Mansi Srivastava, Transitional Justice Mechanisms: Fortifying the Fifth Crime of Ecocide, Berkeley Journal of International Law (October 18, 2022)
This excerpt highlights an increasingly vital function of the first permanent International Criminal Court (ICC) in the world. The Rome Statute recognizes prosecutorial practices along with transitional justice, toward a holistic rebuilding of post-conflict societies. In this vein, Article 53 of the Rome Statute stipulates that an investigation may be forgone if it “would not serve the interests of justice.” Article 75 further recognizes symbolic and restorative forms of reparations before the ICC. The ICC Office of the Prosecutor also expresses support for capacity-building, traditional justice, and institutional reforms. The ICC therefore blurs the lines between retributive, deterrent, and transitional justice, making itself potentially far more effective than a pure prosecutorial mechanism. Therefore, traditional prosecution before the ICC for the newly proposed crime of ecocide should incorporate transitional justice mechanisms to address the urgent issue of environmental damage. Scholars have studied both definitional gaps and practical prosecutorial challenges related to the newly proposed crime of ecocide. Consequently, there are proposals for a more eco-centric definition, a clarification of mens rea requirements, forensic practices to aid evidence presentation for ecocide, and the addition of corporate criminal liability. However, even the foremost critics of the legal concept of ecocide support some movement toward the criminalization of environmental damage, albeit in different ways. Cognizant of the ongoing work in addressing challenges to the Rome Statute’s incorporation of ecocide, this post does not seek to propose more definitional changes. Instead, it takes a step further – considering ecocide as an existing crime in the Rome Statute in some form – to propose the deployment of complementary Transitional Justice Mechanisms (TJMs) to make the criminalization of ecocide significantly more effective.