Giovanni Chiarini*
I. Introduction
On September 9, 2024, the global advocacy non-profit organization “Stop Ecocide International” (whose “Stop Ecocide Foundation” commissioned the Independent Expert Panel for the Legal Definition of Ecocide in 2021) announced that the “mass destruction of nature reaches the International Criminal Court (ICC) as Pacific Island states propose recognition of ecocide as an international crime.”
On that day, the States of Vanuatu, Fiji and Samoa formally submitted a proposal to Assembly of State Parties (ASP) of the ICC, more precisely to the ASP Working Group on Amendments. The Working Group on Amendments is a subsidiary body of the ASP, tasked with reviewing and filtering out proposed amendments to the ICC Rome Statute and the ICC Rules of Procedure and Evidence and eventually forwarding them to the Assembly of State Parties for consideration. According to Annex II(7) of the “Terms of reference of the Working Group on Amendments” (attached to Resolution ICC-ASP/11/Res.8), States Parties “are encouraged, on a voluntary basis, to bring the text of a proposed amendment to the attention of the WGA before formally submitting it for circulation to all States Parties.” And this was exactly what happened.
The proposal seeks to evaluate the introduction of what would become the fifth international crime: the crime of ecocide, along with genocide, crimes against humanity, war crimes and the crime of aggression. Their proposed definition mirrors the one formulated by the 2021 Independent Expert Panel, defining 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.” As other authors commented, the Pacific Islands’ proposal “can be read as the preliminary culmination of a long saga engulfing social activists, academic experts, national legislators and international policy makers alike.”
This essay will examine the rationale for incorporating ecocide into the Rome Statute of the ICC, prompted by the recent advocacy for ecocide legislation led by Vanuatu, Fiji and Samoa. It will also consider the procedural steps involved in amending the Statute within the ICC’s legal framework and highlight key procedural characteristics.
II. The Rationale for Introducing Ecocide into the ICC Rome Statute
The origins of “ecocide” trace back to scientific and environmental discussions that emerged during the Vietnam War. Since then, extensive literature has developed on the topic, especially in recent years following the Stop Ecocide Foundation’s proposal in 2021. The proposal led by the Stop Ecocide Foundation has significantly influenced both academic and institutional discussions, bringing the issue of ecocide back to the forefront.
Instead of recounting the entire history of ecocide debates, this article wishes to draw attention to some practical aspects—after decades of debate, we still lack an international legal norm that punishes mass environmental destruction under international criminal law. As I have observed in other articles, although attacks against the natural environment are prohibited by the ICC Rome Statute (RS), the First Protocol to the Geneva Conventions and the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques, the existing legal framework is insufficient to establish a robust foundation for criminal liability for such environmental destruction. The only provision protecting the environment is Article 8(2)(b)(4) of the RS, which defines a war crime against environment as causing “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.” This, however, is insufficient to prevent mass environmental destruction, as is evident from the way it is formulated. A war crime against environment can be prosecuted only if the actus reus is widespread, severe and causing long-term environmental damage, and there is proof of intentional destruction as mens rea. Moreover, it cannot have been committed as a part of concrete or direct military advantage.
The new crime of ecocide would therefore fill a gap in the existing legal framework.
III. Why Vanatu, Fiji and Samoa Lead the Call for Ecocide Legislation
According to Stop Ecocide International, the fact that the proposal has been put forward by Vanuatu, Fiji and Samoa reflects “the importance of environmental justice considerations for Small Island Developing States (SIDS).” The rationale is also geographical. According to the UN, SIDS “are prone to natural disasters and highly affected by climate change,” and their high population density “makes them even more vulnerable to the effects of extreme weather and natural disasters.”
In December 2019, the Republic of Vanuatu, a nation in the South Pacific composed of roughly 80 islands, delivered a statement at the 18th Session of the ICC Assembly of States Parties, becoming the first country to formally call for the inclusion of ecocide as a crime under the ICC Rome Statute. Vanuatu noted that “over the past four years, Vanuatu has experienced disasters and related calamities of unprecedented scale.” Additionally, during the 28th Session of the International Seabed Authority Assembly in 2023, Vanuatu’s representatives remarked that “owing to our geography, we have been rated as the country most at risk from natural disasters in the world.”
While the Republic of Vanuatu’s position is strongly focused on climate change and rising sea levels—both for obvious geographical reasons and out of concern for the natural environment as a whole and the protection of the planet for future generations—it remains unclear how the current definition of ecocide would address climate change as a prosecutable offense under international criminal law. Additionally, the full text of the Pacific Islands’ proposal remains unavailable to the public. Anyway, now is the time to introduce the proposed crime of ecocide and, afterward, work on further amendments to expand its jurisdiction and ensure procedural effectiveness.
IV. The Process for Introducing the Crime of Ecocide and Potential Steps Forward
At this stage, as per Annex II(6) of the “Terms of reference of the Working Group on Amendments,” the ASP Working Group on Amendments (WGA) is highly likely undertaking a preliminary examination of amendment proposals to inform the decision of the Assembly as to whether to take up a proposal according to article 121(2) of the Roman Statute. In doing that, the WGA could also establish sub-groups in order to discuss amendment proposals simultaneously or more in detail, as allowed by Annex II(4).
The proposal was also submitted to the UN Secretary-General (based on publicly available information), probably aiming to speed up its circulation to all the ICC State Parties.
The subsequent process for introducing the crime of ecocide, like any other amendment, is essentially governed by Art. 121 of the Rome Statute, which requires, first of all, a precise timing. According to Art. 121(2), no sooner than three months from the date of the notification, the Assembly of States Parties will decide by majority vote at its next meeting whether to consider the proposal. Assuming that the date of notification was September 9, 2024 and that the WGA forwarded the proposal to the ASP, time is very limited as the next ASP is scheduled to take place from December 2 to December 7, making December 7 the final possible day and dies ad quem for the proposed amendment to be addressed this year, if we consider 3-month as equivalent to 90 days. However, I acknowledge that this interpretation is somewhat strained, although not impossible. Given the significance of introducing a new international crime, such as ecocide, it is unlikely that such a matter would be relegated to the last day of the session. Instead, it would warrant extensive deliberation, ideally encompassing the entirety of the ASP’s schedule (and this would not be feasible under Article 121(2), as December 2 would fall within the required three-month notification period).
We do not have a crystal ball, but if ecocide is discussed during the 2024 ASP this December, a minority of one-third plus one of the States Parties can effectively prevent the adoption of an amendment by abstaining, voting no, or failing to achieve a quorum, since Article 121(3) requires a two-thirds majority of States Parties.
There are some additional procedural issues to consider: an amendment will take effect for all States Parties one year after seven-eighths of them have deposited their instruments of ratification or acceptance with the UN Secretary-General. As the amendment refers to substantive crimes within the jurisdiction of the Court, new crimes that are introduced by amendment will apply only to those States that accepted them, according to Art. 121(5). For States Parties that do not accept the amendment, the Court will not have jurisdiction over crimes that are covered by the amendment and committed by their nationals or on their territory. Additionally, any State Party that has not accepted the amendment may withdraw from the Statute immediately but must give notice within one year of the amendment taking effect.
However, it is mostly likely that the ICC will simply call for a Review Conference, governed by Article 123 of the Rome Statute, like what happened with the crime of aggression at the Kampala Conference in 2010. This could include the participation of intergovernmental organizations, NGOs, and other entities such as Stop Ecocide International. In this case, the authority of a Review Conference regarding the ecocide amendment would be identical to that of the Assembly of States Parties and its powers. If a Review Conference is convened, ecocide would not be discussed during the 2024 ASP.
V. Conclusion
Further observations will follow once the original text submitted by Vanuatu, Fiji and Samoa is disclosed. Based on what has been seen so far, it appears the Pacific Islands’ submission takes a hybrid approach, engaging various bodies through a broader interpretation of the ICC’s legal framework. It seems that rather than request the UN Secretary General to convene an Art. 123 RS Review Conference on ecocide, the Pacific Islands opted to notify the Secretary General of the proposed amendment, likely in order to expedite its circulation and speed up the process. At the same time, the notification was also directed to the ASP Working Group on Amendments, following the formal procedure and practical guidelines.
While it is unlikely that the amendments will be formally discussed at the December 2024 ASP, there is more than a good chance that ecocide will at least be mentioned. As for ecocide’s eventual introduction into the Rome Statute, a vote on it could take place at the ASP 2025, or more likely at a dedicated Review Conference in the near future (finally, considering that discussions on the topic have been ongoing for over 50 years).
If the amendment is adopted, it will also open the door to considering further changes to enhance its effectiveness. For instance, I have previously suggested introducing an aggravating circumstance for ecocide when the commission of crime significantly impacts on climate change or greenhouse gas emissions; creating a Special Prosecutor for Ecocide with an autonomous Office of the Prosecutor at the ICC, solely competent for ecocide and mass environmental destructions; and establishing a new list of ICC judges with expertise in environmental law, animal law, law of the sea, climate change law and related areas, to bring environmental law expertise into the Court.
But for now, we should take it step by step. It is time for the ICC States Parties to seize the moment and not let the Pacific Islands’ ecocide proposal slip away.
* Prof. Giovanni Chiarini, PhD. Assistant Professor of Law and Vice Dean for Research and Graduate Studies, Alfaisal University College of Law & International Relations, Riyadh, Saudi Arabia – Attorney admitted to the lists of International Criminal Tribunals (ICC – KSC)