Rachel Killean, Reparation in the Aftermath of Ecocide.

Calls for a new international crime of ecocide have gained significant momentum over the last few years. In 2021, the Stop Ecocide Foundation’s Independent Expert Panel’s release of a new proposed definition galvanised international statements of support for ecocide to be introduced as the fifth ‘crime against peace’ at the International Criminal Court (ICC). Proponents of such a move have called attention to the deterrent effects and other benefits of individual criminal accountability for environmental harm, including the symbolic value of framing ecocide as one of the ‘most serious crimes of concern’ to the international community. However, relatively little attention has been given to another potential benefit of including the crime in the ICC’s mandate: the possibility of environmentally reparative measures. It is notable in this regard that the ICC has the ability to award reparations to victims of a convicted person’s crimes, while the Court’s Trust Fund for Victims (TFV) has the further ability to provide victims with assistance prior to any judgment being rendered.  

This paper explores what these reparative possibilities offer in the context of ecocide. It begins by outlining the ICC’s reparation and assistance mandates. In doing so, it highlights the current limits of the Court’s reparation framework as a means of redressing ecocide, specifically how the definition of ‘victimhood’ serves to prevent reparations that prioritise the harm perpetrated against the environment itself. Nonetheless, the paper argues that reparations and assistance delivered to natural and legal persons can provide environmentally reparative benefits. Drawing on the Court’s prior practice and the practice of other institutions that have awarded reparations for environmental destruction, this paper identifies three principles that might inform future reparation awards: interconnected harm and repair; do no harm and eco-sensitivity; and dignity, non-discrimination, and non-stigmatisation. It also considers the types of reparative modalities that might be appropriate in the aftermath of ecocide, focusing on restitution; compensation; rehabilitation; symbolic measures; and transformative reparations. 

The paper acknowledges the practical challenges the ICC has faced, and their likely impacts on the Court’s ability to deliver environmental reparative justice. As such, it is clear that the ICC cannot offer any kind of silver bullet solution to the harms of ecocide. Nevertheless, the Court’s ability to award measures of repair offers opportunities to look beyond retribution and deterrence, to consider the needs of communities and ecosystems after ecocide has occurred.