It's testament to the growing destructiveness of climate change that when the International Criminal Court (ICC) was set up two decades ago, a new environmental crime of "ecocide" was considered and finally dropped. Now, as the world prepares for a make-or-break Cop26, it's firmly back on the agenda.
When it came to the crunch in 1998, ecocide was simply too radical an idea for the times. The hands were in a different place on the Doomsday Clock. Today they’re famously – as any engaged teenager will tell you – at 100 seconds to midnight. In other words, on the brink of global catastrophe.
In the end, the ICC’s founders settled on four core crimes: genocide, war crimes, crimes against humanity, and the crime of aggression – unwittingly missing a unique opportunity to take a radical step towards “interspecies justice”, the idea that justice is not all and exclusively about humankind.
The rationale of those who still argue in favour of adding ecocide as a crime under the Rome Statute that underpins the ICC is that the current situation, where the environment is mentioned only once in the statute, in relation to destruction as a premeditated war crime, is lamentably behind the times.
In reality, the only possible avenue of redress for environmentalists through the court is – as critics of Brazilian president Jair Bolsonaro demonstrated earlier this month – to claim that crimes against nature are now more than ever, as the planet approaches the point of no return, crimes against humanity.
Within one eye to the imminence of Cop26, an Austrian environmental group, AllRise, filed a suit against Bolsonaro at the ICC, asking it to investigate whether the environmental policies of the president and his administration constituted just such crimes.
"Jair Bolsonaro is fuelling the wholesale destruction of the Amazon with his eyes wide open", said AllRise founder, Johannes Wesemann. "That impacts the planet. All leaders, political and corporate, will have to be very careful in future about the climatological impact of their actions."
The ICC has yet to respond to the Bolsonaro filing. But whatever it decides, the reality is that ecocide is a legal concept whose time has come.
Definition of term
Last June, an independent panel of 12 legal experts working under the auspices of the Netherlands-based Stop Ecocide Foundation, unveiled its long-awaited definition of the term – which it hopes will finally make its way into the pages of the Rome Statute.
It defines 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”.
Were it to be adopted as a crime, its legal significance would be that ecocide would be the only crime in the lexicon of the ICC where human harm is not a prerequisite for prosecution.
It would frame, for the first time, the idea of a crime against nature and not just a crime against people.
It would be a step change away from anthropocentrism, a human-obsessed view of the world, towards the interspecies justice whose importance the ICC founders could not reasonably have anticipated with crimes such as Hitler’s genocide still uppermost in their minds.
Significant though it is, the definition is just the start. Critics of the ICC warn that, typically, adoption of the new crime could take years to guide through its bureaucracy.
One of the Rome Statute’s 123 signatory nations would have to submit it to the UN secretary general for consideration. It would then be put to a vote at the ICC’s annual assembly, held every December.
The final text of an amendment based on the definition would require the support of two-thirds of the assembly. Once that vote was duly ratified, the new law could be enforced in ICC member states a year later – potentially transforming our perception of environmental norms.
The appalling vista for non-ICC member states such as the US, China and Russia, would be that ratifying nations could legitimately detain foreign nationals on their territory for ecocide crimes committed elsewhere.
And as to member states, such as Brazil, well, let's just say a Christmas shopping trip to Paris, London or Rome might never look as appealing again to Jair Bolsonaro.
