During the December 2-7 meeting of the ICC Assembly of States Parties (ASP), IntLawGrrls is featuring blog posts by members of the Canadian Partnership for International Justice as part of its ICC ASP Symposium. Today we welcome Ania Kwadrans, who sends us this post from the Assembly.

Ania Kwadrans is a Senior Policy Advisor at University of Ottawa Refugee Hub, providing strategic and policy guidance on local, national, and global issues affecting refugee rights. Before joining the Refugee Hub, Ania worked with Amnesty International, engaging in strategic litigation on human rights cases before courts of all levels, including the Supreme Court of Canada, and advocacy before Canadian Parliamentary Committees as well as United Nations treaty bodies. Ania holds a J.D. degree from Osgoode Hall Law School, is called to the Ontario bar, and is currently undertaking graduate studies in International Human Rights Law at the University of Oxford.

“For many decades the human species has been at war with the planet. And the planet is fighting back. … Our war against nature must stop. And we know that this is possible.”

These evocative words of the UN Secretary General Antonio Guterres delivered at a pre-COP25 press conference, 1 December 2019, suggest a connective line between environmental destruction and the very types of crimes that “threaten the peace, security and well-being of the world” falling within the ambit of the Rome Statute of the International Criminal Court (Rome Statute).

Indeed, it is now widely understood that the activities of resource extraction industries shaping and feeding humanity’s culture of overconsumption have not only been destructive to the immediate environments in which they take place, but they have also set the world on a path toward devastating climate change. Despite the recognition in the Paris Agreement, in 2015, by a majority of States, that “climate change is a common concern of humankind” and that as a result global temperature rises need to be limited to 1.5 degrees above pre-industrial levels to “significantly reduce the risks and impacts of climate change”, the world had already reached temperatures approximately 1 degree Celsius above pre-industrial levels, according to the 2018 Intergovernmental Panel on Climate Change’s Special Report. The Special Report warned that this is putting Earth on a path to reach the critical 1.5 degree threshold by 2040, unless profound societal changes are implemented to eliminate our reliance on greenhouse gas emissions. It comes as no surprise, therefore, that in her 9 September 2019 address to the Human Rights Council, UN High Commissioner for Human Rights Michelle Bachelet called climate change “a rapidly growing and global threat to human rights”, the human implications of which are “catastrophic.” She noted: “We are burning up our future – literally.”

Within this context, on the first day of the 18th Assembly of the States Parties (ASP18) to the International Criminal Court, the State of Vanuatu, Ecological Defence Integrity, Green Transparency, the Heinrich Boll Foundation, and the Institute for Environmental Security hosted a side event entitled “Investigating & Prosecuting Ecocide: The Current and Future Role of the ICC.” The event explored current and future opportunities for the International Criminal Court (ICC) to address the climate crisis and rapid environmental degradation we are seeing around the globe.

The type of environmental destruction and its impacts on the sustainability of living beings on Earth was referred to during the event by the term “ecocide.” Polly Higgins, a British lawyer who dedicated her life’s efforts to the recognition of ecocide, defined the term as “the extensive destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.”[1] When, however, human activities are at the root of such extensive destruction to our world’s ecosystems, Higgins argued that such actions can attract international criminal responsibility. Higgins argued that this can be the case when:

[a]cts or omissions committed in times of peace or conflict by any senior person within the course of State, corporate or any other entity’s activity which cause, contribute to, or may be expected to cause or contribute to serious ecological, climate or cultural loss or damage to or destruction of ecosystem(s) of a given territory(ies), such that peaceful enjoyment by the inhabitants has been or will be severely diminished.[2]

Further, such impacts must be “widespread and long-term or severe” in order to meet the requisite gravity threshold.[3]

In 2016, the ICC Office of the Prosecutor published a Policy paper on case selection and prioritisation, in which the Prosecutor set as policy giving “particular consideration to prosecuting Rome Statute crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land” (para. 41). The side event explored what impact this policy has had on the ICC’s functioning since 2016, and what opportunities it and the Rome Statute might present to bring perpetrators of ecocide to justice and taking actions to reverse course and save our dying ecosystems.

At the side event, the audience was first welcomed by John H. Licht, Ambassador of Vanuatu to the United Kingdom and European Union. He was then followed by Natan Brechtefeld Teewe, former Minister of Justice for Kiribati. He emphasized how Kiribati, a small island nation extremely vulnerable to climate change, and the newest State Party to the ICC, could benefit from the ICC’s assistance in investigating and prosecuting environmental offences. The following speaker to provide preliminary remarks was Losaline Teo, Crown Counsel of Tuvalu, who similarly described the effects of climate change her own small island state was already feeling: rising air temperature, more intense and frequent storm surges, declining rain falls, soil salination destroying root crops, and loss of fish stock, the country’s main source of revenue. Like Mr. Teewe, she argued that Tuvalu needed international assistance in order to have the capacity to fight impunity for actions that cause climate change. These three sets of introductory remarks effectively reminded the audience of the real and imminent threats to existing human populations caused by human-induced climate change.

After these introductory remarks, Valérie Cabanes of the Global Alliance for the Rights of Nature noted that multinational resource extraction companies should have been aware of the impacts of their activities since the late 1980s, when the Intergovernmental Panel on Climate Change was established to examine the consequences of climate change. Yet, these companies have only intensified their research and exploitation activities, which are heavily subsidized to the tune of $5.2 trillion (in 2017). This amount represents approximately 6.5 percent of the global GDP. Ms. Cabanes noted that a draft Ecocide Convention has been in consideration in various forms since 1973 which envisages the establishment of an international environmental court, but argued that a much simpler and quicker avenue to achieve the same objectives of recognizing ecocide as an international crime would be to amend the Rome Statute to extend its jurisdiction over this as the fifth atrocity crime.

The following speaker, Richard Rogers of Global Diligence, argued that while States Parties should pursue an amendment to the Rome Statute to introduce a new crime of ecocide, there are meaningful actions that can also be taken within the bounds of the current treaty provisions. He noted that the case of land grabs in Cambodia are exemplary of actions that cause significant damage to the environment, including through widespread deforestation, that also are realized through the perpetration of potential crimes against humanity such as forcible transfer (Rome Statute, art. 7(1)(d)). Human rights defenders are often detained or even killed when attempting to defend their lands. While it is an indirect route to address environmental crimes, he noted that it is nevertheless a start, given that some of the worst environmental degradation flows from illegal land grabs, particularly on indigenous lands. In October 2014, Mr. Rogers filed a case at the ICC on behalf of Cambodian victims evicted from their lands. Despite the OTP’s 2016 policy note, this case has not been prioritised, leading Mr. Rogers to challenge the ICC and the Prosecutor to follow her office’s own policy and to prioritise this situation because of the significant environmental damages involved.

Mr. Rogers was followed by Rodrigo Liedó, of FIBGAR, who focused his remarks on the 2016 OTP policy paper, and argued that on the one hand, it only has a potential impact on the assessment of the gravity of the crime in question. The fact that this policy guidance has not been relied upon since the issuance of the policy paper indicates that its value might be overestimated. However, he ultimately concluded that it should be seen as a promising step toward a more complete assessment of environmental harms as components of international crimes. The ICC is in a process of revision and reform, an opportune timing according to Mr. Liedó, to consider the codification of a new crime of ecocide.

The final speaker for the session was Jojo Mehta, from Ecological Defence Integrity. Ms. Mehta described her organization’s global campaign: “Stop Ecocide: Change the Law”. The mission of the campaign is the introduction of the crime of ecocide into international criminal law. She argued that the ICC is an advantageous arena for such action because, victims have equal voices to states within it. Moreover, in her perspective, only a 2/3 majority is needed to put ecocide on the agenda for potential discussion of an amendment to the Rome Statute and this is feasible in 2020 if key States are willing to step forward. Ms. Mehta emphasized that recognizing ecocide as a Rome Statute crime would give civil society political leverage around which to mobilize, and it would also create moral leverage by drawing a red line between actions affecting our environment that are acceptable and actions which are not. According to her, even initiating the conversation will begin to shift the discussion and start putting a timeline in place toward full recognition.

The speakers concluded with reflections that a two-pronged approach should be followed: leveraging the OTP’s 2016 report and existing crimes within the jurisdiction of the Rome Statute to seek accountability for environmental crimes to the extent possible; while pursuing the introduction of a new crime of ecocide via amendment to the Rome Statute. As the former Secretary-General Ban Ki-moon appealed to UN Member States to “defend the science that shows we are destabilizing our climate and stretching planetary boundaries to a perilous degree”, could the international criminal mechanisms established by the Rome Statute provide one possible way of mounting this defense?

[1] As cited in Anastacia Greene, “The Campaign to Make Ecocide an International Crime: Quixotic Quest or Moral Imperative?” (2019) 30:3 Fordham Law Review 1 at 2.

[2] Ibid at 2-3.

[3] Ibid at 3.

The author’s attendance at the 18^th Assembly of States Parties to the International Criminal Court is supported by the Canadian Partnership for International Justice, funded by the Social Sciences and Humanities Research Council of Canada.