The recent report of the UN’s Intergovernmental Panel on Climate Change is the latest in a series of events building pressure on Australia’s climate policy sclerosis. When an expert legal panel published a definition of “ecocide” in June, it grabbed fewer headlines. But this international law milestone has potential implications for leaders globally. This article examines the proposed international crime of ecocide and considers what it means for political leaders whose countries are hindering global climate action.
A series of inconvenient events
It has been quite a month for headlines with temperature-related metaphors, and the news they were delivering was grim. On 9 August, the Intergovernmental Panel on Climate Change (IPCC) released part one of its sixth assessment report. In it, the UN body found that global warming of 1.5°C above pre-industrial levels could be upon us by 2030. With this prediction, the ambitions of the Paris Climate Agreement hang in the balance. The IPCC’s message is unequivocal: climate change is happening now and it is only through immediate, steep and sustained emissions reductions that catastrophe might be avoided. UN Secretary-General Antonio Guterres called the report a “code red for humanity”.
Efforts to combat climate change will now need to redouble. But in this global campaign, few would regard Australia as a reliable ally. A report published in July on 193 countries’ progress towards the UN Sustainable Development Goals awarded Australia a score of only 10 out of 100 for climate action: the lowest awarded for any country. Australia’s high levels of exported greenhouse gas emissions and fossil fuel use per capita, plus its failure to make progress on implementing an effective price on emissions, earned the country its rock bottom ranking. It has not helped Australia’s standing that the country still conspicuously lacks a national commitment to carbon neutrality by 2050. And with the IPCC’s latest findings that urgent action in this decade is imperative, Australia’s unwillingness to update its 2030 emissions reduction targets since they were set in 2015 reads as defiance.
In commentary on Australia’s “climate wars”, the IPCC report now dominates: will it deal a decisive blow to climate policy stagnation as COP26 — the next UN Climate Change Conference — approaches in November? In the shadow of the IPCC report, it is easy to overlook other pertinent developments of the past few months. In July, Australia’s Great Barrier Reef narrowly avoided being classified by UNESCO as a world heritage site “in danger” primarily due to the threat posed by climate change. About the same time, Australia’s Federal Court declared that the Environment Minister Susan Ley, when determining whether to approve a coal mine project, owed a duty of care to avoid causing harm to children in Australia arising from emissions of carbon dioxide into the Earth’s atmosphere. The minister has appealed, but the Federal Government has since been hit with further lawsuits challenging its decisions for failing to take climate change into account, including in relation to a forest logging agreement and a gas exploration project.
Amidst this flurry of activity, one milestone reached in international law went relatively unnoticed. But perhaps in time, this significant development may come to focus minds in Canberra and around the world on the necessity for climate action.
Ecocide: a proposed international crime
In November 2020, a group of lawyers convened to devise a definition of “ecocide”: a proposed international crime to punish individuals for causing mass destruction of the environment. The Independent Expert Panel for the Legal Definition of Ecocide (Panel) was briefed by the Stop Ecocide Foundation to design a practical legal framework for the proposed crime, which could ultimately be added to the Rome Statute of the International Criminal Court (ICC). There, ecocide would sit alongside other ‘core’ crimes liable to prosecution internationally, such as crimes against humanity and genocide. This would fulfil the pioneering vision of Polly Higgins, the late British lawyer and Stop Ecocide co-founder, whose environmental advocacy prepared the ground for the Panel’s undertaking. Chaired by international lawyers Philippe Sands QC and Dior Fall Sow, the Panel got to work in earnest in January this year. Five months later, its project was complete.
In June, the Panel released a core text of a definition of ecocide together with commentary on its proposal. A new Article 8 ter of the Rome Statute would provide the core definition of the crime:
“‘Ecocide’ means 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.”
A second paragraph defines each of the key terms used in the ecocide definition (“wanton”, “environment” etc.).
As the Panel elaborates in its commentary, the proposed ecocide definition draws its essential elements from language used in existing international law agreements. Conduct that might meet the definition of ecocide is already prohibited as a war crime under the Rome Statute if it is done in the context of an international armed conflict: Art 8(2)(b)(iv). Thus, the Panel explains, criminalising ecocide would build on the existing law “by extending the protection of the environment by international criminal law beyond times of armed conflict to times of peace”.
The Panel puts forwards its definition as the basis for consideration for an amendment to the Rome Statute. If that were to happen, state parties would first scrutinise its every detail. But for country leaders, even a cursory glance at the Panel’s work should reveal its significance. Deterring business practices that wreak havoc on the environment is a clear object reflected in the ecocide definition; C-suite executives of major corporate polluters and plunderers would face a real threat of international criminal prosecution. But they would not be alone. Anyone whose position bestows upon them a large degree of influence over the health of environments is potentially exposed — political leaders included. And for an environment minister still reckoning with the UNESCO episode and Sharma decision, several aspects of the Panel’s proposal would loom especially large.
Key features of the crime
Firstly, the Panel formulates ecocide as a crime of endangerment, rather than one of material result (see Part III, Commentary C.4). In other words, a person may be guilty of ecocide for creating a situation in which damage is likely to occur, before the person’s conduct causes any actual damage. Of course, many processes that cause “severe and either widespread or long-term” damage to the environment are gradual (and already happening). Ocean damage from industrial fishing, deforestation for livestock farming and palm oil production, and air pollution from industrial emissions provide a few examples. But because of how the crime is framed, a prosecution of those responsible for such destructive conduct can proceed before the consequences are fully realised in tragic proportions. This reflects the precautionary principle in environmental law, which recognises that delaying action until there is compelling evidence of harm will often mean that it is then too costly or impossible to avert the threat. Presumably, Australia’s Environment Minister would recognise the principle, having been reminded by the Federal Court in Sharma that she was required to consider it when making decisions under the Environment Protection and Biodiversity Conservation Act 1999 (Cth).
Secondly, to commit ecocide, a person need not specifically intend to cause the particular damage if they are otherwise aware there is a “substantial likelihood” that such damage will result (see Part III, Commentary C.3). Thus, the proposed mens rea of the crime is recklessness. This is a lower standard than the default for Rome Statute crimes provided in Article 30, which requires at least an awareness that the consequences “will occur in the ordinary course of events” (i.e. a near certainty). But it is higher than initially envisaged by Polly Higgins; she argued that ecocide should be a crime of strict liability so that alleged perpetrators could not “hide behind the defence that they did not know what was happening or what could happen.” For the Panel, a minimum mens rea of recklessness strikes the right balance, ensuring that “only those persons with significant culpability for grave damage to the environment will be held responsible”. In any case, there has never been more information available about the likely consequences of unscrupulous industry practices and poor climate policy. Especially with the release of the IPCC’s latest report, those who would plead ignorance are rapidly running out of road.
Thirdly, the Panel’s definition of ecocide potentially circumvents a significant hurdle that commonly faces private litigants in climate-related claims. This is the difficulty of establishing a causal link between the misconduct of a particular actor (e.g. emissions for which it is responsible) and subsequent harm (i.e. damage as a result of climate change). In the Panel’s definition, “environment” includes Earth’s five main “spheres”, including the atmosphere, and outer space (see Part II. Proposed Amendments to the Rome Statute C). As such, the release of emissions into the atmosphere could arguably qualify as “damage” to the environment that could be attributed to a single actor. In that case, liability for ecocide could attach without the need for proof of a connection between the emissions and specific downstream consequences of anthropogenic climate change. Of course, ecocide only criminalises conduct that risks causing grave environmental damage. Even in carbon-intensive industries, no single business may be capable of emitting on a scale warranting prosecution of its executives for ecocide. But the position could be different for state officials whose policies and decisions influence the carbon footprint of an entire country. The panel states that “acts” in its definition include omissions. Could a country’s obstinate refusal to participate meaningfully in the global effort to reduce emissions see its environment minister hauled before the ICC?
Difficulties for holding political leaders accountable
There are good reasons to think not. It is questionable whether an ecocide prosecution could successfully sheet home responsibility for the emissions of a whole nation to a few of its leaders, as doctrines of individual criminal responsibility under international law currently stand. For Australia, the issue of liability would be even more complicated because the country’s biggest contribution to global emissions is indirect; the fossil fuels that Australia digs up and exports are burned overseas. Further, the ICC prosecutor may be uninterested in investigating leaders of a country whose distinction as a large emitter is on a per capita basis only. Enormous absolute emissions, like those of China or the USA, are a better proxy for conduct risking the “severe” environmental damage that the crime is supposed to target. (Of course, neither of those countries is an ICC member.)
The Panel’s proposal has other challenges in this context. A key qualification on the scope of the crime is that it only targets “unlawful” or “wanton” conduct. The Panel suggests that illegality under international or domestic law would suffice for the first type. But as international environmental law contains relatively few absolute prohibitions, establishing ecocide based on unlawfulness would largely depend on the local laws of the applicable jurisdiction. And even in countries that have legislated their net zero goals, like the UK, it is unclear that a failure to reach such targets would be “unlawful”, in the sense of being prohibited. More broadly, the lack of international consensus on what constitutes environmental crime is notorious. The result: what is ecocide in one place may not be in another. Meanwhile, the question of whether an act was “wanton” appears to focus on the perpetrator’s own evaluation of the social and economic utility of their act versus the consequent damage — not the court’s. At the heart of climate policies like Australia’s is an attitude that economic self-interest outweighs any harms from emissions. Very little conduct would be criminalised as “wanton” if an individual’s staunch belief in its utility made it not so.
The long road to The Hague
These questions may only be academic. Ecocide is unlikely to become an international crime any time soon, even with a robust definition now on the table. If the adoption of the crime of aggression into the Rome Statute is any guide, it may be years until the ICC’s jurisdiction over ecocide is activated, even after a text is agreed. Even that may be optimistic; unlike for ecocide, customary international law already recognised the crime of aggression. Because of the principle of legality embodied in Article 22 of the Rome Statute, today’s political leaders will not fear prosecution personally.
Supporters may say that the Stop Ecocide initiative is successful even if it fails, provided that it builds pressure on governments and companies to take environmental stewardship more seriously. Nevertheless, advocates will now begin the task of persuading two-thirds of Rome Statute parties that ecocide should be included among the most serious crimes of concern to the international community. They have already won some support in Europe and the Pacific Islands. But given Australia’s track record for undermining global climate action, they will not be counting on our vote.
Joshua Clarke is a lawyer practising in international trade and transport in Sydney, Australia. He is the chair of the New South Wales Young Lawyers International Law Committee.
Suggested citation: Joshua Clarke, ‘Could Australia’s Environment Minister face prosecution at The Hague for “ecocide” due to climate change inaction?’ on ILA Reporter (30 August 2021) <https://ilareporter.org.au/2021/08/could-australias-environment-minister-face-prosecution-at-the-hague-for-ecocide-due-to-climate-change-inaction-joshua-clarke/>