Ecocide, which refers to the widespread and severe destruction of the natural environment, has been condemned by the legal affairs committee, followed by the direction of travel by four previous consultative committees in the European Parliament. This is in line with the Independent Experts Panel’s (IEP) report which is run by the charitable group of the Stop Ecocide Foundation, which suggested the definition of Ecocide and various amendments to the Rome Statute. Despite these efforts, it is disheartening to note that corporations like ExxonMobil, Shell, BP, and Chevron, who are often the primary perpetrators of ecocide, are currently immune to the jurisdiction of the International Criminal Court (ICC). Due to lack of jurisdiction such corporations evade accountability for their actions, which can have long-lasting and far- reaching damages to the environment.

The lack of corporate accountability, which means businesses should be held responsible for the impact of their actions on society and the environment, is a major obstacle in addressing ecocide. It is these corporations who often have the power and resources to carry out environmental destruction on a large scale. Therefore, it is crucial to hold them accountable for their actions and ensure that they are brought to justice for committing any ecocide. There are endless examples where corporations have abused their powers in the past and committed ecocide, like Stora Kopparberg, a Swedish copper mining company incorporated in 1288. Its centuries of economic success have devastated land and water near its mine, and the company has never been called to account for the damage. The world’s first corporation is still with us, though now transmogrified into Stora Enso, the second biggest global paper manufacturer, headquartered in Finland. Stora Enso’s harms today include destroying forests, damaging biodiversity and depleting water resources in Uruguay and Brazil and so on.

Nevertheless, behind this proposed law of including ecocide as a 5^th international crime in the Rome Statute, the rationale is that the possibility of holding CEOs personally liable will deter corporate activities that harm the environment. Thus, the effectiveness of the proposal depends on two conditions-first, CEOs can be held liable under the Rome Statute; and second, holding CEOs personally liable will change corporate behavior.

‘System Criminality’ Not ‘Individual Criminality’

Corporate Ecocide has a nature of collective crime. Corporate actions are often the result of the combined efforts of multiple actors, including shareholders, board members, executives, and managers, rather than the actions of an individual. Scholars use the word ‘System criminality’ to describe how corporate culture and structure can foster criminal behavior. Corporate criminal liability (CCL) acknowledges that the issue is with the corporation as a whole, rather than a single individual within the organization. But, when the question of liability arises, the Independent Experts Panel found it unnecessary to address it as the statute has sufficient powers to do that. The author believes that the proposed amendment would not be effective for two reasons.

Firstly, the Rome Statute, in its current form, does not have the necessary tools to hold CEOs responsible for ecocide. As a result, it is more likely that mid-level managers will be held accountable for any such activities. Secondly, without the implementation of corporate criminal liability (CCL), it is unlikely that corporations will change their behavior. CCL would hold companies accountable for environmental harm and can potentially incentivize these to act in a more sustainable and eco-friendly manner. As such, the proposal may not be effective in achieving its intended goal of deterring ecocide related activities without the inclusion of CCL.

Manner Of Liability in Rome Statute

CEOs are not personally responsible for ecocide, but for the actions of the corporations they lead. Therefore, to hold them accountable for ecocide, the actions of the corporation must be attributed to them. This can be done in three ways under the Rome Statute: indirect perpetration, aiding and abetting, and superior responsibility.

Indirect perpetration

Indirect perpetration is a concept that allows a person to be held liable for crimes committed by another person if they exercise a high degree of control over them. This concept has been extended to organizations in which a person in a superior position can order subordinates they control, to commit a crime. While this seems like a good fit to hold CEOs accountable for ecocide committed by corporations, it is difficult to apply in this context. Indirect perpetration requires a high degree of control over the actions of another person. In an organizational context, this means that subordinates have no room for independent decisions and are entirely dominated by the person in a superior position. This level of control exists in tightly- controlled hierarchies, such as military juntas.

However, corporations have complex structures that are fragmented and compartmentalized, and operate through delegation rather than direct orders. The CEO is shielded by layers of hierarchies and separate legal entities, making it difficult to establish the high degree of control required for indirect perpetration.

In the Katanga case, the ICC managed to use indirect perpetration to hold a mid-level commander of an insurgent group liable, but it would be challenging to apply this standard to CEOs of corporations. This highlights the need for a framework that can effectively hold individuals and corporations accountable for ecocide, taking into account the complexities of corporate structures and the challenges in establishing liability for their actions.

Aiding and Abetting

According to Article 25(3)(c) of the Rome Statute, aiding and abetting refers to situations where a person intentionally provides assistance with the aim of facilitating a crime. The Rome Statute introduces a new mens rea standard that requires a person’s contribution to be “for the purpose” of facilitating the crime. In the Bemba trial, the International Criminal Court (ICC) held that “purpose” denotes a higher mens rea standard.

However, according to the Independent Expert Panel (IEP), it is quite challenging to prove that a CEO intended to facilitate ecocide by his or her subordinates. This presents a significant obstacle when attempting to hold CEOs liable for such actions. Article 25(3)(c) does not provide a useful standard for doing so. These standard covers situation where a person aids or abets the commission of a crime. However, it introduces a novel mens rea standard, requiring a person’s contribution to be “for the purpose” of facilitating the crime. In the context of ecocide, establishing intent is particularly difficult, which means that Article 25(3)(c) is not a viable option for holding CEOs accountable for their subordinates’ actions.

Superior responsibility

Article 28 of the Rome Statute states that a superior in a corporation can be held responsible for the actions of those under their command and control, making it possible to hold CEOs liable for their subordinates’ actions. The law allows prosecutors to hold superiors responsible for the actions of their subordinates. However, there are challenges in holding CEOs liable, such as proving that they knew or consciously disregarded information about a crime, showing that the crime concerned activities within their responsibility and control, and establishing that they failed to take reasonable measures to prevent the crime. The law also tends to exonerate senior executives due to the complex and inaccessible structures of corporations. Without amendments, the current law does not provide sufficient tools to hold CEOs liable, and scholars argue that there is a “responsibility gap” where senior executives are rarely punished for corporate conduct. Corporate criminal liability could be necessary to hold CEOs personally liable for crimes committed by their corporation.

Why corporations should be liable?

As discussed above, the Rome Statute can only hold natural persons liable not legal entities like corporations. However, there are two reasons why it is imperative to include CCL. Firstly, as already mentioned the collective nature of ecocide and secondly the corporate behavior, as the proposal by the IEP to hold individuals accountable for ecocide is unlikely to change corporate behavior for two reasons. Firstly, corporations often find scapegoats and face no real consequences. However, corporate criminal liability (CCL) can have significant reputational impacts and create deterrence. Secondly, individual liability alone is not enough to change corporate culture. Individuals may prioritize the corporate charges over liability by the ICC. Therefore, a combination of individual and corporate liability is necessary to effectively hold corporations accountable for ecocide. They should learn from existing systems of corporate liability and develop a comprehensive framework to ensure accountability. Without such a framework, the proposal may not have a significant impact and even if the proposal is passed, it will be a paper tiger.