The Crime of Ecocide: Prosecuting Polluters at the International Criminal Court
Lei
Nishiuwatoko
October 13, 2021

Intergovernmental organizations (IGOs) were created to bring the world’s political and economic decision-makers together to solve the most pressing of international issues — from trade to development, and humanitarian aid to international agreements on peace and the climate. Ostensibly, they play an essential role in addressing the global climate crisis. IGOs such as the United Nations, the World Bank, and the European Union misrepresent our current world order, which is not one of international negotiation, but more accurately one of neoliberal globalization. Nation-states are the primary actors that participate as part of IGOs; they are primary actors because they control not only internal affairs (domestic policy and economics), but foreign policy, international agreements, and defense. In the current international system where IGOs have prominence, transnational corporations (TNCs — corporations operating in multiple countries) are not held accountable by these institutions. 

With the climate crisis worsening everyday, holding accountable those who are guilty of environmental degradation, wherever it takes place, has never been more imperative. Yet, our current IGOs rarely acknowledge the environmental destruction caused by industry absent a tangible legal threat. The system of neoliberal globalization is a root cause of ecocides and genocides. It has allowed TNCs to escape the consequences for profound environmental violence. But there is at least one solution we can fight for in our current international system: the International Criminal Court can codify ecocide — “the destruction of large areas of the natural environment as a consequence of human activity” — as a crime under international law. Established in 2002, The International Criminal Court (ICC), the world's first permanent international criminal court, tries “individuals charged with the gravest crimes of concern to the international community: genocide, war crimes, crimes against humanity and the crime of aggression. As a court of last resort, it seeks to complement, not replace, national Courts.” The ICC is governed by an international treaty called the Rome Statute; countries that have adopted the Rome Statute submit to the jurisdiction of the ICC. It is the only international institution that accesses the criminal justice systems of its member states”: but to realize this goal, it must be reformed to adequately address the climate issues that arise from the neoliberal world order.  

Polluting Corporations are not being held accountable  

Like most IGOs, the ICC is structurally constrained to mitigate the issues of Neoliberal Globalization. The purpose of these institutions is to reflect the global order and collectively confront international issues, but this cooperation is impossible if the actors responsible for these issues — polluters — are not present. In addition, TNCs are not represented nor held accountable by IGOs. The system of neoliberal globalization is characterized by market liberalization, deregulation, privatization, and fiscal conservatism. TNCs are the main actors in this system, and are designed to maximize profit through the use of the world’s resources and global production processes. Deregulation means that TNCs can maximize profit through avoiding labor laws and climate policies, and the environmental and human rights issues this causes are most experienced by global South countries. The undeniable political, economic, and environmental clout of the TNCs in the neoliberal globalized world order renders IGOs unable to sufficiently account for issues arising from business as usual. Given the power of the ICC to enforce international environmental law, it must be restructured to maximize their ability to do so.

The undeniable political, economic, and environmental clout of the TNCs in the neoliberal globalized world order renders IGOs unable to sufficiently account for issues arising from business as usual.
Photo of air pollution, signifying the worsening of climate change. Photo from Pexels

The political and economic power of TNCs is on par with the power of nation-states. TNCs open subsidiaries and factories around the world, profoundly affecting nearby communities and ecologies, for the purpose of extracting resources and citing industry where it is cheapest to produce regardless of the environmental and social violence caused. Some even argue they have more power than independent countries, given their license to sue countries for blocking the development of fossil fuel extraction and infrastructure. TNCs are directly responsible for human displacement in Myanmar and Thailand, the encroachment of mining on Indigenous land in Latin American countries, and the degradation of human rights for oil extraction in Nigeria. The 100 most polluting fossil fuel producers are linked to 71 percent of industrial greenhouse gas emissions since 1988. ExxonMobil, for instance, has operations in 58 countries. If it were a country, its economy would be bigger than Ireland’s. Amazon has 185 fulfillment centers worldwide, and the company is richer than 92 percent of the countries on earth. Saudi Aramco, the Saudi Arabian oil company, is about 10 times larger than ExxonMobil with a market value of $2 trillion dollars, which is larger than Canada’s GDP, . This is the power of transnationals. 

Making Ecocide a crime 

The ICC can be reformed to be a trailblazing international organization to hold accountable not only state actors, but also the leaders of polluting TNCs. One way to reign in their power would be for the ICC to establish ecocide as a crime under the court’s jurisdiction. The term “ecocide” was coined by American biologist Arthur Galston, following the US’s use of Agent Orange, a toxic and tactical herbicide, during the Vietnam War. The legal definition of ecocide is “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.” Although this legal definition requires more clarity, it aims to serve as the basis of consideration for an amendment to the Rome Statute to add ecocide as a new crime punishable under international criminal law. Under the ICC’s jurisdiction, individuals who could be prosecuted include corporate executives and political figures. 

Ecocide was originally included as a category of crime in the early drafts of the Rome Statute. But the US, UK, and Netherlands argued ecocide at the time was insufficiently defined and thus the crime was excluded. At the initial drafting stages of the Rome Statute powerful global north countries often determined the outcomes of negotiations. However, any member state of the ICC, however small, has an equal ability to propose an amendment to the Statute, including establishing ecocide as a crime. This procedural pathway shows there is an opportunity to amend the Statute and standardize consequences of environmental degradation on a global level, taking into account the most vulnerable populations disproportionately impacted by climate change, where reliance on the resources and human capital of the Global South as a consequence of neoliberal globalization often manifests. The hurdle will be that it would take a two-thirds supermajority of ICC nations to enact the amendment. This may take anywhere between three and seven years, according to the co-founder of the Stop Ecocide campaign. 

Thus far, the ICC as an international check on power has had some success. The former ICC prosecutor, Ms. Fatou Bensouda, has stated they will “give particular consideration to prosecuting crimes committed by means of or resulting in ... the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land”. In addition, a number of national signatories to the ICC, including Tajikistan, Georgia, and The Republic of Moldova, have codified ecocide into their own domestic laws.  Ecocide must be codified beyond domestic law, however, as it is now abundantly clear that environmental problems are felt beyond territorial boundaries, where the decisions caused by one actor will have environmental impact other countries, and often, globally. Developing nations often find themselves legally and politically powerless against the interests of TNCs from the Global North, as domestic environmental regimes are restricted by geographical limitations, are poorly equipped to deal with cross border environmental issues, and at times, are governed corruptly,.

Support for the effort appears to be growing. Well known politicians as well as social and religious leaders including the Pope, climate activist Greta Thunberg, and French President Emmanuel Macron have expressed support for the ICC to codify ecocide as crime.  Belgium has also recently called for the crime of ‘ecocide’ to be added to the Rome Statute at the Meeting of the ICC Assembly of States Parties in 2020. 

Bolsonaro’s Ecocide 

Photo from Pexels

Among those who could - and should - be prosecuted is President Jair Bolsonaro of Brazil, an ecocide committing politician responsible for mass deforestation and crimes against the Indigenous populations living in the Amazon rainforest. Bolsonaro has conducted a campaign to clear rainforest and Indigenous land for cattle ranches and farming, slashed the budgets of the agencies tasked with defending the environment, and fired officials doing research on deforestation.  Since his election, rates of land invasions and raids by land grabbers, illegal loggers and miners in Indigenous territories and the incidence of murdered Indigenous peoples in the Amazon have increased significantly,. Amazonian tribes are forced to do battle with land grabbers who have been emboldened by Bolsenaro’s rhetoric, . In January of 2021, two Brazilian Indigenous chiefs, Chief Raoni Metuktire, the leader of the Kayapo people, and Chief Almir Narayamoga Surui, leader of the Paiter Surui tribe, filed a joint request to the ICC to open an investigation into Bolsonaro’s harmful ecological policies in the Amazon rainforest.,  Another joint request for investigation came from Brazil’s Human Rights Advocacy Collective and the Dom Paulo Evaristo Arns Commission for Human Rights stating that Bolsonaro’s acts amounted to genocide, a crime currently enforcable under the ICC’s jurisdiction.. Lawyers have filed a request on behalf of Indigenous groups in the Amazon for the ICC to investigate Bolsonaro’s crimes against humanity. If a case were to be brought forward, it would not only prosecute Bolsonaro but deter other politicians and leaders of polluting TNCs from acting without the threat of consequence. 

As exemplified by the efforts to prosecute Bolsonaro through the ICC, ecocide and the destruction Indigenous lands are intimately related. Ecocide is ultimately a method of genocide if land grabbing results in the threat to an Indigenous group’s cultural and/or physical existence. Land grabs are the “control of larger than locally-typical amounts of land, for purposes of speculation, extraction, resource control or commodification at the expense of peasant farmers, agroecology, land stewardship, food sovereignty and human rights”.  Such land grabs carried out by transnational extractive industries pursuing unregulated expansion through the annexation of Indigenous land leads to an ecologically induced genocide of Indigenous peoples. 

When Ecocide is an International Crime

Codifying ecocide can set a new precedent to hold individuals legally accountable for environmental destruction. Codifying ecocide as an international crime within the jurisdiction of the ICC will be a step to corporate accountability for environmental crimes falling outside of national jurisdiction. But in pursuing this new type of crime, the ICC must also examine how its power as prosecutor can be - and has been - employed unequally. Historically, the ICC has prosecuted African state leaders; no leaders of the western world have been equally held responsible. The ICC is Eurocentric in its worldview and legal standpoints. This is not unique to the ICC. The norms, categories, priorities and theories dominant in international law and IGOs are Eurocentric and encapsulate European imperial values, experiences and perspectives. 

The norms, categories, priorities and theories dominant in international law and IGOs are Eurocentric and encapsulate European imperial values, experiences and perspectives.

Holding TNC leaders accountable will necessitate a break with this cycle, and will redefine the narrative of who is responsible for committing the world's most atrocious environmental crimes. If implemented, environmental degradation will no longer be an entirely acceptable cost of doing business, and by criminalising a moral wrong, lawyers will have the tools to act and speak on behalf of those harmed. Executives of TNCs and politicians that harm the environment will be imprisoned, fined, and/or be punished through a forfeiture of proceeds, property, or assets. This is “powerful not only in the legal precedent it could set for protecting rivers, forests, oceans and the air, but also in the names and faces it identifies as being behind this destruction,” says Mitch Anderson, founder of Amazon Frontlines. Therefore, this will be a powerful deterrent, pressuring States and non-State actors to consider impacts on the environmental impacts before any new undertaking

Criminals charged with ecocide could face similar consequences to those found guilty of genocide, creating an enormous pressure for transnationl corporations’ top level executives to act with a “moral red line when it comes to destroying the environment”. After many years, there is evidence to suggest that the ICC does indeed deter criminals from committing crimes punishable under its jurisdiction, and the Court even encourages member nations to expand their capacity for prosecuting these crimes domestically. With ecocide codified as an international crime, these positive effects would spread throughout the international system of governance, spur national reforms, and make powerful actors think twice before committing environmental crimes.

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