Editorial note: This article is part of a series of blog posts on critical subject-matters for the progressive development and codification of International Criminal Law.

By: Shirleen Chin[*]

Hard Law versus Soft Law

Unlike hard law, soft law is voluntary and imprecise. It is indicative of having a preference. Therefore, soft law does not impose hard obligations. Many multilateral environmental agreements (“MEAs”) are considered “soft”. In other words, MEAs are subject to discretionary implementation, weak enforcement, and different levels of compliance by states, which often leads to ineffectiveness. When MEAs are violated, amicable, non-judicial solutions are often sought, and state accountability does not always pass down to other non-state actors, either legal or natural. In contrast to soft law, hard law is seen as possessing binding and enforceable qualities. Hard obligations that are violated can be met with punitive measures—something that soft law instruments lack. Within (hard) international criminal law, affirmative justice is sought collectively by the international community in an effort to deter against conduct that causes or contributes to one of the four atrocity crimes recognized at the International Criminal Court.

This blog post is written in support of an amendment to the Rome Statute, the governing document of the ICC, giving the Court’s jurisdiction over a fifth atrocity crime; namely, crimes against the environment or as some would call, ecocide. In particular, we will explore the need to complement the gaps found in MEAs by using international criminal law or the crime of ecocide to galvanize preemptive governmental responses to potential transborder humanitarian crises with environmental origins.

Humanitarian Crises: COVID-19 and the Climate, Biodiversity, and Ecological Crisis

The success of a governmental response to any humanitarian crisis requires not only resource capacity but the ability to “prevent”, “respond” and “recover”. In particular, where the humanitarian crisis could potentially extend beyond national borders, the international community has an interest in these three aspects: prevention, response, and recovery. Below are two examples of humanitarian crises that we are currently struggling with, which could use the above approach.

COVID-19

COVID-19 is a humanitarian crisis that could have been prevented. While China has presumably managed to “recover” from the COVID-19 outbreak, it was not without a panic “response” and a hindsight that may have “prevented” a global spread. In February 2020, as one of their panic responses to the global spread of the novel coronavirus, China issued an immediate ban on the trade and consumption of wild animals (“Decision on Completely Prohibiting the Illegal Trade of Wild Animals, Eliminating the Bad Habits of Wild Animal Consumption, and Protecting the Health and Safety of the People”). This ban, while welcomed, is purely reactive and is not sufficient.

China is a party to the Convention on the International Trade in Endangered Species of Wild Fauna and Flora (“CITES”), an MEA with a membership of 183 countries. This convention aims to prevent specific species from becoming endangered or extinct as a result of international trade. Unfortunately, CITES continues to struggle with the persistence of the illegal trade in wildlife, a multi-billion dollar industry. One of the reasons is that, although parties are obliged to implement the framework convention, national laws take precedence, and they do not always ensure a vigilant monitoring of the illegal trade. COVID-19 has exposed the flaws in CITES implementation and enforcement locally. One could contend that the poor enforcement of illegal wildlife trade everywhere else in the world, and the soft law approach of CITES can increase the risk of a global pandemic as demonstrated by Ebola and SARS in the past.

Climate Change

Climate change is a global humanitarian crisis in waiting. The topic has been negotiated for more than a quarter of a century and calls are getting louder from citizens worldwide about the failure of governmental action against the climate, biodiversity, and ecological crisis that is already taking place. In 2015, the world welcomed the so-called legally binding Paris Agreement, a multilateral treaty that seeks to prevent a 1.5 Celsius degree rise in temperature without which would inevitably bring about cataclysmic change to the world. Regrettably, the only significant binding element of the Paris Agreement is the submission of Nationally Determined Contributions (“NDCs”) every 5 years by all signatories. Five years on, it is clear to see that the Paris Agreement is failing. At the time of writing (note by author: September 2020), only five countries have sent in their NDCs (Andorra, Moldova, Marshall Islands, Norway, and Suriname).

The stalemates that play out year after year at the United Nations (“UN”) Climate Conference of the Parties (“COP”) have certainly failed to keep up with increasing emissions as well as the devastating effects of erratic weather and climate events. The implementation of MEAs such as the Paris Agreement is left to the state signatories, and they have been criticized by many, including UN Environment, for their weak enforcement. Despite having an international treaty on climate change, it is evident that most countries in the world, especially the most vulnerable, do not and may not have the ability to fully “prevent, respond[,] and recover” a climate-induced humanitarian crisis.

“Both [COVID-19 and climate change] demand early aggressive action to minimise loss,” said climate scientist, Kim Cobb. The difference between the global response to COVID-19 and climate change is rivalled only by the “sudden-death” factor of the former. The common thread that holds COVID-19 and climate change together is human activity— practices that result in serious loss, damage, or destruction of our ecosystems. Whilst COVID-19 is a consequence of unregulated and illegal animal trade or a by-product of human encroachment on the forest, climate change is a cumulation of decades of unsustainable carbon-emitting practices attributable to big, industrial, human activity. Like the COVID-19 pandemic, fast, devastating crises brought about by sudden climatic and environmental events require responses that will ensure the biggest chance of recovery for humankind.

The discretionary nature of the implementation and enforcement of soft law instruments such as CITES and the Paris Agreement leaves too much room for mistakes, and the failure to act or actions by those in power can lead to humanitarian crises that can result in the loss of many lives. A hard, international crime, such as ecocide, should exist in parallel to soft international law to prevent and to attribute individual responsibility where it is missing. Even theoretically, having a crime of ecocide sends out a strong signal that decision makers should avoid jeopardizing our ecosystem, the ecosystem that equilibrizes the survival of humankind. It is time to consider the beneficial effects of criminalizing harmful acts to the environment.

Ecocide

In 2010, the late Polly Higgins submitted the following definition for ecocide to the International Law Commission for consideration:

the extensive destruction, damage 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.

Here, the premise was based upon protection of the ecosystem that sustains the lives of every human being. Our ecosystems have not been sufficiently protected. This is made evident by the widespread, unconscionable deforestation that endangers the lives of indigenous peoples or that becomes a catalyst of modern-day outbreaks, the excessive release of greenhouse gases into the atmosphere that perpetuates the impacts of climate change, the dumping of poisonous chemicals in rivers that downstream communities depend on, or highly polluting mining activities that endanger human, animal, and plant lives.

During the formation of the Rome Statute, crimes against the environment was considered and discussed amongst twelve other crimes. Although it was not called ecocide then, the crime was described as “wilful and severe damage to the environment”. Unfortunately, after some internal debate amongst states, the crime was excluded from the final draft without a vote. The only semblance of ecocide in the Rome Statute exists in Article 8(2)(b)(iv) under war crimes. No one has ever been charged under this provision.

Conclusion

Persons at the highest level of the structure within both government and corporate structures should be held to a higher duty of care standard when it comes to the environment. By introducing accountability for ecocide, a crime of international concern, we may be able to curtail the impacts of humanitarian crises with environmental origins because then we would have the required diligence or policing, prioritization of capacity, investigation-led data and judicial enforcement. Otherwise, decisions taken at the highest levels can cumulatively and through a series of related events, lead to dire crises such as COVID-19 and climate emergencies. The current global economic model is unsustainable and will continue to harm our ecosystems unless the crime of ecocide is introduced to complement the toothless MEAs.

Recognizing the crime of ecocide not only “prevents”, but will dictate how well we “respond” to future environmental-humanitarian crises and from there ensure the best chance to fully “recover”. It is hard law in its highest form. The introduction of the crime of ecocide parallel to soft international law can send a strong signal that man-made activities that are extensive and damaging to the environment can no longer be tolerated and as such will bolster currently weak environmental governance. Preemptive governmental responses can then be planned to minimize inevitable losses in the economy, lives, and nature. As aptly put by the UN’s chief of biodiversity, “if we don’t take care of nature, it will take care of us.” Calls for the crime of ecocide have come from environmental movements such as Extinction Rebellion, Greta Thunberg, Pope Francis, Dr. Jane Goodall, groups of indigenous people in the Amazon, scholars, celebrities, royalties, and even countries like France, Belgium, the Maldives, and Vanuatu.

COVID-19 is a humanitarian tragedy that has crippled the world’s economy, everyday life and killed too many innocent people. The mechanisms that were in place failed to deploy preemptively and thus effectively prevent a global pandemic. Related crises like the climate and ecological crises have shown to have the same crippling effect and should be prevented at all cost. The crime of ecocide is a legal avenue that will ensure the best chance of survival for the most vulnerable and can encourage positive and much-needed shifts multilaterally.

Isn’t it about time to create a legally binding duty of care towards the Earth?

***

The “Stop Ecocide: Change the Law” campaign that Polly Higgins started advocates for the international recognition of ecocide as a fifth atrocity crime, at par with war crimes, crimes against humanity, genocide, and crime of aggression. Since her passing in April 2019, a team of eco-warriors close to her have been carrying on the advocacy campaign, working to mobilize people on the ground as well as working with the highest level of decision making: governments worldwide. Over the course of 2020, the campaign has gained much political traction and at the time of writing, an expert drafting panel co-chaired by Prof. Philippe Sands QC and Dior Fall Sow is working on the legal definition of ecocide. The ecocide campaign is also made in collaboration with Harvard Law School students on a research project on an amendment of the Rome Statute to include the crime of ecocide.

[*] Shirleen represents Stop Ecocide Foundation as their legal/diplomatic focal point for the Pacific. She has nearly ten years of advocacy experience working for NGOs and was featured in Vogue (Spain) in 2020 as one of seven female environmentalists to watch. Shirleen is also involved in a sub-group chaired by the co-deputies of the expert drafting panel on ecocide.