By Christine Carpenter
[Christine Carpenter is a lawyer and researcher in international law interested in Human Rights Law, International Criminal Law, and Counterterrorism Policy. She holds a J.D. from the University of Pennsylvania Law School and a master’s in International Relations and Politics from the University of Cambridge]
The recent proposal to include ecocide as an international crime contained in the Rome Statute—alongside crimes against humanity, war crimes, acts of aggression, and genocide—has sparked conversation celebrating both this new means of using international legal tools to confront global warning and the validation the prosecution of such crimes would bring to those harmed by environmental atrocities (see here, here, and here for samples of this discussion). In addition to these important commendations, adopting ecocide among the Rome Statute’s crimes poses an intriguing counterweight to one of the International Criminal Court’s greatest criticisms.
The ICC has been denounced as a neo-colonial institution nearly since its founding. Scholars, international lawyers, heads of state, and directors of international organizations have all chimed in, adding to this criticism. As evidence, many cite (1) the ICC’s virtually exclusive convictions of African nationals, (2) the disproportionate number of investigations into situations on the African continent, and (3) the access issue implicit in the unpaid employment structure of many ICC positions—which bar highly qualified candidates from less privileged backgrounds from participating in the institution. The weight of these critiques is heavy because, in many instances, they are true. The ICC has consciously worked to counter this reproach in recent years, through opening investigations into the conduct of Western Countries; and in the last few years, more discussion has been focused on labor compensation in international courts. In spite of these efforts, however, the Court has not been able to escape the justifiably large shadow cast by the accusation of serving colonial ends—or at least, of upholding remnants of the colonial infrastructure.
The criminalization of ecocide—which would target the kind of environmental destruction and pollution often committed by developed countries in developing nations—holds the potential to reverse the trend behind this criticism, and avail the ICC to new methods for forming solid jurisdictional hooks in states that have historically evaded its grasp. Furthermore, the international nature of the ICC means it is uniquely poised to prosecute bad acts by transnational corporations (TNCs) that have likewise evaded responsibility in both their countries of origin and the states in which they operate.
Is the ICC a Neo-Colonial Institution?
The best answer I have found for this question is: not intentionally, but still quite possibly. At the very least—the ICC has validly been perceived as neo-colonial in nature by those who feel uniquely pursued by its efforts. The African Union has claimed the ICC disproportionately targets African states. This claim is bolstered by the fact that, while the crimes contained in the Rome Statute are being committed around the world, the ICC’s focus—ranging from open investigations to completed convictions—has been on the African Continent. Earning the ICC the insult of the “International Caucasian Court,” this criticism of neo-colonial bias has led multiple states (see here, here, and here) to leave the Rome Statute.
In response to the criticism that the numbers reflect a neo-colonial bias, others are quick to emphasize that this is not the product of deliberate targeting, but rather one of convenience. Namely, African states lack the economic and political prowess of many states guilty of international crimes that have avoided prosecution—namely, the U.S., Russia, and China.
The ICC has attempted to confront this criticism—expanding its investigations into other continents and into subjects previously reserved for hegemonic oversight and proxy-conflicts. However, critics are quick to point out the limited bandwidth of these efforts, citing as an example the unanimous decision by the ICC’s Pre-Trial Chamber II that an investigation into crimes against humanity and war crimes committed by the CIA and US military officials in Afghanistan would be against “interests of justice.”
Arguably one of the greatest risks of neo-colonial flavor in its prosecution decisions is influenced by the same colonial history at the backbone of the ICC’s parent-body—the UN Security Council. The relationship between the ICC and the UNSC is explicitly contained in Rome Statute Article 13(b), which grants the UNSC referral power over ICC investigations through its Chapter VII authority. Due to the veto power afforded to each permanent member of the UNSC, several flagrant violations of the Rome Statute have gone un-referred and—lacking any other jurisdictional hook—uninvestigated.
Thus, one can reasonably conclude that, while the ICC does not have the intent to exercise its authority in a neo-colonial manner, in effect, this may still be what has happened.
Notable Positives to Including Ecocide among the Rome Statute’s Crimes
The proposed addition of ecocide to our canon of international crimes brings with it a number of positives. At the international level, it prompts a cohesion around a global concern for the future of our planet. As we’ve seen in the past, this widespread attention can develop into international conventions that outlaw certain condemned behaviors—such as torture, uses of certain weapons, and certain forms of discrimination. The codification in international treaty law has the ability to ascend into custom. It furthermore can provide a clear and accessible template, through which states may adopt domestic legislation criminalizing the same conduct. To the extent the law and social change form a cyclical relationship, the more drastic environmental harms are discussed in such extreme and criminal terms, the more public opinion may shift to viewing it as such. All of these benefits are significant, and more importantly, they begin to manifest the moment ecocide becomes criminalized—they are not necessarily tied to the performance of the crime in the ICC’s docket.
This being said, it is also important to address concerns with the proposed language of the ecocide definition—namely the actus reus and mens rea elements of the crime vis-à-vis the principle of legality and principle of sovereignty concerns. As to the former, nullum crimen sine lege undoubtedly dictates that ecocide cannot be enforced against perpetrators ex post, and thus it may take time before the incorporation of ecocide into the Rome Statute has the chance to be utilized by the OTP. However, the other benefits to ecocide’s inclusion—such as those discussed above—are not affected by this principle, and face no delay in taking effect. As to the latter, Maud Sarlieve notes, the vagueness of the mens rea requirement, and a lack of instruction as to how it ought to be applied where the conduct of corporate entities is at issue, make the application of the crime a bit dubious. While this concern represents a significant deviation from the ICC’s mode of operating up to this point, it could (distantly, optimistically) present a benefit to how the mens rea in the definition is construed.
Countering the Neo-Colonial Criticism: New Jurisdictional Hooks and Better Fishing Equipment
The Court has jurisdiction over both crimes committed on the territory of a state party and jurisdiction over a person who has the nationality of any state party (Art. 15). About half of the twenty largest energy companies (by gross revenue) are headquartered in states that are party to the Rome Statute—namely Brazil, Britain, Canada, France, Italy, Norway, and The Netherlands. These are also states who, outwardly, are highly supportive of environmental action, so although the ICC’s amendment system means the new crime of ecocide would only apply to consenting state parties, it is still likely some of these states will formally accept the newest international crime. This would expose a number of major actors committing ecocide around the world ICC jurisdiction.
A challenge to extradition, present where state officials are concerned, is more easily overcome in the case of TNCs. While it is fairly easy for officials in non-party-countries that are under ICC investigation to simply not travel to states where they may be extradited, this is not the case for members of a TNC. It cannot simply discontinue operation in any country that submits to ICC jurisdiction, especially as many TNCs’ business models are tied to natural resources and other assets connected to the territory in which they are operating.
Furthermore, this novel jurisdictional strategy enabled by ecocides’ criminalization may serve as an incentive for many states that have long felt targeted, or at least underserved, by the ICC to remain signatories to the Rome Statute. Contrary to underserving these states, membership to the ICC could include the benefit of offering states a new and sound mechanism for opposing environmental abuse committed by TNCs on their territory that many of these countries have historically lacked the sufficient legal systems to prosecute.
Addressing the Hurdles to the ICC’s Use of Ecocide to Hold Corporate Actors Accountable
A challenge to effectively using the criminalization of ecocide under the Rome Statute to achieve these ends, which cannot be understated, is that the provisions of the Rome Statute exclude corporate criminal responsibility. Thus, exercising ICC jurisdiction over corporations themselves, to investigate and prosecute their culpability in international crimes as juridical persons, is not made easier by the addition of ecocide to the Rome Statute. While the lowered mens rea requirements would make it easier to attribute criminal responsibility to TNCs in spite of their frequently attenuated operation in foreign states, the jurisdictional hook over the corporation itself remains elusive. Furthermore, overcoming this is unlikely, as it would require a series of complicated amendments to the Rome Statute, and ones likely to face heavy resistance.
However, the corporations’ officers may still be held liable, where they are nationals of state parties or they are operating on the territory of state parties. There is precedent for this in the prosecution of Joshua Arap Sang, a former corporate executive from Nairobi, Kenya, who was investigated and subsequently tried at the ICC as an “indirect co-perpetrator of three counts of crimes against humanity.” Furthermore, in light of substantial lobbying efforts and other financial cross-pollination between these major corporate actors and politicians, the expansive nature of TNC’s actions works to a jurisdictional advantage, casting a very wide net for individuals who might bear responsibility for ecocide committed by a TNC.
In summary, the potential inclusion of ecocide in the Rome Statute poses a lot of potential good for both the individual communities that bear the brunt of gross environmental mistreatment and for the future of our planet. While the specific proposed definition of ecocide included is vague and difficult to operationalize, as many have discussed, it also holds substantial promise. One of these benefits is the potential use of the ecocide offense to combat the neo-colonial flavor of ICC investigations and prosecutions, and using international criminal law to target pervasive bad actors in states that may not have the domestic tools available to hold such actors accountable for harms against their citizens and the environment. This use would not be without complication—and further challenges presented by corporate immunity in the Rome Statute cannot be ignored here. But, this provision offers some creative jurisdictional hooks for officers and other actors complicit in the ecocide committed by TNCs, which is an enormous positive of ecocide’s inclusion in the Rome Statute that warrants recognition. In our ongoing struggle to both improve the health of our planet and defend the rights of marginalized populations, this effort is a tentative but mighty win.