Will the creation of the crime of ecocide at the international and national level hold those who cause severe and irreversible harm to the environment liable?

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By Harry Muir, Third Year LLB student 

Earth is at the precipice of an environmental catastrophe that could result in the mass extinction of life as we know it.[1] Yet, corporate and government leaders are still committing and condoning acts that have a detrimental effect on the environment for profit and personal gain.[2] Although these leaders have the power to change their practices, little is being done to do so.[3] Arguments have therefore arisen that by using existing legal mechanisms, a crime could encapsulate these destructive acts to the environment and climate;[4] this crime is known as ecocide.[5] Ecocide has developed substantially since first being discussed after the use of ‘agent orange’ during the Vietnam war[6] and today, more discourse is taking place that a crime of ecocide could become a tool to save the earth[7] on a fast track to environmental collapse.[8]

This blog post will critically discuss that whilst the introduction of ecocide at a national level could act to hold those who cause severe and irreversible environmental damage accountable, the proposed international crime of ecocide would potentially be far better at achieving this goal.

Ecocide: discussion at the international level

At the international level, there is currently no crime that specifically prosecutes ecocide.[9] In response to this, academics such as Higgins have targeted the International Criminal Court (ICC) to recognise the crime of ecocide as a fifth ‘missing crime against peace’[10] under the Rome Statute[11] especially as ecocide was included in the draft Rome Statute.[12] Critical opinion has focused on the ICC’s existing legal provisions not being sufficient enough; for instance, their only reference to the protection of the environment is in relation to harm caused in wartime[13] which ignores ecocide committed in peacetimes such as severe deforestation[14] or oil spills.[15] An ICC policy paper in 2016 outlined environmental damage could be considered in relation to existing crimes[16] which Mwanza notes, demonstrates a ‘green shift’ at the ICC.[17] This green shift is apparent as a petition against President Bolsonaro for his ‘crimes against humanity’ explicitly references ecocide in relation to the mass deforestation of the Amazon[18] and therefore could be seen as a method to hold those who cause ecocide liable and protect the environment. Pereira is however critical about this shift as the other ‘crimes against peace’ have high mens rea requirements[19] and difficult evidential burdens[20] proving a hindrance to the actual prosecution of environmental harm. Therefore, an international crime of ecocide would be far better suited at holding those who cause destructive acts against the environment liable than existing provisions.

In response to the lack of environmental protections in the Rome Statute, a historic legal ecocide definition was drafted by an independent expert panel (IEP)[21] specifically for the Rome Statute[22] which is as follows:

‘“Ecocide” means 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’[23]

An element of this definition that has been the focus of academic debate has been the ‘wanton’ element which will be discussed. Wantonness arguably imports an ‘anthropocentric element’ which contradicts the entire ‘ecocentric’ nature of the crime of ecocide commented on by Minkova.[24]The implications of this element, according to Keller, mean severe, irreversible, and long-term damage to the environment can be committed[25] so long as there is a good enough reason for it.[26] Thus, corporate and government actors could argue they have committed ecocide for the public benefit therefore limiting accountability if they have the resources to argue their way out of liability.[27] Mehta would however disagree as the crime is still mostly ‘ecocentric’ in a predominantly ‘anthropocentric’ legal system.[28]

It is however argued that deterrence would be a powerful mechanism behind this international crime of ecocide at the ICC.[29] It is important to note that, in order to change the Rome Statute to include ecocide, one signatory must bring an official proposal[30] and only two-thirds of ICC signatories must agree to enable amendment.[31]  This proposal however has the possibility of being effectively ‘timed-out’ when the proposal is not brought within a specific time frame as seen with Bangladesh, Samoa and Vanuatu’s ecocide proposal[32] even so, actual implementation potentially could take up to 5 years.[33] These strict time limits and lengthy implementation dates are of a significant hindrance as again the world is in need of immediate environmental protection to safeguard the future. This being said, as corporation CEO’s want to keep a ‘clean’ reputation,[34] they understandably do not associate with an equivalent crime to genocide or war crimes[35] as this could be detrimental to their business stock price and profit.[36] Academics predict that ecocide’s recognition at the ICC would act to immediately instigate a change in corporate business practises causing ecocide[37] by creating a duty for governments and corporations to not disregard the environment and therefore encouraging the adoption of a green economy.[38] Deterrence would therefore serve as an immensely powerful mechanism to combat crimes of ecocide immediately long before the expected 5-year amendment process into the Rome Statute. These however are only predictions and in the meantime as Greene proposes, national provisions could be created and implemented immediately as an alternative to international provisions.[39]

Ecocide: discussion at the national level

A crime of ecocide in national legislation however comes with enforcement and implementation difficulties which will be critically discussed in light of current national provisions in relation to government and corporations who commit ecocide.[40]

Both Russia[41] and Ukraine[42] criminalise ecocide in their respective criminal codes and in the current context of the war facilitated by Russia, Putin’s acts have constituted ecocide.[43] However, although these provisions exist, they are only as powerful as the countries’ legal system and their respect for the rule of law as commented on by Schwegler[44] which likely means Putin will not be held accountable under existing national provisions.[45]

There has also been difficulty holding corporations accountable under national provisions[46] which is critical as they significantly harm the environment with their actions.[47] A country who has taken a step to hold corporate actors accountable is Guatemala for example, who have recognised an ecocide law which held a palm oil corporation liable for ecocide for causing severe damage to the waterways and the surrounding eco-system.[48] As Greene however illustrates, enforcement of this ruling created difficulties especially as the corporation has now gone back to polluting the river again constituting an act of ecocide[49] arguably not having the predicted deterrent effect discussed earlier.[50] It is therefore no surprise that the implementation of an international crime of ecocide was outlined as the next logical step in response to this ruling.[51]

The UK has been reluctant to criminalise ecocide at a national level with recent proposals to include ecocide as a crime punishable with 30 years’ imprisonment in The Environment Bill[52] being removed after arguments prevailed that economic activity would be severely impacted due to environmental criminalisation.[53] The UK sees ecocide as a barrier rather than an opportunity as they have the resources to be a pioneer and utilise existing green technologies to thrive with nature[54] enabling the development of a ‘green’ economy.[55] France, on the other hand, recently recognised ecocide as an offence punishable with up to 10 years imprisonment or a 4.5 million euro fine.[56] Ecocide was changed from a criminal to a civil offence due to the potential stigmatisation of businesses’ economic activity;[57] however, the prison penalty associated with the crime should still act as a deterrent[58] in protecting the environment.

Conclusion

In light of the arguments presented, criminalisation of ecocide in the Rome Statute would be the best option for holding those who severely damage the environment accountable due to its predicted deterrent effect as a ‘crime against peace’. In comparison, although national ecocide provisions could act immediately to protect the environment, difficulties in enactment and enforcement are major drawbacks to accountability and environmental protection.


[1] Tim Lindgren, ‘Ecocide, genocide and the disregard of alternative life-systems’ [2018] 22 International Journal of Human Rights 525, 528.

[2] Rob White, ‘Ecocide and the Carbon Crimes of the Powerful’ [2018] 37 University of Tasmania Law Review 95, 102.

[3] Vanessa Schwegler, ‘The Disposable Nature: The Case of Ecocide and Corporate Accountability’ [2017] 9 Amsterdam Law Forum 71, 81.

[4] Polly Higgins, Damien Short and Nigel South, ‘Protecting the planet: a proposal for a law of ecocide’ [2013] 59 Crime Law and Social Change 251, 252-254.

[5] Sailesh Mehta and Prisca Merz, ‘Ecocide – a new crime against peace’ [2015] 17 Environmental Law Review 4.

[6] Saloni Malhotra, ‘The International Crime That Could Have Been but Never Was: An English School Perspective on the Ecocide Law’ [2017] 9 Amsterdam LF 49, 52.

[7] Jojo Mehta, ‘Ecocide: a crime against the planet’ [2021] 66 Journal of the Law Society of Scotland 24, 25.

[8] D Carrington, ‘World close to ‘irreversible’ climate breakdown, warn major studies’ The Guardian (27 October 2022)

[9] E Trigt, ‘A Legal Definition of Ecocide’ (Peace Palace Library, 15 July 2021) <https://peacepalacelibrary.nl/blog/2021/legal-definition-ecocide>

[10] Polly Higgins, ‘Seeding Intrinsic Values: How a Law of Ecocide will Shift our Consciousness’ [2012] 1 Cadmus Journal 9.

[11] The Rome Statute of the International Criminal Court art 5

[12] Saloni Malhotra, ‘The International crime that could have been but never was an English school perspective on the ecocide law’ [2017] 9 Amsterdam Law Forum 49, 53.

[13] The Rome Statute of the International Criminal Court, art 8(2)(b)(iv)

[14] Danilo Urzedo and Pratichi Chatterjee, ‘The Colonial Reproduction of Deforestation in the Brazilian Amazon: Violence Against Indigenous Peoples for Land Development’ [2021] 23 Journal of Genocide Research 302, 304.

[15] Ricardo Pereira, ‘After the ICC office of the prosecutor’s 2016 policy paper on case selection and prioritisation: towards an international crime of ecocide?’ [2020] 31 Criminal Law Forum 179, 196.

[16] Office of the Prosecutor, Policy Paper On Case Selection And Prioritisation, 15 September 2016, <https://www.icc-cpi.int/news/policy-paper-case-selection-and-prioritisation>

[17] Rosemary Mwanza, ‘Enhancing Accountability for Environmental Damage under International Law: Ecocide as a Legal Fulfilment of Ecological Integrity [2018] 19 Melbourne Journal of International Law 586, 598.

[18] Danilo Urzedo and Pratichi Chatterjee, ‘The Colonial Reproduction of Deforestation in the Brazilian Amazon: Violence Against Indigenous Peoples for Land Development’ [2021] 23 Journal of Genocide Research 302, 304.

[19] Ricardo Pereira, ‘After the ICC office of the prosecutor’s 2016 policy paper on case selection and prioritisation: towards an international crime of ecocide?’ [2020] 31 Criminal Law Forum 179, 215.

[20] Ibid, 211.

[21] Haroon Siddique, ‘Legal experts worldwide draw up ‘historic’ definition of ecocide’ The Guardian (London, 22 June 2021)

[22] Jojo Mehta, ‘Ecocide: a crime against the planet’ [2021] 66 Journal of the Law Society of Scotland 24, 24-25.

[23] Stop Ecocide Foundation, ‘Independent Expert Panel for the Legal Definition of Ecocide’ (June 2021) <https://www.stopecocide.earth/legal-definition>

[24] Liana Georgieva Minkova, ‘The fifth international crime: reflections on the definition of “Ecocide”’ Journal of Genocide Research (forthcoming).

[25] J K Heller, ‘Fiddling (With Ecocide) While Rome (and Everywhere Else) Burns’ (Volkerrechtsblog, 18 February 2022) <https://voelkerrechtsblog.org/fiddling-with-ecocide-while-rome-and-everywhere-else-burns/>

[26] J K Heller, ‘Skeptical Thoughts on the Proposed Crime of “Ecocide” (That Isn’t)’ (OpinioJuris, 23 June 2021) <http://opiniojuris.org/2021/06/23/skeptical-thoughts-on-the-proposed-crime-of-ecocide-that-isnt/>

[27] Liana Georgieva Minkova, ‘The fifth international crime: reflections on the definition of “Ecocide”’ Journal of Genocide Research (forthcoming).

[28] Jojo Mehta, ‘Ecocide: a crime against the planet’ [2021] 66 Journal of the Law Society of Scotland 24, 25.

[29] Ibid.

[30] Polly Higgins, ‘Seeding Intrinsic Values: How a Law of Ecocide will Shift our Consciousness’ [2012] 1 Cadmus Journal 9.

[31] K Mackintosh, J Mehta and R Rogers, ‘Prosecuting Ecocide’ (Project Syndicate, 31 Aug 2021) <https://www.project-syndicate.org/commentary/the-icc-should-recognize-ecocide-as-an-international-crime-by-kate-mackintosh-et-al-2021-08>

[32] K Surma, ‘A plea to make widespread environmental damage an international crime takes centre stage at The Hague’ Inside Climate News (Pittsburgh, 7 December 2021)

[33] Jojo Mehta, ‘Ecocide: a crime against the planet’ [2021] 66 Journal of the Law Society of Scotland 24, 25.

[34] Vanessa Schwegler, ‘’The Disposable Nature: The Case of Ecocide and Corporate Accountability’ [2017] 9 Amsterdam Law Forum 71, 98.

[35] R Killean, ‘Could criminalising ecocide increase accountability for environmental harm in conflicts?’ (Conflict and Environment Observatory, 22 April 2021) <https://ceobs.org/could-criminalising-ecocide-increase-accountability-for-environmental-harm-in-conflicts/>

[36] Jojo Mehta, ‘Ecocide: a crime against the planet’ [2021] 66 Journal of the Law Society of Scotland 24, 25.

[37] Vanessa Schwegler, ‘’The Disposable Nature: The Case of Ecocide and Corporate Accountability’ [2017] 9 Amsterdam Law Forum 71, 86.

[38] Polly Higgins, Damien Short and Nigel South, ‘Protecting the planet: a proposal for a law of ecocide’ [2013] 59 Crime Law and Social Change 251, 261.

[39] Anastacia Greene, ‘The campaign to make ecocide an international crime: Quixotic Quest or Moral Imperative?’ [2019] 30 Fordham Environmental Law Review 1, 46.

[40]Rob White, ‘Ecocide and the Carbon Crimes of the Powerful’ [2018] 37 University of Tasmania Law Review 95, 102.

[41] The Criminal Code of the Russia Federation No. 63-FZ of June 13, 1996, art 358.

[42] The Criminal Code of Ukraine of September 1, 2001, art 441.

[43] S Smith, ‘This is ecocide’: Ukrainians hope to rebuild greener country after Russian war ravages environment’, The Independent (19 March 2022).

[44] Vanessa Schwegler, ‘’The Disposable Nature: The Case of Ecocide and Corporate Accountability’ [2017] 9 Amsterdam Law Forum 71, 94.

[45] R Killean, ‘Legal accountability for environmental destruction in Ukraine’ (Conflict and Environment Observatory, 7 March 2022) <https://ceobs.org/legal-accountability-for-environmental-destruction-in-ukraine/>

[46] Vanessa Schwegler, ‘’The Disposable Nature: The Case of Ecocide and Corporate Accountability’ [2017] 9 Amsterdam Law Forum 71, 92.

[47] Jojo Mehta, ‘Ecocide: a crime against the planet’ [2021] 66 Journal of the Law Society of Scotland 24, 25.

[48] B Whitford, ‘Court ruling advances case for ecocide law’ (Positive News, April 22 2016) <https://www.positive.news/environment/court-ruling-advances-case-ecocide-law/>

[49] Anastacia Greene, ‘The campaign to make ecocide an international crime: Quixotic Quest or Moral Imperative?’ [2019] 30 Fordham Environmental Law Review 1, 21-22.

[50] Jojo Mehta, ‘Ecocide: a crime against the planet’ [2021] 66 Journal of the Law Society of Scotland 24, 25.

[51] B Whitford, ‘Court ruling advances case for ecocide law’ (Positive News, April 22 2016) <https://www.positive.news/environment/court-ruling-advances-case-ecocide-law/>

[52] Environmental HL Bill (2019-21) 16, cl 133

[53] HL deb 14 July 2021, vol 813, col 1900

[54] Jojo Mehta, ‘Ecocide: a crime against the planet’ [2021] 66 Journal of the Law Society of Scotland 24, 25.

[55] Polly Higgins, Damien Short and Nigel South, ‘Protecting the planet: a proposal for a law of ecocide’ [2013] 59 Crime Law and Social Change 251, 257.

[56] No. 2021-1104 of August 22, 2021, Climate and Resilience Law, art 231-233.

[57] L Alderman and C Meheut, ‘‘Going Green, or Greenwashing? A proposed climate law divides France’ New York Times (19 May 2021)

[58] Jojo Mehta, ‘Ecocide: a crime against the planet’ [2021] 66 Journal of the Law Society of Scotland 24, 25.


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