Vital Interests: Charles, thanks for joining us on the Vital Interests forum. We're going to be discussing an important topic now at the forefront of all global discussions - namely,  the impact of climate change. With the recent dire temperature rise predictions issued by the UN and the significant gathering of world authorities on the environment at COP26 conference coming up in Glasgow in December, there is much to think about regarding challenges to the global community from inevitable environmental-related threats and developments.

You are involved with an interesting initiative undertaken by the Stop Ecocide Foundation which convened an independent expert panel to prepare a practical and effective definition of the crime of ecocide that could then be used within the context of international criminal law so that entities and individuals could be charged and held to account for lasting environmental damage impacting the current and future wellbeing of the planet.

To start off Charles, can you give us some background of how this international expert panel was convened and your involvement in coming up with this legal definition of an ecocide?

Charles Jalloh: First of all, thank you so much John, for inviting me to participate in the Vital Interests forum and for highlighting the environmental challenges at the global level concerning effectively what we are calling climate change, presented most recently as a principal theme for climate action at the high level of the 75th session of the UN General Assembly and as one of the themes covered under the energy agenda item of the high level in the 76th session just this year. 

Concerning your question of how I got involved with the initiative regarding the definition of ecocide, the Stop Ecocide Foundation is a group that has been working for some time on issues of climate change and environmental law and environmental advocacy.

Based on discussions with a number of States, especially some Pacific Island States, specifically following the call by the Maldives during the ICC Assembly of States Parties in December 2019 for the inclusion of this crime in the Rome Statute, the Foundation came up with this idea of promoting a wider conversation concerning how that crime of ecocide could be defined. Ecocide has been a concept that's been around for many years, since at least the early 1970s when Arthur Galston coined the term and Swedish Prime Minister Olof Palme referred to the indiscriminate bombings and use of herbicides to cause immense environmental destruction as ecocide at the UN Conference on the Human Environment in Stockholm in June 1972. The basic idea behind the Panel was the sense that we need to look at all the tools that the international community may have, including international criminal law, to prohibit certain kinds of conduct that causes severe destruction to the environment which of course knows no borders and can result in harm for all of the international community.

The Stop Ecocide Foundation invited 12 panelists, a globally representative group of lawyers, climate change activists, environmentalists, and international criminal law practitioners to have a discussion on what this concept of ecocide could look like as a matter of international criminal law focusing specifically on the permanent International Criminal Court. The task was basically to define the crime and present that idea out there for States and the world community to consider at least as a starting point for future discussions.

VI: Reading from the statement put out by the Foundation, the definition of ecocide the panel agreed upon is “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 these acts.” The panel tried to be specific, but also remain open to the category of actions that could be gathered underneath this definition. The intention was then to offer this legal characterization of ecocide as a crime that could be investigated and charges brought to the international community for discussion?

Charles Jalloh: Yes, that was the general idea. Our remit was quite specific, which was: what are the possibilities for defining a potential new crime of ecocide under the Rome Statute of the International Criminal Court? If so, what are the textual amendments to the Rome Statute that might be required? This is important to stress because there's a separate conversation and interest by others, including in the environmental community, in the idea that perhaps you could even have a standalone treaty regime that deals specifically with prohibiting severe environmental crimes.

That is a separate discussion, but here we were specifically looking at the Rome Statute which is of course the statute of the International Criminal Court (ICC). Why that is significant is that the ICC has at least 123 states parties as of today and essentially is the most universal court that we have. Now, the challenge is, of course, the Rome Statute itself focuses on crimes that are about harm essentially to human beings. It is for the most part an anthropocentric system in that the object of protection is not really the environment as such. Thus, the ICC basically focuses on investigating and prosecuting war crimes, crimes against humanity, and genocide, and in relatively more limited instances, the crime of aggression 

Now, we were supposed to look at what amendments could be made to include ecocide. These were three-fold. First, there was a proposal in the preamble of a new paragraph drawn from the International Court of Justice’s 1996 advisory opinion capturing how the environment is essentially under daily threat of severe destruction and how this causes harm to nature as well as to humans. Second, there were proposals to have some consequential amendments in terms of the text of the provision listing the crimes under the Rome Statute (i.e. Article 5), and then, finally, there was the proposal for this new crime that you read, which would basically be substantive Article 8 ter that would then actually define the crime.

The definition in Article 8 ter attempts to draw from existing law and to be as broad as possible, but also to be specific in the sense that this is a criminal law instrument, so it has to have that clarity so that potential violators are on notice in relation to prohibited conduct. In the definition that you read, the Panel reached consensus that ecocide means unlawful or wanton acts that are committed by persons, obviously with knowledge that there's a substantial likelihood of severe and either widespread or long term damage to the environment being caused by those acts.

We went on to define the subsequent paragraph, some of the specific terms that need more clarity, but yes, you're right. For example, it was important to define what was “wanton,” “severe,” “widespread,” “long-term,” and “environment.” It's an attempt to find the balance between the broad and encompassing concerns that we think the international community should have, and those which include a specificity intended to demarcate them for the purposes of criminal law.

VI: Let's look a bit into the International Criminal Court. Some of our readers will understand the full dimension and function of this court which was brought into being by international criminal law scholars and practitioners as a court of last resort. If crimes against humanity, war crimes, and genocide were not prosecuted within a certain jurisdiction, then it was difficult to bring accountability to governments and to individuals that were perpetrating these serious crimes.

The concept of the ICC grew out of the experiences of the war crimes tribunal in Nuremberg and the tribunals set up after the Rwanda genocide and the war crimes committed during the Balkan wars. The feeling was that there was a need for an international criminal court that could authorize investigations and prosecute individuals outside of domestic jurisdiction that either could not or would not take up these serious, but often controversial, cases. The ICC respects the concept of complementarity, that the state where a crime is committed has the primary responsibility to prosecute, but if this is not feasible, then the ICC can step in and take up cases that involve war crimes, crimes against humanity, or genocide. Can you describe how that works?

Charles Jalloh: Exactly John. The idea of an international criminal court has been around since at least 1948 when there were discussions by the international community within the UN framework for a convention on the prevention and punishment of the crime of genocide. Those discussions took place in the context of the legal (Sixth) Committee of the UN General Assembly which was seized with the task of developing a convention on genocide. There was a preliminary agreement reached at that time as to how to define the crime of genocide, but the question of how to enforce the prohibition of genocide at the international level through an international penal tribunal was more controversial. So the issue was essentially set aside with the understanding that the international community of States would come back to the question at a later stage..

There are several critical developments of course, in terms of the initial steps establishing the court, including the UN General Assembly’s referral of the question of International Criminal Jurisdiction to the International Law Commission for a study on the subject with the view to developing recommendations. Of course, this referral occurred in the context of the Cold War, so things didn't move very well until we got into the '90s when we got the UN Security Council deciding to establish ad hoc tribunals, using its Chapter VII powers, to address atrocities committed in the former Yugoslavia in 1993 and Rwanda in 1994. That catalyzed the movement for a permanent court, spurred initially by a request of Trinidad and Tobago, eventually culminating with the negotiation and adoption of the Rome Statute in July 1998. 

Essentially, the ICC itself is a significant achievement. It took the international community almost 50 years to accomplish. That's the backdrop. Having said that, the structure of the ICC is arguably quite realistic in the sense that this court was not supposed to be sitting in a faraway place, let's say the Hague, which ultimately became the home of the tribunal, where the tribunal is based prosecuting atrocity crimes all over the world, even though the remit in terms of crimes themselves are very specific to the so-called core international crimes - war crimes, crimes against humanity and genocide. The essential point is that states parties were supposed to prosecute the crimes themselves.

The model of complementary that you talked about essentially takes as a starting point that, in fact, the states where these crimes occur would have the first responsibility to investigate and if they find sufficient evidence to proceed against the individual to then prosecute those individuals at the national level. The criteria of complementarity was set out in Article 17, which basically says, if you are unable, you the state’s parties are unable or unwilling to do the work yourself, to be able to prosecute yourself at the national level, then the International Criminal Court's jurisdiction would kick in essentially as a court of last resort, as the secondary means of accountability in the absence of national action. That's really what complementarity is.

VI: The ICC has had some successes bringing those involved in serious crimes to justice but there have been controversies and failures. Most of the courts efforts have been focused on individuals charged with crimes against humanity and genocide associated with civil wars or aggression in Africa. Do people feel that the ICC has the capacity to expand into this new realm of environmental crimes - to add another dimension of crimes that do not necessarily result from harm against humans, but impact the welfare of the entire planet?

Charles Jalloh: It's a great question. I think that there are at least a couple of points on both sides of the argument. Firstly, it is true that the International Criminal Court has, for the most part, focused on cases in Africa and that has been a bit sensitive, in particular, for African states. There's been, arguably unsurprisingly, a bit of a pushback against the court. Oftentimes, because the court's actions may directly threaten high-level officials of African states. There's that aspect. I and many others have written about the tension in the Africa-ICC relationship. 

Now, the flip side of that, of course, is that there are many African victims of these atrocity crimes that have seen the court as the only way they could get any accountability at all, because in the face of state action or state-supported or at least state acquiescence into atrocity crimes, then there is no or often little hope for credible accountability at the domestic level. That's the complexity of the ICC itself, but then the second point, which is now going directly to the concern that you're raising, is if the ICC has had some successes, but also some failures, is it a wise thing at this time to then open the door for the ICC to be involved with something else that could be quite controversial, if not directly challenging in the sense of turning the spotlight more towards environmental crimes? That is a significant policy question. 

My own personal view is that this is a question that states have to consider. It is one that I cannot be presumptuous enough to purport to answer for the 123 States Parties of the ICC, as it is ultimately they that have to decide whether the timing is right for that. After all, they are the States that would then have the legal obligation and also the duty to put in the resources that the ICC needs to succeed. They are the ones that must determine how best to ensure that cooperation with the ICC takes place including in relation to not just the atrocity crimes cases, but any future ecocide cases. 

That said, I can offer my own modest thoughts. One thought is to say that because of the nature of the problem that the international community is dealing with, and here I'm talking about the problem of climate change and environmental damage - which is really a global commons issue as we were reminded as far back as 1972 at the Stockholm Conference on the environment - states must look at all the possible tools that they have at their disposal to discourage destruction of our natural environment. That includes taking measures to have a greater and deeper cooperative framework that can deal with imminent environmental concerns in order to stem the rise of global temperatures that are contributing to irreversible damage. States have recognized this through the conclusion of several multilateral treaties, including of course, the Paris Agreement in 2015. 

But we know that more needs to be done to reduce the impacts of climate change. So more policy actions appear necessary. That includes the possibility of using criminal law tools, whether at the national level and/or also at the international level, to try to deter some of the behaviors that we find particularly problematic if you think about different situations around the world where we've had severe environmental destruction. Now, of course, on the other end of that whole spectrum, is the concern what that means, in practical terms.

Even if you could politically reach an agreement to open up the International Criminal Court system towards crimes like severe environmental crimes, would it have the resources to be effective? That is a huge billion-dollar question because already the court is struggling with the cases it has to take on resulting from war crimes, crimes against humanity, and genocide. Already - and this is no theory, it is the living reality - the ICC, especially the Office of the Prosecutor is struggling with being asked to do more with less. 

Funding, or the lack of it, is actually one of the biggest current challenges for the conduct of investigations and prosecutions. We have even seen a willingness by countries and the UN Security Council to refer situations to the ICC without providing the additional resources needed for the ICC to succeed. Realistically, that issue would likely have to be addressed before any new crimes are added. 

VI: Let's look at what might be examples of serious environmental crimes that could qualify for prosecution under the proposed legal definition of ecocide. Over the years there have been incidents that have caused massive environmental and societal harm. To name just a few that received worldwide attention, there was Bhopal in India, Exxon Valdez in Alaska, Deepwater Horizon in the Gulf of Mexico. There were investigations and some were prosecuted but there didn't seem to be serious repercussions for the companies or the individuals involved. Low level officials became scapegoats and there were fines for the corporations that were implicated that reached billions of dollars, but for the most part this amounted to just a write-off on their balance sheet. What would be the process of identifying and bringing charges against an individual or entity involved with ecocide?

Charles Jalloh: There are really several issues there that we have to unpack. One is the correct observation that you are making which is that we have had some incidents that really attracted a good deal of attention because those environmental disasters caused a lot of societal harm. You give examples of the Exxon Valdez here in the United States, we know how that went and the mechanisms that were in place to handle that incident. That primarily included fines but also a few criminal charges. We see similar reactions with the poisoning of thousands in Bhopal, with the nuclear fallout from Chernobyl, with the dumping of hazardous waste for many years off the coast of the Ivory Coast - all these cases were very controversial. Think about what's happening in the Amazon Rainforest, even as we speak.

We're talking about really some of the world's most pristine ecosystems effectively being taken advantage of. A major observation that one could make is that we have different national legal systems and different ways of handling environmental issues. Broadly one could say the balance seems to be to go after the actors and ultimately at the end of the day have some kind of fine or civil or administrative penalties. As we know this is not a significant deterrent to prevent risky environmental behavior by those capable of inflicting massive environmental damage.

Of course, there are some states that have criminalized some of the severe destruction that we're talking about. They could prosecute those individuals under national law. What the crime of ecocide would add is an international layer where we could have a minimum level of agreement on how you define the crime. Essentially, you will set the criminal law standard at the international level, so that hopefully it would be a common and consistent standard adopted in different national legal systems. This would take advantage of what is typically said to be one of the catalyzing effects of the Rome Statute. 

The added value of an International Criminal Court involvement would be essentially to spotlight the issue and hopefully motivate or encourage changes to national laws at least in terms of severe destruction to the environment. 

Now having said that, there's a separate and second point that's quite critical in what you said and this is that the actors you talked about involved in these environmental disasters were private entities and corporations. That's incredibly important, but it has to be said that the International Criminal Court's entire regime is about individual criminal responsibility. Indeed, the ICC has no jurisdiction over companies in any way  - at least as the Rome Statute is now written. 

In fact, as a historical matter, there were proposals during negotiations in Rome to include corporations within the jurisdiction of the International Criminal Court. Unfortunately, this was a non-starter for some big states. So the negotiating countries decided that this is going to be a conversation that we would not be able to find agreement on, at least at that time, so we're going to have to set it aside. 

This does raise a serious question in terms of how effective would the ICC be if it's just going against individuals for environmental crimes and not necessarily the companies that are often behind some of this environmentally destructive behavior? In the view of some environmentalists, this might be an opportunity to have a separate conversation as to whether we should broaden the jurisdiction of the ICC itself. 

VI: I believe there are precedents where international corporations have been held liable for human rights violations? Is this an approach that can be used for corporate accountability for environmental transgressions?

Charles Jalloh: Yes, there are precedents. Of particular significance was the adoption in 2011 by the United Nations of the UN Guiding Principles on Business and Human Rights, known commonly as the Ruggie Principles. This generated a lot of global discussion, especially within the UN system, to determine what is the scope of the responsibility of transnational or multinational corporations. In the end it did not seem that the states were in a place where they wanted to regulate corporate conduct through a binding instrument. So we ended up with this If you will, softer, more fungible principles.

This constituted an achievement by stating, at least, there are some responsibilities on the part of companies to adhere to International Human Rights Law norms and how states should make sure that companies within their jurisdiction would also be aligned with what those instruments provide for.

That could be a way forward in terms of some of these discussions, but I don't know that it's necessarily exclusive that we would say because you have for example, the Ruggie Principles out there now adopted and widely supported, it doesn't mean that you cannot also have a separate track where you can actually have accountability directly to the individuals who run the corporations perpetrating environmental harm.

There's a famous statement emanating from the Nuremberg judgment in 1946 where the first international military tribunal said that, and I am paraphrasing here, crimes against International law are committed by individuals, not by abstract entities. It's only after we punish the individuals who commit such crimes that the provisions of International law will be enforced, because remember, the Nazis officials were saying, “No, you can't criminally implicate us because we were acting as state officials. And the state is a sovereign entity that ought to be respected and not touched at all.”

I do not have a settled view on corporate criminal responsibility at this stage, but might use this opportunity to note that the International Law Commission’s 2019 draft articles on the prevention and punishment of crimes against humanity, which I’ve been privileged to be part of discussing in Geneva, does include the possibility of corporate liability where that is provided for under national law whether the responsibility is of a civil, administrative or criminal nature. 

I might also add that, in the African Union region, member states have provided the legal basis for such liability in relation to both ICC crime and environmental crimes in the Malabo Protocol. Although the treaty is not yet in force, when it achieves the 15 ratifications required, the legal basis would be there to prosecute companies for engaging, in among other things, illicit exploitation of natural resources and trafficking in hazardous wastes in the African region.

VI: There has always been the criticism of international law that despite its good intentions and important role in articulating universal norms, it has no real enforcement powers. Basically, it's a naming and shaming mechanism. In these days of massive global social media penetration, things can get immediate attention with citizen mobilization calls to take action. We have seen multinational corporations quickly changing their business practices in response to social media allegations of using child or slave labor. Perhaps the social media awareness of the dire threats of climate change can reinforce implementation of ecocide crimes as well?

Charles Jalloh: There is an impression that because of the availability of more information, the number of groups that are out there working on promoting greater awareness of what is at stake for the international community, there is definitely more talk about climate change and the need for more specific climate action. For many years, there was a debate about whether it was possible to get any kind of climate change consensus at the international level. We eventually got one in 2015 with the Paris Agreement where a number of significant elements of urgent environmental concern for the international community were effectively addressed. We're still struggling, of course, with the implementation of some of the deeper, more substantive commitments that states ought to make in terms of changes to their behavior but that's not the end of the issue.

In other words, I'm agreeing with you that this is a moment of hope. In my view, because we can no longer be naïve about all of these different things that are at play and the fact that the world is dealing with more and more crises. We are living through a time when there' are a lot of observable changes happening around us and the message scientists are telling us is very clear - unless we can manage to find ways to keep global temperatures below a certain level, the planet will experience continuous damaging environmental impacts.

VI: In the past there has been concerted international action taken in the face of acknowledged environmental damage. For example, international regulations were enacted to address air pollution, acid rain, and ozone depletion due to fluorocarbons. But it does seem that is not enough these days - more like we're trying to put fingers in a leaky dyke when a tidal wave is coming that will overwhelm us all.

Charles Jalloh: You're right, John. I think you put it very well. The urgency that exists in the scientific community or those who are climate change experts, unfortunately seems to be different from the agencies at the policy and political levels. When you think about the environment, this is a classic example of the global commons. It does require the actions of all states for us to be able to mitigate and account for some of the damage that's been caused to the environment that ultimately has an impact on all of humanity, but in fact not all of humanity only, every single living species on earth. 

VI: It's interesting to note that when the proposed ecocide amendment comes to the term “environment,” it describes its scope to be earth’s biosphere, cryosphere, lithosphere, hydrosphere and atmosphere, as well as outer space. Was this expansive definition difficult to reach a consensus on?

Charles Jalloh: We had an interesting debate about this John, on whether to define the environment, because we basically had two options that seemed evident from the precedents. One approach in the past by other international institutions, including prestigious bodies like the International Law Commission, has been to say, "You know what? The environment shouldn't be defined because part of what we know about what the environment is, would actually change over time."

I had the privilege of being on the Commission when it was dealing with the issue of protection of the environment in relation to armed conflict. We shied away as a body from defining what constituted “the environment”. The obvious gain we thought would come from that is this: as understanding evolves to know more about the environment, we could take that into account going forward.

Now, on the flip side of what we had to consider in the ILC project, where we were dealing with possible obligations for states and recommendations to states, with the ecocide initiative we were addressing criminal law issues. The Panel took a different approach. We felt that we needed to at least have a basic definition of environment to get more clarity as to what we're talking about. The way the concept of the environment is defined is fairly broad and rightly so. Because again, once you leave that space for interactions with the environment that we don't have today, then it can be accommodated in the future as this definition is taken forward.

VI: How do you envision this legal definition of ecocide being taken forward? So you see this initiative being discussed at the COP26 gathering that's coming up in Glasgow? 

Charles Jalloh: I do not know that the issue of ecocide will be on the agenda there (at COP26) at all. My hope is that the states that have shown an interest in this question would at least have some discussions informally in terms of this idea of ecocide. It will presumably be discussed in the context of the International Criminal Court Assembly of States Parties, which is expected in early December of this year. I don't know how strong the likelihood is of a general debate, but more importantly, perhaps even the possibility of proposing an amendment. 

There's a working group on amendments in the ICC system for states that want to make proposals, for example, in the way Switzerland did a few years ago to have starvation considered as a war crime also in international armed conflicts. I'm hopeful that the discussions during the COP-26 conference would feed into and open the door to some discussions in the ICC itself. 

Hopefully, we'll get a number of things, even if they don't necessarily take on board all aspects, that they've agreed all aspects of the definition will at least now be motivated to raise the issue in the context of the ICC to have that serious conversation about whether this could be a good idea for states to take forward.

VI: For individual countries that are very concerned about the impact of environmental damage, would it be possible to adopt ecocide as part of their criminal code? 

Charles Jalloh: It is possible. States are sovereign and already one of the things that we were able to rely on in the course of our work on the panel, were the existing definitions of crimes that were dealing with environmental issues at the national level. What was interesting about that is that when you look at environmental destruction broadly speaking, you had laws in Russia and a lot of former Soviet republics. We see environmental crime laws in Vietnam as well, which obviously has a history of having suffered the effects of an environmental calamity in the context of an armed conflict from agent orange and napalm. 

There is nothing that precludes states from taking on this definition of ecocide and running with it. Already I can point to a couple of examples. There's a member of parliament in the UK who has actually tabled an amendment to the Crimes Act, to include ecocide, effectively the way it was defined by the independent expert panel with some adjustments. It's before the UK parliament now. Just last week, I saw a news item that a member of Parliament in Mexico has proposed the inclusion of ecocide. Now, this is happening in the context where we've seen some similar moves in a few European states. For example, recently France passed a national law to criminalize environmental destruction. It wasn't ecocide as we defined it, but again, was taking steps to legislate effectively on the back of this discussion that we are having at the international level. 

There have been some media reports of Nordic countries looking at this possibility as well. Yes, in short, there's nothing to preclude states from moving forward on having ecocide definitions at the national level irrespective of what happens in the International Criminal Court. Maybe those states, especially those in the Asia Pacific region that are quite sensitive because they're living through the impacts of climate change, might end up leading the way. They're like the thin edge of the wedge. Maybe we'll see some action from them too. 

VI: What about consideration of ecocide by regional courts? I know you've been involved with an initiative to create a new African Court of Justice and Human and People's Rights. 

Charles Jalloh: I'm glad you brought up the African Court of Justice and Human and People's Rights which was an initiative basically by African states at the regional level. They adopted this instrument for African union member states, and the idea is to have regional criminal jurisdiction at the African level. One of the most fascinating elements from the perspective of an international lawyer about the Malabo Protocol is basically the crimes that are included in the Protocol.

We have all the core international crimes - war crimes, genocide, crimes against humanity, the crime of aggression, sometimes actually defined to be even more progressive if you will, to encompass more bad acts within the definitions. On top of that, quite significantly, the Malabo Protocol also addresses the illicit extraction of natural resources - that's huge- as well as trafficking in hazardous waste.

Essentially, if African States take that instrument forward, a wide array of criminal conduct would be prohibited at the regional level. Significantly the states that joined this new African Court would be obligated to go back into their national systems and prohibit that conduct if it's already not illegal under their national law. Of course, the Malabo Protocol is not yet in force - it looks like it might take a few more years for that to happen. They need 15 ratifications, they've gotten a number of signatories, but not yet any ratifications. So, it will take a few years before the court sees the light of day. The key takeaway though is that we see some promising what I call ICC Plus Crimes in the regional court, including public order and environmental crimes. 

One final point. What we are seeing in certain areas of international law is evidence of a feedback loop between what happens at the regional level influencing what is happening in the international sphere, or sometimes international standards informing what happens at the regional level, so it's a two-way street. We hear discussions are also ongoing in Latin America to have a drug trafficking regional court. Who knows if such a court will also not have core crimes included in its statute. My impression is that we might get more developments concerning environmental crimes at the regional level and those will perhaps create the conditions for us to see more action at international level. It's not to say that the two tracks are incompatible with each other, just to say that sometimes that's how certain aspects of law have developed when complex and controversial topics are confronted. Dealing with global environmental challenges is certainly in that category.

VI: I would imagine there are a number of environmental activist groups like the Stop Ecocide Foundation that provide a networking and supporting role for domestic, regional, and international organizations to introduce the concept of ecocide in their jurisdictions.

Charles Jalloh: Exactly. I think that's another added value to this conversation. I have to say, as with anything that is meaningful, the issue of ecocide would obviously get more attention when states actually engage on it, particularly at the International Criminal Court. It will certainly be controversial for some of the reasons that you flagged, which is the view that the International Criminal Court is already struggling to fulfill its original mandate. So why burden it further. 

You have to keep in mind the context that I gave in the beginning - that creating the ICC was a long fight for achievement. Many invested in so much for that to happen, often over the course of decades. Indeed, the international community worked on the idea of international criminal jurisdiction for about fifty years before we got the court. Many scholars and representatives of state parties say,  "Look you’ve got to leave the ICC alone. Even though it's been around for 20 plus years now it's still finding its way forward. Let's let the court grow and get settled and then we can think about additional crimes it could address.” We even have proposals by some for inclusion of new crimes such as terrorism and drug trafficking. Again, the same pushback is often given.

That said, I have to say that for the same people who make that argument, it was the same argument that was used in respect to adding the crime of aggression. You could make that argument each time. Now, I don't want to question the importance of making sure that the court succeeds and I do think the ICC really does need states to step up in terms of supporting the court and assuring international criminal accountability, but just to say that all too often, we get this pushback at new ideas. Sometimes that's part of the way we miss opportunities for meaningful change.

We say, "Well, we're going to focus on this issue for now and then we'll come to that later." But we're already dealing with the environmental crisis as you put it in the beginning. My feeling is that States should look at all the tools in their arsenal to deal with such challenges. I'm not saying criminal law will solve all the problems or even a big part of the problem, but I think it's potentially part of the wider solution that states should look at. Obviously, the conversation whether that should be the case at the national level or at the international level is part of what is needed in the future discussions. 

VI: We're coming to the end of our time, Charles. We've had an interesting conversation about the concept of ecocide and how it can become an important part of the international criminal law frameworks, particularly as an amendment to the serious crimes the International Criminal Court considers. As you said, the urgency of the environmental crisis we see engulfing the world calls for all possible tools to be recognized and used to mitigate harm to all aspects of our planet - the global human community, all flora and fauna, the water and air we all depend on. Support for consideration of ecocide by environmental activists, states, and international organizations will provide a progressive way to seek accountability for those perpetrating serious environmental damage.

Charles Jalloh: One of the benefits of the work of the independent expert panel is that now we're seeing global attention to the question of ecocide with many saying "Hey, criminal law could be part of the solution, so let's have a conversation about that."

I hope that consideration can reach a second level, that there will be an official formal process, hopefully in a not-too-distant future, for states to discuss whether they want to add ecocide to the list of serious crimes that are not just in the purview of the International Criminal Court, but also in other forums, like the United Nations. And for states to agree on the desirability of having environmental crimes to send a symbolic message that the international community will do what it takes to protect the environment. When we get ecocide as an agenda item, we can then have the debate about whether the most serious crimes of habitat destruction, pervasive air and water pollution, and threats to the viability of future generations from the point of the international criminal laws are more seriously explored. We need this conversation to assist us in the profound obligation we have to the global commons, and to future generations, to undertake a sincere effort that could be to the benefit of all of humanity and every species on the planet.

VI: Absolutely. Charles, thank you so much for your work on this vital initiative. We'll certainly be watching closely the propagation of this understanding of ecocide and hope that your visions come into reality in the not too distant future.

Charles Jalloh: Thank you so much John for hosting this conversation and congratulations on what seems like an excellent forum. It's a real honor to be part of it.

Dr. Charles C. Jalloh is Professor of International Law at Florida International University (“FIU”) in Miami. Elected by the UN General Assembly as a member of the International Law Commission, for the term which began in January 2017, Professor Jalloh is only the second Sierra Leonean to have been honored with election to the ILC. During his first term, he has actively participated in and contributed to the Commission’s important task of assisting the UN General Assembly with the promotion of the progressive development of international law and its codification. In addition to successfully advancing proposals in various working groups and lecturing and supervising jurists in the ILC’s International Law Seminar, he has been elected to leadership positions in the Bureau as Chair of the Drafting Committee for the historic 70th (2018) session and as Rapporteur for the 71st (2019) session. 

A prolific scholar, Professor Jalloh has published widely on aspects of international law including over 70 articles, book chapters and essays in top peer-reviewed journals and academic publications. He has also been a (lead or co) editor and author of 13 books with top academic presses. These include The Legal Legacy of the Special Court for Sierra Leone (Cambridge University Press, 2020); The African Court of Justice and Human and Peoples’ Rights in Context: Development and Challenges (Cambridge University Press, 2019); Africa and the International Criminal Court (Oxford University Press, 2017); The International Criminal Court in an Effective Global System (Edward Elgar, 2016); The Sierra Leone Special Court and Its Legacy: The Impact for Africa and International Criminal Law (Cambridge University Press, 2015); Shielding Humanity: Essays in International Law in Honour of Judge Abdul Koroma (Martinus Nijhoff, 2015); and Promoting Accountability Under International Law for Gross Human Rights Violations in Africa: Essays in Honour of Prosecutor Hassan Bubacar Jallow (Martinus Nijhoff, 2015).