argument the law is unjustified; oppositely, it emphasises the law has real impacts. The broader considerations this article has discussed are relevant. Even if just a few States ratified the crime there would be knock-on implications for trade and the flow of finances. But on the other hand, States’ reluctance to accept the ICC’s jurisdiction in relation to damaging the environment must be taken very seriously. We have seen the objections of States to including ecocide in the 1992 Rome Statute text; the argument that environmental damage is necessary. Liberal democracies in particular gain their legitimacy from the consent, and their power from the election, of their constituency.100 By ratifying ecocide States will expose those same nationals to personal liability for not just a new crime, but a new concept of who can be the victim of crime (Earth). There is an element of political risk, in the short term. However, except for crimes of aggression, the Rome Statute does not recognise political or diplomatic immunity.101 Politicians and heads of State are as liable to prosecution as any national. In fact, they are more so since the principle of superior responsibility applies to political figures.102 This
may reduce the political contention of accepting the amendment but increase politicians’ hesitance to do so.Gillespie argues that corporate interests subvert democracy and, unen- cumbered by concerns of re-election or societal good and motivated by profit, in some cases have accrued more power than their host States.103 Using the case study of Bougainville, she demonstrated a connection between ecological destruction, corporate (particularly fossil fuel) interests, and State violence to secure those interests.104 While this might be regarded as an extreme example or position, 20 years later Short explained that “energy security” is an overriding concern for many States, seeking fuel to keep the nation running at the expense of environmental and even human rights concerns.105 Bennett argues that additional to funding paid by fossil fuel corporations directly to politicians in many instances, obstructive lobbying efforts by fossil fuel companies have “politicised climate change issues”, justifying the oversight and intervention of a judicial body rather than a legislative or executive body.106
Criminalising ecocide would impact the relationship between corporate interests and States. Higgins, Short and South’s quote in part 5 of this article is relevant for yet another reason: “the protection of interests shifts from those few who have ownership to the many who are at risk of suffering”.107 Accepting a new international crime is a limit on State sovereignty and what it is free to do. But Short and Gillespie above argue that State sovereignty is already swayed by corporate interests. Any limit ecocide law would place on State sovereignty is thus less of a new limit and instead a trade in priorities: protecting the masses at risk of the worst of the ecological crisis, versus protecting corporate interests. There is also a social equity dimension. The masses will suffer the most in environmental breakdown. Ecocide law would not impose the burden of making change on the masses, but the few with resources. Inequity between the Global North and South is a significant issue in international law, and the ICC too is accused of unfairly targeting African nations.108 As a potential counter to this reflecting the responsibility of developed nations for environmental destruction, ecocide law may primarily hold the Global North accountable.
104 At 117.
8. NEW ZEALAND SHOULD PROPOSE AMENDING THE ROME STATUTE
8.1 Somebody Should Do It ...
We have considered ecocide law’s fundamental justification: that destroying the Earth is morally wrong. The current international and domestic legal frameworks do not impose enough enforceable obligations to avoid crisis. Corporations are insufficiently accountable for their ecological destruction and emissions, much of which is lawful. This article will now consider the process of amending the Rome Statute and argue that if no other nation does so first, Aotearoa should propose this amendment.
The four current international crimes represent the most abhorrent acts humans can do to each other. So, adding an ecocentric law at this same level symbolises not only the abhorrence of destroying Earth to the detriment of humans, but also the abhorrence of transgressing the inherent dignity of the Earth itself. It is notable that former ICC Judge Tuiloma Neroni Slade supports the addition of ecocide to the Rome Statute.109 He explains, it “will contribute substantively to the moral authority of the international criminal court and its purpose ... to serve, to guarantee lasting respect for — and the enforcement of — international justice, and more so towards ending impunity for those who wantonly commit the worst instances of environmental damage”.110 Ecocide law is therefore an effective means of recognising that the ecological destruction wreaked by corporations in particular is worth prohibiting and, as we have seen with the recent IEP definition, would mostly prohibit it. With a crime of ecocide, much ecological destruction would no longer be lawful. Recalling Higgins’ mention of the “cycle of destruction and accrual of silent rights to destroy”, the silence of international criminal law on environmental damage would be broken, and the implicit rights accrued by corporations to destroy on the basis it is not unlawful and has never been punished before would be explicitly extinguished.111
We understand the moral argument for recognising a crime of ecocide already. We understand how this fits into the larger picture of the international legal order, neoliberal global economy, and scientific evidence of near and total ecological collapse. Any State Party to the ICC can propose the amendment;112 despite the large movement of academics, scientists, politicians and even
corporate actors supporting the amendment, no State has done so. This article suggests that Aotearoa New Zealand should therefore propose the amendment.
8.2 ... If Not Us, Who? If Not Now, When?
First, Aotearoa has a unique legal system and sociopolitical structure because of colonisation and the constitutional document of te Tiriti o Waitangi. The Crown has obligations to actively protect Māori interests.113 Contrary to the dominant liberal system of restricting action, this principle imposes positive obligations on the Crown.114 Potentially, proposing and supporting an ecocide crime would constitute active protection of Māori interests. The IEP definition recognises the significance of the natural environment to indigenous peoples and that damaging the environment to the detriment of cultural uses can constitute “severe” damage. There is some evidence that ecocide law would align with te ao Māori.115 Chan and Ly found in a 2020 study that an international ecocide law is compatible with the Māori value of kaitiakitanga and Māori emphasis on interconnection of beings and the natural environment.116 Moreover, Ngāpuhi leader Mike Smith has taken Ranier Seele, the CEO of oil corporation OMV, to the International Criminal Court for his contribution to climate change to the detriment of Māori. Highlighting this article’s earlier discussions, Smith explains, “attempts to address the climate emergency by the government are muted by the influence of key economic interests and to a certain degree enabled by public apathy”.117
Aotearoa is also one of the few nations to give legal rights to the natural environment. This signifies that at least to an extent, Aotearoa is willing to take an expansive view of the legal capacity of the environment and develop its laws in line with Earth jurisprudence. Section 12 of the Te Awa Tupua (Whanganui River Claims Settlement) Act 2017 declares that Te Awa Tupua is an indivisible and living whole comprising the Whanganui River and its physical and metaphysical elements; s 14 gives Te Awa Tupua legal personhood. Not only does this demonstrate rights of nature as Stone argued for 50 years ago, it also recognises the interconnection of living and natural systems with humans, an important element of ecocentrism aligning with the IEP’s definition of “environment”. Chan and Ly note the Te Awa Tupua Act signifies the legal precedent Aotearoa will have available if it does implement ecocide law: there
113 Te Puni Kōkiri He Tirohanga o Kawa ki te Tiriti o Waitangi (Te Puni Kōkiri, Wellington, 2001) at 93.
114 At 93.
115 Chan and Ly, above n 94, at xiii. 116 At 30.
117 At 37.
is already liability for any individual transgressing the rights of the natural world to some extent.118Not only is Aotearoa’s internal context relevant; its external context is equally compelling. Our Pacific Island neighbours will be and already are some of the worst affected by climate change. As such, the Pacific Islands and other small island States are leading the global movement for ecocide law. Vanuatu, for example, is the world’s most climate vulnerable State, and called in 2019 for the ICC to give serious consideration to a crime of ecocide.119 Higgins, Short and South argue that a crime of ecocide law which has a pre-emptive duty of care on all States to protect the natural environment involves a correlative duty of care to assist nations such as small island States when environmental damage is taking or has taken place.120 Aotearoa is well placed to introduce such a law, because it already has legal and constitutional ties with these nations. For example, Niue and the Cook Islands are associated nations with the Realm of New Zealand, and Tokelau is a New Zealand territory.121 Supporting ecocide in the Rome Statute is an opportunity for Aotearoa to be, or be seen as, a benevolent regional leader.122
On the world stage, Aotearoa has played the role of an environmental leader. Before giving legal rights to nature, we had the Resource Management Act 1991; before that, nuclear prohibition. In recent years and months, Aotearoa’s legislature has ostensibly taken the climate crisis seriously, introducing the new legislation of the Climate Change Response (Zero Carbon) Amendment Act 2019 (Zero Carbon Act) and Climate Change Response (Emissions Trading Reform) Amendment Act 2020. But the Zero Carbon Act for example is not strict on enforcement, according to Chan and Ly, and enforcement is a way of determining whether a State is serious about its commitment.123 Again, these are civil and not criminal laws. So, even those who are in breach enough to incur liability can budget for this, which is part of the issue with environmental regulation discussed at the beginning of this article. Frankly, introducing a crime of ecocide is an opportunity for Aotearoa to prove there is bite to our bark, by giving our environmental protection laws teeth.
118 At 42–43.
123 At 49–50.
9. CONCLUSION
This article has demonstrated that amending the Rome Statute to add in the international crime of ecocide is both valuable and viable. Morally, it affirms that knowing destruction of the Earth is wrong: in part because it harms humans, but more so because it harms Earth itself, the home of all life. Legally, it gives enforceability and credibility to the otherwise somewhat empty threats of international law against corporations. Societally and economically, it challenges the extractivist, profit-oriented neoliberal order and demands that humans alter their behaviours to avoid ecological damage.
Ultimately, we have come full circle. Ecocide was born in the Cold War and gained traction in the reasonable, widespread fear of total environmental destruction in a nuclear apocalypse. Throughout that war, Aotearoan society and government alike were world-leading in our decisive stand against nuclear arms. In 2017, Prime Minister Jacinda Ardern declared, “climate change is my generation’s nuclear-free moment”.124 The destruction facing Earth is, in the long run, no less apocalyptic than the nuclear threats hailing the dawn of the ecocide movement. Moreover, ecocide was born in a grassroots struggle of scientists, lawyers and civil society calling on their own governments to recognise the crime of environmental destruction. This article joins that movement, 50 years later, to call on the Aotearoan government to propose the crime of ecocide’s inclusion in the Rome Statute.
124 Isobel Ewing “Jacinda Ardern: ‘Climate change is my generation’s nuclear-free moment’” (20 August 2017) Newshub <www.newshub.co.nz/home>.
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URL: http://www.nzlii.org/nz/journals/NZJlEnvLaw/2022/10.html