PROPOSED AMENDMENT TO THE ROME STATUTE

Ecocide is the extensive loss or damage or destruction 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 or will be severely diminished.

In 2010, the proposal to amend the Rome Statute to include an international crime of Ecocide was submitted by Polly Higgins into the International Law Commission (ILC). The ILC is the UN body ‘mandated to promote the progressive development of international law and its codification’. The submission was published as Chapters 5 and 6 in her first book, Eradicating Ecocide.[1]

The purpose for creating the offence of Ecocide as the 5th international Crime Against Peace is to put in place an international law at the very top level. 124 nations (as of 2016) are State Parties to the Rome Statute. International Crime (which is codified in the Rome Statute) applies not only to the signatory States. If and when a person commits a Crime Against Peace, the International Criminal Court has powers to intervene in certain circumstances, even if the person or State involved is a non-signatory.

The Rome Statute is one of the most powerful documents in the world, assigning ‘the most serious crimes of concern to the international community as a whole’[2] over and above all other laws. Crimes that already exist within the jurisdiction of the International Criminal Court under Article 5 of the Rome Statute are known collectively as Crime Against Peace. They are:

Article 5(1) The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the following crimes:
1. The Crime of Genocide
2. Crimes Against Humanity
3. War Crimes
4. The Crime of Aggression

To be added:
5. The Crime of Ecocide.

The inclusion of Ecocide law as international law prohibits mass damage and destruction of the Earth and, as defined above, creates a legal duty of care for all inhabitants that have been or are at risk of being significantly harmed due to Ecocide. The duty of care applies to prevent, prohibit and pre-empt both human-caused Ecocide and natural catastrophes. Where Ecocide occurs as a crime, remedy can be sought through national courts and the International Criminal Court (ICC) or a similar body.

Proposals for a new court exist, such as The Brussels Charter[3] and the Coalition for the International Court for the Environment[4]. Ecocide law has both criminal and civil law application.

LAW OF ECOCIDE

  • Prevents the risk of and/or actual extensive damage to, destruction of or loss of ecosystem(s);
  • prohibits decisions that result in extensive damage to or destruction of or loss of ecosystem(s);
  • pre-empts decision-making of a political, financial and business nature that may lead to significant harm.

DUTY OF CARE

Superior responsibility provision: an international and transboundary duty of care on any person or persons who exercises a position of superior responsibility, without exemption, in either private or public capacity to prevent the risk of and/or actual extensive damage to or destruction of or loss of ecosystem(s).
Business provision: an international and transboundary duty of care on CEOs and directors of a business and/or any person who exercises rights over a given territory to ensure ecocide does not occur.
Political provision: an international and transboundary duty of care on governmental actors, specifically Heads of State and Ministers with environment/energy/climate change portfolios, to ensure ecocide does not occur and to provide emergency assistance before, during and after to other territories at risk or adversely affected by ecocide.
Financial provision: an international and transboundary duty of care on financiers, investors, CEOs and directors of any banking and investment institutions who exercises a position of superior responsibility, to ensure ecocide is not financed.

TRUSTEESHIP

A law of Ecocide also imputes a legal duty of care in the event of natural catastrophe (e.g. rising sea-levels, droughts, earthquakes). The United Nations Trusteeship Council’s purpose (as one of the founding pillars of the UN Charter) was to assist territories that were unable to self-govern; it is proposed that the Trusteeship Council re-open it’s doors and be put to use again to assist non-self governing territories that have been or are at risk of being harmed by Ecocide[5].  It can be used to assist territories suffering from Ecological Ecocide as well as Cultural Ecocide. By re-opening the UN Trusteeship Council (closed in 1994) chamber, Member States have a ready-made forum in which to determine what support and aid to put in place for non-self governing territories facing Ecocide.

CLIMATE JUSTICE

Currently climate justice is predominantly a “soft law” narrative. Remedy for climate-related loss, damage or destruction is severely limited and society remains unprotected, as do the planet’s ecosystems. International agreements, such as the Paris Agreement, establish knowledge but do not impute legal duties or obligations to prevent.

Where the United Nations has failed to address the wider issue of justice through annual negotiations, the International Criminal Court has the ability to prosecute. Serious international crime can be and is prosecuted in many countries throughout the world, under the principle of universal jurisdiction.

MISSING LAW

The international crimes currently provided for under the Rome Statute do not however address:
• the protection of ecology (non-human inhabitants of a territory);
• the protection of indigenous and cultural rights (for example when there is destruction of a traditional way
of life); or
• loss, damage and destruction that occurs in peace time.
Ecocide crime shall address all of this.

HISTORY

Ecocide law proposals date back to 1972. Olof Palme, the then Prime Minister of Sweden, in his opening speech at the Stockholm Conference for the Human Environment, spoke explicitly of the Vietnam war as an ‘Ecocide’. The Stockholm Conference focused international attention on environmental issues for the first time, especially those relating to environmental degradation and transboundary pollution. Others, including Indira Gandhi from India and the leader of the Chinese delegation Tang Ke, also denounced the war on human and environmental terms. They too called for Ecocide to be an international crime. A Working Group on Crimes Against the Environment was formed at that conference, and a draft Ecocide Convention was submitted into the United Nations in 1973. An international Crime of Ecocide was included into the drafting of the Rome Statute (1985 – 1996) and had the support of many countries, but was removed despite objections at the 11th hour[6]. For over 40 years we have had the means to bring Ecocide to an end.

Books: Polly Higgins, Eradicating Ecocide: laws and governance to prevent the destruction of our planet, 2010, 2nd Ed. 2015 and Earth is our Business, 2011.

Key Document: Prof D Short et al, Ecocide is the Missing 5th Crime Against Peace, 2012, 2013. See https://sas-space.sas.ac.uk/4830/1/Ecocide_research_report_19_July_13.pdf