Unpacking the mens rea of ecocide: Can the ICC adopt a lower fault standard for crimes against the environment?
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Abstract
The recent announcement by International Criminal Court (‘ICC’) Chief Prosecutor Karim Khan of an intention to try environmental crimes comes as a reminder of the ideas to introduce a crime of ‘ecocide’ within the ICC’s jurisdiction. The article focuses on the proposed fault standard or mens rea for the crime of ecocide. At the outset, the article outlines a deviation between the standard proposed by the Independent Expert Panel (‘IEP’) and the standard already set out in the Court’s founding document, the Rome Statute. Indeed, the Rome Statute has designed its mens rea around stringent standards, perhaps informed by the desire to confine the Statute’s architecture—and thus the ICC’s jurisdiction—to the most serious crimes. The IEP suggests a mens rea for ecocide which is markedly lower than that of the Rome Statute, such that it is onerous enough to ensure that those who have committed ecocide can be held responsible. So does this deviation hinder ecocide from being introduced at the ICC? And, more importantly, can the adoption and application of ecocide be justified with a mental element that is different from the framework as we know it today?
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1572-9850