Against that background, the second part turns from diagnosis to structure. If the prohibition on the use of force is weakening, the question is not only why this is happening, but also whether the existing international system retains the institutional and normative capacity to resist that erosion. This requires closer examination of the limitations of the UN framework, the constraints of collective security mechanisms, and the extent to which meaningful legal responses remain available.

The Need to Address Institutional Impediments in UN Decision-Making

Here, any honest analysis must also grapple with the UN Security Council’s veto problem. The veto was a deliberate design feature, accepted as the price of great-power participation. But it means the collective security system is structurally incapable of responding to violations by, or protected by, any permanent member. Accordingly, reform efforts should be intensified.

The norms and principles, such as the “Uniting for Peace” procedure and R2P, on the one hand, and the relevant mechanisms, such as the International Court of Justice (ICJ) and the International Criminal Court (ICC), on the other, offer partial alternatives and deserve more serious utilisation than they currently receive. So does the development of clearer legal standards around economic coercion – an area where the law remains underdeveloped and where powerful actors currently operate in a legal grey zone.

What is Actually at Stake

In view of the foregoing, it is hard to remain optimistic. The trajectory is not good. The prohibition on the use of force is under sustained pressure from multiple directions simultaneously: expansive doctrinal reinterpretation, selective enforcement, and an institutional architecture that is structurally ill-equipped to hold great powers accountable. States currently exploiting legal flexibility may find, as power balances shift, that they have weakened the very rules that could one day protect them. But that long-term self-interest argument has rarely been persuasive enough on its own to change behaviour in the short term.

A clear choice now confronts the international system: either to uphold a rule-based order grounded in legal constraints or to accept a power-driven, unpredictable, and unstable system. The former may be politically challenging, but it remains the only viable path to sustainable peace and stability. The latter, by contrast, invites long-term instability in exchange for short-term gain. The preservation of international law is therefore not merely a normative aspiration but a practical necessity. If the current trajectory of erosion is not reversed, the international system risks becoming increasingly fragmented, unpredictable, and prone to conflict. Once the long-established threshold of applicable international law is eroded, such an outcome would represent a collective loss for all members of the international community, ushering in an era of profound instability.

The task for scholars and practitioners is not to lament the current situation but to think carefully about what can realistically be done within it. This includes identifying where the pressure points are, which institutional levers remain functional, and how the normative case for the prohibition on the use of force can be framed in terms that connect with political realities rather than floating above them. Cataloguing violations is necessary but not sufficient. The harder question -what specific reforms, arguments, and coalitions might slow or reverse the erosion- is the one that deserves more sustained attention. The world is in urgent need of collective wisdom, in which diplomacy and international law are once again effectively utilised in the pursuit of international peace and security.

Conclusion

The international legal order has never operated in a world free from power politics, inconsistency, or selective enforcement. Its value has always lain elsewhere: in the existence of commonly recognised limits capable, however imperfectly, of restraining the unrestricted use of power. What makes the present moment especially concerning is the possibility that those limits are gradually losing both their normative clarity and practical authority at the same time.

No single reform or institution is likely to reverse this trajectory on its own. Yet abandoning the effort would carry consequences extending far beyond any individual conflict or geopolitical rivalry. Once the prohibition on the use of force becomes sufficiently malleable, international law risks ceasing to function as a meaningful constraint and instead becoming little more than a vocabulary through which power justifies itself after the fact. Preventing that outcome requires more than formal commitment to legal principles. It requires sustained institutional engagement, intellectual honesty, and a renewed willingness by states and legal actors alike to defend the integrity of the rules upon which international stability ultimately depends.

Domestic criminal law in countries like Bangladesh, India, and Pakistan permit this process to ensure trial of principal accused through the evidence of their accomplice, so that the trial is not hindered due to lack of evidence in complex and crucial cases. National criminal law usually sets conditions for such pardon including i) full, ii) true and iii) whole disclosure about the circumstances. If the approver does not fulfil the conditions, then the pardon will be revoked. The approver can be tried for the original offence for which they were pardoned, and their own confession can be used against them in that trial. Thus, the pardon initially offered to the approver does not provide blanket immunity.

Article 65 of the Rome Statute of the International Criminal Court (ICC) outlines a framework comparable to the provision of an approver. It governs proceedings based on an admission of guilt. Under this framework, the Chamber is not bound by the admission and must instead satisfy itself of several conditions. First, the accused must understand the nature and consequences of the admission. Second, the admission must be made voluntarily following sufficient consultation with defence counsel. Finally, the admission must also be supported by the facts of the case. This assessment is based on the charges, evidence presented by the prosecutor, and any other materials provided by the accused.

Nevertheless, it is clear in the Rome Statute that the accused remains accused and does not turn into a prosecution witness like in domestic law, and the Chamber may convict the accused even if the accused satisfies the above requirements. Hence, there is no scope for a predetermined or lenient sentence for an admission under Article 78 of the Rome Statute. This is because of the jus cogens character of international crimes. Consequently, pardon for such crimes should not merely be a domestic policy choice.

Additionally, the Guidelines for Agreements Regarding Admission of Guilt adopted by the ICC heavily emphasize the Court’s independent duty to establish the truth. Judges must examine not just the agreement between the parties, but also other evidence presented by the prosecutor and any other evidence, which can include victim representations and other sources, to ensure the facts are complete. Besides, the Guidelines explicitly recognize the need for victims to be informed of the proceedings and to be able to present their views and concerns, ensuring the process does not overlook their interests.

In contrast, the statutes and rules of the International Criminal Tribunals for the former Yugoslavia (ICTY) and Rwanda (ICTR) contained provisions for formal plea agreements. An accused could plead guilty to specific charges, often after negotiations with the prosecutor, who might agree to drop other counts or recommend a sentence. Although the Trial Chamber was not bound by the agreement. Judges had to verify that the plea was voluntary, informed, and unequivocal and that a sufficient factual basis for the crimes existed. In these cases, a convicted person received a sentence determined by the judges, with a guilty plea being a significant mitigating factor, often leading to a substantially reduced term.

Nevertheless, the primary goals of international criminal law and tribunals are not just to punish, but to establish a historical record of atrocities, promote reconciliation, deter future crimes, whereas a unilateral pardon could undermine these goals by appearing to offer impunity. Sentences are meant to reflect the individual’s guilt and the gravity of the crime, while a pardon would circumvent this carefully calibrated judicial process

Background to the gender persecution charge

In 2007, the Office of the Prosecutor to the ICC (‘OTP’) was granted an arrest warrant for Abd-Al-Rahman for his role in atrocities committed against Darfuri civilians. The warrant included persecution charges, though none on gender grounds. Only in 2020 was Abd-Al-Rahman arrested, triggering the charge confirmation process, and providing the OTP an opportunity to reconsider its charges. In the intervening thirteen years, the OTP had released its 2014 policy paper on sexual and gender-based crimes, and in 2019 the Pre-Trial Chamber (‘PTC’) had for the first time confirmed the charge of gender persecution in the Al Hassan case.

In early 2021 the OTP filed its brief in Abd-Al-Rahman’s case, including persecution on gender, political and ethnic grounds for two charges. It identified the targeted groups as Fur males at two locations within Darfur, each location being a separate charge. The OTP argued that the males were targeted on gender grounds because of the ‘socially-constructed gender role presuming males to be fighters’ [para 129]. No underlying act was of a sextual nature: instead, the acts were torture, murder, and cruel treatment. This was a novel construction by the OTP: at first a ‘less obvious form of gender persecution, absent women, and absent sexual violence’, as I have argued elsewhere.

Also novel was the OTP’s explicit positioning of the discriminatory grounds as intersectional. It described these ‘multiple intersecting discriminatory grounds’ as best encompassing the persecutory conduct [para 129]. By mid-2021 the PTC confirmed each count, a significant development for recognising the gendered victimisation of males within mass atrocities.

Gender persecution, the judgment

Even more significant were the recent convictions, following an almost two-year trial. In finding Abd-Al-Rahman guilty, the Trial Chamber methodically considered the myriad complex persecution elements (from para 778), drawing on jurisprudence from the Al Hassan, Ongwen, and Ntaganda trial judgments. It had no difficulty addressing the broad underlying acts and the intersecting forms of discrimination. Moreover, this was a unanimous judgment with no separate opinions, unlike the Trial Chamber who in 2024 acquitted Al Hassan of gender persecution, with more decisions than judges.

This judgment is a milestone. We see how the charge of gender persecution can surface the multi-layered relationship between gender as it relates to constructed notions of masculinities, violence, politics, and ethnicity. It also allows us to better understand what it means to be persecuted on gender grounds, and to better understand gender in international criminal law. In turn, it demonstrates what more the charge can and should do in protecting civilians from persecution.

What next?

The Trial Chamber will deliver its judgment on 9 December 2025, the parties’ having only filed their sentence submissions and conducted their oral argument in November. . However, Defence have already filed notice of their appeal, including specifically that the Chamber erred in its approach to gender persecution.

Meanwhile the ICC’s Said trial has all but concluded its gender persecution charges largely mirroring Abd-al-Rahman, with closing statements occurring in late November 2025. Earlier in November, the PTC confirmed the charges in absentia against Jospeh Kony, including three charges of persecution on age and gender grounds. Earlier in July, the PTC issued arrest warrants for two Taliban leaders for persecution on gender grounds against girls, women and other persons non-conforming with the Taliban’s policy on gender, gender identity or expression. The situations in Nigeria and Bangladesh/Myanmar continue, also with a focus on gender persecution.

As the OTP itself acknowledged in its 2022 policy paper on gender persecution, ‘despite over 20 years of official recognition, the Office has only just begun to bring charges of gender persecution … leaving a gap in the development of international criminal jurisprudence’ (4). That gap appears now to be closing.  

Challenges and Obstacles

While the Prosecutor’s action is a significant step toward accountability, it faces several obstacles that may hinder its effectiveness.

First, Article 86 of the Rome Statute obliges States Parties to cooperate fully with the ICC in the investigation and prosecution of crimes. Both Akhundzada and Haqqani have rarely been seen in public and have no known international travel records. Their limited mobility within Taliban-controlled Afghanistan complicates efforts to execute potential arrest warrants. If they remain within Taliban-controlled territory, apprehending them would require significant cooperation from external actors or entities willing to intervene, which is highly unlikely given the current geopolitical context.

The ICC lacks its own police force to enforce arrest warrants and must rely entirely on the cooperation of State Parties to execute them. The ICC has faced similar challenges in other cases. For instance, on November 21, 2024, Pre-Trial Chamber I issued arrest warrants against Israeli officials, including Prime Minister Benjamin Netanyahu and former Defense Minister Yoav Gallant, for war crimes and crimes against humanity. Similarly, on March 17, 2023, Pre-Trial Chamber II issued arrest warrants for Russian President Vladimir Putin and Maria Lvova-Belova, Russia’s Commissioner for Children’s Rights, for alleged war crimes in Ukraine. Despite these warrants, the suspects remain in power with no changes in circumstances. Additionally, France has indicated that it would likely not take immediate action to arrest Israeli Prime Minister Benjamin Netanyahu if he entered French territory, citing immunity-related concerns. Likewise, Italy recently failed to fulfill its obligations under the Rome Statute by declining to surrender Ossama al-Masri to the ICC, despite an active warrant accusing him of grave crimes, including murder, torture, and rape. Instead, Italy repatriated him to Libya. These instances exemplify the significant challenges faced by the ICC in ensuring compliance with its arrest warrants, particularly in the absence of full cooperation from states.

Second, the arrest warrants against the Taliban leaders are still in their preliminary stages. The issuance of warrants depends on judicial approval following an evaluation of the evidence gathered during the OTP’s investigation. Judges must determine whether reasonable grounds exist to believe the accused have committed crimes within the Court’s jurisdiction. Arrest warrants are issued not only to ensure the suspect’s appearance at trial but also to prevent obstruction of investigations or the continuation of the alleged crimes. However, the legal threshold for issuing warrants requires substantial evidentiary support. This process is particularly challenging given the limited access to Afghanistan under the Taliban rule and the necessity of accurately interpreting evidence within complex historical, cultural, and contextual frameworks. Judges may navigate these intricacies to ensure that the evidence meets the requisite legal standards. Furthermore, the Taliban have recently rejected the ICC’s jurisdiction, asserting that they do not recognize any legal obligations under the Rome Statute and deeming the previous administration’s accession to the treaty as legally invalid. This position appears to be inconsistent with Article 127 of the Rome Statute, which requires a state seeking to withdraw to submit a formal written notification to the UN Secretary-General, followed by a one-year waiting period. However, even if such a withdrawal were formally initiated, it would not absolve the state of its obligations under the Statute, nor would it preclude the Court from exercising jurisdiction over crimes committed while Afghanistan was a State Party. Nevertheless, this development is likely to further complicate the situation, potentially resulting in an impasse.

Third, even after the issuance of arrest warrants, the prosecution and trial of suspects can take years, particularly given the difficulty in apprehending individuals. The ICC relies on its member states to execute warrants, and procedural complexities, extensive investigations, and the gravity of international crimes contribute to delays. Therefore, the Court’s decision may not have an immediate or tangible effect on the situation of women and girls in Afghanistan. Prolonged delays in prosecuting suspects could undermine the impact and relevance of justice, potentially eroding the faith of the women and girls—who are the primary victims of these crimes—in the judicial process if they do not see timely accountability.

A Landmark Step for Justice

The OTP’s actions mark a pivotal moment in the pursuit of justice for gender-based crimes under international law, offering a beacon of hope for women and girls in Afghanistan who continue to endure systematic persecution. Nevertheless, the path to accountability remains riddled with significant challenges, including the enforcement of arrest warrants, procedural complexities, and political resistance. Despite these hurdles, the ICC’s unwavering commitment to addressing such egregious crimes sends a resounding message that impunity for gender-based persecution will not be tolerated. While the immediate impact on victims may be limited, the precedent set by these actions reinforces the fundamental principle that crimes of this magnitude demand accountability. By seeking to hold the Taliban leadership responsible, the international community reaffirms its dedication to justice and the protection of human dignity, even in the most challenging circumstances. For the women and girls of Afghanistan, this development underscores their resilience and the strength of their advocacy in demanding justice. It is both a recognition of their struggle and a call to continue shaping a more equitable and just future for Afghanistan.

The Taliban’s Persecution of Women

The systemic persecution of women and girls in Afghanistan constitutes a crime against humanity under Article 7(1)(h) of the Rome Statute, and has been ongoing from August 15, 2021, to the present, across the entirety of the country. The ICC Prosecutor has further asserted that there are reasonable grounds to believe the Taliban have engaged in numerous acts of gender-based persecution as part of a widespread and systematic attack on the civilian population, carried out pursuant to a State or organizational policy. This persecution targets women perceived as failing to conform to the Taliban’s ideological expectations regarding gender roles and its interpretation of Sharia law resulting in severe deprivations of fundamental rights.

Contextual Background

The recent action taken by the Prosecutor was largely expedited by a referral submitted on November 28, 2024, by six state parties to the Rome Statute—Chile, Costa Rica, Spain, France, Luxembourg, and Mexico. The OTP previously confirmed that it is actively investigating the situation in Afghanistan, which already includes the alleged crimes detailed in the referral. The referral expressed grave concerns about the deteriorating human rights situation in Afghanistan, specifically highlighting the systematic and widespread violations targeting women and girls, and requested the inclusion of these crimes within the scope of the OTP’s ongoing investigation into the Situation in Afghanistan. Afghanistan, as a State Party to the Rome Statute since May 1, 2003, falls under the ICC’s jurisdiction and the ICC Pre-Trial Chamber II authorized the resumption of the OTP’s investigation on October 31, 2022, following a deferral initiated by the now-defunct Republic of Afghanistan in March 2020.

Symbolic and Practical Significance

The filing of these applications for arrest warrants carries profound implications, underscoring the international community’s condemnation of the unprecedented and egregious persecution faced by women and girls under Taliban rule. It conveys a resolute message that the systematic repression of women and girls in Afghanistan is intolerable and will not be normalized. Furthermore, this development reflects the significant achievements of the women in their global campaign against gender-based persecution, frequently referred to as “gender apartheid.” Since the Taliban took power in August 2021, the women of Afghanistan have actively worked to rebuild their capacity and empowerment while advocating for accountability for the Taliban’s actions. The submission of arrest warrant applications against two senior Taliban leaders represents a landmark victory for this movement, symbolizing a crucial step toward justice.

The Prosecutor has unequivocally asserted that the Taliban’s interpretation of Sharia law cannot and must not serve as a justification for the deprivation of fundamental human rights or the commission of crimes under the Rome Statute. It is essential to recognize that these actions constitute gender-based persecution rather than a legitimate divergence in religious interpretation.

In the meantime, the women and girls of Afghanistan have successfully mobilized support from several states, including Australia, Canada, Germany, and the Netherlands, to initiate proceedings against the Taliban at the International Court of Justice (ICJ) for gender discrimination stemming from the regime’s systematic persecution. This dual-track approach—pursuing accountability through both the ICC and the ICJ—marks a pivotal achievement in the women and girls global effort to combat gender-based persecution and secure justice for women and girls in Afghanistan.

Moreover, the filing of these arrest warrant applications carries profound political implications, particularly concerning the international recognition of the Taliban as a de jure government. Since the Taliban’s takeover of Kabul in August 2021, the regime has persistently sought international recognition. However, no state has formally recognized the Taliban as the legitimate government of Afghanistan. In the context of international law, recognition by states enables it to establish formal diplomatic relations and affirm its status as an independent political entity within the international system. The ICC’s intervention indicates the principle that systematic violations of fundamental human rights cannot be normalized or excused, thereby further complicating and undermining any efforts to legitimize the Taliban on the international stage.

TRANSGENERATIONAL TRAUMA

Can the trauma of violence echo across generations, leaving scars on those not yet born? Victims of mass atrocities commonly suffer from a multitude of harms which often tend to be deeply connected. Psychological harms are often a challenge to quantify monetarily and in terms of impact. Yet, they often have the most long-lasting effects. Studies indicate that the trauma experienced by survivors may be genetically transmitted to their offspring, manifesting in a myriad of behavioural and psychological patterns. The ICC has recognised transgenerational harm, but previously ruled against awarding reparations for victims due to questions of causality. However, in  Prosecutor v. Bosco Ntaganda (2021), the ICC opened the door to awarding reparations for transgenerational harm. What remains relatively unexplored in this context, however, is whether the contours of this jurisprudential development will extend to awarding reparations to an ‘unborn child’ for enduring transgenerational impact.

PRESENT STATUS OF TRANSGENERATIONAL HARM

Scientific experts agree on the two leading schools on transgenerational trauma – social transmission theory and the epigenetic transmission theory. Both theories converge (Para 10) on the fact that trauma is passed through generations. These children often face severe stigma, enduring blame, scorn, and being labelled as ‘war babies’.

Mr. Ongwen’s role in transgenerational harm

Mr. Ongwen was convicted [3116] of multiple sexual and gender-based crimes, inter alia,  rape, sexual slavery, forced pregnancy and forced marriage. His actions of forcibly impregnating several women caused genital anomalies for the victims, presenting [288]  a pattern of sexual violence. It is a warranted claim that much of these crimes are causative agents of transgenerational harm. Notably, the ICC recognised and awarded [789]-[790] reparations to such victims of transgenerational harm recognizing [168]  that children born amid reproductive cruelty inherit their parents’ trauma, perpetuating cycles of dysfunction even without experiencing direct violence.

EVIDENTIARY STANDARDS EMPLOYED BY THE ICC

While assessing the liability of the perpetrator in reparations proceedings, the Court usually adopts [22]  a flexible evidentiary threshold, to accommodate victims facing barriers in proving harm caused by crimes. On the one hand, the balance of probabilities test has been a consistent jurisprudence of the ICC in several reparations proceedings (Lubanga Reparations Order [65]  and the Ntaganda Reparations Order [143]). It requires the Applicant to adopt a gender-inclusive and sensitive approach [60]. Accordingly, victims are not put to a strict standard of proof (Rule 63 (4)). On the other hand, the but-for relationship standard posits a requirement that the crimes for which the person was convicted was the proximate cause of the harm for which reparations are sought, to justify a finding of liability (Katanga judgement [15]).

Building upon these standards, the ICC has broadened its reparations framework to address transgenerational harm through a four-pronged test [206]: proving direct victimhood to Mr. Ongwen’s crimes, establishing the child’s personal suffering, demonstrating parental-child trauma causation, and verifying the parent-child relationship. This framework integrates the ‘balance of probabilities’ test to assess [509]  the victims’ eligibility and the ‘but/for’ test to establish [419]  causation between victimhood and crime.

CONCLUSION: WAY FORWARD

The ICC has seamlessly included victims of transgenerational harm within the systemic fabric of international criminal law. By fostering dialogue, restorative justice addresses harm through a reparative process. The ICC’s reparations system has enabled flexibility in defining victims and its emphasis on collective reparations. This progressive approach to transgenerational harm and reparations demonstrates a shift toward inclusivity, addressing the consequences of mass atrocities on successive generations.

Background to the gender persecution charge

In 2018 the Office of the Prosecutor (OTP) issued an arrest warrant for Al Hassan for 13 charges, including one count of persecution on gender and religious grounds. The warrant related to his role as de facto chief of the Islamic police during Timbuktu’s 2012 occupation by two Islamist groups, Ansar Dine and Al Qaeda in the Islamic Maghreb (AQIM). The OTP’s charge confirmation brief identified the female population of Timbuktu as the subject of gender persecution, arguing they were targeted ‘because of their gender’. Such targeting was ‘motivated by the discriminatory views of members of the [Islamist] groups and individuals on the role and behaviour of women and girls’.

In 2019, for the first time, a Pre-Trial Chamber confirmed the charge of gender persecution. The decision comprehensively engaged with the myriad complex aspects of the crime, including its explicit link to international human rights law. It also endorsed gender as a social construction and touched on intersectionality – both significant steps in international criminal law jurisprudence. As I argue elsewhere, this decision provided the ICC’s first nascent jurisprudence on the crime.

Gender persecution at trial

Over the 18 months of the OTP’s case at trial, women gave powerful evidence of being targeted based on their gender: of being arrested and forced into a car by armed men because of a fallen veil; of being flogged for being greeted by a man other than their husband; of being taken from their homes, forcibly married, and held as sexual slaves. Al Hassan’s defence lawyers strongly contested the charge, characterising the allegations as possible human rights violations which fall far short of gender persecution, while heavily cross-examining the credit of victims.

Gender persecution, adjudicated

Though Al Hassan was acquitted by the majority of gender persecution (2-1), frustratingly there is little commonality across the three judges’ opinions. Judge Akane in her separate and partly dissenting opinion simply found the evidence of gender persecution insufficient for a conviction [95]. Conversely, Judges Prost and Mindua in their majority judgment considered that [1566]:

Ansar Dine/AQIM members specifically targeted local women and girls by reason of their gender, depriving them of some of their fundamental rights because of the particular roles, expectations and conduct Ansar Dine/AQIM assigned to their gender.

However, Presiding Judge Mindua ultimately found in his separate opinion that Al Hassan acted under duress, a complete defence in criminal law. Therefore, only Judge Prost, in her separate opinion, would have convicted Al Hassan of the crime, finding that such a conviction ‘would have more accurately recognised the harm suffered by female victims in Timbuktu at the time’ [26]. Though Al Hassan was convicted of persecution on religious grounds (itself a first at the ICC), Judge Prost found that gender and religion were ‘two inseparable grounds’, and that a conviction ‘should reflect the multiple and intersecting nature of the targeting of women and girls by Ansar Dine /AQIM’ [26].

What next?

Will the OTP appeal? Based on a statement by the Prosecutor released after the judgment, that door appears to be wide open: ‘The Office will now carefully study the judgment, including with respect to the gender persecution charge…with the view to deciding any potential further action.’

The parties have until the end of July to appeal. Al Hassan will then be sentenced on 28 August 2024, where Judge Akane has already been recused. Meanwhile, the OTP is litigating two other trials where gender persecution is charged (the Said and ‘Ali Kushayb’ cases), with an arrest warrant just released for Malian national and Ansar Dine leader Iyad Ag Ghaly. No longer can it be said that the crime of gender persecution at the ICC is ‘gathering dust’.

Tout en reconnaissant le caractère novateur de cette interdiction, un examen plus approfondi de la définition adoptée par la Belgique suggère que cette disposition pourrait ne pas être aussi efficace qu’anticipé. Cet article met en lumière deux lacunes de la définition récemment adoptée, afin de contribuer aux discussions en cours visant l’adoption d’interdictions additionnelles de l’écocide au niveau national.

Le terme « écocide », inventé en 1970 dans la foulée de la guerre menée par les États-Unis au Vietnam, a depuis lors été au cœur de débats définitionnels complexes entravant significativement la mise en œuvre d’interdictions juridiques à cet effet. En 2021, les efforts visant à définir ce concept ont conduit un groupe d’experts indépendants à proposer une définition destinée à être mise en œuvre dans le Statut de Rome de la Cour pénale internationale (CPI). Le groupe d’experts a défini l’écocide comme des « actes illégaux ou arbitraires commis en sachant la réelle probabilité que ces actes causent à l’environnement des dommages graves qui soient étendus ou durables ». Cette définition, bien que non contraignante, a suscité une attention internationale considérable et a alimenté significativement les discussions subséquentes entourant l’adoption d’une interdiction de l’écocide.

Alors que la Belgique s’est appuyée sur la définition du groupe d’experts comme point de départ pour élaborer sa propre définition de l’écocide, elle a finalement adopté une définition beaucoup plus étroite. L’article 94 du nouveau code pénal de la Belgique définit désormais l’écocide comme le fait de « commettre délibérément, par action ou par omission, un acte illégal causant des dommages graves, étendus et à long terme à l’environnement en sachant que cet acte cause de tels dommages, pour autant que cet acte constitue une infraction à la législation fédérale ou à un instrument international qui lie l’autorité fédérale ou si l’acte ne peut pas être localisé en Belgique. »

La décision de la Belgique d’adopter une définition plus étroite par rapport à celle du groupe d’experts est inquiétante. Comme mentionné, la définition du groupe d’experts visait l’incorporation de l’écocide comme cinquième crime relevant de la compétence de la CPI, soit une juridiction de dernier ressort se concentrant sur les crimes les plus graves préoccupant la communauté internationale. Bien que la définition du groupe d’experts demeure imparfaite, il demeure que celle-ci a été soigneusement conçue pour mettre en balance des impératifs d’efficacité et de légalité dans le cadre restrictif du Statut de Rome. Opter pour une interprétation encore plus étroite pour une interdiction au niveau national peut non seulement sembler inutile, mais aussi être loin d’être optimal afin de garantir une protection effective des écosystèmes.

Plus spécifiquement, l’approche étroite de la Belgique appert problématique à deux égards. Premièrement, la définition de la Belgique mentionne un acte « illégal » en vertu du droit fédéral belge ou du droit international applicable. (Par contraste, la définition du groupe d’experts inclut à la fois les actes « illégaux ou arbitraires » ; d’autres propositionsincluaient une liste d’actes interdits.) Compte tenu du peu de normes contraignantes en droit international de l’environnement, l’efficacité de l’interdiction belge repose donc largement sur l’existence d’un solide cadre environnemental en droit fédéral belge. En d’autres termes, les comportements visés par la définition de l’écocide n’élargissent pas de manière significative le champ d’application des comportements déjà illégaux en vertu de la législation nationale belge. L’on peut demeurer dubitatif quant à la valeur dissuasive ajoutée d’une interdiction aussi étroite de l’écocide dans ce contexte, outre une éventuelle augmentation de la peine imposée pour sanctionner des comportements par ailleurs déjà interdits.

Deuxièmement, l’élément mental codifié dans la définition belge est remarquablement rigoureux. Selon cette définition, l’acte allégué doit être commis « délibérément » et « en sachant que cet acte cause » des dommages environnementaux. Cette approche inclut le dolus indirectus, un concept emprunté par les juridictions internationales au droit continental (voir par ex. le paragraphe 530). Cependant, pareil standard s’avère impraticable dans le contexte de l’écocide, compte tenu de la nature souvent imprévisible des dommages environnementaux. Telle que formulée, la définition belge permet aux accusés négligents d’éluder leur responsabilité s’ils démontrent le caractère incertain du dommage résultant de leur comportement incriminé. Le groupe d’experts a favorisé une approche plus large, similaire au dolus eventualis ou à la négligence, ne requérant de l’accusé qu’il « sach[e] la réelle probabilité » que ces actes causent des dommages environnementaux. Bien que l’inclusion d’un tel élément moral reste débattue dans le contexte du Statut de Rome, les juridictions nationales demeurent en principe libres d’adopter un standard aussi bas dans leurs définitions d’écocide.

Dans l’ensemble, l’exemple belge constitue un exemple remarquable – bien qu’imparfait – de leadership étatique dans le domaine émergent du droit de l’écocide. Cet article a mis en lumière deux domaines où l’approche étroite de la Belgique entrave significativement l’efficacité de cette interdiction. Alors que les efforts en faveur de l’interdiction de l’écocide gagnent du terrain à l’échelle mondiale, un plaidoyer en faveur d’interdictions nationales, régionales et internationales solides est plus que jamais nécessaire afin de lutter contre l’impunité persistante des crimes environnementaux.

While recognising the trailblazing nature of this prohibition, a closer look at the definition enacted by Belgium suggests that this provision may not be as effective as anticipated. This post highlights two shortcomings of the newly adopted definition, aiming to contribute to ongoing discussions toward the adoption of further domestic prohibitions on ecocide.

The concept of ‘ecocide’, coined in 1970 in the context of the US chemical warfare in Vietnam, has since then been plagued by complex definitional conundrums significantly impeding its enaction as a legal prohibition. In 2021, efforts to define this concept culminated in an independent expert panel (IEP) proposing a definition designed to be implemented in the Rome Statute of the International Criminal Court (ICC). This panel defined ecocide as ‘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 those acts’. This definition, though not binding, garnered significant international attention and informed subsequent discussions on the prohibition of ecocide.

While Belgium relied on the IEP definition as a starting point in crafting its definition of ecocide, it ultimately adopted a much narrower definition. Article 94 of Belgium’s new penal code now defines ecocide as ‘deliberately committing, by act or omission, an unlawful action causing serious, widespread and long-term damage to the environment in the knowledge that this act causes such damage, provided that this act constitutes an infringement of federal legislation or an international instrument that is binding on the federal authority or if the act cannot be located in Belgium’.

Belgium’s choice to adopt a narrower definition compared to that of the IEP is worrying. As mentioned, the IEP definition was primarily intended to establish ecocide as a fifth crime within the scope of the ICC’s jurisdiction, which constitutes a court of last resort focusing on the most serious crimes of concern to the international community. While the IEP’s definition is by no means perfect, it was carefully designed to balance effectiveness and legality within the restrictive Rome Statute framework. Opting for an even narrower interpretation for a domestic prohibition may not only appear unnecessary but also suboptimal for ensuring robust environmental protection.

Specifically, Belgium’s narrow approach appears problematic in two key aspects. Firstly, Belgium’s definition only includes ‘unlawful’ acts under either Belgian federal law or applicable international law. (By contrast, the IEP definition captures both ‘unlawful or wanton acts’; other proposals included a list of prohibited acts.) Given the scarcity of binding international environmental law norms, the effectiveness of the Belgian prohibition is thus largely premised on the existence of a strong domestic environmental framework in Belgian federal law. In other words, the conduct captured by the definition of ecocide does not significantly expand the scope of conduct already unlawful under Belgian domestic law. One could question the added deterrent value of such a narrow prohibition on ecocide in this context, other than eventually increasing the punishment for already prohibited conduct.

Secondly, the mental element codified in the Belgian definition is strikingly stringent. According to this definition, the alleged act must be carried out ‘deliberately’ and ‘in the knowledge that this act causes’ environmental harm. This approach captures dolus indirectus, a concept borrowed by international courts from continental legal doctrine (see e.g. para. 530). However, this standard proves to be impracticable in the context of ecocide due to the often unpredictable nature of environmental harm. As it stands, the Belgian definition allows for reckless defendants to avoid accountability if they demonstrate the uncertain nature of the harm resulting from the impugned conduct. The IEP favoured a wider approach akin to dolus eventualis or recklessness, requiring only ‘knowledge that there is a substantial likelihood’ of environmental harm. While the inclusion of this mental element remains debated in the context of the Rome Statute, such a low standard remains in principle available for domestic jurisdictions to include in their ecocide definitions.

Overall, the Belgian example serves as a notable – albeit imperfect – example of State leadership in the burgeoning field of ecocide law. This post highlighted two areas where Belgium’s narrow approach significantly hampers the effectiveness of this prohibition. As efforts towards ecocide prohibition are gaining traction globally, strong advocacy for strong domestic, regional and international prohibitions is more needed than ever to close the impunity gap for environmental crimes.

This warrant, issued under Article 58 of the Rome Statute, means that the Russian Officials are accused of war crimes and are subject to arrest if they travel to a State party of the Statute. However, such an arrest is unlikely due to a variety of legal bottlenecks, political implications and practical challenges. 

Firstly, the Rome Statute has been drafted to limit breaches of State sovereignty. The Court is not empowered to enforce action on its own without the relevant State’s cooperation (Article 103). The obligation of executing arrest warrants is placed upon the 123 State parties, which the ICC is entirely relying on. Non-State parties and other international institutions are not obliged to cooperate with any request for arrest and surrender by the ICC. That is unless it is based on an ad hoc agreement, arrangement or other basis such as a Security Council resolution. Moreover, the ICC does not possess police power or prison facilities and is completely reliant on local law enforcement of State parties to implement arrest warrants. 

In the case of Russia and Ukraine, neither are parties to the Rome Statute, creating significant challenges in issuing or enforcing a warrant against Russia’s Head of State. Although Article 13(b) enables the United Nations Security Council to refer matters involving non-State parties to the ICC, such a resolution could not be adopted as Russia, being a permanent member of the Security Council, holds veto power. Therefore, the warrants were issued following Articles 13(c) and 15 of the Statute on an application by the Prosecutor based on evidence collected and analysed by the Office of the Prosecutor. 

When considering the warrant against Russia’s President, its enforcement is unlikely because he can only be arrested if he travels to a State party which is willing to arrest him, and he is unlikely to expose himself to such a risk. Past encounters involving the former Sudanese President, where States refused to arrest him, demonstrate the reluctance of many countries to arrest a sitting Head of State, even when they are legally duty-bound to do so under Article 89(1) of the Rome Statute. 

Secondly, the political implications on bilateral relations between an arresting State and the implicated State is another challenge. Developing States are particularly reluctant to submit to such requests by the ICC because they depend on economic and other assistance from other States – implementing warrants issued against powerful States will result in serious political repercussions including the possible loss of foreign assistance. 

In the present case, it becomes apparent that the implications are magnified as Russia is a superpower in international politics and possesses nuclear arms. Russia has already commenced a criminal case against the ICC Prosecutor and Judges involved in issuing the warrant, issued threats of attacking The Hague (with missiles), and warned that any country arresting President Putin would amount to a “declaration of war”. Accordingly, military pressure and the threat of political and economic sanctions prevent smaller States from enforcing warrants against individuals from powerful States. 

The ICC thus lacks tools to ensure State cooperation, and it does not have a mechanism to deal with non-compliance, nor the means to provide minimum protections to vulnerable State parties when executing ICC arrest warrants against powerful States. Article 87(7) of the Statute provides for the ICC to refer matters to the Assembly of States Parties or the Security Council when a State Party does not comply with a request to cooperate. This serves as a remedy of some sort, but has, in the past, failed to achieve cooperation from the States concerned. 

The lack of an enforcement mechanism and the power imbalance among States hinder efforts at ensuring international accountability, especially now when a warrant against a permanent member of the Security Council has been issued for the first time. Moving forward, the ICC must develop an internal mechanism that reduces its dependence on individual States for effective functioning.