Ecocide and International Criminal Court Procedural Issues: Additional Amendments to the ‘Stop Ecocide Foundation’ Proposal

Abstract

The crime of “ecocide” has been discussed for almost 50 years, and it is still an issue to be considered. Starting as scientific and biological debates, ecocide arguments became foremost political and then juridical. Recently, in 2021, the ‘Stop Ecocide Foundation’ proposed to add ecocide as a new crime to the ICC Rome Statute (hereinafter “RS”), recommending amendments regarding substantive law and the structure of the crime of ecocide. This paper does not argue against this proposal. On the contrary, it puts forward an integrative proposal, focused on the procedural issues, suggesting seven macro-amendments, namely:

1) Jurisdiction ratione temporis and the withdrawal process, amending articles 127 and 121 RS;

2) The ‘deferral of investigation or prosecution’ power of the renewal by the UN Security Council should not be authorised more than once, amending Article 16 bis RS;

3) The introduction of Aggravated Ecocide, and its Aggravating Circumstances, namely those actions or omissions which have a ‘substantial impact on greenhouse gas emissions and/or climate change’, amending Article 8 ter RS draft and rule 145 of Rules of Procedure and Evidence (hereinafter, “RPE”);

4) The exercise of jurisdiction, in case of aggravated ecocide, on the basis of UN environmental authorities’ reports, such as the reports of the Intergovernmental Panel on Climate Change (IPCC), Special Rapporteur on the Promotion and Protection of Human Rights in the context of Climate Change, or the Special Rapporteur on Human Rights and the Environment, amending articles 13 and 15 RS;

5) Changing the standard of proof in cases of aggravated ecocide from “reasonable basis” to proceed (and to believe) to a “sufficient basis,” amending articles 15, 18 and 53 RS and Regulations 27 and 29 of the Regulation of the Prosecutor;

6) Regarding issues of admissibility, introducing a rebuttable presumption of both “gravity” and “interests of justice” in cases of aggravated ecocide, amending articles 17 and 19 RS and Regulations 29 and 31 bis of the Regulation of the Prosecutor; and

7) The exclusion to the so-called proceedings on an admission of guilt in cases of aggravated ecocide, amending articles 64 and 65 RS and Rule 139 of RPE.

Keywords: ecocide; international criminal law; climate change; international criminal procedure; international criminal court; rome statute; environment; environmental law

JEL Classification: K32; K33; K38; K40; K41; K42; K14; K15