PROPOSED AMENDMENT TO THE ROME STATUTE
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.
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. 122 nations (as of 2015) 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 nonsignatory.
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’ 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.
Currently there is no overriding mandatory duty of care (sometimes called a fiduciary duty) to prohibit, prevent significant hazards or harm, or to pre-empt by assisting to those who are facing Ecocide. Governments, business and finance are not legally bound to be accountable for some of the biggest Ecocides, despite the risk to both humans and nature. By creating a crime of Ecocide, the enforcement of a global primary duty (to stop activities that cause significant harm) ensures that all subsequent decisions are made whereby people and planet are put first. By criminalising Ecocide at an international level, a global duty of care is created.
Ecocide, the extensive destruction of ecosystems, is occurring today. For example:
- Large-scale land use that causes the direct destruction of habitats – as is the case with deforestation in most tropical rainforests;
- Significant pollution – for example, excess greenhouse gases from the industrial activities of the top Carbon Majors;
- Dangerous industrial activity where entire landscapes are destroyed – such as unconventional oil extraction.
All of the above examples are human caused Ecocides. There are also naturally occurring Ecocides, such as rising sea levels. The legal duty of care that is created here is to give assistance to such territories.
Evidence of the cumulative impact has lead to researchers proposing critical planetary boundaries; transgressing them could be catastrophic: see the Stockholm Resilience Centre: 9 Planetary Boundaries Research.
Look also to evidence here: UNEPs Global Environmental Outlook, Healthy People Healthy Planet reports, which examine the severe anthropogenic impacts on the Earth system.
Ecocide law has ‘legal teeth.’ Whilst we have many international agreements – voluntary codes of conduct, UN Resolutions, Treaties, Conventions, Protocols etc – the harm escalates. Not one of these international agreements prohibits Ecocide. The power of the Law of Ecocide is that it creates a legal duty of care that holds persons of ‘superior responsibility’ to account in a court of law (both criminal and civil).
History of the Law of Ecocide
Ecocide law proposals date back to 1972. A research paper by The Human Rights Consortium at the School of Advanced Studies, University of London, sets out the evidence that Ecocide was included as an international Crime Against Peace, charting the history from the 1970s through to the 1990s. You can download the research paper here.
There are ten countries that recognise Ecocide as a crime and have implemented laws in their own countries.
Ecocide in wartime
Article 8.2.b (iv) of the Rome Statute states is a crime to “intentionally launch an attack in the knowledge that such attack will cause...widespread, long-term and severe damage to the natural environment...”
Article 8.2.b is based on the test as set out in the 1977 Environmental Modification Convention (size, duration or impact).
During peacetime no such crime exists. Ecocide law closes the legal loophole.
Implementing the Law of Ecocide
The Rome Statute already sets out four Crimes Against Peace and the International Criminal Court to enforce them. A mock trial in the UK Supreme Court has already demonstrated that Ecocide law works.
To create an international law of Ecocide it only takes one signatory Member State of the Rome Sataute to call for an amendment; this triggers a process - where 83 States ratify the amendment to include Ecocide law, it becomes binding. Member States are countries who have signed and ratified the Rome Statute; there are currently 123 State Parties.