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. 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- genocide, war crimes, crimes against humanity, and the crime of aggression. Serious environmental crimes are placed on the same level as genocide.
In the modern era of environmental consciousness, almost all countries, including India, have adopted environmental protection laws. India attributes this to its legislation on environment protection and jurisprudence on the polluters pay principle. However, recognizing ecocide would offer a different vantage point since it will be a preemptive approach. In addition, individuals would be compelled to undertake measurements to avoid pollution. It will aid in halting pollution in its birth as opposed to it being penalized which is the explanation of the polluter pays. In other words, the new governing principle becomes the ‘polluter does not pollute’ principle. The protection of interests shifts from those few who have ownership to the many who are at risk of suffering.” More recently, in the case Ratheesh and Others v. State of Kerala and Others , the quorum went as far as to nod towards ecocide and explain it as, “the destruction of the aspects of the environment which enables it to support life. The Indian Constitution under Articles, 21, 32, and 48-A and Part III enshrine discourses, in varying degrees, on the environment. Analogous to a pendulum, the Constitution provides protection, enjoyment, and use of the environment. On one extreme rests protection and on the other rest protection and in the middle- the most controversial, use. Nonetheless, the Indian Constitution, with all its shortcomings, acknowledges the environment. The Indian environmental law jurisprudence moves gradually towards codifying ecocide. Under domestic civil law cases, the possibility of exploration of absolute liability under tort law supplanted in ecocide as a criminal offense needs to be explored further. For India to internalize the international discourse, both, precautionary and polluter pay principles should be juxtaposed to the ecocide laws of Vietnam and others which shall be discussed below. Tracing the lineage of the 'polluters pay' principle, the Indian Courts have, time and again, held corporations liable for their actions.
Out of all the countries that have recognized ecocide as a criminal offense, Vietnam is one of the countries which provides its definition of ecocide not only in peacetime but also in wartime. All the other jurisdictions have not provided any responsibility for the act of ecocide committed during war times. This is primarily due to the Vietnam War during which Agent Orange defoliated approximately five million acres of forests in an attempt to expose guerrilla fighters and entire ecosystems. The massively destructive effects of herbicidal warfare became known as “ecocide”. What they found was not simply the destruction of whole environments upon which humans depended. As a result, to protect Vietnam from future domestic use of such agents, Ecocide, in the Penal code is defined as “destroying the natural environment, whether committed in time of peace or war, constitutes a crime against humanity.” Countries such as Kazakhstan, Belarus Georgia Ukraine Moldova, Armenia are examples of those who have national laws on Ecocide. The lowest common denominator among them is they were all-Union of Soviet Socialist Republics. The reasons for their legislation are due to the enormous environmental damage. Author of Ecocide In The USSR: Health and Nature Under Siege, Fleshbach notes:
1. Total population of 70 million people suffered from atmospheric pollution,
2. 75% of surface water is contaminated by one or more pollutants
3. Great rivers such as the Volga and the Don have been reduced to chemical sewers
4. Two-thirds of the Aral Sea had become an arid, sterile desert and the ecosystems of the Black and Caspian Seas may have been damaged beyond repair.
Thus what can be noted from the annals of history is that war (Vietnam War) and Empire (USSR) have defined legislation. These vestiges of time in the form of legislation now serve as yardsticks of imagination and inspiration in the form of foreign law. In sum, any event that causes environmental damage must carry liability even if no one particular individual has suffered harm. Considered as public wrongdoing, the right to recovery rests with the State and so the responsibility to remedy, improve, and protect through penal action. Given the compensation-oriented approach, ecocide brings a different dimension. The hope is that this dimension offers a different vantage point and the ghost of penal consequences is a sufficient deterrent for those who are willing to sacrifice environmental well-being for personal gains. This can only be achieved if countries internalize international measurements, as this article has discussed.
Bibliography
[1] Arne Bleeker, 'Does the Polluter Pay? The Polluter-Pays Principle in the Case Law of the European Court of Justice, (2009), 18, European Energy and Environmental Law Review, Issue 6, pp. 289-306, https://kluwerlawonline.com/journalarticle/European+Energy+and+Environmental+Law+Review/18.6/EELR2009024 .
[1] ILR 2013 (3) KERALA 827
[1] 'THE POLLUTER-PAYS PRINCIPLE OECD Analyses And Recommendations' (Oecd.org, 2021) <https://www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=OCDE/GD(92)81&docLanguage=En> accessed 3 October 2021.
[1] David Zierler, The Invention Of Ecocide (University of Georgia Press 2011).
[1] Article 278, Vietnam Penal Code, 1990
[1] Nabeela Siddiqui, 'World Environment Day 2021: Advocating For An Ecocide Law In India' (Bar and Bench - Indian Legal news, 2021) <https://www.barandbench.com/columns/world-environment-day-2021-advocating-for-an-ecocide-law-in-india> accessed 2 October 2021.
[1] Fleshbach, M, and Friendly, A Jr. Ecocide in the USSR: Health and nature under siege. United States: N. p., 1992. Web.
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