The Journey from Agent Orange to the Amazon The Criminalization and Definition of Ecocide in the Rome Statute

The international criminal code, despite the comparatively few tangible, practical benefits for states from a practical standpoint, is often called an act of charity. [1] This is why it’s not unexpected that voices from all over the international community urging the criminalization of specific actions that are not in the domestic sphere are not commonplace. When they do come up as a matter of concern, the reason is typically believed to be of significant, altruistic value. As a result, the legal, academic as well as political groups are witnessing an increase in the demand to criminalize ecocide – which is a term that refers to wide-ranging environmental destruction as a distinct crime under the Rome Statute of the International Criminal Court fifty years ago Arthur Galston coined the term to protest using Agent Orange by the US in Vietnam. [2] Below, I present a concise argument for the necessity of criminalizing ecocide. Then I’ll provide an examination of the most appropriate definition.

Ecocide is criminalized in the Rome Statute.

Before examining the additional value of making ecocide a fifth crime of the international community, a few restrictions of this strategy are worth mentioning. The introduction of a completely new offense in the Rome Statute is anything but simple, and even when it’s implemented, its ultimate legality is determined by how many states ratify this amendment. The prosecution of ecocide could create conceptual contradictions with the ICC’s criminal responsibility doctrine, which is enshrined in Section 25 of the Rome Statute. Environmental degradation is often the result of collective actions, which often comes from large corporations. According to a scholar, the determination of who within the structure of legal entities be held accountable for ecocide is a mammoth task in international lawmaking’. [3] Environmental damage is not a single underlying event and can frequently be caused by various factors. [4] Thus, proving the defendant’s guilt by gathering evidence and establishing the precise connection between their actions and the damage would be an enormous burden for the prosecution. [5] In closing, I write in mind that international criminal law is an option last resort to address the “hard core” of commonly accepted laws – perhaps unclear in the field of environmental laws. [6]

However, the benefits of criminalizing ecocide make it an attractive option. The tone clause of the Rome Statute prohibits environmental damage caused more by accident than by intentional’. [7] But, the restrictions that are set in article 8(2)(b)(iv) that do not provide clarifications on actus-reus as well as a men’s rea high threshold, and, most notably, its only application to war – indicate that there is a need to have a separate ecocide law. [8] This suggests the need for an ecocide law that is a separate one. The provision will expand the responsibility for severe environmental damage, as in the United States, the law is often not enforced because of insufficient, inconsistent, corrupted, or non-enforced national rules on environmental protection. [9] After ratification, the necessity to implement it into the Rome Statute and complying with the principle of complementarity will enhance the state’s environmental protection laws by adopting laws and strengthening the capacities of institutions to prosecute crimes involving ecocide effectively. As per Darryl Robinson, this would also generate movement to tackle lesser environmental crimes. [10] Additionally, the universality principle states that parties to the ecocide amendment could theoretically prosecute ecocide perpetrators regardless of their nationality or geographical location. However, this could be restricted to a normative function because of limitations in economics and politics and the absence of precedent. In addition, it is observed that environmental damage often occurs through the sway of solid world North players (with Shell as an example), and the criminalization of ecocide may help in ‘decolonizing’ internationally-based law. [11] It is essential in an Africa-biased legitimacy crisis at the ICC.

The general arguments for criminalization provide additional insights. In the first place, despite evidence-based doubts regarding the ICC’s deterrent role, confident entrepreneurs could be dissuaded from being charged with the most serious crime of all, genocide [1212 There is evidence for a dissuasive impact of criminalization in the national context for environmental harm. [13] In the context of remedies Ar, title 75 of the Rome Statute provides a unique possibility of paying compensation to those who suffer from environmental degradation, including compensation to communities who have lost natural resources and access to clean water or projects to restore the environment. [14] But, I agree with many experts that the primary benefit to criminalizing ecocide will be its explicit, symbolic communication function of establishing an entirely new discourse platform geared towards protecting the natural environment. [15] It will communicate to society that environmental degradation is not a crime in itself and provide nature with a legal voice, promote a more ecocentric mindset, and affirm that our well-being is directly tied to the wellbeing of Earth. It would be a loudspeaker reiterating the ideals of the international community.

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