Ökozid als fünftes Kernverbrechen im Rom Statut - Meilenstein oder Gefahr für das Völkerstrafrecht?

Abstract

The article deals with the call for the inclusion of ecocide as a fifth core crime in the Rome Statute, which has gained increasing support in recent years. After a brief introduction to the historical development of the call for an ecocide offence, the article specifically focuses on the proposal by Stop Ecocide published in 2021. Of the various proposals, the Stop Ecocide proposal is by far the most prominent. The article takes up the criticism of the Stop Ecocide proposal that has been voiced mainly on international law blogs. Above all, the vagueness of the proposal is problematic. It establishes too many preconditions that are new to the Rome Statute. Other preconditions are difficult to prove, allow for circumvention of decisions by national (democratic) legislatures, call into question the character of ecocide as an international crime or lead to demarcation difficulties within the Rome Statute. The article addresses the other ecocide proposals insofar as they provide an alternative offence structure to the Stop Ecocide proposal. However, all proposals reach the limits of criminal law as a means to achieve societal change. Therefore, an ecocide offence should be limited to the most serious environmental crimes that are committed intentionally.

In a next step, the article discusses whether the Rome Statute is the right place for an ecocide offence at all. For this purpose, the article deals with the rejection of a 1991 draft by the United Nations International Law Commission for the introduction of an environmental offence in the Code of Crimes Against the Peace and Security of Mankind, which was neither included in the Code nor in the Rome Statute. It turns out that the reasons for its rejection are largely applicable to an ecocide offence. In particular, the inclusion of an ecocide offence in the Rome Statute is not compatible with the Rome Statute’s goals as set out in its preamble. Moreover, it is questionable whether the objectives of the proponents of an ecocide offence can be realised at all by including it in the Rome Statute. Rather, the introduction of an ecocide offence in the Rome Statute bears the risk that the current goals, namely the prosecution of genocides, crimes against humanity, war crimes and crimes of aggression, will be lost from focus and that the International Criminal Court, in view of the high hopes for an ecocide offence, will be overburdened with too high expectations. Therefore, the article concludes that the call for the inclusion of an ecocide offence in the Rome Statute can lead to more harm than good.

Finally, the article discusses two alternatives to the inclusion of an ecocide offence in the Rome Statute. While the prosecution of environmental damage under the already existing offences of the Rome Statute involves various complexities, in the view of the author, the adoption of an ecocide convention is promising. Much more important, however, is the implementation and extension of national law to act on behalf of the public against environmental harm.

Keywords: ecocide, international criminal court, international criminal law, criminal law, international law commission, international law, non-governmental organisation