Tisha Shah | South Pacific Fellow
Image sourced from Ivan Radic via Wikimedia Commons.
The climate crisis poses an existential threat to the Pacific Islands. For low-lying islands such as Tuvalu, Kiribati and Vanuatu, the sinking realities of climate change have already begun to shape the lives of communities. The region has faced rising sea levels, increased ocean acidification and devastating disaster events for decades. Yet there are little to no protections afforded under international law to legitimately hold polluting organisations and nations to account.
However, the legal tides are changing. Vanuatu, co-sponsored by Fiji and Samoa, has formally proposed that the Rome Statute, which establishes the International Criminal Court’s (ICC) jurisdiction, be amended to include ecocide as an international crime. Despite the criticality of such change, the road to ratification of ecocide is lined with bureaucratic, political and economic barriers. The technicalities of the proposal may also reduce its efficacy as a deterrent for environmental crime and allow big polluters to evade accountability.
Consequently, Pacific Island Countries (PICs) must continue to lobby their development partners to advocate for ecocide to be criminalised in the most stringent form possible.
Ecocide as a crime: what would it mean?
The proposal defines ecocide as ‘unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.’ If accepted, individuals, corporations and governments of States party to the ICC could be held liable for knowingly engaging in activities with long-term environmental consequences.
Establishing ecocide as a crime would significantly benefit nations affected by such activity. Currently, international environmental law is fragmented across numerous multilateral and bilateral instruments, and in most cases the environment is a secondary consideration in a purported offence. Establishing ecocide as a crime will therefore streamline environmental cases. Additionally, it entrenches individual criminal responsibility, ensuring that parties are aware their actions, in any capacity, will bear legal consequences.
Furthermore, the inclusion of ecocide in the Statute will provide a stronger legal foothold for PICs to discuss environmental issues on the international stage. Finally, the inclusion of ecocide in international criminal law will enable the creation of a universal framework for legislative adoption by ICC member states, to foster uniformity in such dealings. These advantages highlight the importance of pushing PICs’ development partners to implement the proposal thoroughly, to ensure its benefits can be reaped to the highest extent.
Barriers and big fish
Now that the proposal has been formally introduced to the Court, the Assembly of State Parties to the ICC must negotiate its terms. Nations with large oil, gas and mining industries will thus be tested as they seek to balance their climate-related obligations with the economic and strategic interests of their own stakeholders. Consequently, achieving the required two thirds vote in favour of the Amendment will be a significant challenge for PICs. General sentiment towards criminalising ecocide is positive, with countries like France, Vietnam and Belarus having already implemented domestic legislation against it. Nevertheless, it is unlikely that the Amendment will pass without being significantly watered down.
Among the 124 member states to the ICC, PICs are little fish in the big geopolitical sea – one that does not include the largest polluters: the United States, China, Russia and India. Even if ecocide were to be included in the statute, individuals, corporations and governments from these countries would be shielded from liability. The selective applicability of the ICC’s jurisdiction provides mechanisms for polluters to easily evade accountability for environmental damage.
To combat these geopolitical challenges, legal researchers have proposed alternatives such as the establishment of an independent international environmental court. However, the efforts required to develop such a body would be expensive and time-consuming – costs the climate crisis cannot afford. As such, PICs must push all nations to swiftly and comprehensively criminalise ecocide, and pressure those beyond the ICC’s jurisdiction to undertake domestic measures accordingly.
A sea of technical issues
Even if the proposal were to be accepted, the proposed definition of ecocide under the Amendment could complicate convictions. Article 30 of the Rome Statute states that ‘knowledge or intent’ on the part of the accused is a necessary element of a criminal offence, meaning that strict liability — wherein the mental elements of knowledge or intent are not considered necessary for conviction — cannot be imposed on parties. This means that negligent or reckless conduct would be exempt from consideration, thereby allowing perpetrators to avoid being held accountable.
Furthermore, legal but ‘wanton’ acts must involve damage that is ‘clearly excessive in relation to social and economic benefits anticipated.’ Accordingly, in cases of significant social or economic benefit to large populations in developed nations, it may be difficult for PICs to contest that the long-term consequences they face are comparable to short-term gains for large geopolitical actors.
For these reasons, PICs and key geopolitical partners like Australia must continue to advocate for the region’s interests in ICC deliberations and should domestically set strict regulations to ensure that corporations prioritise environmental considerations in decision-making.
Making waves of change
Preventing further environmental devastation is critical to the survivability of most, if not all, PICs. The addition of ecocide under the ICC’s jurisdiction could revolutionise how the impacts of long-term environmental damage on the Pacific Islands are considered – so long as the provisions are not watered down by stakeholders with financial and strategic interests. Criminalising ecocide, while a difficult and complex feat, represents a key mechanism to keep the Pacific Island’s climate ambitions afloat.
Tisha Shah is the South Pacific Fellow for Young Australians in International Affairs. She is a fourth-year Bachelor of Law (Honours) and Bachelor of Economics student at the Australian National University, with a keen interest in the intersections between policy, economics and social justice advocacy.
Tisha is excited to investigate the South Pacific as an increasingly central region to international discussion, and to explore the complex nature of gender, security and climate issues within various Pacific nations. She is keen to study Australia’s continually evolving role as a key development and regional partner to the Pacific.
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