Does The Contemporary Environmental Legislation Necessitates Ecocide as A Core Crime?
Keywords:
Environmental Crimes, Ecocide, International Criminal Court, Rome Statute, Stop Ecocide Foundation
Abstract
Industrial and economic growth have always been a fundamental focus of nations all around, for which exploitation of natural environment to a reasonable extent is corollary. However in recent times this exploitation of the natural environment at times of peace to amass the most wealth and during conflict to achieve excessive military advantage, has reached to a state of such gravity as to be of significant concern to humankind. The national courts aren’t able to effectively tackle the issue of these environmental crimes. The recent proposal to adopt ‘Ecocide’ as a core crime under International Criminal Court has been earnestly discussed among policy makers. This paper in Part A, gives an overview of environmental crimes with a few examples and discusses various reasons for the failure of national legislation to tackle such issues. In Part B, it delves into the history of environmental crimes under international law and discusses lacunae in the contemporary environmental regime. In Part C, the paper goes through the proposal of the independent expert panel, followed by Part D discussing the various challenges to adoption of the said proposal. Lastly the author concludes in favor of adoption of the Ecocide Law.
References
INTERPOL-UNEP, Strategic Report: Environment, Peace and Security –A Convergence of Threats (2016).
C. Nellemann et al., The Rise of Environmental Crime – A Growing Threat To Natural Resources, Peace, Development And Security, A UNEP-INTERPOL Rapid Response Assessment (2016), 17.
Amnesty International, ‘Niger Delta Negligence: How 3500 activists are taking on two oil giants’
Mélissa Godin, ‘Lawyers Are Working to Put “Ecocide” on Par with War Crimes. Could an International Law Hold Major Polluters to Account?’
Dom Phillips and Davilson Brasileiro, ‘Brazil dam disaster: firm knew of potential impact months in advance’ The Guardian (Rio de Janeiro and Ponte Nova, 1 March 2018).
Keila McFarland Dias, ‘Environmental Destruction, Business and Human Rights’ (For The Climate EU, 26 April 2021)
Available at https://oursantaferiver.org/nestle-the-worlds-most-corrupt-corporation/. Also read https://amp.theguardian.com/global-development/2021/feb/12/mars-nestle-and-hershey-to-face-landmark-child-slavery-lawsuit-in-us.
See Christian Almer and Timo Goeschl, ‘Environmental Crime and Punishment: Empirical Evidence from the German Penal Code’ (2010) 86 Land Economics 707, 718; Benjamin J. Appel, ‘In the Shadow of the International Criminal Court: Does the ICC Deter Human Rights Violations?’ (2018) 62 Journal of Conflict Resolution 3,19.
Ecocide Law, History, available at
Id.
The ILC Draft Code is reduced to four crimes (the same four that are presently found in the Rome Statute: aggression, genocide, crimes against humanity, and war crimes). The ILC Chairman Ahmed Mahiou unilaterally decides to remove the environmental crimes as a separate provision. With this option excluded, the Drafting Committee instead votes on whether to include environmental damage within the context of ‘war crimes’ or to include it under ‘crimes against humanity’. See 1996: The ILC rejects the independent crime of ecocide under Article 26 of the Draft Code, ibid.
Id.
See, Article 8(2)(b)(iv) of Rome Statute.
KNUT DORMANN, ELEMENTS OF WAR CRIMES UNDER THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: SOURCES AND COMMENTARY at 164 (2003) (suggesting that the Article is based on Protocol I).
See Article 8(2)(a), Rome statute.
Report of Committee Ill, Second Session (CDDH/215/Rev.1; XV, 263), in H.S.LEVIE, 2 PROTECTION OF WAR VICTIMS: PROTOCOL I TO THE 1949 GENEVA CONVENTIONS 276 (1980).
P. Higgins, Eradicating ecocide. Laws and governance to prevent the destruction of our planet, 2nd ed. (2015),64.
Report of the Secretary-General on the protection of the environment in times of armed conflict, UN Decade of International Law, UN Doc A/48/269, 29 July 1993, 7, para. 34.
OTP, Policy Paper on Case Selection and Prioritisation (2016), available at https://www.icc- cpi.int/itemsDocuments/20160915_OTP-Policy_Case-Selection_Eng.pdf.
R. Pereira, ‘After the ICC Office of the Prosecutor’s 2016 Policy Paper on Case Selection and Prioritisation – Towards an International Crime of Ecocide?’, 31 Criminal Law Forum (2020) 2, 179, 208; On the impact of the Policy Paper on the ICC’s jurisdiction, see in detail Mistura, 215-220.
Report of the UN Secretary-General on 'Gaps in international environmental law and environment-related towards a global pact for the environment, 30 November 2018, UN Doc A/73/419.
https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d t60d1e6e604fae2201d03407f/1624368879048 SE+Foundation+Commentary+and+core+text+rev+6.pdf, page 1.
See, Article 5(1) of Rome Statute.
Id., page 5.
Stop Ecocide Foundation, ‘What is Ecocide?’.
Id.
Id.
Id.
The Elements of Crimes and amendments thereto shall be consistent with this Statute.
Juliette Jowit, ‘World's top firms cause $2.2tn of environmental damage, report estimates’ The Guardian (18 February 2010)
International Criminal Court, ‘The States Parties to the Rome Statute’.
Donna Minha, ‘The Proposed Definition of the Crime of Ecocide: An Important Step Forward, but Can Our Planet Wait?’ (EJIL:Talk!, 1 July 2021)
See, Article 17(1)(a).
See, preamble to the Rome statute.
Stop Ecocide Foundation, ‘European Parliament Votes to Take Ecocide Law Seriously’ (Stop Ecocide Foundation, 21 May 2021).
Rome Statute, Art. 69; ICC Rules of Procedure and Evidence, ICC-ASP/1/3 and Corr. 1, 3-10 September 2002, Rules 63-75.
https://www.gojil.eu/issues/111/BustamiHecken_Final.pdf, 44-45.
T. Smith, ‘Creating a Framework for the Prosecution of Environmental Crimes in International Criminal Law’, in W. A. Schabas, Y. McDermott & N. HaHayes (eds), The Ashgate Research Companion to International Criminal Law (2013), 62.
Available at https://www.stopecocide.earth/faqs-ecocide-the-law.
Id.
Available at https://www.aba-icc.org/about-the-icc/structure-of-the-icc/.
Available at https://www.stopecocide.earth/leading-states.
Supra note,11.
See, Article 1 of Rome Statute, An International Criminal Court ("the Court") is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions.
https://www.stopecocide.earth/faqs-ecocide-the-law.
See, Preamble of the Rome Statute.
C. Nellemann et al., The Rise of Environmental Crime – A Growing Threat To Natural Resources, Peace, Development And Security, A UNEP-INTERPOL Rapid Response Assessment (2016), 17.
Amnesty International, ‘Niger Delta Negligence: How 3500 activists are taking on two oil giants’
Mélissa Godin, ‘Lawyers Are Working to Put “Ecocide” on Par with War Crimes. Could an International Law Hold Major Polluters to Account?’
Dom Phillips and Davilson Brasileiro, ‘Brazil dam disaster: firm knew of potential impact months in advance’ The Guardian (Rio de Janeiro and Ponte Nova, 1 March 2018)
Keila McFarland Dias, ‘Environmental Destruction, Business and Human Rights’ (For The Climate EU, 26 April 2021)
Available at https://oursantaferiver.org/nestle-the-worlds-most-corrupt-corporation/. Also read https://amp.theguardian.com/global-development/2021/feb/12/mars-nestle-and-hershey-to-face-landmark-child-slavery-lawsuit-in-us.
See Christian Almer and Timo Goeschl, ‘Environmental Crime and Punishment: Empirical Evidence from the German Penal Code’ (2010) 86 Land Economics 707, 718; Benjamin J. Appel, ‘In the Shadow of the International Criminal Court: Does the ICC Deter Human Rights Violations?’ (2018) 62 Journal of Conflict Resolution 3,19.
Ecocide Law, History, available at
Id.
The ILC Draft Code is reduced to four crimes (the same four that are presently found in the Rome Statute: aggression, genocide, crimes against humanity, and war crimes). The ILC Chairman Ahmed Mahiou unilaterally decides to remove the environmental crimes as a separate provision. With this option excluded, the Drafting Committee instead votes on whether to include environmental damage within the context of ‘war crimes’ or to include it under ‘crimes against humanity’. See 1996: The ILC rejects the independent crime of ecocide under Article 26 of the Draft Code, ibid.
Id.
See, Article 8(2)(b)(iv) of Rome Statute.
KNUT DORMANN, ELEMENTS OF WAR CRIMES UNDER THE ROME STATUTE OF THE INTERNATIONAL CRIMINAL COURT: SOURCES AND COMMENTARY at 164 (2003) (suggesting that the Article is based on Protocol I).
See Article 8(2)(a), Rome statute.
Report of Committee Ill, Second Session (CDDH/215/Rev.1; XV, 263), in H.S.LEVIE, 2 PROTECTION OF WAR VICTIMS: PROTOCOL I TO THE 1949 GENEVA CONVENTIONS 276 (1980).
P. Higgins, Eradicating ecocide. Laws and governance to prevent the destruction of our planet, 2nd ed. (2015),64.
Report of the Secretary-General on the protection of the environment in times of armed conflict, UN Decade of International Law, UN Doc A/48/269, 29 July 1993, 7, para. 34.
OTP, Policy Paper on Case Selection and Prioritisation (2016), available at https://www.icc- cpi.int/itemsDocuments/20160915_OTP-Policy_Case-Selection_Eng.pdf.
R. Pereira, ‘After the ICC Office of the Prosecutor’s 2016 Policy Paper on Case Selection and Prioritisation – Towards an International Crime of Ecocide?’, 31 Criminal Law Forum (2020) 2, 179, 208; On the impact of the Policy Paper on the ICC’s jurisdiction, see in detail Mistura, 215-220.
Report of the UN Secretary-General on 'Gaps in international environmental law and environment-related towards a global pact for the environment, 30 November 2018, UN Doc A/73/419.
https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d t60d1e6e604fae2201d03407f/1624368879048 SE+Foundation+Commentary+and+core+text+rev+6.pdf, page 1.
See, Article 5(1) of Rome Statute.
Id., page 5.
Stop Ecocide Foundation, ‘What is Ecocide?’
Id.
Id.
Id.
The Elements of Crimes and amendments thereto shall be consistent with this Statute.
Juliette Jowit, ‘World's top firms cause $2.2tn of environmental damage, report estimates’ The Guardian (18 February 2010)
International Criminal Court, ‘The States Parties to the Rome Statute’
Donna Minha, ‘The Proposed Definition of the Crime of Ecocide: An Important Step Forward, but Can Our Planet Wait?’ (EJIL:Talk!, 1 July 2021)
See, Article 17(1)(a).
See, preamble to the Rome statute.
Stop Ecocide Foundation, ‘European Parliament Votes to Take Ecocide Law Seriously’ (Stop Ecocide Foundation, 21 May 2021)
Rome Statute, Art. 69; ICC Rules of Procedure and Evidence, ICC-ASP/1/3 and Corr. 1, 3-10 September 2002, Rules 63-75.
https://www.gojil.eu/issues/111/BustamiHecken_Final.pdf, 44-45.
T. Smith, ‘Creating a Framework for the Prosecution of Environmental Crimes in International Criminal Law’, in W. A. Schabas, Y. McDermott & N. HaHayes (eds), The Ashgate Research Companion to International Criminal Law (2013), 62.
Available at https://www.stopecocide.earth/faqs-ecocide-the-law.
Id.
Available at https://www.aba-icc.org/about-the-icc/structure-of-the-icc/.
Available at https://www.stopecocide.earth/leading-states.
Supra note,11.
See, Article 1 of Rome Statute, An International Criminal Court ("the Court") is hereby established. It shall be a permanent institution and shall have the power to exercise its jurisdiction over persons for the most serious crimes of international concern, as referred to in this Statute, and shall be complementary to national criminal jurisdictions.
https://www.stopecocide.earth/faqs-ecocide-the-law.
See, Preamble of the Rome Statute.
Published
2024-07-01
How to Cite
Panda, B. P. (2024). Does The Contemporary Environmental Legislation Necessitates Ecocide as A Core Crime?. GLS Law Journal , 6(2), 47 - 56. https://doi.org/10.69974/glslawjournal.v6i2.136
Section
Articles
