Allen White

International law in the form of agreements, accords, and pacts has played a central, if imperfect, role in managing transnational relations in the post–WWII era. Such instruments cover a broad spectrum of global issues ranging from trade and nuclear weapons to territorial waters and crimes against peace. In the environmental domain alone, some 100 instruments are in place. While these have brought a modicum of order to international relations, the persistence of geopolitical, ethnic, human rights, and ecological crises attests to the limitations of law in dealing with perils of an interdependent world. International law is a necessary but certainly not sufficient condition to ensuring a thriving planetary future.

Femke Wijdekop’s description of the movement to amend the 1998 Rome Statute of the International Criminal Court to include ecocide as a fifth crime against peace reveals the complexity of international law as a mechanism for advancing justice in the twenty-first century. Over more than four decades, roughly in parallel with the modern environmental movement, the ecocide movement has shifted from a loosely defined aspiration to a concrete, actionable proposal. This trajectory mirrors the ongoing debates surrounding the efficacy and interplay “soft” and “hard” law.¹ A growing ecological consciousness beginning in the 1960s spurred enactment of foundational national environmental laws and regulations in the developed nations. These, in turn, catalyzed similar actions in many developing countries. New laws have strengthened the capacity of civil society and citizen pressure to confront intensifying transnational ecological crises. Environmentalism has gradually shifted from a concern of a few to recognition among the multitudes that ecological stewardship is not a luxury but, instead, a matter of human survival.

With increasing urgency, this evolving ecological ethos paved the way for dozens of agreements to address transboundary ecological threats, including ozone depletion, export of hazardous materials, and climate disruption. These, in turn, strengthened the resolve of the UN and other multinational entities to design and advance global solutions to such threats. The landmark 1987 Brundtland Report, the 1992 Rio Declaration, and the 2000 Earth Charter are examples of emergent norms- and principles-based soft law that influence, and are influenced by, rules- and enforcement-based hard law. The Great Transition (GT) framework may be viewed through the lens of soft law. Rooted in the concept of wholeness expressed as individual well-being, societal solidarity, and planetary ecological resilience, GT’s normative framework, like its predecessors, seeks to inform how scholars, policymakers, and citizens perceive the possibilities for a better world.

At any moment, the relationship between hard and soft law may be complementary or antagonistic. The lesson of the last few decades is that the soft-hard distinction is a false dichotomy. In fact, the two fall along a dynamic spectrum, differentiated more by the degree of obligation, precision, and delegation to independent third-party adjudicators than by intention or aspiration. In the real world, hard law at times hardens soft law, and vice versa. Wijdekop’s observation regarding genocide, one of the four crimes embodied in the Rome Statute, is telling in this context. Even in the face of uneven ICC enforcement, the codification of genocide as an international crime against peace has sharpened awareness of the issue in both the public consciousness and mass media.

In Wijdekop’s analysis, we see ecocide aligned with this playbook. As the relentless destruction of the biosphere continues apace, the urgency of global action intensifies. It is not a case of soft versus hard law—both have a critical role to play. The task ahead is to strengthen both approaches simultaneously such that the timing, robustness, and enforceability of future actions rise to the level of the global emergency.

Knotty questions remain. Should ecocide be judged on the basis of intent to damage (e.g., defoliation or water poisoning by a warring party) or as a byproduct (e.g., the irreversible loss of biodiversity occasioned by corporate clear-cutting of rainforests for palm oil and soybean production)? As a witness to the tragedy of ecological destruction, we can say with certainty that Earth is agnostic on the question of intentionality or byproduct. Destruction is destruction.

Absent a truly global governance mechanism, can nation-state–driven multilateral accords, replete with self-interest and power imbalances, rise to the challenge of convergent threats that leave little time for concerted action? And how effective can the law be in the face of powerful economic interests driven by extraction, accumulation, and limitless growth? Is the “complementary principle” Wijdekop references—whereby the International Criminal Court would intervene in ecocide cases only when states fail to do so—a recipe for decades of delay at a time when global ecological transgressions demand immediate and forceful attention?

The flaws, promise, and ultimate indispensability of a global action in the face of ecocide and other crimes against peace was recently brought to my doorstop via the personal experience of a close friend. During the Balkan conflict from 1991 to 1995, she served as volunteer in a humanitarian effort to protect children from the ravages of a vicious conflict. During her service, she personally experienced the horrors of the war, including crimes orchestrated by Serb leader Radovan Karadzic. An initial indictment of Karadzic in 1995 was followed by his arrest in 2008 based on indictments on five counts of crimes against humanity (e.g., extermination, murder, and deportations) and four counts of violations of the laws or customs of war (e.g., murder, terror, and unlawful attacks on civilians). A trial that began in October 2009 involved 499 trial days, 337 prosecution witnesses, 6,671 prosecution exhibits, and 248 defense witnesses. A guilty verdict in March 2016 included genocide, extermination, and murder, and a forty-year imprisonment was reduced to twenty-eight years after taking into account Karadzic’s prior accumulated time in detention.² Was justice served? For my friend, who has experienced twenty years of trauma since her service, the answer I suspect is “no—and never can be.” The havoc wrought by Karadzic is indelibly etched in her psyche and those of thousands of others subjected to the atrocities of Balkan conflict.

What does the duration, complexity, and outcome of this case imply for the ecocide movement? Even in the case of the most egregious violations of the Rome Statute, a decade elapsed between indictment and verdict. If ecocide were to become a new crime against peace, its capacity to deter acts of ecocide and to hold accountable those who commit them would be severely curtailed if years of litigation and immense financial resources are required to adjudicate each case. But, based on the historical record, formalizing ecocide as a crime against peace would, as in the case of genocide, help infuse the concept in continuing public discourse surrounding a new global ethos essential to achieving a livable world.

Justice in a planetary civilization is, and will remain, a work in progress. Ecocide law is poised to play a vital role in amplifying the voice of future generations who will live with consequences of near-term actions—and inactions—of government, business, civil society, and citizens. On that basis alone, legal protection of Earth merits the hard work that lies ahead to both enact and enforce the ecocide amendment to the Rome Statute.

1. Gregory Shaffer and Mark Pollack, "Hard vs. Soft Law: Alternatives, Complements and Antagonists in International Governance," Minnesota Law Review 94 (2010): 706–799, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1426123.
2. See http://www.icty.org/case/karadzic/ for information on the trial and sentence.