Insights from the Cross Border Criminal Law Conference 2023: Influencing the Corporate Conscience (Part 2)

The fifth annual Cross Border Criminal Law Conference took place on 26 January 2023

Jordan Hawthorne continues her analysis of the 2023 edition of Kingsley Napley’s annual Cross Border conference. Part 1 can be found here.

One of the great things about Kingsley Napley’s annual Cross Border Conference is that it is comprised of not one but two expert panels, which allows for rich discussions across diverse subject matters. In my last blog, I considered the key insights from panel one on environmental and supply chain issues that corporates may face in today’s increasingly ESG-centric climate. In this blog, I consider the topic explored in the keynote speech and the second panel: the new proposed international crime of ecocide.

Keynote Speech - Professor Phoebe Okowa

We were honoured to welcome Professor Phoebe Okowa, professor of Public International Law at Queen Mary University in London and advocate for the high court in Kenya, as this year’s keynote speaker.

Professor Okawa took the audience through a brief history of the interaction between international instruments and environmental harm, explaining why a penal regime for environmental harm has historically been unpalatable to the international community. Against this contextual background, she proceeded to explore the latest proposed legal definition of ecocide put forward by the Independent Expert Panel (IEP) for inclusion under the Rome Statute of the International Court. According to that definition, “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 being caused by those acts.”

Professor Okawa noted that this proposed definition of ecocide does not give examples of what ecocide actually is, raising questions as to what kinds of environmental violations would be within the ICC’s jurisdiction and how the gravity threshold should be assessed. She also highlighted that the definition does not extend to negligent conduct, only conduct that is “wanton” (i.e. reckless) and deliberate. The IEP’s formulation defines “wanton” to mean “with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated.”

Moving on from the definition, Professor Okawa explained some potential issues around how the ICC would exercise jurisdiction over the crime of ecocide. For example, would the Rome Statue be amended to encompass the crime as proposed, giving the court automatic and general jurisdiction over member states, or would there be a “opt in model” for states to sign up to?  Would states in the global south accept the court’s jurisdiction when many countries in the global north, who have historically been responsible for environmental damage, do not? What about corporate liability? Some of the most egregious offenders are companies, and the ICC only has jurisdiction over natural persons.  Professor Okawa also considered whether the ICC is the appropriate forum in which to prosecute the crime; she noted that the court is already slow and under resourced and questioned whether it is capable of conducting the necessary balancing act between the competing goals of protecting the environment and legitimate development needs.

The keynote speech closed with an examination of how some but not all of the short comings of the ICC in dealing with ecocide might be cured by a special environmental court. Such a court would have the expertise to weigh competing claims of economic harms against the benefits of economic activity, extend to corporations and allow tailored remedies, restitution, compensation tailored to non-state groups, individuals and corporations.

Panel 2: Developments in international criminal accountability for environmental harm

• Katherine Tyler: Legal Director, Kingsley Napley LLP
• Dr Matthew Gillett: Professor at University of Essex
• Kate McIntosh:  Executive Director of Promise Institute for Human Rights, UCLA
• Professor Karen Hulme: Chair of the IUCN Specialist Group on Peace, Security and Conflict

To begin the second panel session, we heard from Kate McIntosh, who was the deputy co-chair of the IEP on the legal definition of ecocide. She explained that a new crime of ecocide is needed for many reasons, but specifically because of the expressive value, or narrative power it adds to the existing international legal tool box in highlighting that the massive destruction of our shared environment is on the same level as other international crimes.

Picking up on the point raised by Professor Okawa, Kate explored whether the crime is best placed within the existing Rome Statute, or whether a new treaty is warranted. She noted that both options have the potential to place the crime among the most egregious crimes, although neither option is perfect. For example, the ICC is an established mechanism but some of the most serious member state offenders are outside the of the ICC’s jurisdiction. On the flip side, a new treaty might attract states who do not wish to be part of the ICC regime, but establishing such a treaty would be a longer path. Kate pointed out that an alternative option would be for states to adopt the crime within their domestic jurisdiction which could help build international consensus.

She moved on to provide a deeper insight into the definition for ecocide put forward by the IEP, explaining the thinking around the approach and the type of conduct it is designed to capture. She concluded by noting that, although the ICC has no jurisdiction over corporate bodies, the regime is still useful. She suggested that the individual criminal responsibility attached to individual corporate decisionmakers is an important and powerful tool, and that a crime of ecocide that creates individual criminal responsibility for CEOs and individuals is likely to have a bigger deterrent effect than for a corporation.

Dr Matthew Gillet spoke next and focused further on the ICC regime, considering the provisions for environmental harm which already exist under the crimes of Genocide, Crimes Against Humanity, and War Crimes. He noted that ultimately the existing provisions are unhelpful in providing guidance on prosecuting ecocide, due to their anthropocentric nature. Matthew also considered how the definition of ecocide within the Rome Statute should be explicit and contextually coherent. He pointed out the lack of specificity in the proposed definition by the IEP and noted where improvements might be made.

Matthew concluded by stating that there are in fact few cases that could be prosecuted at the ICC, or that may be covered by a new environmental court, and the most important element of ecocide is the symbolic value of the crime.

The final speaker was Professor Karen Hulme who considered environmental harm through the lens of the International Committee of the Red Cross guidelines. She explained the purpose of the guidelines and the fact that they draw together already existing principles into one place but are not intended to have a binding effect on states. Karen also provided specific insight into principles 10 and 11. In terms of principle 11 specifically, which centres on state liability, she emphasised that some states are more developed that others and the focus will be on what the relevant state already has in place in terms of law and procedure for environmental harm. For example, if the relevant jurisdiction provides for corporate criminal liability, then that factor can be brought in.

Conclusion

Environmental harm is a major and defining issue of our times, and the proposed crime of ecocide is undoubtedly an exciting and important development on the international legal stage.

As the panellists laid out, there are still many question marks and challenges inherent in the prosecution of this crime, some of which may be resolved relatively quickly while in other cases, significantly more effort, including consensus building, will be required in order to make progress. Even as things currently stand, however, the symbolic value of creating a clear written definition of this new international crime is important and poignant. This development makes it clear that destruction of the environment is a most egregious act, and not a side line issue.

Kingsley Napley has significant breadth and depth of experience acting in cases concerning corporate and individual liability for human rights and ESG harms, within the UK and in an international context. For more information, please do not hesitate to get in touch.

FURTHER INFORMATION

For further information on the issues raised in this news post, please contact Jordan Hawthorne or a member of our criminal litigation team.

ABOUT THE AUTHOR

• Jordan Hawthorne joined Kingsley Napley in September 2020. She is currently an Associate in the Criminal Litigation team. Jordan completed her training contract at Kingsley Napley, and qualified as a solicitor in September 2022.