This article was first published by RNZ
Three of New Zealand’s Pacific neighbours have asked the International Criminal Court to consider “ecocide” an international crime.
In September, Vanuatu, Fiji and Samoa made a formal submission to the world’s highest court, asking it to put the worst environmental destruction by humans on a par with genocide and crimes against humanity.
It follows a push in recent years to make ecocide a globally punishable offence and moves by some countries - particularly in Europe - to include it in their own statutes.
So what kind of destruction would “ecocide” apply to? And what’s the process the ICC has to follow?
Stop Ecocide International chief executive Jojo Mehta told Nine to Noon host Kathryn Ryan the term was coined in the 70s to describe the ecological harm caused by Agent Orange bombing in Vietnam.
In subsequent decades, lawyers had been looking for legal ways to protect the Earth.
There had been some discussion of the idea in the lead-up to the ICC’s founding Rome Statute, but it never gained legal status.
In recent years, however, there had been some progress, with Belgium passing a federal law around “ecocide” as an international crime and the European Parliament had been exploring it, too, she said.
“The European environmental crime directive includes what they’re calling a qualified offence, which almost behaves like an aggravating factor...
“That directive lists around 20 specific environmental crimes, but it also has this additional offence where it says if you commit one of these things and it has this level of severity in its effect, then that can address conduct... comparable to ecocide.”
There had been a number of similar bills in other countries, including Peru, Mexico, Italy and the Netherlands, she said.
“This is definitely what you might call a legal direction of travel that is being established here.”
The crime was designed to cover an international-level acts that caused severe harm, such as chemical disasters, oil spills and mass deforestation.
“These kinds of acts that affect an entire ecosystem, that pollute a whole river system, for example, or that cross borders, or that damage an entire species... or indeed a large number of human beings, but have their origins in environmental damage.”
In 2021, an independent panel of global experts had started working on a legal definition to take to the ICC.
“The definition that emerged was a genuine consensus. Everyone had to concede something to arrive at it.”
It encompassed “unlawful or wanton acts, committed with knowledge that there’s a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts”.
This definition - which the Pacific nations had recently taken to the ICC - now had a “robustness”, she said, and was taking root around the world.
Vanuatu, Fiji and Samoa had formally proposed it as an amendment to the Rome Statute.
“They very much framed it as the beginning of a conversation, because we very much realised that what we’re talking about it adding a whole new international crime. That’s quite a huge thing... and they’re well aware this is not something that needs to be rushed into lightly...
“What has to happen now is an open discussion, and so by formally proposing it is creating a lever to get that conversation moving, and to encourage all member states of the ICC to come in and engage with that conversation, so that over the coming months and maybe years this can be developed and moved that could ... ultimately be adopted.”
The proposal highlighted the fact it was an “incredibly important” conversation, she said.
“Despite a large number of environmental laws around the world, there’s still a lack of enforcement, of investigation, of even people following those rules... and bringing the criminal parameter into that discussion helps to bring a level of deterrence, a level of moral seriousness, and a level of proportionality, in the sense we really need to acknowledge the level of damage that we’ve managed to inflict... as a tragic collateral effect of various kinds of economic activity.”
So who might be prosecuted if this crime were to be enacted?
Charges could be brought against individuals at the upper echelons of organisations, Mehta said.
“As with genocide, you don’t prosecute the foot soldiers - you prosecute the controlling minds.”
By RNZ
