Michael T. Tiu, Jr.[1] and Paolo Irineo A. Jose[2]
Every activity has an impact on the natural environment. The idea of progress and economic development is almost always hinged on sourcing materials from or disrupting an ecosystem. To be sure, disturbances in an ecosystem can be expected in the usual course of human interaction with the environment. In fact, humans are actors in such an ecosystem. However, when the disruption is frequent, of a certain scale, and without regard to a possible depletion, it becomes violence.
Take, for example, harms to the environment that have long plagued the Philippines. As recent as 2020, it was found that the extraction and mining of dolomite in Cebu (meant for the white sand beach in Manila Bay) was causing extensive damage to the island’s marine and coral life;[3] quarrying and crushing activities within the Marikina River Basin were suspected of aggravating the effects of Typhoon Ulysses, contributing to massive flooding in Marikina and Rizal;[4] and in Palawan, illegal logging was found to have continued within mining concessions despite the official suspension of mining activities.[5]
These events cause violence to the environment, the consequences of which also affect the human communities in that environment. However, much of the remedies are easily absorbed by those who perpetrate them. Violations of environmental laws, for example, entail suspensions[6] or fines[7] that are easily covered by entities who cause the harms, say corporations with big profit margins and even the State itself. Equally important, these environmental laws mostly cover single-incident violations, and hardly contemplate or address violence to the environment of a breadth so wide and a scale so large that it becomes irreversible.
The emergence of ecocide
This inadequacy of the accountability mechanisms has been recognized since the dawn of international environmental law in the 1970s when Professor Arthur W Galston proposed a new international agreement to ban ‘ecocide’ at the Conference on War and National Responsibility. When he proposed the criminalization of ‘ecocide’, he defined it as the ‘intentional destruction of a specific natural environment.’[8]
While the proposal is laudable, it immediately occurs to one that there would hardly be any convictions if this is the definition of the crime. For one, it is difficult to prove intent. This is particularly so when you are speaking of a juridical entity, even considering the rules of attribution in this field of law. Further, most large-scale and long-lasting harms caused to the environment are not intentional. Usually, the violence is incidental to profit-making or the pursuit of a particular government function.
Environmental crime in the Rome Statute
But doesn’t the Rome Statute already penalize an environmental crime? Yes, but only as a war crime. In Article 8(2)(b)(iv), the Rome Statute considers it a war crime to intentionally launch an attack in the knowledge that the attack will cause widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.
However, the protection that this provision affords is very limited. It requires that the acts in question take place when there is an international armed conflict, and that such acts be committed in the context of and be associated with that international armed conflict.[9]
Thus, if there is no armed conflict, or if the armed conflict is non-international, then this provision would not be applicable. Most forms of environmental harm which result from economic activity are therefore not within the purview of the Rome Statute. Besides, the deficiency is glaring in that this war crime, in using the words “will cause,” does not give room for even a tiny bit of uncertainty in the mind of the perpetrator. This element will undoubtedly be difficult to prove, particularly outside the context of an armed conflict.
Redefining ecocide as an international crime
Hence, the need to redefine. In June 2021, a panel of international legal experts[10] proposed the adoption of ‘ecocide’ as an international crime under the Rome Statute. Their 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.”
The proposed international crime would make individuals committing acts which pose severe harm to the environment liable for investigation and prosecution before the International Criminal Court (ICC).
The proposed amendment seeks to rectify the limited treatment given by the Rome Statute to holding perpetrators accountable for the violence their acts cause to the environment. The amendment would afford protection that is wider in scope. There is no reference to the existence of an armed conflict, let alone an international armed conflict. Ecocide could be committed during times of peace.
How ecocide works: breaking down the elements
The first threshold: ‘severe and either widespread or long-term damage’
The proposed amendment, in an effort to extend wider protection to the environment, still requires that the acts pose severe damage to the natural environment.[11] However, it resorts to the disjunctive in requiring that the severe damage posed be only either widespread[12] or long-term.[13] This is in stark contrast to the threshold set by the Rome Statute in Art 8 (2)(b)(iv), where the use of the conjunctive in ‘widespread, long-term and severe damage’, sets a very high bar.[14] This means that all of these concepts must characterize the damage posed.[15] The use of this threshold mirrors similar provisions in Articles 35(3) and 55 of the 1977 Additional Protocol to the Geneva Convention.[16]
The second threshold: ‘unlawful or wanton’
The second threshold set by the proposed amendment is that the acts must either be unlawful (i.e. prohibited by international and national laws) or wanton (i.e. with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated).
The term ‘unlawful’ was used instead of ‘unlawful under international law’ because the Panel felt that the latter would be too restrictive.[17] After all, most international environmental laws leave the formulation of prohibitions and protections to State parties, through their national laws.[18]
‘Wanton’ was included in the threshold in order to balance the interests of environmental protection with economic and social interests.[19] The Panel recognized that there are socially beneficial acts such as housing or transportation projects which can cause severe and widespread or long-term damage to the environment.[20] This is a test of proportionality that weighs the costs to the environment against the social and economic benefits to be gained by the action.
Individual responsibility: dolus eventualis
Article 30 of the Rome Statute provides the mens rea requirement applicable to all offenses which do not specifically provide their own subjective element. The lowest standard for mens rea as regards a certain consequence is where a person “is aware that it [the consequence] will occur in the ordinary course of events.”[21]
In the commentary released by the Panel, they note that this standard requires near certainty that a consequence would occur.[22] They view the standard as too strict as many acts which would otherwise qualify as ecocide (meeting the two abovementioned thresholds) would probably be committed with less than near certainty that such severe and widespread or long-term environmental damage would occur.[23]
To remedy this, the proposed amendment requires only ‘knowledge that there is a substantial likelihood of severe and either widespread or long term’ environmental damage. Here the mens rea requirement specific to the proposed crime of ecocide is only recklessness or dolus eventualis.[24]
Comments, questions, and criticism
Still anthropocentric?
Some supporters of the proposed amendment welcomed the introduction of the crime of ecocide as a method of protecting and valuing the environment independently from its relation to human beings.[25]
However, while the proposed amendment would punish acts which pose severe harm to the environment regardless of any effect on the human population, they note that the second threshold, specifically that of wantonness, still considers human benefit or advantage in determining culpability.[26] They posit that this threshold allows profit or ‘social benefits’ to justify acts which pose severe harm to the environment.
On the other hand, this criticism could work for the proposal in the sense that it eases the international crime into and slowly changes what is still the anthropocentric framework of ‘sustainable development.’ This is good in the sense that it could be accepted because it does not upend the entire system, but also creates new norms of responsibility that pushes the field forward through its interaction with international criminal law.
The ICC’s limited reach
Under Art 12 of the Rome Statute, only state parties are within the jurisdiction of the ICC. Thus, only conduct committed within the territory of a state party or by a national of a state party may be tried by the ICC.
This means that acts which would fall within the definition of ecocide, if committed within the territory of non-state parties, by their nationals would be beyond the reach of the Court.
Furthermore, Art 86 of the Statute imposes the general obligation to cooperate with the ICC’s investigations and prosecutions only on state parties. This is consistent with the general rule that treaties, like the Rome Statute, do not create obligations on non-parties.[27]
Thus, should ecocide be committed in these non-member states by the nationals of state parties to the ICC, even if the alleged acts and perpetrators are within the jurisdiction of the court, it may face difficulty in its investigation, seeing as the state within which the crime was committed is not obligated to cooperate.
Of the 193 UN member states,[28] 70 are not parties to the Rome Statute.[29] Among the non-state parties are some of the world’s largest economies and top emitters of CO2, the United States, China, India, and Russia.[30] Thus, a substantial portion of the world’s population and land area are not within the ICC’s jurisdiction.
Jurisdiction over natural persons
Another issue potentially facing the proposed amendment is the fact that the ICC can only acquire jurisdiction over natural persons.[31] It must be noted that most activities which could potentially result in severe damage to the environment, such as mining, petroleum extraction, and quarrying, are usually undertaken by corporations which are not natural persons. These corporations cannot be accused before the ICC.
On the other hand, corporate officers, as natural persons, could conceivably be held accountable by the ICC for their participation in offenses within the latter’s jurisdiction.[32] It must be noted, however, that there have been no ICC prosecutions of persons for their participation in crimes as corporate officers.
Although, some have suggested that a policy paper by the ICC Office of the Prosecutor, which stated that they would give priority to cases involving the destruction of the natural environment, illegal exploitation of resources and illegal dispossession of land, could be a sign that we could see corporate officers investigated in the near future.[33]
The way forward
All in all, the proposed amendment and its definition of ecocide is a good step in the direction of international environmental protection. However, the journey to ecocide’s incorporation into the Rome Statute is just beginning. It is fair to say that it will be a steep climb.
Article 121(1) of the Rome Statute requires that amendments be proposed by a State Party to the UN Secretary General. Thus, the drafters and supporters of the proposed amendment must convince a State Party to the ICC of the importance of punishing ecocide and of the merits of the proposed definition.
After a State Party proposes the amendment, it must be circulated to all States Parties.[34] Then, a majority of States Parties present at the Assembly of States Parties must vote to take up the proposal.[35] Finally, the amendment will only be adopted if two-thirds of the States Parties vote in favor of the amendment.[36]
However, even if the amendment is adopted, the amendments will not bind States Parties that have not accepted the amendment.
Clearly, much work must still be done in order to incorporate ecocide as an offense within the jurisdiction of the ICC. However, the increasing awareness of environmental issues all over the world does give hope that the amendment could be made sooner rather than later.
[1] Michael T. Tiu, Jr. is an Assistant Professor at the UP College of Law. He heads the International Criminal Law Program of the UP Institute of International Legal Studies(UP IILS).
[2] Paolo Irineo A. Jose is a juris doctor student at the UP College of Law. He works as a research assistant at the Criminal Law Program of UP IILS.
[3]RAPPLER(2020) DENR suspends operations of dolomite mine in Cebu. Accessed from: https://www.rappler.com/nation/denr-suspends-operations-dolomite-mine-cebu
[4] RAPPLER(2021) Illegal logging in Palawan stokes fears of a mining resurgence. Accessed from: https://www.rappler.com/environment/illegal-logging-forest-degradation-palawan-stokes-fears-mining-resurgence
[5] INQUIRER.NET(2020) DENR probes quarry ops in Rizal after massive flood in province, Marikina City. Accessed from: https://newsinfo.inquirer.net/1370548/denr-probes-quarry-ops-in-rizal-after-massive-flood-in-province-marikina-city
[6] e.g. RA 9275(Philippine Clean Water Act of 2004); RA 8749(Philippine Clean Air Act of 1999)
[7] e.g. RA 9003(Ecological Solid Waste Management Act of 2000); RA 9275(Philippine Clean Water Act of 2004); RA 8749(Philippine Clean Air Act of 1999)
[8] Hannibal Travis(2016) Ecocide: A Brief History of an Explosive Concept. Accessed from: http://blogs2.law.columbia.edu/cjel/preliminary-reference/2016/ecocide-a-brief-history-of-an-explosive-concept/
[9] ELEMENTS OF CRIMES, Article 8 (2) (b) (iv)(4)
[10] Stop Ecocide International; Philippe Sands, Dior Fall Sow, Kate Mackintosh, Richard J Rogers, Valérie Cabanes, Pablo Fajardo, Syeda Rizwana Hasan, Charles C Jalloh, Rodrigo Lledó, Tuiloma Neroni Slade, Alex Whiting, and Christina Voigt
[11] “Severe” means damage which involves very serious adverse changes, disruption or harm to any element of the environment, including grave impacts on human life or natural, cultural or economic resources; [Independent Expert Panel for the Legal Definition of Ecocide COMMENTARY AND CORE TEXT June 2021 — (hereafter “Ecocide; COMMENTARY AND CORE TEXT”)]
[12] “Widespread” means damage which extends beyond a limited geographic area, crosses state boundaries, or is suffered by an entire ecosystem or species or a large number of human beings. (Ecocide; COMMENTARY AND CORE TEXT)
[13] “Long-term” means damage which is irreversible or which cannot be redressed through natural recovery within a reasonable period of time. (Ecocide; COMMENTARY AND CORE TEXT)
[14] Ecocide; COMMENTARY AND CORE TEXT
[15]Id.
[16] Additional Protocol I of 1977(to the Geneva Conventions);
Article 35(3) – It is prohibited to employ methods or means of warfare which are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment
Article 55 — Protection of the natural environment
- Care shall be taken in warfare to protect the natural environment against widespread, long-term and severe damage. This protection includes a prohibition of the use of methods or means of warfare which are intended or may be expected to cause such damage to the natural environment and thereby to prejudice the health or survival of the population.
2. Attacks against the natural environment by way of reprisals are prohibited
[17] Ecocide; COMMENTARY AND CORE TEXT
[18] Id.
[19] Id.
[20] Id.
[21] Ecocide; COMMENTARY AND CORE TEXT
[22] Id.
[23] Id.
[24] Id.
[25] Heather Alberro & Luigi Daniele (2021) Ecocide: why establishing a new international crime would be a step towards interspecies justice. THE CONVERSATION. Accessed from:
[26] Id.
[27] Vienna Convention on the Law of Treaties, Art 34
[28] UNITED NATIONS. Growth in UN Membership. Accessed From:https://www.un.org/en/about-us/growth-in-un-membership
[29] International Criminal Court Website: The States Parties to the Rome Statute Accessed from: https://asp.icc-cpi.int/en_menus/asp/states%20parties/pages/the%20states%20parties%20to%20the%20rome%20statute.aspx
[30] Union of Concerned Scientists(2022) Each Country’s Share of CO2 Emissions. Accessed from: https://www.ucsusa.org/resources/each-countrys-share-co2-emissions
[31] ROME STATUTE, Art. 25
[32] David Scheffer, Corporate Liability under the Rome Statute, VOLUME 57, SPRING 2016, ONLINE SYMPOSIUM
[33] Mongabay (2016) Land grabbing and environmental destruction could now be prosecuted under international law. Accessed from: https://news.mongabay.com/2016/09/land-grabbing-and-environmental-destruction-could-now-be-prosecuted-under-international-law/
[34] ROME STATUTE, Art 121(1)
[35] ROME STATUTE, Art 121(2)
[36] ROME STATUTE, Art 121(3)
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Deforestation
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