20TH SESSION OF THE ASSEMBLY OF STATES PARTIES
7 December 2021
Name of the Event: Ecocide: A Fifth Crime Defined (hosted by the Republic of Vanuatu, the independent State of Samoa and the People’s Republic Bangladesh, in association with the Stop Ecocide Foundation, Institute for Environmental Security, and The Hague Peace Projects)
Report by: Pauline Pfaff, Junior Research Associate PILPG-NL
Highlights:
The Independent Expert Panel for the Legal Definition of Ecocide published a draft definition for ecocide in June 2021 and calls for its inclusion in the Rome Statute as fifth core crime.
The panelists underlined the grave scale and impact of environmental degradation and loss in biodiversity worldwide and thus the urgency to act.
The speakers expressed confidence in the preventive and deterrent effect of an inclusion of ecocide in the material jurisdiction of the International Criminal Court.
Speakers:
Elly van Vliet, Honorary Consul of Vanuatu in the Netherlands;
High Chiefness Fiamē Naomi Mataʻafa, Prime Minister of the Independent State of Samoa;
Saber Hossain Chowdhury, Member of Parliament of the People’s Republic of Bangladesh;
Professor Philippe Sands QC, UCL/Matrix Law. and Co-chair Independent Expert Panel for the Legal Definition of Ecocide;
Dior Fall Sow, UN jurist and former prosecutor, co-chair Independent Expert Panel for the Legal Definition of Ecocide;
Judge Tuiloma Neroni Slade, former ICC Judge and panelist Independent Expert Panel for the Legal Definition of Ecocide;
Syeda Rizwana Hasan, Bangladesh Environmental Lawyer Association, panelist Independent Expert Panel for the Legal Definition of Ecocide;
Jojo Mehta, Chair of the Stop Ecocide Foundation;
HRH Princess Esmeralda of Belgium, journalist, author, and activist;
HRH Prince El Hassan bin Talal of the Hashemite Kingdom of Jordan, humanitarian, peace and faith advocate;
Mindahi Bastida, indigenous elder and spokesperson (Mexico, Otomi-Toltec tradition);
Patrick Smith, Editor-in-Chief The Africa Report
Summary of the Event:
Vanuatu and the Stop Ecocide Foundation co-hosted the second side event in the context of the 20th Assembly of States Parties related to environmental crime: ‘Ecocide: A Fifth Crime Defined’. The event was moderated by Patrick Smith, the Editor-in-Chief of The Africa Report. In his introductory and concluding remarks he highlighted the widespread negative consequences felt today due to climate change, environmental degradation, and loss in biodiversity and the resulting need for collective action. The inclusion of the crime of ecocide within the Rome Statute presents one possible response.
The Honorary Consul of Vanuatu in the Netherlands, Elly van Vliet, held the opening address. She elaborated on the grave effects felt in Vanuatu due to climate change and indicated the support of certain states, including France, Vanuatu, and other island states, for the criminalization of environmental crimes under international law. Further, she commended the progressiveness of the proposed ecocide definition and the possible benefits of its inclusion into the Rome Statute.
Subsequently, the Prime Minister of Samoa, Right Honorable Fiamē Naomi Mataʻafa, delivered a supporting statement. She underlined that Samoa was a supporter of the International Criminal Court since the very beginning and now urges to discuss how the Court can be transformed to address present days’ most pressing challenges. Mrs. Mata`afa stated that the impact of climate destruction, as felt for example in Samoa, is so severe, that they warrant recognition under international criminal law and that the drafting of a crime of ecocide provides the opportunity to concretely discuss pathways to accountability for ecological destruction and climate breakdown. She called this discussion long overdue.
In a similar vein, the Member of Parliament of the People’s Republic of Bangladesh, Saber Hossain Chowdhury, underlined the need to examine the potential role of the Rome Statute system in acting against climate change and other human-induced environmental damage. He highlighted that Bangladesh is among the countries most vulnerable to climate change and that the detrimental effect, likely to later also occur elsewhere, are already visible there today. Although Bangladesh hardly contributed to global warming it is one of the first countries to face the consequences.
His statement was followed by a speech by Jojo Mehta, the Chair of the Stop Ecocide Foundation. Ms. Meta underlined how the interlinked threats of climate change and biodiversity loss endanger international peace and security. She described an increasingly louder global call for the criminalization of ecocide, and that Vanuatu was the first state to raise the need to address environment-related crimes under the Rome Statute system.
These more general remarks were followed by statements by members of the Independent Expert Panel for the Legal Definition of Ecocide which elucidated more closely on the working process behind and the content of the proposed ecocide definition. First, Dior Fall Sow, co-chair of the Independent Expert Panel, elaborated on the working process of the panel. The multidisciplinary panel consisted of 14 members which were selected based on their merits and expertise in international and domestic criminal law, environmental studies as well as other fields related to climate change. The panel worked on the draft definition for six months and drew from existing literature and research, external expert input as well as a public survey. The final draft was published in June 2021. Further, Mrs. Fall Sow highlighted the relevance of such an ecocide definition for African countries: it provides the opportunity to join together in the fight against harm against the environment, which is particularly relevant for developing nations to amplify their efforts. She underlined that no country can counter harm caused by climate change alone and that cooperation and synergies are key.
The next panelist , Professor Phillippe Sands, the other co-chair of the Independent Expert Panel, elaborated on the letter of the proposed ecocide definition. The proposed article 8ter Rome Statute reads “For the purpose of this Statute, “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.” Prof. Sands underlined that albeit the definition itself is new, its formulation and included concepts are firmly based on existing international criminal law and the wording of the Rome Statute. The greatest novelty however is, that unlike the existing four crimes under the Rome Statute, namely war crimes, crimes against humanity, genocide, and the crime of aggression, the definition of ecocide not only criminalizes harm against humans but also the environment by virtue of its own. This ecocentric approach makes an impact on human life not necessary to constitute the crime of ecocide.
He pointed out that the draft is meant to form the basis of discussion and that the Independent Expert Panel deliberately chose the term ‘ecocide’ since it invokes associations with genocide, and thus garners more attention. Overall, Prof. Sands drew parallelity between the emergence of crimes against humanity and genocide in the late 1940s and today’s situation, where ‘the right moment to move forward’ presents itself. In his opinion, the question is not if, but rather when and in what form the crime of ecocide is accepted under international criminal law.
Next, Judge Tuiloma Neroni Slade, a member of the Independent Expert Panel, addressed the role of the Rome Statute system in the prevention of international crime and break of impunity for perpetrators. He highlighted that at the time of its adoption, the Rome Statute was visionary and that the International Criminal Court today is a symbol for the rules based international order and justice. Mostly small, vulnerable states are currently faced with existential threats due to climate change and thus according to Judge Slade, the rule of law and global rules-based order provides the most effective protection against this. He sees wide support for the consideration of including ecocide within the Rome Statute and agrees— with Prof. Sands’ view that the historical moment for this has come due to the overwhelming urgency for a global response to crimes against the environment. He advocated for a new understanding of the evaluation of impacts and effects which is less anthropocentric and more environment focused - as would be reflected in the crime of ecocide.
These sentiments were also reflected in the statement by Syeda Rizwada Hasan, another member of the Independent Expert Panel. She reiterated that the development of an ecocide definition is a timely development and that a stronger international legal approach to environmental damage is required. To illustrate the urgency, she elaborated on the severe impacts of environmental damage on her home country, Bangladesh. These include among others, fresh-water pollution, lead contamination of farmland and severe air pollution. She stated that Bangladesh could lose 21 coastal districts, which is ⅓ of their landmass, if not enough is done to mitigate climate change. Hasan expressed hopes that the inclusion of the crime of ecocide under the Rome Statute will be enough to put an end to the impunity for environmental offenders and lead to a rebalancing between economic interests and the environment.
Four representatives of states and other stakeholders concluded the event. First, Prince El Hassan bin Talal of the Hashemite Kingdom of Jordan spoke about the relevance of the recognition of ecocide as a preemptive measure to address risks of humankind. He put emphasis on the interrelation between climate change and migration. He named the migration crisis in Latin America as one example and cautioned that if nothing changes, northern Africa will likely be uninhabitable by the mid of the century, resulting in more north-ward migration. El Hassan notes that since 1977 the relevance of impacts of environmental damage are discussed on a political level and called the active engagement in counter measures. He was adamant about emphasizing that sovereignty arguments should not stand, since the effects of environmental harm usually transcend borders. El Hassan further called for more social equity in dealing with these negative impacts.
Next, Princess Esmeralda of Belgium highlighted the “double crime of killing the environment and killing of biodiversity” and focused in her speech more on the impacts of environmental harm on non-human species. She cautioned that over the past few centuries the loss of biodiversity rate increased by 1000 fold which is alarming since biodiversity is a most vital element of our planet and inseparable from functioning ecosystems which provide essential services such as fresh water or food items. Princess Esmeralda highlighted the degradation of ecosystems along the examples of deforestation, with ⅕ of the Amazon forest gone, and the dire situation of the oceans due to overfishing and waste dumping. She called for the abandoning of the term “we” when addressing who is responsible for the state of the earth, and instead name the responsible corporations and individuals by name and hold the criminally accountable. Further she addressed neo-colonial structures in today's environmental exploitation, where the states of the global north are most responsible, the gravest effects however occur in the global south. Furthermore, she states that indigenous people are on the frontline to defend their lives and our biodiversity, and consequently suffer from violence. Instead of fighting against indigenous communities, Princess Esmeralda urges to learn from them.
The final panelist, Mindahi Bastida, a indigenous elder and spokesperson of the Mexican Otomi-Toltec tradition, took this final point up and elaborated more on indigenous views on ecocide. He stated that a crime of ecocide would be in accordance with the rule of reciprocity between the earth and humans as understood in his indigenous knowledge system. Bastida positively remarked on the consultations with the Independent Expert Panel and their due consideration of proposals by indigenous communities in the drafting process. He pointed out that indigenous peoples have the requisite knowledge to live in harmony with earth and that their culture and traditions are inseparable from the environment. Consequently, the key aspect of indigenous views on the definition of ecocide is that provisions aimed at the protection of nature necessarily need to encompass cultural and religious protections. Bastida cautioned that the definition of ‘severe harm’ should include the impacts on nature and human life, including cultural resources. He stated that the recognition of ecocide as a crime under international law could mark an important step towards the recognition of the link between humans and earth since this would grant the same importance to the protection of both. Finally, Batista noted that it is not a coincidence that indigenous territories host approximately 80% of the world’s biodiversity since the peoples respect the environment which is sacred to them. He concluded with a call to act now.
On short notice, the Belgian Ambassador to The Hague intervened in the side event to express his country’s support for the recognition of the crime of ecocide both at national and international level. He highlighted that Belgium raised the issue of environmental crimes during the general debate at 19th as well as 20th Assembly of States Parties.
At the end, the moderator Mr. Smith put only two closing questions to the panelist due to time constraints. One closing question by the audience focused on the jurisdiction of the ICC over a national from a non-member state for the newly proposed crime of ecocide. Professor Philippe Sands pointed out a recent case on the Rohingya in which the court ruled jurisdiction on account of transboundary effects. He mentioned that this ruling could prove relevant for ecocide as well. The other closing question regarded the practical value of the inclusion of ecocide as fifth crime under the Rome Statute facing current resource and other constraints inhibiting the International Criminal Court from prosecuting all crimes within its jurisdiction. Judge Tuiloma Neroni Slade highlighted that the Rome Statute offers a credible system of prevention and deterrence, although the crimes thereunder are particularly difficult to enforce in practice. He expressed a firm belief that without the criminalization under the Rome Statute, the other four crimes would be committed with greater frequency. Finally, he pointed out that the crime of ecocide is concepted as a crime of endangerment, and thus has a clear preventative focus. Syeda Rizwana Hasan seconded Judge Slade’s statements.
