Activating Climate Change in the form of Ecocide

Updated: Dec 30, 2021



Introduction


Should environmental degradation be punished like war crimes? To further this ambition, a growing movement of activists, lawyers and political leaders say, yes. They want to make ecocide, or widespread destruction of the environment, an international crime. In terms of criminal policy, this proposal fits into a general trend towards using (criminal) law to protect the environment. Recollect the International Law Commission’s 1991 Draft Code of Crimes and Security of Mankind proposing the crime of “wilful and severe damage to the environment” (Article 26). The proposed crime of ecocide builds on the first three core crimes of the statute [A1] [A2] - genocide, war crimes, crimes against humanity and the crime of aggression. In conceptual terms, serious environmental crimes are placed on the same level as genocide, referring explicitly to the Polish (Jewish) jurist Rafael Lemkin as the father of the original definition; specifically, the “killing” (French cide, Latin caedere) of an ethnic group (Greek génos) is placed on the same footing as the “killing” of the environment (Greek oikos). [A3] [A4]


History


In 1972, Olof Palme, the then Prime Minister of Sweden, accused the US military of ecocide over its use of Agent Orange during the Vietnam War. The deployment of the herbicide created extreme environmental destruction and left millions of people disabled. Palme was ahead of his time since he foresaw the need to protect the environment through international penal legislation. [A5] But with the climate crisis escalating and worldwide protests demanding quick action, the push to criminalize ecocide is back.


In 2019, the small island-state of Vanuatu was the first country to raise the issue of environmental damage [A6] before the International Criminal Court. The European parliament had discussed it; French President Emmanuel Macron in 2019 described forest fires in Brazil as ecocide and has promised to “carry on this fight on behalf of France.” He has also signalled that they (France) would support criminalizing ecocide at the international level. Belgian Foreign Minister Sophie Wilmes has also expressed support along with politicians from Vanuatu and the Maldives, nations vulnerable to rising sea levels. In 2019, Pope Francis urged the International Association of Penal Law to recognize ecocide as the “fifth category of crime against peace.”


There has been no agreement over what actions legally constitute ecocide. Significant environmental destruction is partially prohibited under a United Nations convention that took effect in 1978, but it applies only during wartime. Some individual nations have laws related to ecocide. National courts have become an increasingly successful arena for campaigners to hold governments and countries to account for pollution and climate change. In a landmark ruling in May, a Dutch court ordered Royal Dutch Shell Plc to do more to slash its greenhouse gas emissions, saying in the decision that “companies have the responsibility to respect human rights.”


Inception


Upon consideration, damage to the environment would stand on par with other crimes against people such as humanity and or of aggression, the need to warrant crimes against the environment gain traction and relevance. Not only morally, but even legally. So far, most environmental law works in a tight chamber. When harm is caused to the environment, companies or governments need to make up for the damage they have caused by paying fines or compensation. This is based on the principles enshrined in the polluter's pay principle. In a recent press conference, member of the Independent Expert Panel, Philippe Sands said, “I loath to mention any particular examples, but the authorization, for example, in an industrialized country of a massive new coalfield and a massive new coal-fired power plant without properly taking into account impacts on the climate system, I think, could arguably come within this definition”.


In this, one yields clarity. Ecocide campaigners want a shift—from regulation to criminal prosecution. If those key decision-makers have to take into account the fact that their freedom could be on the line if the decision that they make or if the project they decide to go forward with has the potential to seriously destroy nature, then that has a way of seriously concentrating the mind. The drafters hope that this will lead to a change in consciousness, i.e., they invoke a (positive) general preventive effect going beyond mere (negative) deterrence. In other words, the rationale is to limit and in some cases curb such malpractices in order prosecution. This underscores the rationale of the law.


Critique


"Ecocide" means unlawful or wanton acts committed with the knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.[A7] [A8] One significant concern is the mens rea of the crime. Furthermore, the requirement: “knowledge that there is a substantial likelihood” the perpetrator’s acts will cause certain consequences. [A9] [A10] That definition of knowledge is very different from the one found in Art. 30(3) of the Rome Statute: “awareness that a… consequence will occur in the ordinary course of events.” In keeping with nearly all national criminal-law systems, the ICC’s judges have interpreted Art. 30(3) to require the perpetrator to be aware that his or her actions are “virtually certain” to bring about the prohibited consequence(s) — a much higher standard of subjective awareness than “substantial likelihood,” which is closer to recklessness.


The expression “wanton acts committed with knowledge”- wanton here means “reckless disregard for damage which would be excessive about the social and economic benefits anticipated.” The use of “wanton” imports another mens rea requirement, recklessness, into ecocide, this time about the excessiveness of damage. So it is not enough for a perpetrator to “know” that his or her acts will cause “severe and either widespread or long-term damage to the environment.” He or she must also be aware that the damage will be “clearly excessive about the social and economic benefits anticipated.” It will be difficult enough to prove that the perpetrator was aware there was a substantial likelihood his or her acts would cause the required environmental damage; it will be nearly impossible to prove that he or she was also aware the expected environmental damage would be excessive about the anticipated social and economic benefits.


To establish the actus reus to determine liability- “severe,” “widespread,” and “long-term” are defined [A11] — and it’s good that the crime defines them, given that Art. 8(2)(b)(iv) does not. But it’s worth noting that ecocide uses a hybrid conjunctive/disjunctive test (“severe and either widespread or long-term damage to the environment”), while Art. 8(2)(b)(iv) is strictly conjunctive (“widespread, long-term and severe damage to the natural environment”). The asymmetry makes a certain amount of sense, given that it’s impossible to engage in armed conflict without causing some environmental damage. There should be less of a margin of appreciation for perpetrators in peacetime.


Adoption


The ICC has 123 members, but its holdouts include three of the top five world economies -- the U.S., China and India -- as well as Russia, Israel, Qatar, Iraq and Libya. These non-members are not exempt from the jurisdiction of the ICC. They can be investigated by the court only upon direction by the United Nations Security Council. So the cases referred to the ICC would still be limited by these constraints, especially by the membership of States Parties. For instance, the United States and India, both are not parties to the ICC, so cases of ecocide committed within their jurisdictions would not necessarily attract the jurisdiction of the ICC.


Beyond jurisdiction, there is also the issue of admissibility. Among other things, a case can be determined to be inadmissible if, “it is being investigated or prosecuted by a State which has jurisdiction over it unless the State is unwilling or unable genuinely to carry out the investigation or prosecution” or if it “has decided not to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the State genuinely to prosecute.” Moreover, the draft remains silent on the question of which subjective requirements should apply concerning the other elements of the crime – “conduct” and “circumstance” within the meaning of Article 30 ICC Statute – and with “wanton” it introduces a further mixed subjective-proportionality threshold (defined as “reckless disregard for damage … clearly excessive …”) which arguably produces insurmountable evidentiary hurdles for any criminal prosecution (see in more detail Heller here and here).


International Criminal Court


A member nation of the ICC would need to formally propose an amendment to the Rome Statute to establish ecocide as a crime under the court’s jurisdiction. Vanuatu and the Maldives are seen as leading candidates to do so. After a deliberation and debate process that could stretch for years, it would take a two-thirds supermajority of ICC nations to enact the amendment. Even then, there surely would be further discussed in the future regarding country-by-country adoption of ecocide law and enforcement of any ICC actions. Regarding genocide or war crimes, the standards for prosecuting someone at the ICC with this definition of ecocide would be difficult.. [A12] But making ecocide a crime independent of human suffering would be a landmark moment [A13] [A14] in both international criminal law and the fight against climate change. Acceptance of the amendment is crucial for the success of the campaign because only States Parties to the ICC can propose an amendment to the Court's charter, known as the Rome Statute[A15] [A16], which then requires a two-thirds majority for passage. Additional support for this notion lies in the well-established link between environmental degradation and human rights, in particular, the right to life (see Human Rights Committee’s General Comment 36, Portillo Cáceres v. Paraguay, Teitiota v. New Zealand). One may claim that since environmental harm and human rights are in many cases indivisibly intertwined, the crimes listed in the Rome Statute should be interpreted in the same sense. [A17] If environmental crimes produce the same outcome as other international crimes in terms of the threat they pose to human existence, and the different elements of an existing crime are satisfied through purposive interpretation, then, arguably, environmental crimes should not be treated differently.



Conclusion


The need of the hour is to provide a substantial revolutionary shift. For now, the idea of charging humans with ecocide may seem idealistic. But it is exactly that shift in mindset that may soon be required. Scientists warn that irreversible climate tipping points are already being reached, and time is running out to prevent an environmental catastrophe. Advocates for ecocide laws say that their goal is to both implement legal deterrence mechanisms and to advance public awareness—so that real and lasting change can happen.