ASP20 Side Event: When Vetoes Prevent Accountability: a critical examination of blocking ICC referrals

20TH SESSION OF THE ASSEMBLY OF STATES PARTIES

8 December 2021

Name of the Event: When Vetoes Prevent Accountability: a critical examination of blocking ICC referrals (co-hosted by Canada, The Kingdom of the Netherlands, The Permanent Mission of Costa Rica to the United Nations, The Permanent Mission of Sierra Leone to the United Nations and the Parliamentarians for Global Action)

Report by: Pauline Pfaff, Junior Research Associate PILPG-NL

Highlights: 

• Professor Trahan elaborated on the argument that the veto power of the permanent members of the United Nations Security Council is embedded in the existing system of law and is thus limited in the face of atrocity crimes by ius cogens norms, the principles and obligations of the United Nations Charter, as well as other treaty obligations of the individual states, including those arising from the Genocide Convention and Geneva Conventions.

• Panelists called upon the United Nations General Assembly to request an advisory opinion from the International Court of Justice based on the proposed legal arguments regarding the potential unlawfulness of vetoing referrals to the International Criminal Court.

• The panelists underlined the need for upholding the rule of law and ensuring accountability for atrocity crimes to break cycles of violence and prevent collateral challenges, such as corruption.

Speakers:

• Melissa Verpile, Director of the Democratic Renewal and Human Rights Campaign, Parliamentarians for Global Action

• Ambassador (ret.) Hans Corell, former Under-Secretary-General for Legal Affairs and the Legal Counsel of the United Nations

• Justice Richard Goldstone, Prosecution at the International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda and Chair of the Independent Expert Review

• Professor Jennifer Trahan, NYU Center for Global Affairs, author of “Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes” and PILPG Senior Peace Fellow

Summary of the Event: 

Moderator of the event Melissa Verpile, Director of the Democratic Renewal and Human Rights Campaign by Parliamentarians for Global Action, introduced the panel discussion on the use of veto powers in the UNSC and their impact when they block referrals of situations to the International Criminal Court (ICC).

First, Ambassador Hans Corell addressed the UNSC’s operations generally, expressing disappointment with the current deficiency in statesmanship within the UNSC in relation to contemporary issues such as climate change and desertification, which threatens international peace and security. Further, Corell referred to the ongoing discussions on reforming the UNSC and highlighted that instead of a possible enlargement of the UNSC, reform should focus on how to better regulate the behavior of the members with veto power. He emphasized that the rule of law, both at the domestic and international level, is key to address such challenges and in particular the commission of atrocity crimes. Corell further underlined that the threshold to push for accountability today should be lower since - unlike in the 1990s - the UNSC does not have to establish new tribunals for a situation, but rather may refer them to the permanent ICC. Concluding, he commended Prof. Trahan for taking a legal approach to constraining veto powers to increase the prevention of core international crimes.

Justice Richard Goldstone agreed with Ambassador Corell and added that, as has also been recognized by the former UN Secretary General, the rule of law underpins the entire discussion. He cautioned, with reference to the Srebrenica genocide, that the threat of justice is not always an effective deterrent, but also underlined that there is strong evidence that states with effective justice systems experience lower crime rates than those without. He further highlighted that the concept of universal jurisdiction may not be considered as a full substitute to the ICC, since the powers of states acting on the basis of universal jurisdiction are more limited and situations may not be considered as a whole.  

Next, Professor Jennifer Trahan elaborated on the core arguments found in her book “Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes.” The book’s central axiom is that the veto power of UNSC permanent members is embedded in the existing system of law and thus should be constraint by ius cogens norms, the principles and obligations of the United Nations Charter, as well as other treaty obligations of the individual states, including those arising from the Genocide Convention and Geneva Conventions. Thus, the use of veto or the threat thereof should not be in contravention to any of these obligations. Prof. Trahan elaborated on this argument with the example of genocide: ius cogens and the Genocide Convention oblige all states to prevent or end such crimes. Therefore a veto against a referral to the ICC can hardly be in line with these obligations and should, in fact, be considered a breach of law.  

Panelists then turned to the question of realizing this argument in practice. Ambassador Correl and Justice Goldstone expressed that they found Prof. Trahan’s argument to be compelling and progressive. Both called upon the United Nations General Assembly to request an advisory opinion from the International Court of Justice (ICJ) regarding the unlawful use or threat of vetoes in situations of ongoing atrocity crimes, following Prof. Trahan’s line of argumentation. Ambassador Correl further elaborated that it strengthens the aforementioned political call on the UNSC permanent members to restrain the use of their veto power voluntarily and noted that it should always be kept in mind that the overriding purpose of international criminal law and the ICC is not only to punish perpetrators, but also to deter the commission of crimes. The deterrence function of international criminal law could be strengthened when the UNSC credibly conveys its commitment to accountability and willingness to refer situations to the ICC. Justice Goldstone in addition highlighted that the current use and threat of veto powers prevents important issues from being discussed within the UNSC, effectively rendering its mandate for peace and security insufficiently observed. 

Prof. Trahan agreed with Justice Goldstone and elaborated on the meaning of this deficiency, using the example of Myanmar and the situation of the Uyghurs in China - important situations that remain undiscussed. She called upon states to raise such contentious situations in creative ways with the UNSC, at least to create an official record. In addition to the call upon the UNGA to request an advisory opinion from the ICJ, she urged the Assembly to issue a resolution reaffirming the existing rules of law and how they limit the powers of the UNSC.

Finally, moderator Mrs. Verpile asked the panelists to comment on the collateral challenges of the lack of accountability for atrocity crimes based on the UNSC failure to effectively utilize its referral powers. Ambassador Corell raised concerns regarding the potential undermining of the UN Charter’s principles and the credibility of the UNSC itself. Justice Goldstone added that the example of Rwanda shows that when impunity prevails, circles of violence perpetuate themselves, which has the potential to destabilize entire regions. These protracted conflicts in turn lead to high costs in humanitarian relief due to an ever-growing number of victims. In addition, these situations divert attention from other pressing challenges such as climate change or global pandemics. Justice Goldstone added that the example of Rwanda highlights that accountability measures, in this case the establishment of the International Criminal Tribunal for Rwanda, play an effective role in breaking such cycles. Prof. Trahan seconded this and stressed that vetoes violate the permanent member’s duty to protect victims of atrocity crimes.

Following Prof. Trahan’s final statement, the moderator opened the floor to the audience. Dr. David Donat Cattin, Secretary-General of the Parliamentarians for Global Action, joined the discussion and highlighted the example of Afghanistan and the severe impact of corruption on peace consolidation efforts as another collateral cost of impunity for atrocity crimes. All panelists agreed, and Justice Goldstone highlighted ongoing efforts to establish an international anti-corruption court. Prof. Trahan further demonstrated the detrimental role of veto powers with the situations of Syria and Myanmar. The use of vetoes in the UNSC in relation to both cases has signaled impunity to offending governments. She referred to a study which establishes a direct link between vetoes within the UNSC and the use of chemical weapons. On this basis, Prof. Trahan concluded that UNSC vetoes continue to cost lives on the ground.

ASP20 Side Event: Paths to Justice and Accountability in Venezuela: Ongoing Initiatives by the International Community

20TH SESSION OF THE ASSEMBLY OF STATES PARTIES

8 December 2021

Name of the Event: Paths to Justice and Accountability in Venezuela: Ongoing Initiatives by the International Community (co-hosted by Un Mundo Sin Mordaza, Defiende Venezuela, Organization of American States (SOAS))

Report by: Guillermo Ferrer Hernáez, Junior Research Associate PILPG-NL

Speakers:

• Génesis Dávila, Founder and President, Defiende Venezuela

• Rodrigo Diamanti, President, Un Mundo Sin Mordaza

• Fernando Fernández, Human Rights Monitor Venezuela

• Santiago Cantón, Organization of American States Panel of Experts

• Joanna Frivet, Crimes Against Humanity Observatory

• Irwin Cotler, Organization of American States Panel of Experts

• Omar Adolfo Lares Sánchez, former mayor, Campo Elías Municipality; victim of political persecution; human rights activist

Highlights:

• The panelists called for the international community and civil society organizations’ further commitment to calling for the prosecution of the crimes committed by mid- and high-level officials in Venezuela.

• The panelists agreed that a genuine prosecutorial process cannot exist in Venezuela because of authorities' present reluctance to prosecute government officials.

• The panelists urged the international community to start parallel processes towards prosecuting the perpetrators of  international crimes.

• The panelists highlighted that there is still mass human suffering in Venezuela  that must end.

Summary of the event:

The first speaker, Santiago Cantón, reflected on the  lack of impartiality in the Venezuelan judiciary, and the agreement signed by the Office of the Prosecutor (OTP) of the International Criminal Court (ICC) and the Venezuelan judiciary to investigate allegations of crimes against humanity committed by Venezuelan authorities.  Cantón argued that the signature of the agreement does not constitute a threat to the prosecution of these crimes.  He noted that an investigation has been opened by the OTP.

Cantón claimed that we will not see Maduro’s government collaborating with the OTP as that would require investigation into persons close to him.  Cantón argued that even if the OTP’s limited resources impact the investigative process, the investigation must continue in order to stop the suffering of the Venezuelans who are victims of crimes against humanity.

The second speaker, Irwin Cotler, described how he reported these human rights violations to the Human Rights Committee and emphasized the revolutionary nature of the collective referral of these cases to the ICC for prosecution.  Cotler expressed that the Venezuelan authorities not only committed these crimes, but also caused human suffering and deaths by weaponizing food and medicine.  He conveyed hope that justice for Venezuelans will be achieved and perpetrators will be held accountable.

The  third speaker, Joanna Frivet, explained the implications of positive complementarity within the Venezuelan investigation.  She argued that legislative and procedural reforms are necessary to comply with ICC standards, but noted that this will not be enough to achieve justice.  Frivet asserted that a genuine and transparent investigation of mid- and high-level officials needs to be carried out.  Moreover, she argued, the OTP ought to take action as soon as possible to preserve the evidence and put an end to the human suffering in Venezuela. 

The fourth speaker, Fernando Fernández, criticized the high level of impunity in the Venezuelan judicial system and emphasized its structural problems.  He made several arguments concerning the lack of transparency in the substantive and procedural aspects of this system.  Firstly, Fernández argued that the Venezuelan Criminal Code does not contain the same standards as the Rome Statute.  He noted that as long as this code remains without implementation and reform, it will be difficult to prosecute such crimes.  Secondly, he explained that the Venezuelan legal system does not include an impeachment process for high-level officials.  Fernández argued that this makes it impossible to achieve justice and accountability. 

Fernández expressed that there is a high probability that high-level officials will be impugned for committing these international crimes  and he gave several reasons for this.  First, he noted that several cases, which were referred to the Inter-American Court of Human Rights, will likely end with no conviction because of the difficulty of preserving evidence in such a long process.  Second, Fernández underlined Venezuela's history of endogamy and clientelism within judicial proceedings and argued that this tendency will eventually lead to impunity for perpetrators.

The discussion of the panelists then turned to the necessity of holding  mid- and high-level officials accountable for their actions.  Joanna Frivet argued that if the Venezuelan authorities only investigate low-level officials, the ICC’s liability threshold will not be met.  Therefore, she claimed, the ICC will no longer consider positive complementarity.  Following this, Irwin Cotler put forth that the international community needs to look at other remedies, for instance, the prosecution of these crimes under the principle of universal jurisdiction or the implementation of collective countermeasures against the officials.  Cotler also argued that Venezuela is a state party to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and therefore, the Venezuelan state could be brought before the ICJ.  Then, Santiago Cantón asserted that even if the Venezuelan authorities try to show that they are taking measures to prosecute domestically, high-level officials will not truly be prosecuted.   Cantón argued that human rights defenders need to prove to the OTP that what has been or is being done is not enough and that justice is not currently operating in Venezuela.  The event concluded with the testimony of Omar Lares, former mayor of the Municipality of Campo Elías in Venezuela who was persecuted by government officials for defending Venezuela’s democracy.

ASP20 Side Event: The MLA Initiative: Towards a new Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity and War Crimes

20TH SESSION OF THE ASSEMBLY OF STATES PARTIES

8 December 2021

Name of the Event: The MLA Initiative: Towards a new Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity and War Crimes (co-hosted by Argentina, Belgium, Mongolia, the Netherlands, Senegal, and Slovenia)

Name of PILPG Staff: Editimfon Ikpat and Alexandrah Bakker, Research Associates PILPG-NL

Highlights: 

• The MLA Initiative seeks to address the lack of provisions in international law on interstate cooperation in the domestic prosecution of international crimes.  Its aim is to adopt a new multilateral convention outlining modes of mutual legal assistance in the prosecution of genocide, crimes against humanity, and war crimes.

• The MLA Initiative, while benefiting from the support of the Office of the Prosecutor of the International Criminal Court, is a separate initiative. It, therefore, embraces both states parties and non-states parties to the Rome Statute.

• The Core Group will arrange a final round of virtual informal consultations on the Draft Convention in June 2022, followed by a diplomatic conference for the adoption of the Convention in 2023 in Ljubljana, Slovenia.

Speakers:

• Mr. Karim A. A. Khan QC, Prosecutor of the International Criminal Court

• Judge Silvia Fernández de Gurmendi, President of the Assembly of States Parties to the Rome Statute of the International Criminal Court

• H.E. William Roelants de Stappers, Ambassador and Permanent Representative of Belgium to the International Institutions in The Hague

• H.E. Sanja Štiglic, Ambassador of Slovenia to the Netherlands

Summary of the Event:

Keynote speaker Mr. Karim Khan opened the event by expressing his support for the MLA Initiative, describing it as a fortification of the Nuremberg principles. Mr. Khan reminded attendees that the crimes that form the subject-matter of the Draft Convention are not subject to a statute of limitations and that judicial bodies around the world are still pursuing suspected perpetrators of crimes committed several decades ago, for instance in Cambodia. As such, he welcomed the reinforcement of domestic prosecutions of international crimes through the MLA Initiative. Moreover, Mr. Khan shared his appointment of the Special Adviser on Mutual Legal Assistance, Mr. Yoshimitsu Yamauchi of Japan. 

To conclude, Mr. Khan shared his vision for how the Office of the Prosecutor could contribute to the effort to improve mutual legal assistance between states prosecuting international crimes. For instance, he expressed a desire to strengthen and develop the technologies used in mutual legal assistance, drawing on his experience from his previous mandate with the Investigative Team to Promote Accountability for Crimes Committed by Da'esh/ISIL (UNITAD). Moreover, he shared that he would explore possibilities within the Office of the Prosecutor to start working with a system of case briefs. He explained that these briefs could be shared with national authorities in the event an ICC case cannot proceed, for instance, due to the death of the accused or due to obstacles to the investigation. As a result, prosecutions of other implicated persons could still continue on the domestic level.

After this presentation, H.E. William Roelands de Stappers gave a brief history of the MLA Initiative. He explained that the Initiative is the result of the observation of a number of states that the existing international legal framework contains a gap, namely the lack of provisions addressing interstate cooperation for the thorough investigation and prosecution of international crimes by states. Unlike some more recent international conventions, such as the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment and the United Nations Convention against Transnational Organized Crime, H.E. Stappers noted that neither the Convention on the Prevention and Punishment of the Crime of Genocide nor the Geneva Conventions and their Additional Protocols contain provisions on mutual legal assistance. As a result, six states (Argentina, Belgium, Mongolia, the Netherlands, Senegal, and Slovenia - known as the “Core Group”) decided to draft a Convention on International Cooperation in the Investigation and Prosecution of the Crime of Genocide, Crimes against Humanity and War Crimes. The Draft Convention currently has support from 76 states, including non-states parties to the Rome Statute of the International Criminal Court.

The final speaker, H.E. Sanja Štiglic, provided an overview of the plans for the MLA Initiative. Between now and spring 2022, the Core Group will revise the Draft Convention to take into account the comments made by states during the two rounds of virtual informal consultations held in June and November 2021. The Core Group will then arrange for a third and final round of virtual informal consultations in June 2022, which will feature discussions of the scope of the Convention. Finally, the Core Group aims to organize a diplomatic conference in Ljubljana, Slovenia in the spring of 2023. At this conference, the Core Group hopes that states will adopt a definitive version of the Convention.

To conclude the event, a member of the audience asked the Core Group to reflect on the challenges that may arise from the coexistence of ICC states parties and non-states parties within the MLA Initiative. The Core Group responded that the MLA Initiative should be seen to complement the work of the ICC, but not to be a part of it. This is why, for instance, the drafters have avoided making any direct references to the Rome Statute in the Draft Convention. Mr. Khan further stressed the importance of complementarity to the functioning of the ICC, emphasizing that states have a sovereign right to decide if they want to ratify the Rome Statute and sharing his support for any initiative that contributes to the aim of ending impunity for international crimes.

ASP20 Side Event: Obstructing Justice and Promoting Impunity: Israel’s Designation of Palestinian Civil Society Organizations as “Terrorist Organizations”

20TH SESSION OF THE ASSEMBLY OF STATES PARTIES

8 December 2021

Name of the Event: Obstructing Justice and Promoting Impunity: Israel’s Designation of Palestinian Civil Society Organizations as “Terrorist Organizations” (hosted by Palestine and Al Haq)

Report by: Lotte Peters, Junior Research Associate PILPG-NL

Highlights: 

• The panelists called upon ICC Prosecutor Karim Khan to condemn the Israeli designation of Palestinian civil society organizations as “terrorist organizations”, and to continue the investigation into the Palestinian situation

• The panelists highlighted the importance of the international community’s support in addressing human rights abuses and international crimes in Palestine

Speakers:

• Ahmed Abofoul: Legal Researcher, Al-Haq

• H.E. Ammar Hijazi: Ambassador, Assistant Minister for Multilateral Affairs, Ministry of Foreign Affairs and Expatriates of the State of Palestine

• Dr. Susan Power: Head of Legal Research and Advocacy Department, Al-Haq

• Mr. Omar Shakir: Israel and Palestine Director, Human Rights Watch

• Professor John Dugard: Emeritus Professor of Law at the University of Leiden (The Netherlands) and the University of the Witwatersrand (South Africa), former Special Rapporteur for the United Nations Human Rights Council for the Occupied Palestinian Territories

Summary of the Event: 

The panelists gathered to discuss recent developments in the context of the Israeli-Palestinian conflict. In October 2021, Israel designated six Palestinian human rights civil society organizations (CSOs) as “terrorist organizations” under the Israeli 2016 Counter-Terrorism Law. In November, Israel’s commander-in-chief issued military orders, declaring these organizations as “unlawful”. The moderator of the event, Ahmed Abofoul, noted that these Palestinian CSOs carry out indispensable work in the field of human rights. Therefore, Abofoul condemned these designations and found them to be a part of an Israeli “decade-long harassment campaign” against the Palestinian community. 

H.E. Ambassador Ammar Hijazi likewise expressed his condemnation for this act by Israel. He emphasized his admiration for the Palestinian CSOs, who continue to research and report on human rights abuses in the region. Further, he highlighted the Palestine attempt to ensure that Palestinian victims are properly represented in the ICC investigations into the Palestinian situation. However, he expressed concern about a possibly coercive and fearful environment that discourages these victims from seeking redress and justice. H.E. Hijazi opined that impunity undermines the impartiality and effectiveness of the ongoing investigation into Palestine. He, moreover, highlighted his discontent with the international community as a whole, who allegedly have failed to appropriately respond to the Palestinian situation. He urgently called upon the ICC Prosecutor Karim Khan to conduct the investigation without any further delay, and to ensure that Palestinian victims are well-protected. According to him, the only acceptable response is to insist on accountability and to “deliver this long-awaited justice”, not only from the ICC, but also from international CSOs, NGOs, and states. 

The second speaker, Dr. Susan Power, described Al-Haq’s long history of cooperation with the ICC. Over the years, Al-Haq has submitted a large variety of documents to the Court that provided evidence of war crimes and crimes against humanity in Palestinian territory. Dr. Power particularly condemned the Israeli designations with an eye on the CSO’s important work in furthering the ICC investigation. She called Israeli Counter-Terrorism Law “a sweeping attack on the right of freedom of expression”, and an unwarranted means of blocking the ICC investigation. Dr. Power recalled previous ICC Prosecutor Bensouda’s 2016 report on preliminary examinations, in which Bensouda acknowledged such harassment on CSOs as a problem. She, therefore, urged the new ICC Prosecutor Karim Khan to ensure prioritization of investigating the situation in Palestine and to acknowledge the targeting of CSOs as inhumane acts of persecution and apartheid.

Professor John Dugard, when he was the Special Rapporteur for the United Nations Human Rights Council for the Occupied Palestinian Territories in 2007, found that Israel was applying apartheid “without hesitation”. He further compared the alleged Israeli apartheid with that in South African. Professor Dugard expressed his concerns over states’ reluctance to confront Israel on this issue. According to him, European states and the United States do not expect Israel to practice the due process of law. He also found it particularly surprising that the ICC Prosecutor has not yet condemned the criminalization of the six Palestinian CSOs. He not only urged the Prosecutor, but also the current session of the Assembly of States Parties, to give an explanation for their silence. 

The last speaker was Omar Shakir, who highlighted Human Rights Watch’s work on the Israeli-Palestinian conflict over the past three decades. When Human Rights Watch applied the legal facts of apartheid to the Palestinian situation, Shakir said, there was “overwhelming evidence” that the Israeli government was committing acts of apartheid against the Palestinian community. Shakir discussed the Israeli-Palestinian case against the Apartheid Convention arguing that a strong case can be made. Shakir argued that the designation of Palestinian CSOs as terrorist organizations is part of a “systematic effort to muzzle human rights reporting”, in which Palestinians wear the brunt of that oppression. In line with the previous speakers, he urged the ICC to condemn this act and participate in the protection of human rights defenders. 

In their concluding remarks, the panelists all agreed that accountability is of utmost importance. Despite critique on the international community’s response to the designations, they remained positive about the future. Shakir emphasized that the CSO’s work has not gone unnoticed, and an increasing number of international actors are standing up for the protection of Palestinian human rights. According to him, these developments are a reminder of why exactly these six CSOs are indispensable for the human rights movement. He remained hopeful that the ICC will stand up to the test. Dr. Power underlined that Palestinians need states to amplify and endorse their voice. She underlined that “the belief in the rule of law and international mechanisms is the pathway towards peace”.

ASP20 Side Event: Ecocide: A Fifth Crime Defined

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.