The multiple faces of ecocide as a new crime against humanity: Some reflections.

By L. Lizarazo Rodriguez

This blogpost gathers some reflections on the theme of the webinar organised by members of the End Ecocide Movement and of the ERC Research Project Curiae Virides of the Brussels School of Governance of the Vrije Universiteit Brussel. [1].

1. Historical background on ecocide

Claims for adopting ecocide as a crime against humanity respond to the need to stop the destruction of ecosystems. The initial proposal was to prohibit “widespread long-term severe damage to the environment” in the framework of International Humanitarian Law (Geneva Conventions and Protocols) that aims at protecting victims of armed conflicts. The concept of ecocide emerged as such in the United States of America (USA) in the 1970s, when A. Galston pleaded to ban ecocide, based on his research on the detrimental impact of napalm on Vietnamese citizens and ecosystems. In 1972, R. Falk further conceptualised ecocide by drafting the International Convention on the Crime of Ecocide. He also pleaded for sound international regulations on environmental harms that occurred beyond war. Remarkably, he referred to environmental challenges that regulatory frameworks are still ineffectively addressing 50 years later, namely to quantitative and qualitative toxicity, and state behaviour that entails risks of ‘threatening to impair the heritage of mankind’. In 1982, the International Law Commission (ILC) drew up the “Draft Code of Crimes against the Peace and Security of Mankind”, but only in 1998 the Rome Statute criminalised the widespread, long-term and severe damage to the natural environment, as a war crime. The Rome Statute, in force since the beginning of the XXI century, adopted for the first time the four international crimes: genocide, crimes against humanity, war crimes, and the crime of aggression, and established the International Criminal Court (ICC), as last resort jurisdiction for investigating these crimes when domestic courts are reluctant or unable to prosecute international crimes. Only individuals can be held responsible as the ICC lacks jurisdiction on legal persons.

However, claiming the adoption of ecocide as a standalone international crime is grounded on the fact that globalisation increased the frequency and intensity of transboundary and transnational environmental harms, with serious impacts on global public interests and for several generations. Globalisation also revealed that war is not the only trigger for the destruction of ecosytems. Some opinions even consider that the prohibition of ecocide could constitute ius cogens (Bassiouni 1996). This would require a consensus about the need to protect the Earth system at the benefit of humanity as a universal value. So far, transnational environmental degradation has mainly been addressed by international cooperation (Higgins 2015) and by frameworks on corporate responsibility.

2. Defining the scope of ecocide

The movement Stop Ecocide International convened the expert panel that defined the crime of ecocide as an addition to article 8 ter of the Rome Statute, grounded on a multi-dimensional approach that combines human rights, environmental protection, economic relations and development cooperation. The purpose of aiming at the typification of ecocide and of involving the jurisdiction of the ICC is deterrence in order to change current business practices.

The definition has some thresholds for typifying the crime of ecocide: First, ecocide has to be extremely serious with a high degree of culpability. There has to be “knowledge of the substantial likelihood of severe and either widespread or long-term damage”. Severe damage involves very serious adverse changes, disruption or harm to any element of the environment, including “grave impacts on human life or natural, cultural or economic resources”. The adoption of ecocide would also protect human rights affected by the destruction of ecosystems, which could indicate the severity of the crime. Whether ecocide reflects an ecocentric, anthropocentric or biocultural approach towards the protection of ecosystems is unclear. If ecocide is formulated as a crime against humanity it does not adopt an ecocentric perspective as such, but it values ecosystems at the same level of human beings. The definition seems to connect to biocultural approaches already adopted by some regional and constitutional courts, that rendered decisions protecting ecosystems and autochthonous populations whose lives are deeply connected to the affected ecosystem. The recognition of the cultural and religious value of ecosystems also connects to the commons approach to environmental protection.

Second, the expert panel definition considers that besides the “knowledge of substantial likelihood” or “severe damage”, ecocide has to be either “widespread” or “long-term”. Widespread is a “damage that extends beyond delimited geographic area, crosses states boundaries, or is suffered by an entire ecosystem or species or a large number of human beings”. Long term refers to irreversible and irreparable harms through natural recovery within a reasonable period of time. This scope aims at targeting the current level of greenhouse gas (GHG) emissions or destruction of Earth systems.

Third, unlawful or wanton acts can be typified as ecocide because not all acts which destroy ecosystems are prohibited or unlawful. Wanton is defined as “reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated”. Ecocide has an endangerment nature because the criminal act occurs when a risk of severe and either widespread or long-term harm is created, in order to overcome the bottleneck that has represented demonstrating the link between acts and the resulting environmental harm. Although in criminal law the intention (knowledge or recklessness) is crucial, this threshold has evolved when defining the scope of ecocide. Some authors (e.g. Higgins, Short and South) pleaded for strict liability instead of recognising the necessity of intentionality to configure the crime of ecocide

3. Wanton acts, the sustainable development principle and the planetary boundaries

The definition of wanton acts, as lawful acts that disregard the principle of sustainable development, can render its enforcement difficult as no universal unique and uncontested consensus exists on the scope of the principle of sustainable development as states have diverse levels of dependency on certain economic activities that could be qualified as wanton act (cf. what is ecocide?). The choice of rules to qualify licit activities as not aligned with the objectives of sustainable development and consequently as wanton acts is complex. A balanced approach between conflicting dimensions and priorities of sustainable development is essential as countries adopt several development models, according to their resources, needs and capabilities. The reports on progress about the targets of the Sustainable Development Goals (SDGs) illustrate this diversity of understandings.

However, an increasing global understanding, based on scientific evidence, is that the current approach to ecosystem protection, based on a development model that exploits Earth resources as if they were endless or with natural regenerative capacity, needs to change. Likewise, there is increasing evidence that serious environmental harms have occurred mainly during times of peace, and that humanity cannot cross the planetary boundaries without causing irreparable consequences for the Earth system. These are the grounds of the claims for the adoption of ecocide.

4. Convergence between ecocide and transnational accountability of corporate groups

Ecocide also responds to decades of struggle seeking to hold accountable economic actors operating in multiple economic sectors and national and regional jurisdictions with multiple environmental standards, diverse leverage and institutional capacity to address transnational environmental destruction. How? First, an international framework that sets a basic benchmark worldwide would benefit economic exchanges and would contribute to a mindset shift in the development model based on growth and to address the “international organised irresponsibility” (M.Delmas-Marty, 2016). Second, ecocide as an international crime could complement the framework of value chain due diligence as, once adopted by the states, companies would be required to incorporate the prevention of ecocide into corporate due diligence procedures, covering civil, administrative and criminal liability for threats that economic activities can cause to human rights and ecosystems (see draft of the EU Corporate Sustainability Due Diligence Directive).

Hard cases could arise when economic actors undertake acts that could be qualified as wanton acts and they operate transnationally. Three aspects would require careful analysis: first, some jurisdictions could consider the action as licit, others could qualify it as an administrative or civil breach of environmental norms that deserves a sanction or a fine and other could punish it as ecocide. Second, some studies (Faure, 2017) remind that environmental criminal law has been used as a last resort when administrative sanctions or fines are not deterrent enough. The challenge consists of how some conducts become ecocide without having been a civil or administrative breach first. Third, how would the principle of double criminality apply? Certain activities of corporate groups could be licit in countries where subsidiaries or branches operate and constitute crimes in the home state where the parent company is headquartered. Although the deterrent effect on company directors or on heads of government is a valid reason, the prosecution of subsidiary directors and heads of states in home countries of parent companies would need to comply with the principle of double criminality. Furthermore, the enforcement requires the respect for the rights of the alleged offender, particularly when the alleged acts that could constitute wanton acts in the home state occur in host states where they are not typified as a crime, and are even licit. This is relevant because the adoption of ecocide could trigger the resurgence of universal jurisdiction when its prosecution constitutes a last resort option for extraterritorial cases.

A structural gap in transnational environmental enforcement has been the lack of international or regional courts with jurisdiction and/or understanding on complex environmental conflicts. If ecocide is adopted by the Rome Statute, it could have a multiplier effect as state parties recognise the jurisdiction of the ICC and would undertake to incorporate ecocide as an international crime in their national laws.

A context-sensitive approach is needed to reconcile the scope of ecocide with sophisticated environmental protection with more stringent norms and effective enforcement systems, particularly when crimes of endangerment that implement the prevention, precautionary and polluter pays principles are already typified. Furthermore, if ecocide is adopted by the Rome Statute, further clarification is needed for states that hold legal persons criminally accountable, which has the advantage that once the company is held liable, criminal law could ensure that directors and board members are also held criminally liable. In contrast, when companies cannot be held accountable, reparation for victims or environmental remediation could be ineffective.

In EU member states for instance, lawful conducts that would constitute licit wanton acts (ecocide) could be rare because breaches related to risk assessment and management would constitute already unlawful conducts but the adoption of ecocide could represent an improvement for transnational crimes perpetrated in third states. Some stakeholders have proposed the European Parliament to consider the adoption of ecocide into EU Law. So far, certain activities are being targeted, not necessarily typified as a crime of ecocide, such as in the Directive on Environmental Crime or in the draft Regulation on Deforestation-free Products.

6. Perspectives

The adoption of the crime of ecocide is progressively reaching the agendas of policymakers and of regional and international organisations. The above points could guide the refinement of these initiatives and when discussing the amendment of the Rome Statute. Scientific evidence demonstrates that global actions are urgent and they need to consider that the development paths and levels of dependency from certain activities strongly differ worldwide, and therefore, a bottom-up global partnership is needed to address the urgency to preserve the planet, while guaranteeing a just transition.

[1] The author thanks Xavier Farré Fabregat for taking notes during the webinar