Coined by Arthur W. Galston during the Vietnam war to protest against the use of agent orange by the US military, ecocide stands for ‘massive damage and destruction of ecosystems’. Recently, Polly Higgins, a social activist and environmental lawyer brought new life into the campaign for criminalizing ecocide by proposing to the United Nations the addition of ecocide as the fifth crime against peace under the Rome Statute (Article 5, Rome Statute). She identified ecocide to be either naturally occurring or caused due to human activity. In furtherance of this, she was of the opinion that since human caused ecocide leads to environmental degradation and resource depletion, it ultimately leads to conflicts over these scarce resources. Hence, according to Higgins, ecocide is not merely an environmental crime, but also a crime against peace and humanity. In order to understand the importance of criminalizing ecocide, we must look at the Earth as a separate body entitled to its own rights. Polly Higgins believed that the Earth had rights and the violation of these rights should not go unpunished.
Ecocide and the Need for Recognition
The urgency imposed by ecocide can be well understood by identifying the residue effects of Agent Orange in Vietnam. The Vietnam war in the 1970s happens to be the most cited event involving mass destruction of the environment leading to severe long-term effects. During the war, the US military used Agent Orange, a harmful herbicide in order to cause panic in the enemy nation. This herbicide led to the destruction of the ecosystem of the country, leaving the plants, animals as well as the people struggling for survival in Vietnam and the bordering villages of Lao PDR. The consequences of this herbicide still lingers on with birth defects and miscarriages amongst the people of Vietnam.
In another instance, Singapore suffered through severe haze pollution owing to the fires in Indonesia. In 2015, the National Environment Agency of Singapore (NEA) took legal action against a few corporations, including subsidiaries of Asia Pulp and Paper (APP) after the haze pollution from the Indonesian fires led to hazardous air conditions in Singapore. Following this, the Supreme Court of Indonesia, referred to the ‘Singapore Transboundary Haze Pollution Act’ and imposed strict liability for violation of environmental regulations. The court then imposed a fine of 1.07 trillion rupiah ($81.62 million) on the company responsible for the fires in Indonesia. This penalty is recognized to be the largest fine yet to be imposed in Indonesia over forest fires. In both the cases we see massive environmental destruction by a State as well as by multinational corporations, proving the importance of backing Ecocide with a legal standing in order to prosecute states, individuals and corporations alike for the destruction of the environment.
These cases are evidence that countries have reiterated the seriousness of the threat of Ecocide. With countries recognizing the need for environmental protection and setting up measures for the same, there is a pressing need for the establishment of a comprehensive and thorough model law that serves as a framework for its implementation. Differences in domestic legislations make it difficult to achieve a uniform application or set precedent.
Conceptualising Criminalisation and Ecocide under the Rome Statute
The Rome Statute in Article 8(2)(b)(iv) briefly mentions crimes against the environment which can be applied in case of massive environmental degradation during the time of international wars or armed conflicts. However, Article 8 of the Rome Statute restricts itself to war crimes under which the International Criminal Court has jurisdiction to prosecute states. While addressing Article 8(2)(b)(iv), I present three arguments advocating the need for a separate law for ecocide in the Rome Statute.
- As the Court has jurisdiction to prosecute states and their leaders under Article 8, upon the application of Article 8 alone, the Court will not have jurisdiction over corporations or non military personnel indulged in mass destruction of the environment.
- Similarly, Article 8 restricts the Court’s jurisdiction over cases involving mass destruction of the environment during wars or armed conflicts. This implies that the case will have no authority over environmental degradation taking place outside of a war or armed conflicts.
- The Rome Statute in Article 8(2)(b)(iv) fails to set a uniform benchmark in order for environmental destruction to be considered as ‘massive’.
Amendment to the Rome Statute to include ecocide as a crime will help bring uniformity in the consequences of violation of environmental crimes. It is vital in establishing individual criminal responsibility in order to create accountability and recognize the rights of the victims of ecocide. Providing ecocide with the nature of a “crime” would also lead to influencing the thought processes and behavior patterns of both, individuals and organisations, before partaking in any activity that may attract criminal liability under international law.
In the 18th Assembly of the International Criminal Court in 2019, the Republic of Maldives and the Pacific Island of Vanuatu raised their voice in support of criminalizing ecocide. The Republic of Maldives in this assembly raised the issues and grave threats posed by climate change which might ultimately lead to the complete destruction of Maldives and such nations. The submerging nation requested the Court to take action and introduce transformative changes such as amending the Rome Statute to criminalize ecocide in order to tackle the existential threat of climate change. The Republic of Maldives also stated that it is time for the Court to recognize justice towards victims of climate change as a part of the international criminal justice system. Similarly, the Pacific Island of Vanuatu called upon the Hague, as the world’s capital for international law to help avoid a complete climate catastrophe. As the nation continued to experience severe calamities and face threats to its existence, it asked the Court to help fight against the lethal nature of climate change by strengthening international rule of law and criminalizing acts amounting to ecocide under the Rome Statute. Vanuatu also called upon the Office of the Prosecutor to investigate and prosecute international crimes amounting to environmental damage in order to oppose the pressing threats posed by climate change globally.
The inclusion of ecocide as a criminal offense under the Rome Statute is imperative to provide it with a legal standing during times of war as well as peace and promote environmental laws globally. It is also essential in order to establish accountability within states, corporations and individuals and help restore the rights of the victims of environmental crimes. As climate change increases and the environment deteriorates, the framework of ecocide will also inculcate a fear of prosecution and will also provide the Court authority to impart measures leading to environmental restoration. It is particularly unwise to wait for another catastrophic disaster such as the Vietnam war to realise the importance of taking necessary strides in ecological protection.
Mehreen Garg is in her third year of the BBA LL.B program at Jindal Global Law School. Her research interests lie in the fields of international criminal law, international environmental law, and their intersections.
Image: NY Times (modified by Mahima Balaji).