Last year I sat in the offices of one of the judges of the International Criminal Court and, with NGOs, we spoke about the possibility of ecocide law becoming an international crime against humanity.
An international law against ecocide at its simplest is the criminalisation of mass damage and destruction of the environment resulting from human action. At that time I heard that the obstacles were not legal, but political, and all it would take was courage and persistence.
Last week the International Criminal Court announced it will potentially hold corporate executives and governments legally responsible for environmental crimes.
This widening of the mandate of the ICC was triggered by a Cambodian case about land grabbing and forced evictions. For land grabbing and environmental destruction in peacetime to be considered by the ICC is a major indication of the legal shift into recognising the violence done to earth and the relationship between humanity and its habitat.
Several important things emerge from this announcement. The first is the potential end of corporate impunity from criminal sanctions for their destructive actions in nations that do not have the legal or governance capacities to hold them accountable.
Corporate responsibility takes on a whole new light and I imagine board rooms everywhere are urgently seeking legal advice about the potential ramifications, not only for their companies, but themselves personally because the criminal jurisdiction is individualised.
Unlike administrative regimes and civil jurisdictions it's much harder for those at the head of corporations or legal entities to hide behind the corporate veil. If those companies perceived to be engaged in land grabbing or environmental destruction are not seeking legal advice they are either stupid or naïve. Risk assessment of directors' duties could get even heavier in the future.
In reality many will remain immune due to the limited power of the ICC in enforcement and for those states, like the USA, who are not signatories to the Rome Statute, the founding document of the ICC. However I believe this will shift the norms of corporate culture immensely, especially as much corporate involvement in environmental crime is trans-national and not settled in one sole jurisdiction. In the context of criminal law where imprisonment is an option, the precautionary principle becomes a lot more intimate. Even the prospect of being put before an international criminal court will shift behaviours and corporate activities.
"What may seem immune from criminal prosecution today, may not be tomorrow. Scientific knowledge and