Framing Ecocide into …

Diana Kibuuka.

Although in 1998, a draft of the Rome Statute proposed adding ecocide as a fifth crime. against peace eligible for prosecution by the court, putting it on a par with genocide, crimes against humanity, war crimes and crimes of aggression this has since failed to make a break through.

The ecocide idea has been on since 1970s during the Vietnam War when biology professor Arthur W Galston, protested against the US military using the herbicide and defoliant chemical Agent Orange to destroy the foliage cover and crops of enemy troops. This movement has been supported by many Civil Society Organizations and lawyers pushing for criminalization of ecocide at an international level.

Stop Ecocide Foundation an international organization has taken on the mantle to have ecocide be recognised as a crime at the International Criminal Court, in the fight to create a voice for nature, just like it is for humanity with the genocide.

At present ecocide is only considered a war crime under Article 8(2)(b)(iv) of the  Rome Statute ; 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.

The Rome statute excludes Corporate and State from criminal responsibility and thus corporations and States which cause water and air pollution or participate in illegal deforestation and cause oil spills, which would constitute a crime in times of war, in peacetime, cannot be prosecuted for their environmental damage.

It’s upon that background that Stop Ecocide Foundation in the late 2020 convened an independent expert panel and proposed amendments to the Rome Statute starting with Article 5 (Crimes within the jurisdiction of the court); To add ecocide as a fifth crime in addition to the four existing crimes of; genocide, crimes against humanity, war crimes, and the crime of aggression – And also amend Article 8(2)(b)(iv), to globally reach out to all environmental perpetrators in all times.

James Gondi, the Africa High Level Coordinator at Stop Ecocide International, explains that Article 8(2)(b)(iv) of the Rome statute, only applies to intentional acts of environmental destruction committed in wartime and therefore this provision, has been found unreasonably high and has therefore never been used in practice.

“A.8(2)(b)(IV) has a conjunctive test to the definition (it requires all elements met concurrently, ecocide law is disjunctive, more flexible) and is based on an intentionality requirement for the mens rea to the crime, which is unduly high as individuals rarely set out to destroy the environment, it is usually a collateral byproduct of military action so usually can be justified under other legal grounds. Ecocide is a crime that could apply in war or peace, and the mens rea is more reflective of recklessness rather than intentionality – to capture the reality of severe and wither widespread or long- term environmental harm”. Adds Gondi.

Judy Foster Head of Operations and international Outreach asserts that, there’s indeed a missing piece in the Rome statute – the Earth needs a lawyer to protect it from excessive destruction, and that why they are not about to give up on this discussion that has been on for the past over 50 years.

“We all know genocide is not acceptable, we want the same thing to be true for ecocide – Ecocide, from Greek and Latin means to kill someone’s home and that is what we want to stop, as well all know there’s no planet B……. we need to protect the home” expounded Foster in an interview during COP28.

Although the ecocide discussions are on, in over 50 countries according to Foster, only thirteen countries, Africa having none, have domestic ecocide laws running in their systems; France (2021), Georgia (1999), Armenia (2003), Ukraine (2001), Belarus (1999), Ecuador (2008; 2014), Kazakhstan (1997), Kyrgyzstan (1997), Moldova (2002), Russia (1996), Tajikistan (1998), Uzbekistan (1994), Vietnam (1990).

Why the Ecocide Law? – And why would Uganda need this law?

Despite the fact that Uganda has laws that protect the environment; the National Environment Act 2019 (the “NEA 2019”) and the Uganda Wildlife Act, 2019, there may be still need to fight this battle beyond her national boundaries.

The current legal situation is entirely insufficient to protect the environment on the scale that is required to make any meaningful impact. At a national level, it is possible that corporations causing and benefiting from environmental damage could exert influence politically, as noted by Anastacia Greene from the University of Florida Levin College of Law that; ‘domestic courts can be hampered by corruption and political interests.  Ecocide cases will undoubtedly tend to involve powerful government officials, or corporate leaders, who likely have considerable influence to intimidate, sway or suppress prosecutions’.

There’s confidence that prosecuting ecocide at an international level would send the strongest possible signal to those who manipulate power within states and corporations.

Getting Ecocide into ICC

Within the framework of the ICC, there are two broad options in terms of how to bring the crime of ecocide within the court’s remit; to prosecute acts constituting ecocide under one of the existing ICC offences – war crimes, genocide, crimes against humanity or the crime of aggression and secondly as envisaged by the Stop Ecocide Foundation’s expert panel, to establish ecocide as a new, standalone offence, to be incorporated into the Rome Statute and prosecuted in its own right.

Ofcourse course, there are limitations to the powers of the International Criminal Court, for example; some powerful countries such as China and the United States of America not being signatories to the Rome Statute but these are not so grave that they should halt the pursuit of environmental prosecutions –  Science has already proven that the emission of greenhouse gases and the destruction of ecosystems at current rates will have catastrophic consequences to nature and thus, it is still undoubtedly worthwhile to seek a means to address acts amounting to the crime of ecocide.