Daily Times

The link between environmental law and criminal law, especially international criminal law, is strengthening with the growing research on this subject.

As environmental damage due to climate change and institutional blindness forges on with building ferocity, innovative and pragmatic solutions of both adaptation and fixing responsibility are being thought of. Human, corporate and state actions such as deforestation, blanket bombing, large-scale pollution, and illegal wildlife trade not only cause severe environmental damage but also constitute war crimes or crimes against humanity under international criminal law in certain circumstances.

Furthermore, environmental degradation frequently results in human rights abuses, including community displacement, loss of livelihoods, and negative health consequences. The convergence of international criminal law and environmental law occurs when these abuses are severe and systematic, potentially leading to prosecutions under international human rights law. Issues such as air and water pollution, climate change, and biodiversity loss often have effects that cross borders. However, since the Rome Statute does not specifically define ‘ecocide’, the International Criminal Court does not have the jurisdiction to prosecute these actions.

At present ecocide is only considered a war crime under Article 8(2)(b)(iv) of the Rome Statute. However, no charges have ever been filed, possibly on account of the very high threshold of injury required under the article – there must be an intentional attack that causes ‘widespread, long-term and severe damage to the environment which would be clearly excessive.’ The Rome Statute does not include provisions for criminal responsibility of corporations and states. Therefore, entities causing environmental harm, such as water or air pollution, illegal deforestation, or oil spills, cannot be held legally accountable for these actions in peacetime, even though they might be considered criminal during war.

Though Pakistan has been strongly advocating to establish corporate responsibility for environmental damage, it has not relied on using international criminal law.

The question, then, arises that would criminalizing ‘ecocide’ solve the problem? And would it solve for Pakistan as well?

The concept of ‘ecocide’ pertains to the ‘severe damage and destruction of ecosystems to the detriment of life.’ However, an official definition recognized among nations remains elusive. The notion of ecocide emerged in the 1970s, during the Vietnam War, by biologist Arthur W Galston, in opposition to the US military’s deployment of Agent Orange, a herbicide and defoliant, aimed at eliminating vegetation cover and enemy crops. Since then, numerous civil society organizations and legal experts have advocated for the recognition of ecocide as a criminal offense under international law.

With the increasing urgency of the global climate crisis, a growing number of States and other stakeholders – including parliamentarians, corporate investors, global youth, it is important that ecocide should also be defined as a crime under international law, alongside genocide, crimes against humanity, war crimes, and the crime of aggression. Some countries that have been immensely impacted by climate change such as the Maldives, have expressed their support for criminalizing of ecocide, while stating that the International Criminal Court “has the capacity to contribute to the drastic changes in behavior that are needed to meet the Paris Agreement goals”.

Implementing ecocide as a criminal offense would serve as a method for deterring and addressing egregious environmental destruction through international legal action. Opponents of this idea contend that prosecuting ecocide could be exceptionally challenging, if not unfeasible, particularly in the cases the International Criminal Court should address – namely, the most severe global environmental catastrophes, such as those related to climate change on a planetary scale. They argue that environmental degradation is frequently an unintended consequence of activities motivated by economic, social, or political objectives.

As such, the absence of a direct correlation between intent, action, and adverse outcomes complicates its classification as a criminal act. Some also argue that the international criminal law might be applied when states or individuals ‘knowingly’ engage in activities that harm the environment, impacting neighboring nations or the global community.

The dialogue on criminalizing environmental damage is building and spreading across the world. Though Pakistan has been strongly advocating to establishing corporate responsibility for environmental damage, with demands for legal frameworks to hold corporations accountable for their environmental impacts, the country has not relied on using international criminal law as a tool to achieve that by specifically criminalizing ecocide.

This has a direct nexus with the fact that Pakistan has not ratified the Rome Statute of International Criminal Court. Though the country initially cast a favorable vote for the Statute, subsequently retracted from proceeding with ratification.

The ratification of the Rome Statute of the International Criminal Court itself remains one of the most contentious issues in the realm of public international law. Many nations perceive it as an impediment to their national interests due to its stringent human rights obligations. Despite this, 124 countries have ratified the statute, with a notable exception being Pakistan.

Since Pakistan is not a signatory to the Rome Statute, an amendment in the Rome Statute to include ecocide as a crime may not sound as relevant for Pakistan now. However, Pakistan is one of the countries that are most affected by climate change and environmental damage despite being one of the lowest contributors to climate change.

At the same time, the overall status of human rights particularly rights on disability, sexual orientation, gender identity, freedom of expression and religion is unremarkable.

In this context, it is high time for Pakistan to think of innovative legal resources to prevent and efficiently manage the impacts of climate change. Signing the Rome Statue and advocating for the incorporation of ecocide as a crime to be prosecuted by the International Criminal Court could be one such legal recourse.

The writer is a lawyer, writer andhuman rights advocate in Pakistan.