While Stop Ecocide International welcomes ICC Prosecutor Karim Khan’s expressed intention to formulate a policy paper on the best use of existing Rome Statute provisions to better address environmental crimes, the Statute, as it stands, is substantively inadequate to address the full range of acts severely threatening nature and climate in times of peace as well as conflict (whether or not involving direct harm to humans).

Introduction

Stop Ecocide International (SEI) was positively encouraged by the Office of the Prosecutor of the International Criminal Court’s recent statement announcing a public consultation on how the Court can use existing Rome Statute provisions to better address environmental harm. As severe environmental destruction and climate change pose ever greater threats to our world, increasingly recognised within international law, the Office’s statement is timely and welcomed.

Effective environmental protection requires cooperation between domestic, regional and international courts to enforce standards that can deter the severest harms to nature. The International Criminal Court is well positioned to be able to play a key role in this, offering already existing elements which are highly relevant to addressing severe environmental damage (importance of victim testimony, restorative approach to justice and broad expert networks to draw upon).

The Rome Statute currently lists four crimes: genocide, crimes against humanity, war crimes, and the crime of aggression. Environmental destruction - frequently severe, widespread and/or long-term - is a common, even a core component of armed conflict¹. However, there have also been many examples of the intentional manipulation of the environment by warring parties, in which the environment becomes a weapon of war. This devastation is often excused by military necessity in ways it wouldn’t be if the casualties were human.

Meanwhile, environmental crime outwith the context of war is already an industry as lucrative as drug-trafficking, but this is not just a matter of illicit financial flows. It is increasingly recognised that severe environmental destruction, with consequences that can span multiple species and generations, constitutes a most serious threat to the peace and security of humankind. Environmental harms also play a key and under-appreciated role in the climate crisis, posing complex governance challenges and necessitating effective tools to ensure enforceable protections for people and nature.

However in the context of a multi-jurisdictional trend of poorly enforced environmental laws, reckless treatment of the environment in the course of both military and peacetime economic activity continues to face impunity.

While Stop Ecocide International welcomes ICC Prosecutor Karim Khan’s expressed intention to formulate a policy paper on the best use of existing Rome Statute provisions in this regard, we stress that the Statute as it stands is substantively inadequate to address the full range of acts severely threatening nature and climate in times of peace as well as conflict (whether or not involving direct harm to humans).

We would stress two key arguments before highlighting how recognition of ecocide could usefully fill the resulting gaps:

1) The Rome Statute covers principally those harms with direct impact on people and property;

2) Where the Statute explicitly addresses environmental harm it is only during wartime and with an exceptionally high threshold.

We highlight that while environmental damage commonly does create harm to humans, the requirement of human harm being present as a condition for bringing consideration of environmental elements of crimes significantly restricts their operability, both in protecting the environment and protecting humans. This is not least because very significant harms may be perpetrated upon elements of the environment without immediate harm to humans but with horrific long-term effects that will be very harmful indeed to local, regional or even global populations of multiple species including humans, constituting thereby crimes of most serious concern to the international community as a whole.

We further highlight that the Rome Statute’s existing provision on environmental crime in the context of war has unduly high thresholds and hence inoperability. It is well understood that Article 8(2)(b)(iv) does not provide an effective deterrent, only applying in the context of leadership decisions in international armed conflict:

A.8(2)(b)(iv): Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or 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.

This provision requires an attack in the knowledge that the attack will cause the requisite harm. The thresholds are thereafter not defined and it is very difficult to prove a person had knowledge their actions would definitely cause such damage. Even if this threshold is met, there is a further balancing act: the damage must be clearly excessive in relation to the military benefit anticipated. There is no fixed agreement on what excessive damage would be in this context, and such an assessment would seem to refer back to the perspective of the perpetrator. Under current international standards and attitudes, environmental damage is generally understood to be secondary to military benefit anyway. The result is that this provision, which has in fact never been used, constitutes an impossibly high legal standard and is thus unworkable in practice.

Ecocide as a Fifth Crime in the Rome Statute

A crime to protect the environment in peacetime as well as conflict is of fundamental importance, not only to cover the inadequacies of existing law, but also to promote a shift in mindset in both contexts to reflect an understanding of the severity of the danger posed by grave environmental harms.

A positive legislative trend indicates that recognition of ecocide as a serious crime is being increasingly well received amongst States. The inclusion of such a crime under the Rome Statute would see enforceable environmental protection in domestic, regional and international courts according to the principle of complementarity, ensuring both cooperative action on threats to climate, and enforceable parameters to prevent impunity for the most serious actions against nature, on earth and in outer space. Procedurally therefore, as well as substantively, ecocide is well suited to inclusion under the Statute, strengthening the complementary role of the court as originally intended.

Like other Rome Statute crimes, ecocide law has a strong history². The crime has been subject to numerous academic³, legislative⁴ and International⁵ proposals, even being included in early drafts of the Statute. It has wide-ranging support across multiple sectors and jurisdictions and holds relevance to a variety of overlapping legal, political, social, cultural and economic issues in the international community.

The most authoritative definition of ecocide, drawing upon existing international law⁶, defines the crime 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.”⁷

This definition, proposed in June 2021 by an Independent Expert Panel (IEP) convened by our charitable Foundation, explicitly builds upon the framework regulating military ecocide, including the Rome Statute itself as detailed above. Borrowing, inter alia, from ENMOD and Protocol 1 of the Geneva Convention as well as the Rome Statute itself, to constitute a crime of ecocide according to the IEP text, impact(s) must be “severe and either widespread or long-term”: widespread being defined as “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”; long-term as “damage which is irreversible or which cannot be redressed through natural recovery within a reasonable period of time”; and severe as "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”⁸. In any event, the “knowledge of substantial likelihood” will be met where it is evident that the damage is likely to be irreversible and carry long-term effects, or is unable to be redressed in a reasonable period of time. The second threshold set out in the text, that such actions or omissions must be “unlawful or wanton”, ensures that legitimate actions causing damage to the environment, for example in pursuit of development, are not criminalised unless the damage caused is disproportionately severe.

This definition of the crime consistently emerges as the most authoritative and legally robust, able to substantively and procedurally account for the reality⁹, i.e. the range, of severe environmental damage and consequent environmental and human rights violations. The definition is proving capable of well reflecting other environmental laws and principles catering to common and civil law legal systems¹⁰; as well as providing a genuine opportunity for international collaboration on regulating environmental damage¹¹.

It has been noted that environmental problems are (1) complex, involving complex dense networks of physical, biological and social causation; (2) technical: understanding often demands a high degree of scientific and/or social sophistication, and (3) surrounded by uncertainty: in many cases it may be impossible to fully and reliably predict outcomes¹². Consequently, the existing sectoral division of environmental offences in multiple jurisdictions as well as internationally is not reflective of the complexity of interrelationships. Due to substantive, procedural and regulatory fragmentation, a large proportion of harmful environmental interactions are therefore hidden from the laws that are intended to prevent them. The ongoing and far-reaching implications of the environmental and climate crisis further affirm this: existing environmental laws are manifestly inadequate to the scale and nature of the threat.

It is therefore essential to propose comprehensive and inclusive legal measures that can apply to a variety of actors and environmental contexts. Such measures should avoid the risk of becoming outdated: they should ensure that deterrence and prevention of the worst environmental harms will continue to be justiciable and enforceable into the future. The IEP text achieves this by focusing on severity of outcome rather than prohibiting specific behaviours. This is of crucial importance for the continued relevance of international criminal law to the safety of humanity in a world of ongoing conflict, rapidly advancing technology and the global threat posed by ecological collapse.

Finally, to ensure all aspects of the environment, including its interlinkages and interconnections, are included, the IEP text defines "environment" on the basis of earth-system science, based on the five main spheres of the earth (biosphere, cryosphere, lithosphere, hydrosphere and atmosphere)¹³.

The qualitative nature of the definition ensures that any actions, whether committed intentionally or through reckless disregard for consequences, of a kind that directly or indirectly expose the environment in its various components to an immediate risk of substantial degeneration, endangering the safety of the planet and the survival of humankind, are caught by the scope of the crime.

During the ASP of December 2019, Vanuatu proposed that all Member States should seriously consider the adoption of ecocide as the fifth crime against peace in the Rome Statute. Since then, the topic of ecocide law has been gaining traction worldwide, with discussion now on public record at parliamentary and/or government level in dozens of countries. Belgium’s recently adopted penal code includes the recognition of ecocide as a national (federal) and international-level crime, its drafting guided by the IEP definition¹⁴. The Inter-Parliamentary Union¹⁵ has supported recognition of ecocide in the Rome Statute, as has the European Parliament¹⁶, the Council of Europe¹⁷, and the Organisation for Security and Co-operation in Europe¹⁸. Youth¹⁹, faith²⁰ and investment networks²¹ have all recommended it too.

Ecocide - in substance if not in name - was included within early drafts of the Rome Statute. It is worth reflecting critically upon what may have been different in our world today - the multiple pollution disasters, climate change exacerbation and threats to biodiversity that could have been averted - if it had in fact been included in the final treaty signed in 1998. We consider this public consultation a golden opportunity for the Office of the Prosecutor to: acknowledge the need and demand for recognition of ecocide in international criminal law; to acknowledge the gravity of environmental crimes, the extent to which they threaten the peace, security and wellbeing of the world; and to recommend negotiation of a fifth international crime of ecocide, creating enforceable environmental protections for people and nature, on earth and in space, for present and future generations.

¹ It has also been noted that the risk of armed conflict is increased by environmental degradation. For example, in 2016, the United Nations Environment Assembly adopted resolution UNEP/EA.2/Res.15, which recognizes “the role of healthy ecosystems and sustainably managed resources in reducing the risk of armed conflict,” taking as established and making explicit the relationship between damaged ecosystems and armed conflict.

² Consider the following statement by Prime Minister Olof Palme in the Plenary Meeting (UN Conference on the Environment, Stockholm (1972).): ’[t]he air we breathe is not the property of any one nation – we share it. The big oceans are not divided by national frontiers – they are our common property .... In the field of human environment there is no individual future, neither for humans nor for nations. Our future is common. We must share it together. We must shape it together...’

³ N. Ruhashyankiko,‘Study of the Question of the Prevention and Punishment of the Crime of Genocide’ (31st Session of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc E/CN.4/Sub.2/416 (1978).

⁴ https://www.stopecocide.earth/leading-states

⁵ C. Bassiouni, ‘The History of the Draft Code of Crimes Against the Peace and Security of Mankind’, Israel Law Review, Vol. 27, No. 1-2 (1993).

⁶ United Nations Convention on the Prohibition of Military or any Hostile Use of Environmental Modification Techniques (‘ENMOD Convention’), 1108 UNTS 151 (1976), Geneva Convention Additional Protocol I Relative to the Protection of Victims of International Armed Conflicts 6 U.S.T. 3316, 75 U.N.T.S. 135 (1949), Articles 35 and 55, Rome Statute (1998) Article 8.2.b.iv.

⁷ Independent Expert Panel for the Legal Definition of Ecocide (2021); see https://ecocidelaw.com/definition/#definition

⁸ Ibid, Commentary.

⁹ It is implicitly considered here that, by contrast, existing environmental laws (domestic, regional and international) are currently inadequate and often poorly enforced.

¹⁰ The IEP definition contains elements of both legal systems. So long as certain definitional criteria are met in practice, ecocide law can be adapted to fit both systems' structural requirements.

¹¹ It is also implicitly considered that effective collective action on environmental protection requires transboundary cooperation.

¹² W.F. Lafferty, J. Meadowcroft, ‘Democracy and the environment: congruence and conflict – preliminary reflections’ in: Lafferty, W.M., Meadowcroft, J. (eds.), ‘Democracy and the Environment, Problems and Prospects’, Edward Elgar, Cheltenham/Brookfield, (1996), p.4.

¹³ IEP Commentary; C. Voigt, ‘Ecocide as an international crime: Personal reflections on options and choices’, EJIL:Talk!, (2021), available at: https://www.ejiltalk.org/ecocide-as-an-international-crime- personal-reflections-on-options-and- choices/#:~:text=The%20architectural%20choice%20fell%20therefore,our%20current%20state%2 0of%20knowledge (last accessed 03/02/23).

¹⁴ https://www.stopecocide.earth/2024/belgium-becomes-first-european-country-to-recognise-ecocide-as-international-level-crime

¹⁵ https://www.stopecocide.earth/press-releases-summary/-led-by-belgium-parliamentarians-worldwide-support-ecocide-law

¹⁶ https://www.europarl.europa.eu/doceo/document/TA-9-2022-0041_EN.html

¹⁷ Parliamentary Assembly, ‘The Council of Europe should take the lead on preventing environmental damage during armed conflict’, (2023), (online), available at: https://pace.coe.int/en/news/8959/the-council-of-europe-should-take-the-lead-on-preventing- environmental-damage-during-armed-conflict

¹⁸ https://www.stopecocide.earth/breaking-news-2023/worlds-largest-intergovernmental-security-organisation-calls-for-international-ecocide-law

¹⁹ https://www.stopecocide.earth/new-breaking-news-summary/stockholm50-youth-task-force-demands-ecocide-law

²⁰ https://www.faithforecocidelaw.earth/

²¹ https://www.stopecocide.earth/breaking-news-22/international-corporate-governance-network-reiterates-call-to-governments

As a State which accords high priority to the International Criminal Court (ICC) and its mandate in ending impunity for the perpetrators of international crimes, the Republic of Vanuatu is encouraged by the Office of the Prosecutor's public consultation on environmental crimes, and that the ICC is taking environmental crimes seriously. Vanuatu has long recognised the need for commitment to the pursuit of justice and accountability for the most serious crimes affecting the environment, and recognises that credible international institutions and procedures are essential to meeting this goal.

However, we are also aware that there are significant limits to the Rome Statute in this area. The crimes contained (Genocide, Crimes Against Humanity, War Crimes and the Crime of Aggression) focus almost exclusively on harm to humans, and the one clause specifically addressing the environment is only applicable in wartime¹, with a threshold that is unduly burdensome to meet in practice. Vanuatu is cognisant that reckless destruction of nature can and does take place at any time, not just during conflict, and that even where immediate impacts may not be consciously directed at humans, the effects on local communities and ultimately all of us can be felt on a huge scale. If we want to inhabit, and to inherit, a liveable planet, we must recognise the dire threat and dire consequences - of severe environmental destruction wherever and whenever it occurs. We therefore reiterate our considered and long-held opinion that the Assembly of States Parties to the International Criminal Court should criminalise "ecocide" as the fifth crime against peace in the Rome Statute.

According to the most legally authoritative definition of the crime, adapted from existing international law', ecocide is defined 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 caused by those acts"² This definition, drafted by an Independent Expert Panel in 2021, has catalysed the majority of international, regional and national efforts towards recognition of the crime.

The Rome Statute - with its mandate in adjudicating the most serious crimes threatening the peace and security of the international community - is of particular importance to us Small Island Developing States. While our region is characterised by relative peace and security, the fight against impunity is global. Moreover, the criminal justice system according to the principle of complementarity, can potentially address the greatest threats to human rights in the Pacific and, ultimately, threats caused by environmental destruction and climate change. Vanuatu is one of the world's most climate vulnerable states. We face an uncertain future for our people, and consequently are tirelessly focused at the diplomatic level on exploring all avenues in international law that can help our country and many, many others. We consider the adoption of ecocide law as integral to these efforts.

Vanuatu has history in promoting ecocide law's adoption as the fifth crime against peace. In the 17th session of the Assembly of States Parties to the ICC in December 2018, Foreign Minister Ralph Regenvanu publicly stated that ecocide law is one of the instruments that interests Vanuatu in addressing climate crisis. Following this, in May 2019, Vanuatu hosted the Pacific Island roundtable on the ratification and implementation of the Rome Statute in partnership with the Government of Korea, the European Union, the ICC, and the Parliamentarians for Global Action. This landmark event raised awareness of the ICC in the Pacific, encouraging other States in our region to join the Rome Statute, with a view to achieving universal ratification of the Statute. Consequently, in December of the same year, Vanuatu was the first nation to officially call for consideration of including ecocide into the Rome Statute, at the 18th session of the Assembly of States Parties of the ICC. In our statement3, His Excellency John H. Licht, Permanent Representative of Vanuatu to the Kingdom of Belgium and the European Union, highlighted that:

"the unprecedented challenges posed by climate change require unprecedented international cooperation. International law has a key role to play in this regard; however, this role has remained marginal in practice... We believe that the city of The Hague, as the world's capital of international law, has a special role to play in this regard. This august body - the Assembly of States Party - is supremely well-positioned to help realise this potential. Most notably, an amendment of the Rome Statute could criminalise acts that amount to Ecocide. We believe this radical idea merits serious discussion in the face of recent scientific evidence showing that climate change poses an existential threat to civilisations.”

Since this statement, Vanuatu has publicly expressed support for ecocide law with various statements and events on ecocide law at fora such as the Assembly of States Parties to the ICC⁴; COP15⁵; COP27⁶; Davos⁷; the UNFCCC³. Our President Nikenike Vurobaravu quoted the legal definition of ecocide drafted by the Independent Expert Panel referenced above when addressing the UN General Assembly in September 20229, and our government has officially adopted ecocide law advocacy into its climate diplomacy programme. Public panels and diplomatic roundtables that we have co-hosted with advocacy organisation 'Stop Ecocide International' at the ICC and in various UN contexts have consistently drawn large and engaged audiences.

It is well understood that meaningful and effective environmental protection necessitates enforceable standards that can deter the most severe harms against the living world, as well as meaningful international cooperation through domestic, regional and international spheres. The Rome Statute, as well as the fora provided by the International Criminal Court more generally, offers a legitimate tool for ensuring effective collective action on environmental damage.

Features unique to the Court, such as its wide range of stakeholders and use of practices such as victim testimony and restorative justice, can offer novel and highly useful tools for tackling severe environmental damage. Given the urgency of effective environmental action, these existing features of the Court may be considered highly relevant.

We believe it is imperative to put in place a preventive legal provision in the form of an international crime of ecocide, creating an enforceable deterrent to avert the mass damage and destruction affecting the world's most important and vulnerable ecosystems and species - damage which relentlessly destroys biodiversity and exacerbates climate change. The word itself means "killing our home" - something we must prevent if we are to have a liveable future.

We strongly urge the OTP to recognise that in order to fulfil its stated purpose to address the "most serious crimes of concern to the international community as a whole" the Rome Statute in its current form is inadequate. It must include ecocide as a 5th international crime, expanding its remit to protect the living world upon which we entirely depend.

———

¹ United Nations Convention on the Prohibition of Military or any Hostile Use of Environmental Modification Techniques ('ENMOD Convention'), 1108 UNTS 151 (1976), Geneva Convention Additional Protocol I Relative to the Protection of Victims of International Armed Conflicts 6 U.S.T. 3316, 75 U.N.T.S. 135 (1949), Articles 35 and 55.

² Stop Ecocide International, 'Legal Definition of Ecocide '(2021).

³ https://asp.icc-cpi.int/sites/asp/files/asp_docs/ASP18/GD.VAN.2.12.pdf

⁴ https://www.youtube.com/watch?v=NxO7BK8Yr_A

⁵ https://www.youtube.com/watch?v=3xZNw98mGAQ;

⁶https://www.youtube.com/watch?v=TNDONba- ilg; https://www.youtube.com/watch?v=LCQM3-NtvUA; https://www.youtube.com/watch?v=ctxvQhkHF8g

⁷ https://www.youtube.com/watch?v=YLZen6jaApM

⁸ https://www.stopecocide.earth/events/clarifying-obligations-and-deterring-harm-the-power-of-international-law-to-address-climate-crisis-1; https://www.youtube.com/shorts/8FYJ2VOhH1k

Dear sir/madam,

At Triodos Bank our philosophy is geared towards ‘financing change and changing finance’. Our services support individuals and organizations who want to make a positive change and contribute to the challenges our society faces. From that position, we welcome the fact that the Office of the Prosecutor is taking environmental crime seriously. Triodos Bank and its clients are strongly invested in the health and safety of our planet and its ecosystems, which support enable all life and (economic) activity.

We understand that the current consultation proposes to explore ways in which the Rome Statute can be used in its current form to hold accountable those who damage the environment. Whilst we welcome the use of the Rome Statute to address what it can within the existing text, there are significant gaps.

As currently drafted, the Rome Statute is focused on harm to humans and offers no explicit protection to the environment except in some circumstances in wartime. Whilst there have been recent examples of horrific damage to the environment within a war context, most of the environmental damage takes place in peacetime for commercial gain. In many cases the damage to humans is not immediately obvious and can take years or decades to manifest, by which time it is too late. 55% Of our global economy and therefore society depends directly on the services that nature provides. As a bank, we cannot operate, provide jobs, facilitate financial transactions or make profit without nature thriving. Given the precarious state of ecosystems and nature and the stress it is currently under, and the depletion of natural resources for the profit of few, severe environmental damage should be a crime in its own right, regardless of its apparent impact on human populations.

We understand that environmental crime - ecocide - was originally intended to be included within the Rome Statute when it was being drafted but, for reasons which are unclear, was dropped before it was signed. We can only imagine how different the world might look now, and what destruction might have been avoided, had environmental crime, no matter peace time or in war, been included. The creation of a new crime specifically geared towards protection of the environment would act as a powerful deterrent against future damage.

In conclusion, it is our view that, whilst seeking ways to use the Rome Statute in its current form to protect the environment is admirable in intent, it simply does not go far enough to provide real protection or a real deterrent. We take the view that a completely new crime, focused on serious damage to the environment in its own right, is essential to safeguard the planet, our common future and healthy, sustainable business.

Yours faithfully,
Sanne van Keulen

FAO: Karim Khan, Chief Prosecutor of the International Criminal Court, OTP 

Systemiq Ltd., the system-change company, was founded in 2016 to drive the achievement of the Sustainable Development Goals and the Paris Agreement, by transforming markets and business models in five key systems: nature and food, materials and circularity, energy, urban areas, and sustainable finance. A certified B-Corp, Systemiq combines strategic advisory with high-impact, on-the-ground work, and partners with business, finance, policy- makers and civil society to deliver system change internationally. 

As a B-Corp, harnessing business’s power to solve our most urgent environmental and social issues is central to Systemiq’s mission. We therefore welcome and support the entrenchment of ecocide as a standalone law in order to deter, prevent and sanction the worst harms to nature and our climate, whenever and wherever they occur. Collectively we have a duty to ensure that the law staunchly protects the planet, peoples and cultures who are most likely to be adversely affected by the results of ecocide; especially if they do not have a commensurate voice in how such crimes are tackled.

In direct alliance with our mission and purpose, Systemiq applauds the approach the OTP is taking to ensure that environmental crime is taken seriously and that there is an opportunity to deter those who would seek to harm humanity by establishing serious consequences for the crime of ecocide. We believe that central to this is an amendment to the Rome statute, which currently has some limitations, to provide for explicit protection for the environment at any time and not just during times of war. By recognising ecocide in law we can tackle the most fundamental issue of our time and we welcome any further stakeholder engagement on this.   

Kind regards,
Jeremy Oppenheim

Click to read full response.

As CEOs of business initiatives whose member companies represent more than 1000 billion Euros in combined revenues, we applaud your undertaking to address serious environmental harm through existing legal instruments.

Taking this further, we believe that grievous environmental harm is such a serious matter that ecocide should be a crime in its own right under the Rome Statute. Scientific analysis regarding the climate crisis is clear that reducing emissions is no longer enough to address the climate crisis: we must also protect Earth’s living ecosystems.

Furthermore, the world economy as well as human well-being are dependent on healthy ecosystems. In spite of this, our ecosystems are being disrupted and destroyed through reckless acts of such magnitude that they are of concern to the international community.

As you are aware of, ecocide is currently a crime under the Rome Statute only in wartime. Since ecocide occurs also in peacetime, this points to a gap in the legal order. Further, as a consequence of the high threshold for the wartime crime under the Rome Statute, it cannot even in wartime be used to sanction many acts of serious harm to nature.

Thus, in practice it cannot currently be used to hold accountable those responsible for acts of serious environmental destruction. Mass environmental destruction is an international problem. To address it, international law with global scope is needed. To preempt ecocide in peacetime, we conclude that an addition to the Rome Statute is needed, to ensure effective and deterring measures regarding mass destruction of nature. The definition proposed by an international panel of experts indicates the level of what is needed. Such a law would impact risk evaluation and, as a direct result, guide behaviour towards safer and better ways of being on this planet.

Our members include a wide range of companies trying to shoulder their responsibility for a sustainable future. In order for them to achieve this ambition, a level playing-field is necessary: fair competition on national and international markets.

Making ecocide a crime in its own right will help responsible businesses succeed. It will also boost the rate of innovation for a sustainable future.

Making ecocide a fifth crime within the framework of the Rome Statute will increase awareness of – and have a strong positive impact on – the need to respect and protect nature. As organisations, we already publicly support making ecocide a fifth crime within the jurisdiction of the International Criminal Court, to establish a safety-rail for nature. We urge the prosecutor’s office to use its power to address the current gap in the legal order.

Once again, thank you for your initiative to address environmental destruction.

Johan Falk, CEO and co-founder of Exponential Roadmap Initiative

Ingmar Rentzog, CEO and founder of We Don’t Have Time

To the Office of The Prosecutor (OTP), International Criminal Court (ICC).

Firstly, thank you for this opportunity to respond to your public call for comments regarding policy to address environmental crimes. The Wellbeing Economy Alliance (WEAll) is the leading collaboration of organizations, alliances, movements and individuals working to transform the economic system, from the current dominant paradigm, which seeks profit and growth (at any cost), largely measured by GDP, to one which pursues wellbeing.

In this new paradigm, the economy would be at the service of all life, and success measured by the achievement of the wellbeing of people and the planet.

We are acutely aware of the devastating environmental impact resulting from human economic activity. Much of this impact is a direct result of the pursuit of profit and growth, often in response to private rather than public interest. This undermines environmental standards with often devastating impacts on the environment. These impacts are seen as “externalities”, a way of regarding them that masks the true cost of the activity.

This reckless approach has resulted in massive profits for some, and at the same time, wanton and criminal impacts on the environment, which have incalculable negative impacts on our planetary health, and the health of entire communities. It also creates unequal and unfair conditions for responsible actors, making it difficult, or well-nigh impossible, for the responsible actors and needed solutions to thrive.

We would like to welcome the OTP interest in addressing environmental crimes, noting that the current Rome Statute does not comprehensively address such crimes. We are overshooting planetary boundaries and we face a number of tipping points that are already affecting global peace, security and wellbeing.

The OTP should recognize this limitation of the Statute, and propose the establishment of a 5th crime of Ecocide, which would work preventively to deter and sanction the worst forms of environmental destruction, while offering a legal basis for us to better thrive within the safe space of our planetary boundaries, helping us correct the current suicidal destruction of our common home.

We would happily engage further on these ideas.

Warm regards, Simon Ticehurst

For the Prosecutor of the ICC

We welcome your initiative to see what can be done to curb serious environmental harm by using existing legal instruments. We believe that environmental harm is such a serious matter that ecocide should be a crime in its own right under the Rome Statute.

55% of the world’s GDP depends on nature’s services. Despite this, we are increasingly witnessing how our ecosystems are disrupted and destroyed through reckless exploitation of nature.

Decision-makers globally must understand that reckless actions against nature can have serious consequences in the form of imprisonment or hefty fines.

The EU is moving forward on this issue and tightening regulations and sanctions, and this is excellent, but it is not enough. One reason is simple: the EU has 27 member states, on one continent. The International Criminal Court has 123 member states, on all continents of the world.

In addition, mass environmental destruction is an international problem, and its consequences do not stay within national borders. International law with global reach is needed.

The current lack of legislation enables the growth of destructive activities. By implication, it curbs the development of responsible ways of being on this planet.

While ecocide is mentioned in the Rome Statute, it is a crime only in wartime. Ecocide occurs also in peacetime.

Furthermore, the definition of ecocide in wartime sets the threshold so high that very few acts of serious environmental harm can be addressed. For a crime of ecocide as a standalone crime, the definition proposed in 2021 by a panel of experts is closer to what is required to begin to address the problem, which is both urgent and serious and therefore “of concern to the international community as a whole.”

Making ecocide a fifth crime within the Rome Statute has several advantages:

• The law starts at the right end to address key issues, as it is over-arching, addresses the most serious damage, and also intervenes at the beginning of the value chain.

• It creates a new decision-making situation and risk analysis for individuals responsible for activities that potentially cause significant harm to vital ecosystems.

• The law contributes to fair competition, both in Sweden and globally.

• The law creates increased pressure for transition, which in turn contributes to a higher rate of innovation.

The International Criminal Court is an important institution and it is in a unique position to establish a legal guard rail, to enable humanity to thrive on this planet. Since criminal law also influences our sense of right and wrong, making ecocide a fifth crime under the Rome Statute will begin a most important shift in values. We believe that crimes against the environment should be on par with crimes against humanity and we encourage the prosecutor’s office to use its influence to advance this idea.

On behalf of our companies:

SPP, Johanna Lundgren Gestlöf, Sustainability Manager

Polarbrödsgruppen, Karin Bodin, CEO

Icebug, David Ekelund, CEO

Houdini Sportswear, Eva Karlsson, CEO

SPP is a major Swedish actor in occupational pensions;

Polarbröd is Sweden’s third largest bakery company;

Icebug is a global forerunner in transparency and sustainability within the footwear industry;

Houdini Sportswear is a progressive and rapidly growing Swedish outdoor brand with a global forefront position within the apparel industry.

To the Office of the Prosecutor

Your initiative to advance accountability for environmental crimes under the Rome Statute is most laudable and welcome. We agree wholeheartedly with the Prosecutors’ statement that “Damage to the environment poses an existential threat to all life on the planet”.

We would like to take this further.

In spite of the 2015 Paris Agreement, emissions are rising year on year. The commitments made by governments the world over are too often ignored and the window for keeping the consequences of the climate crisis even partially manageable is rapidly closing.

These consequences are already palpable: severe storms, floods, droughts and forest fires are reported in the newspapers almost every day. We have transgressed six out of nine of the recognised Planetary Boundaries and breached seven out of eight of the safe and just Earth Boundaries. As hopeful as we were in 2015, we are woefully behind targets set for emission reductions by 2030.

Species are disappearing from the face of the Earth at alarming rates. In 2022, a landmark international agreement on biodiversity was made in Montreal to address dangerous loss of biodiversity and restore natural systems. The goals are ambitious and necessary, but there is a question mark over whether they will be met.

Our track record is not encouraging: none of the previous targets for biodiversity protection were fully met. Clearly, we need to do more than simply agree on targets.

While we applaud the prosecutor’s initiative to see what can be done using existing legal instruments, we strongly suggest that it is time to make ecocide a crime in its own right under the Rome Statute.

Making ecocide a standalone crime within the jurisdiction of the ICC gives us the opportunity to bridge the gap between what existing legal instruments can achieve and what the science is telling us must be done - and what science is telling us about the urgency of the need for action. Time really is of the essence.

Making ecocide a crime sends a strong signal that the environment needs to be protected and that it is worth protecting. Since the acts that cause ecocide by their very nature are large-scale, it is likely that investment decisions regarding such acts will be affected as soon as it is clear that the new law is on its way.

Moreover, it would contribute to a change of consciousness: a change that enhances the protection of the environment and supports a more collaborative and effective legal framework for our common future on a shared planet.

Scientific analysis provides a firm foundation for arguing that this amendment would be crucial for achieving the Paris Agreement as well as supporting an economy within Planetary Boundaries and protecting human rights.

Well over 100 scientists from all continents have already signed a statement asking for ecocide to be made a crime under the Rome Statute.

We believe that only a real risk of significant criminal sanctions on those who damage our planet will begin to prevent the catastrophe they are on their way to causing. The stakes could not be higher.

On behalf of Researchers’ Desk

Professor Alasdair Skelton

Chairperson of Researchers’ Desk

Researchers’ Desk provides a platform for dialogue between researchers and civil society, educators and decision-makers regarding the ongoing climate and biodiversity crisis. Most of our researchers work at major Swedish universities. Their expertise spans multiple disciplines within the natural sciences, social sciences and humanities. Researchers’ Desk is a non-profit organisation.

Response from Baroness Boycott to the Office of the Prosecutor of the International Criminal Court’s consultation on a new policy initiative to advance accountability for environmental crimes under the Rome Statute.

I welcome this opportunity to feed into the initial stages of the policy paper and that the Office of the Prosecutor is looking closely at the issue of environmental crime.

With increasing risk to our planet from rising greenhouse gas emissions, biodiversity loss and species decline, record ocean temperatures and the threat of tipping events on ocean currents being reached, it’s clear that more action needs to be taken to prevent and deter the most severe damage to the environment and that a separate 5th crime of ecocide should be introduced into international criminal law to sit alongside existing crimes under the Rome Statute.

Whilst it is important to use the existing provisions in the Rome Statute to address environmental crimes where possible, I am concerned that there is no explicit protection for the environment in the Statute other than the provisions in Article 8.2.b.iv which apply only during armed conflict and in the context of war crimes.

With such a high threshold for bringing an action under the Statute relating to environmental damage, this means that ecosystem destruction that happens in peace time or is not affecting humans directly will not be covered.

Noting that the remit of the Rome Statute in the preamble is that ‘the most serious crimes of concern to the international community as a whole must not go unpunished’, currently there is a gap in relation to crimes which cause the most severe environmental destruction and I hope that the policy paper can address this through a recommendation for the establishment of a 5th crime of ecocide to ensure that the most egregious harms to our natural environment can be deterred and prevented wherever and whenever they occur and that those responsible can be held accountable. Introducing such a legal safeguard will help to reduce the increasing risks of crossing nature and climate tipping points.

Alongside an increasing number of countries which have either already introduced, or are seeking to introduce crimes of ecocide at the national level, I have recently introduced an Ecocide Bill (Private Member’s Bill) in the UK House of Lords which would introduce a new offence of ecocide into the criminal law framework in England targeting those responsible for causing severe environmental damage and deterring future severe environmental damage. Recent events such as unlawfully discharging pollution (chemical or agricultural) into river systems, illegal fishing or bottom trawling in protected area demonstrate the need for greater legal protection against such damage.

Whilst existing domestic legislation allows for enforcement action to be taken in various situations where there are breaches of environmental law, bringing it together under one new ecocide law will cover all aspects of harm against the environment giving overarching protection, complementing the existing regulatory framework and applying to the most serious environmental damage. It would also act as a deterrent and incentivise more environmentally responsible behaviour.

Including a new international crime of ecocide in the Rome Statute will incentivise countries to incorporate ecocide into domestic legislation, and will also ensure that the International Criminal Court will be able to prosecute in situations where nation states cannot or will not prosecute.

Dear Office of the Prosecutor,

I am so heartened to read of this consultation, having been a friend and ally of Polly Higgins who started work on the Law of Ecocide before Extinction Rebellion was launched. We in XR have always been staunch supporters of a law of ecocide being added to the Rome Statute. We are aware of attempts to use the current statutes to slow down the destruction of our biosphere, notably the work of Climate Genocide Act Now in which campaigners point to both oblique and direct intent. And we applaud such attempts. Polly was always clear that they should be made- in that they would either help prevent the mass damage and destruction of the natural environment, or they would show there is missing law. Given the lack of take up and success of key cases I would lean in to concluding that the current law is unable to make the protections we urgently need. I am also aware of business backing- such as Business Declares, for a law of Ecocide. It is clear that market forces and "sustainable development" are unable to deliver the changes needed.

The atlantic meridional overturning circulation (AMOC) is breaking down right now, the life support systems of the earth are starting to fail. This isn't by accident, its due to policy and practice of Government and business leaders. We don't see them being held to account in any meaningful way. How is it that those of us seeking to raise the alarm and demand urgent and necessary change, myself included, find ourselves branded as yobs and prosecuted as criminals, when there is no remedy for those perpetuating the biggest crimes ever committed, ones in which leading scientists speak of deaths in the billions.

I understand the current law was always designed to be joined by a 5th law - the crime of ecocide, that will stand in times of war and so called peace. I do hope you can propose that this law is urgently added to the Rome Statute. Future generations of all life are depending on you!

With love and peace,

Dr. Gail Bradbrook

To the International Criminal Court

Office of the Prosecutor

Attn: Chief Prosecutor Mr. Karim A. Khan

Ecocide and our ICC Communication¹ on crimes against humanity in the Brazilian Amazon

Paulo Busse is a Brazilian international criminal, environmental and human rights lawyer with over 20 years’ experience advising and representing human rights and environmental organisations in Brazil and abroad. In collaboration with other lawyers, he has spearheaded a number of cutting- edge legal actions aimed at protecting the environment in Brazilian courts and submitted a communication to the OTP of the ICC on crimes against humanity committed in the Brazilian Amazon between 2011-2021. Lawyer of Observatório do Clima and lead lawyer at Climate Counsel, he has also been advising on national ecocide laws.

Introduction

In order to deter the rabid deforestation of the Amazon rainforest² and related human rights violations against the its traditional populations (indigenous and non indigenous), Brazil and the international community need a broader more encompassing environmental crime: ecocide.

In the period between 1985 and 2019, Brazil as a whole lost 872,000 km2 of native vegetation in the different biomes, the equivalent to 10.25% of its territory. In the Amazon region alone, deforestation figures released by the National Institute for Space Research (Inpe), showed a total of 470,472 km2 deforested between 1988 and July 2021, the equivalent to 9.4% of the area delimited as Legal Amazon (which covers 58.9% of Brazil).

While the rate of deforestation was successfully reduced by 83% under the first two Lula mandates between 2003-10, since then it has increased year on year. Under President Jair Bolsonaro it rose significantly. Recent data indicate that the accumulated deforestation from 2019 to 2022 reached 35,193 km2, an area that exceeds the individual size of two Brazilian states: Sergipe and Alagoas.

It also represents an increase of almost 150% in relation to the previous four-year period (2015 to 2018), when 14,424 km2 were devastated. In 2022, Lula became president again and, in the first year of his administration, along with Ms Marina Silva, Minister of Environment, managed to reduce deforestation rate by 50%.

As this data indicates, while domestic political policies can be effective in reducing mass deforestation, the health of the Amazon is - in significant part - at the mercy of the government of the day. Because the Amazon can serve as a gigantic carbon sink, its demise is not only a problem for Brazil, but also for the wider world as we seek to mitigate dangerous global heating.

This article argues that novel solutions are required to prevent the continued destruction of the Brazilian Amazon and the indigenous and traditional communities who rely on it. A new international law of ecocide, or even a national version, would open-up important legal avenues for those who want to protect the forest and its communities and help deter those who drive the continued destruction of the biome.

Brazil’s environmental law

Brazil has some of the most comprehensive forest protection laws of anywhere in the world.

Indigenous people and their territories are robustly protected.³ The Constitution ‘acknowledged the pre-existing rights of indigenous people to their traditional lands, and further established that they had usufruct rights to the land, as well as “riches of the soil, the rivers, and the lakes existing therein”’.⁴ The rights and interests of indigenous populations should be defended by public prosecution.⁵ Cultural rights⁶ and heritage⁷ are enshrined, and demarcation of indigenous territory is required.⁸

However, indigenous people do not have usufruct of the subsoil, and as such do not possess mineral resources on their lands; mineral rights belong to the federal government.⁹ Essentially, the land itself and anything of value underneath it remain vested in the state.¹⁰

Brazil also has a comprehensive legal framework for environmental protection. Chapter VI of the Constitution provides for protection/conservation of ‘The Environment’.¹¹ Environmental policy¹² and the issue of permits and licensing¹³ predate the Constitution, as does civil liability.¹⁴ Criminal¹⁵ and administrative¹⁶ liability came later. The 1998 Environmental Crimes Law establishes criminal and administrative punishment for individuals and companies for harming the environment, such as harvesting timber in government-owned forests and transporting, buying, or selling illegally-harvested timber.¹⁷

In theory, punishment may include prison sentences, fines and rights’ restrictions for individuals and fines and business restrictions for companies, like suspension of their activities and prohibition on concluding agreements with the government. In practice, these laws are not properly enforced, for different reasons: crimes are often unclear and generally dependent on administrative directives and actions. The laws are not comprehensive enough to curb much of the larger, more serious and far-reaching types of environmental degradation. And penalties are arguably too low, which make defendants entitled to a series of procedural benefits and avoid imprisonment.

Under the Brazilian Forest Code, private landowners in the Amazon region must maintain 80 percent of the forest on their property as a nature reserve.¹⁸ Timber may be legally extracted subject to authorization by environmental agencies and commitments to maintain biodiversity, forest cover, and growth of native species.¹⁹

This legal framework is supported by a set of domestic regimes tasked with the protection of Brazil’s forests. Regarding the recognition of community forest rights, ‘Brazil has the most complex system of forest tenure of all countries, with a total of eight [unique] tenure regimes.

These regimes can be classified into three types: (a) community rights to forest resources within conservation unit areas; (b) community rights to forest resources within agrarian reform settlements; and [...] (c) the rights held by Indigenous or Quilombola communities.’²⁰

All of this is what President Lula once referred to as Brazil’s ‘Mosaic’ of protections.²¹ These territorial regimes are largely (but not exclusively) tied to land in Brazil’s Amazon.²²

Additionally, each area falls under the remit of a specific government agency: ICMBio (in the case of Extractive Reserves, Sustainable Development Reserves, and National Forests); INCRA (in the case of Forest Settlement Projects, Sustainable Development Projects, Agro-Extractive Settlement Projects, and Quilombola Territories); and FUNAI (in the case of Indigenous Lands).²³ Notably, unlicensed or unauthorized commercial activity is illegal in reserves and indigenous territories.²⁴

From a normative perspective, Brazil’s domestic legal regime recognizes both environmental crime and infraction.²⁵ Relevant criminal/civil law, regulations, and other provisions are enforced by IBAMA and ICMBio at the federal level, and by state and municipal environmental agencies at the local level.²⁶ As Human Rights Watch has noted: ‘The Federal Police are in charge of criminal enforcement of environmental laws in federal areas, including indigenous territories and federal conservation reserves.’²⁷ Official law enforcement efforts are augmented by other informal actors such as the so-called Guardians of the Forest²⁸, which (should) fall under Brazil’s National Program for the Protection of Human Rights Defenders.²⁹ A number of enforcement bodies also exist at the state level.³⁰ The root of the deforestation problem, therefore, is not that Brazil lacks legal protections for the Amazon rainforest. The problem is that the laws have proven to be deeply ineffective. Why?

Amazon under attack

The first issue that has hampered efforts to prevent environmental destruction is common to many jurisdictions, namely, overwhelming and seemingly irresistible (perceived or real) economic incentives. Commercial agriculture, logging, and mining (spanning a wide range of commodities) are chief sectors of the national economy.³¹ The value and volume of Brazil’s agriculture and mining exports account for some 40% of the country’s commodity exports.³²

The Brazilian Amazon has long been a target of economic development.³³ Overzealous economic activity has resulted in a significant amount of deforestation over the years. Accounting for most of the commercial activity in the Amazon are a number of players: multinational agribusiness and smaller-scale farmers;³⁴ large-scale cattle ranches (latifundios), some with their own private security firms;³⁵ and large-scale mining companies and small-scale surface miners (garimpeiros).³⁶

A variety of factors—including new commercial technologies, increased infrastructure, readily available financing, rising global commodity prices, etc—coalesced in the early part of the 21st Century to drive commercial expansion in the Amazon.³⁷ Many of these trends can be linked to both global economic factors as well as domestic political policies—enacted by successive administrations and enabled by associated lobbying groups.³⁸ Such conditions created incentives for commercial development and encouraged participation by a full spectrum of actors: large and small, legal and illegal.

Many of these individuals commit environmental offences: illegal ranching, farming, logging, mining—nearly all of it facilitated by illegal land-grabbing (grilagem). Worse still, a significant number engage in violent crime and human rights abuses—including murder, persecution, and various inhuman acts—against rural land users and defenders.³⁹ In other words, significant segments of these otherwise legitimate industries are riven by external forces of greed, brutality, and illegality.

In contrast to the major commercial power behind expansion into the Amazon, federal agencies suffer from sustained underfunding. In practice, federal agencies have been contending with personnel shortages and lean budgets, which required them to abandon more remote outposts and cut the frequency of visits to the interior.⁴⁰ In 2009, IBAMA employed some 1600 inspectors throughout Brazil, by 2019, it employed 780. Since 2013, FUNAI’s budget has been gradually decreased by the federal government.⁴¹ In 2017 FUNAI’s budget had reached its lowest level in the previous 10 years.⁴² In 2017, INCRA saw its budget slashed by 30%⁴³ and FUNAI’s cut by almost half.⁴⁴ In the same year, ‘the National Program for the Protection of Human Rights Defenders remain[ed] underfunded, often limiting the protection it provides to telephone calls from officers based far away in Brazil’s capital, Brasilia’.⁴⁵

To make matters worse, FUNAI and INCRA have been hampered by congressional investigations initiated by members of a powerful parliamentary caucus—the Ruralistas.⁴⁶ The parliamentary group Frente Parlamentar da Agropecuária (Parliamentary Front for Agriculture and Livestock) (FPA) or simply the Ruralistas, is an alliance of lawmakers (deputies and senators) from different political parties representing agri-businesses which prioritize commercial land development and ownership over conservation and environmental regulation/protection.⁴⁷ Many members are large landowners and receive significant campaign finance from private sector interests linked to their activities.⁴⁸

To the Ruralistas, ‘social and environmental land protections represent a barrier to unfettered access’.⁴⁹ The Ruralistas aim to remove barriers to development and consistently flex their ‘political muscle toward achieving these ends’ at both federal and state level.⁵⁰ In October 2018, thanks largely to the Ruralistas, the bloc consolidated its already significant hold on Brazil’s political system by firmly backing Jair Bolsonaro for President. In unprecedented fashion, since early 2019, the Ruralista bloc was able to operate two major levers of power: a near-majority of congress and a president whose extreme policies even make some in agribusiness uncomfortable.

The populist Mr Bolsonaro was openly hostile toward rural land users and defenders and encourages landowners to use lethal force against those who reject their rapacious claims. Tellingly, he gazed back wistfully at Brazil’s brutal military dictatorship.⁵¹

Following Mr Bolsonaro’s election, seven Ruralistas were given top positions, including: then- president of the FPA, Tereza Cristina, as Minister of Agriculture;⁵² former FPA legal director Ricardo Salles, as Minister of the Environment;⁵³ and rural caucus member Valdir Colatto, as Chief of Brazil’s Forest Service.⁵⁴ By 2019, the FPA had 225 of the 513 deputies in the house, and 32 of the 81 seats in the senate.⁵⁵ Moreover, ‘[d]irect articulation with the Executive, especially with Minister Cristina, also helped in winning key positions in the permanent committees, where the bills that go to the Chamber’s plenary are discussed’.⁵⁶ According to one study, from his inauguration through to September 2020, Mr Bolsonaro oversaw at least 57 acts that have weakened environmental protections in Brazil in some way.⁵⁷

Within days and weeks of taking office, the administration moved to freeze certain budgets, including that of FUNAI.⁵⁸ It also froze the Amazon Fund and the Climate Fund, two major instruments designed for funding programs for reducing deforestation, GEE emissions and climate change.

In 2019, Mr Bolsonaro attempted (but failed) to move FUNAI from the Ministry of Justice to the Ministry of Agriculture, where critics said the agribusiness lobby would exert more influence.⁵⁹ Mr Bolsonaro obstructed Brazil’s system of environmental fines, one of the main instruments for punishing those who illegally deforest the Amazon. After attacking IBAMA for having created an ‘industry of fines’, the administration cut its budget and created procedures that would delay payment of fines by those found responsible for illegal deforestation—undermining the intended preventative effect of the fines and thereby offering the Ruralistas a freehand.⁶⁰ ‘I will not allow for IBAMA to go out fining people left and right, nor ICMBio. The party is over’, he said shortly after his election.⁶¹ In February 2019, 21 of the 27 IBAMA superintendents were dismissed.⁶² In May 2019, Mr Bolsonaro’s first Environment Minister, Ricardo Salles, sacked Olivaldi Azevedo as director of IBAMA, the federal environmental inspection agency. ⁶³

On 1 November 2019, Mr Bolsonaro suggested that IBAMA agents ‘who block progress’ should be sent to a military base - notorious during Brazil’s military dictatorship as a place where security forces summarily executed political prisoners.⁶⁴ Environmental agents still issued thousands of fines, but very few hearings were held after August 2020.⁶⁵

A presidential decree issued on 29 May 2019 restructured the National Environment Council (CONAMA). The move significantly diminished CONAMA membership from 96 to 23, adversely affected the participation of most states, and substantially curtailed the presence of municipalities and civil society groups. Notably, council members representing civil society were reduced to only four from a previous level of 22 seats.⁶⁶ And from 2020 onwards, the administration engaged in multiple actions and omissions (including the restructuring of certain federal agencies) aimed at rendering implementation of Lula-era strategies unfeasible.⁶⁷

In May 2019, discretionary funding allocated to the Ministry of the Environment was significantly curtailed. Programs adversely affected included those related to climate-change policies, forest fire prevention and control, federal environmental licensing activities, and conservation support.⁶⁸

Environment Minister Salles said in late-April 2020 that he saw the Coronavirus pandemic as an opportunity to reduce environmental restrictions while attention was focused elsewhere.⁶⁹ In October 2020, Mr Salles filed a petition asking a judge to require the executive secretary of the Climate Observatory, Marcio Astrini, to explain statements critical of government policy that he made in a media interview⁷⁰, a measure seemingly intended to intimidate Mr Astrini.⁷¹

In June 2021, Mr Salles resigned, weeks after he was targeted by federal police as part of an investigation on his involvement with an alleged illegal logging mafia in the Amazon.⁷²

Deforestation had risen sharply under his watch.⁷³ Mr Salles was replaced by Joaquim Alvaro Pereira Leite. An Environment Ministry official previously in charge of monitoring the Amazon, Mr Leite was linked to Brazil’s agribusiness lobby.⁷⁴ In May 2020, the government transferred oversight of national forest concessions from the Ministry of the Environment to the Ministry of Agriculture, paving the way for commercial development in protected areas⁷⁵ In the same month, the government transferred responsibility for leading anti-deforestation efforts in the Amazon from environmental agencies to the armed forces, a move criticized due to the military’s lack of expertise and training.⁷⁶

Taken together, these acts of intentional sabotage have had disastrous effects for Brazil’s fragile ecosystems. Rates of deforestation topped 10,000 km2 annually during the first two years of the Bolsonaro administration (an increase of more than 30%).⁷⁷ After January 2019, when President Bolsonaro took office, the situation worsened in terms of ‘land invasion’ and deforestation.⁷⁸ In 2021 ‘deforestation in the Brazilian Amazon was hovering near a 12-year high’.⁷⁹ In 2022, deforestation numbers continued to grow.

Even if we consider that Mr Lula managed to reduce deforestation rate by 50% in the first year of his administration, the fact is that what was lost during Bolsonaro years may never be recovered.

And Mr Bolsonaro and his ministers and officials will not stand trial for what they purposely did against the environment, amongst other reasons because there is no crime with a definition as broad and adequate as ecocide. Knowingly, one of the main reasons for criminal recidivism is impunity.

Ecocide: a new legal tool to defend the Amazon and halt climate change

With domestic challenges hampering Brazil’s ability to safeguard its natural environment, additional tools need to be considered. The entrenched system of exploitation will not be resolved easily; meaningful and sustainable change will require political determination, economic transition, and societal change. Carrots and sticks may be required in equal measure. But a good place to start would be a new criminal law that sends a strong message in favour of protecting our natural environment from the most serious forms of destruction; a law that encourages defenders and destabilises would-be violators, not only through stiffer penalties, but also through the enhanced weight of moral condemnation. In other words, a law that targets acts of ‘ecocide.’

There is a growing movement in favour of an international crime of ecocide (the so-called) ‘fifth crime’ to be slotted into the Rome Statute of the International Criminal Court. In parallel, there is also an increasing number of initiatives pushing to introduce ecocide laws as national criminal laws, including in Brazil.⁸⁰ Ecocide laws have the potential to substantially change the dynamic in the Amazon and dampen environmental harm in Brazil and in other countries.

As a potential international law, the Independent Expert Panel for the Legal Definition of Ecocide⁸¹ (‘Expert Panel’) suggested the following definition:

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.⁸²

If adopted by the States Parties as an amendment to the Rome Statute, ecocide would be the first international criminal law to protect the natural environment in and of itself, irrespective of human harm (the four current international crimes - war crimes, crimes against humanity, genocide, and aggression - require proof of very serious harm to humans or their property). It would allow prosecutors to target those who knowingly cause very serious damage to forests, soils, or rivers, so long as they do so unlawfully or wantonly (namely, with ‘reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated’).⁸³

The gravity threshold to prove any international crime is (and should be) very high. The ICC tends to be concerned with violations that ‘threaten the peace, security and well-being of the world.’⁸⁴

So even assuming a new crime of ecocide is added to the Rome Statute, there are likely to be only a handful of scenarios each year that ‘qualify’ for prosecution. But the rampant destruction of the Amazon rainforest might well be one of them. As deforestation progresses (through fire or chainsaw) it is getting dangerously close to what scientists call the “tipping point.” This is when the Amazon rainforest loses its ability to recover from periods of drought caused by forest suppression, causing severe damage to the biome, and eventually the forest begins to die - it becomes a vast savanna.⁸⁵

While the Expert Panel definition leaves room for economic development that is lawful and carries social and economic benefits (if they outweigh the harm), much of the land-grabbing, deforestation, and pollution in Brazil is either outright unlawful, or clearly excessive when compared to the benefits. Some of the damage to the natural environment has been ‘severe’, meaning ‘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’⁸⁶ And a significant amount of the harm has also been either ‘widespread’ or ‘long-term’, some of it threatening entire species with permanent destruction. Each case will, of course, turn on the evidence available. But it seems likely that an ICC prosecutor would be able to gather sufficient evidence to satisfy the legal elements of a new law of ecocide (applying the Expert Panel’s definition).

If so, those persons most responsible for the unlawful or wanton environmental damage in the Amazon would be vulnerable to criminal prosecution at the international level (it is worth noting that any new law would not apply retroactively). Even without an active prosecution, the mere threat of an indictment for an international crime would likely focus minds and change behaviour of those in positions of power, whether rainforest mafia, businesspeople, or politicians.

A new ecocide law in Brazil (as a national crime) could also be effective, depending on how it is defined. As it stands, the current Environmental Crimes Law is not applicable to the more serious and far-reaching forms of environmental degradation and is overly dependent on administrative rules and regulations (most criminal laws refer to regulatory terms, principles, acts, and decisions).⁸⁷ If a new Brazilian ecocide law was adopted with higher penalties for perpetrators, and prosecutors were given sufficient powers to use it properly, it would likely add a powerful tool to the Brazilian prosecutors’ arsenal.

In addition, the current Brazilian Environmental Crimes Law depends on evidence of the presence of a material result, and that is an essential problem: crimes can only be prosecuted after the occurrence of the harmful event. As proposed by the Expert Panel, the crime of ecocide is a crime of endangerment and resembles other Brazilian laws, such as the crime of reckless or wanton management of a financial institution (article 4 of Law 7,492/86), which defines crimes against the national financial system. With endangerment crimes, guilt may be established when the actor knowingly takes the risk to cause the damage (whether or not it actually occurs). This is important for environmental crimes as the ultimate harmful result may occur many years later, by which time it is ‘too late’. What is at stake is the stability of human civilization, not to mention thousands of species of animals and plants. In this apocalyptic context, in which the limitations of the administrative control and prevention are very evident, the most intrusive arm of the legal system, criminal law, is the one endowed with the dissuasive role that can address the dangers that lie ahead.

Another characteristic of a comprehensive definition of ecocide is its intrinsic, direct and necessary relationship with other fundamental rights threatened by environmental degradation: right to life with dignity, health, food, indigenous rights, etc. As proposed by the Expert Panel, a single norm would have the additional advantage to address, combine and reinforce many fundamental rights at once. Brazilian Federal Supreme Court Justice Luis Roberto Barroso recently ruled that the Paris Agreement is a human rights treaty in Brazil.⁸⁸

Criminal law has the power to help change attitudes and mindsets within society. ‘Ecocide’ is a clear and irresistible concept, immediately comprehensible by victims and general population - especially the indigenous and other traditional populations in the Amazon. If adopted, the ecocide law could send a captivating message throughout the country: civil society members, academics, policy makers, corporate executives, public servants, jurists, judges, prosecutors, etc. It may certainly contribute to change the way people see their relationship with the environmental and the need to preserve the natural world.

If ecocide crime was introduced in the Rome Statute in line with the definition proposed by the Expert Panel, it would certainly contribute to raise awareness of the many dangers posed by the kind of policies the Bolsonaro administration promoted and implemented in Brazil, and on the crucial importance of protecting national biomes like the Amazon and the Cerrado, reducing greenhouse gases emissions and curbing climate change. It would also serve as an example and send a powerful message to all countries, stimulating them to develop their own national ecocide laws.

If ecocide was in the Rome Statute, businesses partners, suppliers and financiers could be investigated and prosecuted for complicity. Again, even without a full prosecution and conviction, the mere allegation of complicity in a crime in the same category as war crimes would likely cause significant reputational damage and possible financial harm. Corporations are already coming under pressure to remove harms from their supply chains.⁸⁹ Individual responsibility for international crimes falling on company executives could be a game changer.

Despite the myriad of challenges facing environmental protection in Brazil, there are new and emerging legal tools that can be used to bolster the defence of the Amazon rainforest and other important ecosystems. A new international crime of ecocide would add a much-needed gravity to the equation, countering the influence of corrupt political groupings and commercial interests.

The individuals responsible for environmental destruction on a grand scale do not employ half- measures in pursuing their objectives. It is crucial that the international legal community match their determination and protect both people and planet. A new law of ecocide represents a very real possibility to counter the malign influence of powerful actors, bringing justice to the worst offenders and deterring others.

For the time being, a cycle of violence against indigenous and traditional communities and environmental destruction appears ascendent within Brazil. This may be temporarily alleviated now that Bolsonaro has been ousted following Lula’s victory in the 2022 election.

It is indeed promising that Mr Lula has placed the environment and climate change amongst the highest priorities of his administration. But the new president takes over an extremely polarised country with a partially hostile congress, a stagnant economy that urgently needs to be revived, and indigenous and traditional peoples who remain under constant pressure and attack from criminal elements intent on the destruction of the Amazon. Furthermore, President Lula has to restore all that was dismantled during the Bolsonaro years (2019-2022), in particular the agencies responsible for implementing the environmental and indigenous peoples' protection policies in the Amazon (IBAMA, ICMBio and FUNAI). Whoever holds power in Brazil, it is vital that environmental defenders receive the institutional support they require to protect some of the most important biodiversity hotspots on the planet.

Our ICC Communication on atrocity crimes in the Amazon (in the context of ecocide)

Finally, on 9 November 2022 we submitted a Communication⁹⁰ to the Office of the Prosecutor (‘OTP’) of the International Criminal Court (‘ICC’) on behalf of Rural Land Users and Defenders who are victims of alleged crimes against humanity. The Communication was filed by Climate Counsel, Greenpeace Brazil and Observatório do Clima (the ‘Filing Parties’), supported by Greenpeace International, Comissão Pastoral da Terra (CPT), Instituto Zé Claudio e Maria, and Global Witness. The Filing Parties request the ICC Prosecutor to open an examination to further investigate these crimes. In the Communication, we take a higher look at the atrocity crimes committed against traditional populations (indigenous and non indigenous) of the Amazon between 2012 and 2022, showing them as one collective, widespread and systematic phenomenon.

It would also be about ecocide (if there was ecocide in the Rome Statute) because the crimes were committed in the context of rampant environmental destruction and consequent greenhouse gases emmissions, contributing to climate crisis.

The attack we describe was committed by a Network comprised of public and private-sector actors from multiple levels of Brazilian society. These include politicians, civil servants, law enforcement officers, representatives of private commercial interests and many others. This Network committed the mass crimes pursuant to an organizational policy to facilitate the dispossession of land, the exploitation of natural resources, and the destruction of the environment, irrespective of the law.

The evidence clearly demonstrates that crimes against humanity have been committed and we hope the ICC will investigate this groundbreaking case.

—

1 Submitted to the Office of the Prosecutor (‘OTP’) of the International Criminal Court (‘ICC’) on 9 November 2022 on behalf of victims of alleged crimes against humanity in the Brazilian Amazon, filed by Climate Counsel, Greenpeace Brazil and Observatório do Clima, supported by Greenpeace International, Comissão Pastoral da Terra (CPT), Instituto Zé Claudio e Maria, and Global Witness.

2 In part it also applies to the Cerrado biome, where deforestation is currently on a rise. Due to its legal and non legal speficities, this article will focus on the Amazon biome.

3 Constitution of the Federative Republic of Brazil, 1988, Articles 174, 231.

4 Constitution, Article 231, para 8.

5 Constitution, Article 129.

6 Constitution, Article 215.

7 Constitution, Article 216.

8 See Constitution, Article 231; Transitional Constitutional Provisions Act 1988, Article 67. Nb. This issue has been addressed and limited by subsequent laws.

9 Constitution, Article 176.

10 Constitution, Articles 20, 22, 49, 109.

11 Constitution, Article 225.

12 International Comparative Legal Guides, Environment & Climate Change Law 2019, London: Global Legal Group Ltd, and Sao Paulo: Machado Meyer Advogados, 2019.

13 International Comparative Legal Guides, Environment & Climate Change Law 2019, London: Global Legal Group Ltd, and Sao Paulo: Machado Meyer Advogados, 2019; Federal Law No 6938 of 1981.

14 International Comparative Legal Guides, Environment & Climate Change Law 2019, London: Global Legal Group Ltd, and Sao Paulo: Machado Meyer Advogados, 2019.

15 International Comparative Legal Guides, Environment & Climate Change Law 2019, London: Global Legal Group Ltd, and Sao Paulo: Machado Meyer Advogados, 2019.

16 International Comparative Legal Guides, Environment & Climate Change Law 2019, London: Global Legal Group Ltd, and Sao Paulo: Machado Meyer Advogados, 2019.

17 Federal Law No 9605 of 1998.

18 Federal Law No 12,651 of 2012, Article 12.

19 Federal Law No 12,651 of 2012, Articles 17, 20–24.

20 Rights and Resources Initiative, Brazil, May 2012.

21 Sue Branford and Thais Borges, ‘Brazil on the precipice: from environmental leader to despoiler (2010-2020)’, Mongabay, 23 December 2019.

22 Human Rights Watch, Rainforest Mafias, Glossary (‘Brazil’s ‘Amazon’ refers to the area known as the ‘Legal Amazon’ under Law 1806/1953, that includes the states of Acre, Amapá, Amazonas, Mato Grosso, Pará, Rondônia, Roraima, Tocantins, and the western part of Maranhão.’).

23 Rights and Resources Initiative, Brazil, May 2012.

24 Federal Law 9985 of 2000, Article 18; Constitution, Article 231; Federal Decree 6040 of 2007; see also HRW, Rainforest Mafias, pp 26–27.

25 HRW, Rainforest Mafias, Glossary.

26 HRW, Rainforest Mafias, p 29.

27 HRW, Rainforest Mafias, p 28.

28 Human Rights Watch, ‘Brazil’s Amazon—and Its Defenders—Are Under Attack From Illegal Loggers, 15 November 2019 (published in Foreign Policy).

29 Amnesty International, Brazil: Police Killings, Impunity, and Attacks on Defenders, Submission for the UN Universal Periodic Review, 27th Session of the UPR Working Group, May 2017.

30 HRW, Rainforest Mafias, p 29.

31 Global Witness, On Dangerous Ground: 2015’s Deadly Environment: The Killing and Criminalization of Land and Environmental Defenders Worldwide, June 2016.

32 Deloitte Insights, Brazil: Recovery in Sight, 27 September 2021.

33 Laura Bridgeman, ‘Amazon Deforestation: Causes, Effects, Facts, and How to Stop It’, Sentient Media, 4 November 2020.

34 ‘Participação do agronegócio no PIB é a maior em 13 anos, estima CNA', G1 Globo, 5 December 2017; ‘Pecuária e Abastecimento, Agropecuária puxa o PIB de 2017’, Ministério da Agricultura, 4 December 2017; Luis Nassif, ‘O poder político do agronegócio’, GGN - O Jornal de Todos os Brasis, 4 October 2011.

35 Meredith Hutchison, Sue Nichols, Marcelo Santos, Hazel Onsrud, Silvane Paixao, ‘Demarcation and Registration of Indigenous Lands in Brazil’, Department of Geodesy and Geomatics Engineering University of New Brunswick, Canada, May 2006.

36 Meredith Hutchison, Sue Nichols, Marcelo Santos, Hazel Onsrud, Silvane Paixao, ‘Demarcation and Registration of Indigenous Lands in Brazil’, Department of Geodesy and Geomatics Engineering University of New Brunswick, Canada, May 2006.

37 Center for International Forestry Research (CIFOR), ‘Land-use trends and environmental governance policies in Brazil: Paths forward for sustainability’, Working Paper 171, 2014.

38 Amazon Watch, Complicity in Destruction: How Northern Consumers and Financiers Sustain the Assault on the Brazilian Amazon and its Peoples, Part I, 11 September 2018.

39 Global Witness, Deadly Environment: The Rise in Killings of Environmental and Land Defenders: 1 January 2002 to 31 December 2013, 2014.

40 HRW, Rainforest Mafias, pp 29–30.

41 Alessandra Cardoso, ‘Orçamento 2018: Funai respira, mas não se recupera’, Institute od Socioeconomic Studies (INESC), 1 October 2018.

42 Bárbara Libório, ‘Com orçamento em queda, Funai gasta R$ 12 por índio am 2017’, Amigos da Terra - Amazonia Brasileira, 31 October 2017.

43 Plataforma DHESCA Brasil, Relatório sobre o impacto da política econômica de austeridade nos direitos humanos, November 2017, p 23; ‘Brazil 2017: environmental and indigenous rollbacks, rising violence’, Mongabay, 27 December 2017.

44 ‘Brazil’s indigenous people outraged as agency targeted in conservative-led cuts’, The Guardian, 10 July 2017; ‘Amazon protectors: Brazil’s indigenous people struggle to stave off loggers’, Reuters, 6 June 2017.

45 Global Witness, At What Cost?: Irresponsible business and the murder of land and environmental defenders in 2017, 2018, p 23.

46 Global Witness, At What Cost?: Irresponsible business and the murder of land and environmental defenders in 2017, 2018, p 23.

47 See, e.g., Alceu Luis Castilho, ‘A Serpente Fora do Ovo: A Frente do Agronegocio e o Supremacismo Ruralista’, 12 Okara: Geografia em Debate (2018), pp 699–707.

48 ‘Global markets help sustain political power of agribusiness lobby in Brazil’s congress’, Earthsight, 25 September 2018.

49 Amazon Watch, Complicity in Destruction: How Northern Consumers and Financiers Sustain the Assault on the Brazilian Amazon and its Peoples, Part I, 11 September 2018.

50 Amazon Watch, Complicity in Destruction: How Northern Consumers and Financiers Sustain the Assault on the Brazilian Amazon and its Peoples, Part I, 11 September 2018.

51 Sue Branford and Thais Borges, ‘Brazil on the precipice: from environmental leader to despoiler (2010–2020)’, Mongabay, 23 December 2019.

52 Amazon Watch, Complicity in Destruction: How Northern Consumers and Financiers Sustain the Assault on the Brazilian Amazon and its Peoples, Part II, 25 April 2019.

53 Amazon Watch, Complicity in Destruction: How Northern Consumers and Financiers Sustain the Assault on the Brazilian Amazon and its Peoples, Part II, 25 April 2019; Anna Jean Kaiser, ‘Brazil environment chief accused of “war on NGOs” as partnership paused’, The Guardian, 17 January 2019.

54 Jenny Gonzales, ‘New appointments, new policies don’t bode well for Brazilian Amazon’, Mongabay, 4 February 2019.

55 Bruno Bassi, ‘The new face of the Ruralist Caucus’, Heinrich Böll Stiftung, Rio de Janeiro, 13 November 2019; Amazon Watch, Complicity in Destruction: How Northern Consumers and Financiers Sustain the Assault on the Brazilian Amazon and its Peoples, Part II, 25 April 2019.

56 Bruno Bassi, ‘The new face of the Ruralist Caucus’, Heinrich Böll Stiftung, Rio de Janeiro, 13 November 2019.

57 Katie Surma, ‘Bolsonaro should be tried for crimes against humanity, Indigenous leaders say’, NBC News (in partnership with Inside Climate News), 24 June 2021; Mariana Valea, Erika Berenguerd, Marcio Argollo de Menezesf, Ernesto Viveiros de Castro, Ludmila Pugliese de Siqueira, Rita de Cassia Portela, ‘The COVID-19 pandemic as an opportunity to weaken environmental protection in Brazil’, Biological Conservation, 2021.

58 ARNS Commission, Informative Note to the Prosecutor: International Criminal Court pursuant to Article 15 of the Rome Statute requesting a Preliminary Examination into Incitement to Genocide and Widespread Systematic Attacks Against Indigenous Peoples by President Jair Messias Bolsonaro in Brazil, November 2019, para 33; All Rise, Communication under Article 15 of the Rome Statute of the International Criminal Court regarding the Commission of Crimes Against Humanity against Environmental Dependents and Defenders in the Brazilian Legal Amazon from January 2019 to present, perpetrated by Brazilian President Jair Messias Bolsonaro and principal actors of his former or current administration, October 2021, paras 387, 388 and n 445.

59 US Department of State, Human Rights Report, Brazil 2019, Section 5 Governmental Attitude Regarding International and Nongovernmental Investigation of Alleged Abuses of Human Rights.

60 Human Rights Watch, ‘Rainforest Destruction in Brazil's Amazon Is a Public Security Emergency’, 4 February 2020 (published in Fonte Segura); Human Rights Watch, ‘Brazil’s Own Data Shows Amazon Fines Unenforced’, 22 May 2020; Human Rights Watch, ‘Amazon Penalties Suspended Since October’, 20 May 2020.

61 Jake Spring, ‘Brazil’s Bolsonaro obstructs environmental fines key to protecting Amazon’, Reuters, 2 July 2021.

62 ARNS Commission, Informative Note to the Prosecutor, para 34.

63 Brian Garvey & Mauricio Torres, ‘Brazil’s Jair Bolsonaro is devastating indigenous lands, with the world distracted’, The Conversation, 30 May 2020.

64 Human Rights Watch, ‘Brazil’s Amazon—and Its Defenders—Are Under Attack From Illegal Loggers, 15 November 2019 (published in Foreign Policy).

65 Human Rights Watch, ‘Brazil Events of 2020’, World Report 2021, 2021.

66 ARNS Commission, Informative Note to the Prosecutor, para 37 (referring to Presidential Decree No 9806/2019).

67 See Distribuição urgente e por dependência à Excelentíssima Senhora Ministra Rosa Weber – ADO no 59, ADPF no 747 e ADPF no 755, paras 99–102.

68 ARNS Commission, Informative Note to the Prosecutor, para 38.

69 Ernesto Londoño, Manuela Andreoni and Letícia Casado, ‘Amazon Deforestation Soars as Pandemic Hobbles Enforcement’, New York Times, 6 June 2020; Katie Surma, ‘Bolsonaro should be tried for crimes against humanity, Indigenous leaders say’, NBC News (in partnership with Inside Climate News), 24 June 2021.

70 Human Rights Watch, ‘Stop Harassing Environmental Defenders’, 16 October 2020.

71 Human Rights Watch, ‘Brazil Events of 2020’, World Report 2021, 2021.

72 Samantha Pearson, ‘Brazilian Environment Minister Ricardo Salles Steps Down Amid Illegal Logging Probe’, Wall Street Journal, 23 June 2021.

73 Bryan Harris & Michael Pooler, ‘Resignation of Brazil environment minister cheered by activists’, Financial Times, 23 June 2021.

74 Oliver Stuenkel, ‘Bolsonaro’s Turmoil Could Be the Amazon’s Gain’, Americas Quarterly, 1 July 2021.

75 Ernesto Londoño, Manuela Andreoni, and Letícia Casado, ‘Amazon Deforestation Soars as Pandemic Hobbles Enforcement’, New York Times, 6 June 2020.

76 Human Rights Watch, ‘Brazil Events of 2020’, World Report 2021, 2021; US Department of State, Human Rights Report, Brazil 2020, Section 6. Discrimination, Societal Abuses, and Trafficking in Persons: Indigenous People; Ernesto Londoño, Manuela Andreoni, and Letícia Casado, ‘Amazon Deforestation Soars as Pandemic Hobbles Enforcement’, New York Times, 6 June 2020.

77 Laura Bridgeman, ‘Amazon Deforestation: Causes, Effects, Facts, and How to Stop It’, Sentient Media, 4 November 2020.

78 Juanita Rico, ‘Bolsonaro’s empty climate promises for Brazil’, Open Democracy, 23 October 2021.

79 Anthony Boadle, ‘Brazil to step up its climate goals at COP26, says negotiator’, Reuters, 26 October 2021.

80 Stop Ecocide Foundation, ‘Breaking news and press releases & Press releases’, available at https://www.stopecocide.earth/press-releases.

81 ‘Independent Expert Panel for the Legal Definition of Ecocide’, Ecocide Law, available at https://ecocidelaw.com/independent-expert-drafting-panel/. The Independent Expert Panel was convened by Stop Ecocide Foundation in 2021 and published a proposed international definition of ecocide following a public consultation in June 2021.

82 Stop Ecocide International, ‘Legal Definition of Ecocide’, June 2021.

83 Stop Ecocide International, ‘Legal Definition of Ecocide’, June 2021.

84 Rome Statute of the International Criminal Court, Preamble.

85 Chris A. Boulton, Timothy M. Lenton & Niklas Boers, ‘Pronounced loss of Amazon rainforest resilience since the early 2000s’, Nature Climate Change, vol. 12, March 2022, 271–278.

86 Stop Ecocide International, ‘Legal Definition of Ecocide’, June 2021. This definition factors-in attacks on indigenous or traditional communities.

87 See for example: Art. 29, "kill, chase, hunt, catch, use wild fauna specimens, native or in migratory routes, without the proper permission, license or authorization from the competent authority, or in disagreement with that obtained"; art. 38, "destroy or damage a forest

considered of permanent preservation, even if in formation, or use it in violation of the protection rules"; art. Art. 40, "cause direct or indirect damage to Conservation Units and to the areas dealt with in Art. 27 of Decree No. 99.274, dated June 6, 1990, regardless of their location"; Art. 44, "extract from public domain forests or forests considered of permanent preservation, without prior authorization, stone, sand, lime or any type of minerals"; Art. 51, "sell chainsaws or use them in forests and other forms of vegetation, without a license or registration from the competent authority”. 88 ADPF 708, STF, Brazil.

89 ‘Companies are underestimating the risks of deforestation in their commodities supply chains’, Mongabay, December 2016.

90 This Digital Evidence Platform provides a visual overview of the evidence presented in the Communication, submitted to the OTP of the ICC on 9 November 2022: https://brazil-crimes.org

Dear Chief Prosecutor Khan

ClientEarth welcomes this policy initiative to advance accountability for environmental crimes under the Rome Statute. ClientEarth is a global NGO using the power of law to restore balance between people and the planet. Our work repeatedly demonstrates that our legal systems – at all levels of governance – need to shift if the law is going to play its crucial role in the environmental transition. It is vital that international criminal law be part of this shift. Advancing accountability for environmental crimes in international criminal law would fill a gap in the legal framework concerning environmental destruction; and send a strong message to those who would engage in such destruction that they will not enjoy impunity, however powerful they may be. We look forward to reading your draft policy paper.

Yours sincerely,

Laura Clarke OBE

To the Office of the Prosecutor (OTP) at the International Criminal Court (ICC).

Regarding the environmental crimes policy – in support of an amendment dealing with Ecocide

Your honourable Karim A.A. Khan KC, dear Madams and Sirs,

We, representatives of Nordic ecumenical organisations, welcome the OTP’s policy initiative and its aim to advance accountability for environmental crimes. Amongst the possible outcomes of this process, we wish to express our wholehearted support for the addition of environmental crimes in parity with Ecocide, as a fifth crime into the Rome Statute.

The care for creation lies at the heart of the churches’ calling. Caring for creation includes fostering good conditions for life and restricting destructive human behaviour. With law being an effective method for such restriction, legal questions become relevant for us as religious communities.

The immense harm done to nature globally makes it obvious that transboundary exploitation and destruction of the environment is inadequately dealt with in international law. The current revision process opens a huge possibility to reduce this gap. We are aware of the enormous complexity that the OTP must navigate in this policy initiative. As churches however, we want to encourage you and all the parties to the Rome statute of the ICC to consider the possibility of further safeguarding the nature we are a part of and depending upon.

An Ecocide law under the Rome statute is called for by large parts of society, from countless civil actors via the World Council of Churches to financial organisations like the International Corporate Governance Network, ICGN. This is because such a law would help to protect people and nature in countries with insufficient national laws and create a common global boundary – for the sake of people, nature and just business alike.

A proposal to amend the Statute, adding Ecocide (e.g. based upon the definition of the independent expert panel in June 2021) as a fifth crime would mark a milestone for protecting the living world that sustains us. Please consider this legacy and opportunity.

With cordial wishes and blessings upon your service for the common good,

Mayvor Wärn-Ranken, GS Ecumenical Council of Finland

Sofia Camnerin, GS Christian Council of Sweden

Erhard Hermansen, GS Christian Council of Norway

Emil Bjørn Hilton Saggau, Green Church Denmark

In support of XR:

Dear Office of the Prosecutor, I would like to support Gail's comments and briefly refer to the view of the business community with regard to this matter.

Business Declares represents businesses from across many sectors and sizes, from SMEs to large organisations like the Financial Times, Triodos Bank and Ecosia. We are a signatory of the Stop Ecocide campaign and our recent Queue for Climate and Nature campaign led to several thousand businesses signing a letter which was presented in Parliament by (the now former) MP Chris Skidmore as well as a direct delivery to No10.

Businesses still have a long way to go to properly understand how they need to play a part to safeguard the very systems on which their operations depend - by which I mean the ecological systems and carrying capacity of the planet - but the pace of this understanding and resultant actions are increasing at a fast rate. Indeed, it is clear that businesses want to be part of the solution, but time and time again I hear the sector calling out for a "level playing field" when it comes to laws to safeguard nature, because the current regulatory framework is well out of kilter with what is needed. That is why we need this law - to enable businesses to make the right choices when it comes to safeguarding nature, knowing that those businesses who make the wrong choices will not be able to do so with impunity.

Of course, this law has importance well beyond the business sector, as Gail says, future generations of all life depend on it. I, on behalf of Business Declares, like Gail, do hope that you can propose that this law is urgently added to the Rome Statutes.

Kind regards,

Ben Tolhurst
Director, Business Declares

Monsieur le Procureur de la Cour pénale internationale,

Votre initiative de publier un nouveau projet de politique générale visant à établir les responsabilités pour les crimes environnementaux pertinents du Statut de Rome est bienvenue et

présente des prémisses importantes pour atteindre les objectifs proposés.

1. En effet, la défense de l’environnement et du climat par le droit en général, et avec l’aide du droit pénal international en particulier, revêt une importance croissante dans le contexte d’une crise écologique planétaire multidimensionnelle qui s’intensifie. Le changement climatique, l'érosion de la biodiversité et la pollution généralisée, avec leurs conséquences présentes et futures, mettent en danger l'existence même de l'humanité en tant qu'espèce parmi les espèces, et la sécurité de la planète entière. La deuxième conférence mondiale de l'AIDP (Association Internationale de Droit Pénal) consacrée à « la protection de l'environnement par le droit pénal » (Bucarest, mai 2016) a révélé le rôle et la place du droit pénal dans la protection de l'environnement et a notamment soulevé la question de l'implication du droit international pénal dans la résolution du nouveau paradigme de protection de l'environnement et du climat, établi par l'Accord de Paris (2015). Dans ce contexte de préoccupations, la précision des obligations des États en matière de changement climatique, consacrés par l'avis consultatif de la Cour internationale de Justice (CIJ) requis par la résolution 77/276 du 29 mars 2023 de l’Assemblée générale des Nations Unies, marquera une avancée significative.

Parallèlement, la généralisation de la jurisprudence nationale, mais aussi celle de certaines juridictions internationales pour condamner les États pour manquement à leurs obligations en matière de lutte contre le réchauffement climatique, structure l'émergence d'une obligation des pouvoirs publics d'agir pour atténuer le changement climatique et augmenter la résilience et l’adaptation à ses effets.

De plus en plus d'initiatives scientifiques ont produit et publié des rapports pertinents sur le sujet [comme dans l'espace francophone, le Groupe de 16 juristes internationaux, auteurs de l'ouvrage : L. Neyret (dir.), Des écocrimes à l'écocide. Le droit pénal au secours de l’environnement, 2015], et un Groupe international d'experts indépendants (animé par « StopEcocid ») a proposé une définition internationale de l'écocide dans un projet d'amendement du Statut de Rome visant à inclure dans le champ de compétence matérielle de la CPI cette nouvelle infraction autonome (2022).

Dans le contexte de l’offensive des applications de l’intelligence artificielle (IA), y compris dans le domaine militaire, et de leurs implications dans le processus décisionnel, il est également nécessaire d’analyser les risques d’atteinte à l’environnement en cas de conflit armé.

La criminalité environnementale étant devenue la troisième forme de criminalité la plus lucrative au monde et étant souvent liée à d’autres formes de criminalité telles que la corruption et le blanchiment d'argent, de multiples initiatives encouragent une réponse adéquate des États.

La résolution de l'ONU du 16 octobre 2020 a incité les États parties à la Convention des Nations Unies contre la criminalité organisée à enquêter sur le blanchiment de la criminalité transnationale organisée affectant l'environnement, tandis que la Déclaration de Kyoto du 12 mars 2021 a invité les États à « prévenir et combattre les crimes qui portent atteinte à l’environnement » et notamment à « lutter contre la criminalité transnationale organisée, la corruption et le blanchiment d'argent liés à ces formes de criminalité, ainsi que contre les flux financiers illicites qui en découlent » (point 87).

Enfin, une résolution de l'Assemblée générale des Nations Unies du 16 décembre 2021, a rappelé « le rôle central joué par les États dans la prévention de la corruption en relation avec les délits (environnements) et dans la lutte contre ce phénomène ».

On assiste ainsi à un mouvement constant et ascendant de « pénalisation » des dommages causés à l’environnement de manière relativement conjuguée qui se manifeste au niveau du droit international, du droit international régional (notamment le droit de l’Union européenne) et des droits nationaux.

Aux tendances enregistrées dans le contexte international s'ajoute la préoccupation évidente d'établir un nouveau droit pénal européen de l'environnement, à travers la révision de la directive 2008/99/CE et l'établissement d'un nouveau régime répressif pour les atteintes graves à l'environnement. La directive attendue révèle notamment la dimension européenne de la réaction pénale en matière d'environnement et de climat et l'intérêt d'une éventuelle extension du champ de compétence du Parquet européen en matière d'impacts graves sur l'environnement.

Par ailleurs, un mouvement de criminalisation des actes « comparables à l'écocide » (accord du Parlement européen (PE) du 27 février) est en cours. Notons enfin la poursuite du processus de criminalisation de l'écocide dans les droits internes des États (le dernier étant l’inscription de ce crime, le 22 février de cette année, dans le Code pénal belge).

2. Dans un tel contexte d'évolution en la matière, nous estimons qu'un document de politique générale détaillé sur les délits environnementaux, destiné à favoriser une approche systématique de leur lutte, devrait avant tout proposer :

A. une analyse approfondie et pertinente de « l’état des choses » ;

B. une évaluation réaliste de la situation existante d'un point de vue juridique (de lege lata) ;

C. une prévision adéquate des développements possibles et des progrès probables (de lege ferenda) et

D. des conclusions finales.

3. A. Prémisses générales au regard des réalités écoclimatiques. Nous constatons : – la cristallisation émergente d’un consensus général sur les réalités écoclimatiques, justifié par le sérieux et par conséquent l’urgence d’agir, face aux crises écologiques planétaires conjuguées et interdépendantes (climat/biodiversité/pollution profonde) d’origine anthropique, et s’appuyant sur un consensus scientifique (quasi) unanime, fondé sur un effort et une démarche d'expertise permanente et institutionnalisée (exprimée par les rapports périodiques et spécialisés du GIEC et de l'IPBES), un consensus politique (en qualifiant le changement climatique de « crise existentielle » et la reconnaissance officielle d'« urgence climatique » (par le PE et par des dizaines de parlements nationaux) et l’autre juridique (principalement par la jurisprudence et la doctrine pertinentes) ;

• une action civique cohérente et une acceptabilité sociale accrue de l’acceptation et de la conscience du caractère dangereux et risqué des actions humaines envers l’environnement et le climat, qui prédisposent à une attitude multidimensionnelle de prévention et de réduction des causes et de réparation des effets associés ;

• la résurgence dans la vie internationale de conflits militaires de grande ampleur, aux conséquences destructrices majeures sur l'environnement et à l’impact mondial (selon un rapport du ministère du ministère ukrainien de l'environnement, fin 2023, la guerre a provoqué 60 milliards de dollars de dégâts sur l’environnement ;

les incendies ont détruit environ 20% de la superficie forestière du pays et les mines sont dispersées sur une superficie d'environ 10 000 kilomètres carrés).

B. Implications et aspirations juridiques et institutionnelles. Au niveau des constatations du droit général (réglementation institutionnelle), il est requis de :

• souligner l'importance et l'efficacité de la construction d'une réaction juridico-pénale spécifique à la criminalité écoclimatique, bien structurée, articulée, corrélée et complémentaire aux niveaux national, international et régional ;

• démontrer l'insuffisance et la relative inadéquation du cadre juridique international existant, à commencer par le Statut et l'activité jusqu'à présent, basée sur celui-ci, de la CPI en matière de répression pénale des dommages graves à l'environnement, au climat et, en conséquence, à l’équilibre écologique planétaire ;

• souligner le rôle (croissant) du juge dans le développement créatif du droit pénal en tant qu'outil de protection de l'environnement et du climat, et souligner la contribution de la jurisprudence à son progrès, dans le contexte de « l'explosion » des litiges environnementaux et climatiques ;

• souligner la dimension régionale et internationale des conséquences des impacts environnementaux et la nécessité d'une réponse pénale consolidée et appropriée ;

• imposer la conclusion qu'une politique cohérente en la matière signifie non seulement une réglementation matérielle adéquate, mais également une organisation judiciaire suffisamment pertinente, tant au stade de l'enquête que du procès (poursuites et juridiction effective) ;

Conclusions générales. Nous estimons qu’il convient de reconnaître la nécessité de :

• consolider et adapter le système complexe de réaction pénale existant, ajuster les ressources disponibles et être plus ouvert et plus rapide dans l'accueil et l'expression juridico- institutionnelle des nouvelles exigences et des défis essentiellement écoclimatiques ;

• interpréter et appliquer le Statut de Rome de manière à admettre les questions environnementales à l'aide du texte existant ; rappeler que le traité est orienté dans son état actuel vers les cas les plus graves de blessures aux personnes ou de dommages causés à ces personnes et à leurs biens dans le contexte d'une attaque généralisée et systématique ;

• en l’état aucune protection explicite de l'environnement n'est offerte, à l'exception des dispositions de l'art. 8.2.b.IV qui ne s’applique qu’en état de guerre et dont le seuil est difficile à atteindre ;

• considérer que « l'écocide » ne se limite pas au temps de guerre et peut prendre de nombreuses formes, qui ne nuisent pas toutes directement aux personnes, même si elles finissent par le faire ;

• dépasser la conception et la vision profondément anthropocentriques du Statut de Rome et de s'ouvrir, autant que possible, à l'environnement.

C. Perspectives prévisibles et progrès possibles. Nous recommandons :

– des amendements statutaires et de nouvelles procédures procédurales plus adaptées et augmentant l'efficacité de la base réglementaire incriminante et de la compétence juridictionnelle offertes par le Statut de Rome ;

– la criminalisation et la répression d'une catégorie particulière de crimes environnementaux internationaux, ayant en son centre l'autonomie de l'écocide ;

– la mise en place d'un cadre juridictionnel institutionnel adéquat pour la recherche, l'instrumentation et le jugement des crimes environnementaux et climatiques de haut niveau (expertise, procureur et juridiction sous des formes hautement spécialisées) ;

– l'initiation d'un processus général visant à repenser le droit pénal international de l'environnement, dans le sens de sa transformation en un droit de protection de l'environnement et du climat, avec un dispositif de criminalisation approprié et un cadre juridictionnel adéquat pour assurer l'application visée à garantir l'impératif d'assurer les conditions de la persistance de la formule actuelle de vie sur la planète et de l'affirmation de la civilisation humaine.

D. Conclusions finales. Du strict point de vue de l’objectif proposé par l’élaboration du nouveau projet de politique générale soumis au débat public, nous pensons qu’il est essentiel de :

– saluer cette approche, en elle-même, comme un signe du sérieux avec lequel le Procureur de la CPI entend accorder une attention accrue à la criminalité environnementale et à la répression pénale qui y est associée ;

– saluer la reconnaissance, reflétée également dans la stratégie envisagée, des limites actuelles du Statut de Rome quant à la réalité de la gravité et des dangers associés à la grave destruction de l'environnement et à la mise en danger du système climatique ;

– recommander la poursuite du processus d'automatisation du crime international d' écocide, en tenant compte notamment de :

(a) la découverte, la prévention et la sanction des impacts les plus graves sur l'environnement (y compris le climat) en tout lieu et à tout moment (en temps de paix ou de guerre) ;

(b) la création d'un dispositif juridique (normatif et institutionnel) adapté et efficace pour la défense de l'humanité en tant qu'« espèce parmi les espèces » en maintenant les conditions d'« habitabilité » de la planète.

4. La question écologique dans sa multidimensionnalité et sa complexité, qui commence par le changement climatique, n'est plus un simple défi lointain et d’intérêt subsidiaire, marginal et de groupe, mais une urgence globale, absolue, d'intérêt vital, essentiellement une priorité de la communauté mondiale, y compris d’un point de vue juridique, normatif et actionnel. Les thématiques écoclimatiques et la pollution mondiale (produits chimiques, plastiques, etc.) demeurent parmi les rares thématiques qui rencontrent un consensus général d’approche et sont sujettes à une réglementation et une coopération internationale. Dans le contexte de réajustement accéléré et radical de l’ordre international, marqué par la réapparition des conflits militaires majeurs ayant un impact profond sur l’environnement comme la guerre en Ukraine et la manifestation des enjeux géopolitiques du changement climatique, la composante environnement et climat devient un aspect indispensable de tout problème mondial et appelle des solutions adéquates pour le résoudre. La réaction juridique, notamment pénale, nécessite des adaptations et des développements appropriés.

l'initiative du Bureau du Procureur de la CPI et les consultations y afférant peuvent constituer une première opportunité pour discuter, dans un tel cadre, de l'impératif de la prédominance du principe de responsabilité pour les crimes environnementaux en général, et ceux prévus par la Statut de Rome en particulier. Elles peuvent aussi être un moment de réflexion sur la nécessité d'une nouvelle révolution dans l'évolution du droit pénal international, comme celle envisagée par V.V. Pella en 1925 (La criminalité collective des États et le droit pénal de l'avenir), par la proposition de criminaliser la guerre comme « le crime international le plus grave », suivie par le projet d’une juridiction pénale internationale (qui a finalement donné naissance à la CPI), cette fois en ajoutant une autre tout aussi grave et punissable, celle de l'écocide, et ainsi enrichir la réponse pénale en l'étendant à la défense de nouvelles valeurs, comme la sécurité de la planète et la forme actuelle de la vie sur Terre.

En vous souhaitant le plein succès dans vos efforts, je vous assure, Monsieur le Procureur, du soutien de l'École roumaine de droit pénal international et de moi-même personnellement.

Prof. univ. dr., dr. hc. Mircea Duțu

Président de l'Université Écologique de Bucarest

Directeur de l'Institut de Recherches Juridiques de l'Académie Roumaine

Comment on OTP Environmental Crimes Policy by Youth for Ecocide Law & World’s Youth for Climate Justice

As youth advocates for environmental, climate, and social justice, we appreciate the opportunity to provide input on the forthcoming environmental policy paper by the Office of the Prosecutor (OTP) of the International Criminal Court (ICC). We welcome this initiative and the opportunity for early consultation. We hope that this comprehensive policy will further establish a common and core understanding of environmental crimes and become a meaningful tool for accountability and transparency. As we strive for environmental justice for current and future generations, we believe it is imperative to explore the opportunities for the ICC to address environmental crimes as well as confront the short fallings of the current legal framework in addressing the most serious threats to our environment.

Recognising progress and limitations:

We commend the OTP for recognising the urgency of addressing environmental crimes. However, we must acknowledge the limitations of the Rome Statute in effectively addressing the complexities of environmental destruction and climate change. While the Statute is designed to address the most egregious crimes against humanity, it lacks explicit provisions to protect the environment and deliver climate and environmental justice.

Climate Change disproportionately affects vulnerable communities in developing countries, exacerbating inequalities, and threatening basic human rights such as access to food, water, and shelter. Environmental degradation aggravates the challenges faced by those that have done the least to cause it and who often lack the resources to adapt to climate-related disasters, widening the gap between the privileged and the marginalized. The unchecked alteration of ecosystems is a moral crisis that threatens the well-being of present and future generations, as well as the survival of countless species. In the face of the profound moral dilemmas posed by Climate Change and environmental degradation, human rights emerge as a crucial legal framework to address its far-reaching consequences and to uphold the dignity and equality of all human beings. The challenge for the ICC will be how to effectively address this moral issue and address the violations of human rights and future generations.

Currently, the Rome Statute only addresses environmental harm limited to times of war. However, ecocide should extend beyond wartime contexts to encompass a wide range of actions that cause irreparable damage to ecosystems, biodiversity, and ultimately human well-being. From deforestation to marine pollution, the planet faces unprecedented environmental challenges that threaten our collective future.

Ecocide as defined by the Independent Expert Panel for the Legal Definition of Ecocide “means unlawful or wanton acts committed with the knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts”.

It is crucial to recognise that serious environmental degradation poses a direct threat to peace, security, and the well-being of humanity. While this concern is mentioned in the Rome Statute it needs to be enacted and lived. The current trajectory of environmental degradation requires immediate and robust legal mechanisms to deter, prevent, and sanction the worst offenders.

We call for the inclusion of ecocide as the 5th international crime

The common convergence of the current four international crimes mentioned in the Rome Statute is that these international crimes are directed towards protection of certain groups of population, ethnic groups, and/or innocent civilians. However, ecocide, the destruction of the ecology and our environment not only threatens certain parts of the population but is a serious threat to the whole Mother Earth and its inhabitants. This concern is therefore of existential relevance to Earth and the future of life on the planet.

The gradual harm to the environment appears slow but the steady impact will render the destruction of the population of the world and jeopardize the existence of all people, both present and future generations. This makes the protection of the environment crucial and imminent. This may be possible if ecocide becomes the fifth international crime under Rome Statute. Furthermore, it would be a linkage between the already existing crimes in the Rome Statute.

We therefore urge the OTP to take this opportunity to recommend to the Assembly of States Parties the inclusion of ecocide as the fifth international crime under the Rome Statute. This addition would provide the necessary legal framework to hold those accountable who are responsible for the most egregious acts of environmental destruction, regardless of the context in which they occur.

Key policy issues

1. Deterrence and prevention: The inclusion of ecocide as an international crime would act as a powerful deterrent to reckless exploitation of natural resources and environmental degradation. By establishing clear legal boundaries, we can mitigate the devastating effects of ecological destruction on present and future generations.

2. Basic legal and moral safeguards: Recognising ecocide as a crime against humanity and the planet is not only a legal imperative but also a moral obligation. It lays the foundation for a global commitment to protect our common home and ensure the well-being of all living beings.

UNEP's latest report on the environmental rule of law highlights how the use of criminal law to address environmental problems is increasing around the world. There is a strong link between environmental crime and rule of law which is also recognised in the Kyoto Declaration on Advancing Crime Prevention, Criminal Justice and Rule of Law which was adopted in 2021. In recent years, countries around the world have revised and adopted stricter legislation and increased criminal penalties for environmental crimes. The report also recognises the growing Stop Ecocide movement and the movement towards the recognition of ecocide law at both national and international levels. There is an increasing number of countries recognising ecocide in their criminal legislation and a growing youth movement with partner organizations from around the world that are calling for the criminalisation of the mass destruction of the environment and with it the future on Earth.

In conclusion, we urge the Office of the Prosecutor to recognise the urgent need for expanded legal protection against environmental crimes in its forthcoming policy paper. By recommending the inclusion of ecocide as a fifth international crime, the Prosecutor could take a significant step towards safeguarding the future of our planet and ensuring justice for present and future generations.