Prosecuting Ecocide Before the International Criminal Court: Concrete Possibility or Long-Term Aspiration? (Part 1)

The ICC Statute already contains a provision that protects the environment against intentional attacks in wartimes, where such attacks: (i) cause ‘widespread, long-term, and severe damage’ to the environment, and (ii) are ‘clearly excessive in relation to the concrete and direct military overall advantage.’ It is true that the threshold of application of this provision is high. Indeed, the first requirement is borrowed from articles 35(3) and 55 of Additional Protocol I (AP I) to the Geneva Conventions and is usually interpreted restrictively in this context. For instance, the long-term requirement is measured in decades. Moreover, the proportionality test further limits the applicability of this provision and may ultimately be seriously detrimental to the protection of the environment. That said, nothing prevents the ICC from interpreting these two requirements in a flexible manner in light of IEL evolution, and particularly considering the high value which is attributed by this body of law to threatened aspects of the environment, such as endangered natural habitats and animal species facing extinction. In other words, the above thresholds could be read in a predominantly eco-centric manner by assigning significant weight to damage caused to the environment. Indeed, what might not have appeared to be ‘widespread, long-term, and severe damage’ or to be ‘disproportionate’ forty years ago (when AP I was drafted) may be considered as such nowadays, especially given the scientific knowledge that has been acquired on the danger that military activities cause to ecosystems and their interdependence.

In the same vein, it could be argued that genocide could be committed by means of significant environmental degradation which, ultimately, deprives a specific group of resources indispensable for its survival, such as food or water supplies, or destroys vital social and cultural bonds that exist between this group and nature. In other words, as the destruction of a given group could be achieved through the degradation of certain components of the environment that are essential for that group to exist as such, genocide could further contribute at safeguarding environmental interests. The level of degradation would, however, need to be such that the existence of the said group would be threatened.

The connection that may exist between the crime of aggression and the protection of the environment appears to be, at first sight, remote. Indeed, aggression only sanctions the use of force by a State against the sovereignty, territorial integrity or political independence of another State when constituting a manifest violation of the United Nations (UN) Charter. This crime, like other international crimes, does not aim at condemning acts that cause prejudice to the environment per se. This said, environmental criminality could also play a role – albeit indirect – in the establishment of an aggression. Indeed, the required manifest nature of a UN Charter violation needs to be concretely assessed considering the ‘character, gravity, and scale’ of the initial use of force. And this evaluation could well include considerations relating to the protection of the environment, as informed by recent IEL developments. Furthermore, determining whether a military response in self-defense by the victim State is in accordance with Article 51 of the UN Charter and does not amount to aggression imposes a determination of whether this response is in accordance with the principles of ‘necessity and proportionality’ (ICJ, Nicaragua Judgment, § 176; ICJ Nuclear Weapons Advisory Opinion, § 41). Likewise, environmental considerations should be factored into this determination (ICJ, Nuclear Weapons Advisory Opinion, § 30).

Thus, crimes within the Court’s jurisdiction could plainly be used to protect the environment. They can also be interpreted and applied in a more eco-centric fashion to reinforce this protection. But is that really enough? Even ‘greened’, these crimes remain anthropocentric in nature: they first aim at preserving human concerns – whether it is peace, security, or human dignity – instead of the environment per se. Moreover, they only apply in the specific contexts of warfare – for war crimes – or related crisis situations – for crimes against humanity, genocides, or acts of aggression. Additionally, they usually entail the proof of restrictive constitutive – material and intentional – elements which further limit their applicability.

This eco-centric conception would first require disconnecting ecocide from anthropocentric IHL and ICL values, by applying a lower standard of ‘significant’ or ‘serious’ damage used in IEL instead of the restrictive IHL and ICL standard of ‘widespread, long-term, and severe’ damage. Such interpretation would also involve rethinking the delicate tension that exists between the protection of the environment on the one hand and the preservation of States’ strategic interests – whether they are military (in wartime) or social and economic (in peacetime) – on the other and, accordingly, critically evaluating the need to apply a proportionality calculation to ecocide. Third, this approach would call for a reconsideration of the mens rea element traditionally applied to international crimes and, for instance, assessing whether ecocide should also encompass the responsibility of those who failed to exercise their duty of care to prevent serious environmental damage. Ultimately, this eco-centric orientation would require moving beyond the classical ICL principle of individual criminal responsibility to also envisage corporate liability of compagnies for the significant roles they play in the deterioration of the planet. This last point will be analyzed in the second post below.