THE MODEL LAW

Proposed amendments to the Rome Statute of the International Criminal Court

on the crime of ecocide

 

The following text is to be inserted after Article 5, paragraph 1, subparagraph (d) of the Statute:

(e) The crime of ecocide.

The following text is to be added:

1.    Ecocide
For the purpose of this Statute, ‘ecocide’ means any of the following when committed recklessly, in peace-time or times of conflict:

(a) acts or omissions which cause or may be expected to cause
(b) failure to prevent, where climate-related events cause or may be expected to cause
(c) failure to assist, where climate-related events have caused

(i)     widespread, or
(ii)     long-term, or
(iii)     severe

loss or damage to, or destruction of ecosystem(s) of a given territory(ies), such that peaceful enjoyment by the inhabitants has been or will be severely diminished.

2.    For the purpose of paragraph 1:
‘climate related events’ means one or more of the following:
(i)      rising sea-levels
(ii)     hurricanes, typhoons or cyclones
(iii)    earthquakes
(iv)    other climate occurrences
‘ecosystems’ means means a biological community of interdependent living organisms and their physical environment.
‘territory(ies)’ means one or more of the following habitats, unrestricted by State or jurisdictional boundaries: (i)       terrestrial
(ii)      fresh-water
(iii)     marine
‘peaceful enjoyment’ means peace, health and well-being.
‘inhabitants’ means indigenous occupants and/or settled communities of a territory consisting of one or more of the following:
(i)       humans
(ii)      animals, fish, birds or insects
(iii)     plant species
(iv)     other living organisms

3.     For the purposes of paragraph 1, the Paris Agreement of 4 November 2016 shall be considered established premise for prior knowledge by State and corporate officials, and any other persons of superior responsibility.

4.      In addition to Rome Statute Article 25.3 (a) – (f), a corporate person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person in any other way contributes to the commission or attempted commission of such a crime by a group of corporate persons acting with a related market share responsibility.

5.     State criminal responsibility
For the purpose of ecocide crimes, the Court shall also have jurisdiction over State Parties, companies, organisations with separate legal personality, and partnerships, and all such bodies shall be:
(a) responsible and liable for punishment as a superior as set out in Rome Statute Article 28(b); and
(b) a ‘person’ whenever that term is used in this Statute.

6.    Responsibility of senior officials and other superiors
A State or corporate senior official or other person of superior responsibility shall be criminally liable for ecocide crimes within the jurisdiction of the Court committed by persons under his or her authority, as a result of his or her failure to exercise authority effectively over such persons where:
(a) that senior official owing to the Paris Agreement 2016 or any other publicly available information had knowledge or should have had knowledge that persons under his or her authority were committing or about to commit such crimes; and
(b) that senior official failed to take all measures within his or her power to prevent or repress their commission or to submit the matter to the competent authorities for investigation and prosecution.

7.    In addition to Rome Statute Article 75 paragraph 1, the Court shall establish principles relating to reparations to, or in respect of, victims including […] ecological and cultural restoration and climate recovery.

8.     In addition to Rome Statute Article 75 paragraph 2, the Court may make an order directly against a convicted    person specifying appropriate reparations to, or in respect of, victims, including […] ecological and cultural restoration and climate recovery.

9.     In addition to Rome Statute Article 77, paragraph 2, where the crime of ecocide has been committed, the Court  may make an order directly against a person, as defined in paragraph 5, for ecological restoration, cultural restoration and/or climate recovery.

10.     For the purposes of paragraph 7 – 9, ‘climate recovery’ means any one or more of the following:
(i)     migration with dignity for climate displaced persons
(ii)    adaptation
(iii)   self-sufficiency and freedom of constitution
(iv)   other pertinent and applicable climate measures

Elements of Ecocide Crimes

A.     Ecocide by causing loss or damage to, or destruction of ecosystem(s)
1.  The perpetrator’s acts or omissions caused widespread, long-term or severe loss or damage to or destruction of one or more ecosystems of a given territory(ies).
2.  The extent of the loss, damage or destruction is such that peaceful enjoyment by the inhabitants has been or will be severely diminished.
3.  The perpetrator knew or ought to have known the likelihood of such loss or damage or destruction.
4.  The conduct was committed in the context of corporate and/or State activity.

B.     Ecocide by failure to prevent climate-related loss or damage to, or destruction of ecosystem(s)
1.  The perpetrator failed to prevent widespread, long-term or severe loss or damage to or destruction of one or more ecosystems of a given territory(ies) where climate-related events were causing or expected to cause such loss, damage or destruction.
2.  The extent of the loss, damage or destruction is such that peaceful enjoyment by the inhabitants has been or will be severely diminished.
3.  The perpetrator knew or ought to have known the likelihood of such climate-related loss or damage or destruction.
4.  The conduct was committed in the context of corporate and/or State climate responsibility.

C.     Ecocide by failure to assist after climate-related loss or damage to, or destruction of ecosystem(s)
1.  The perpetrator failed to assist where climate-related events caused widespread, long-term or severe loss or damage to or destruction of one or more ecosystems of a given territory(ies).
2.  The extent of the loss, damage or destruction is such that peaceful enjoyment by the inhabitants has been or will be severely diminished.
3.  The perpetrator knew or ought to have known the likelihood of such climate-related loss or damage or destruction.
4.  The conduct was committed in the context of corporate and/or State climate responsibility.

Intent is an aggravating factor for the purpose of sentencing.