An international crime of “ecocide”: what’s the story?

Global momentum is growing for a collective meaningful effort to be made to tackle the increasing urgency of the climate emergency. In corporate boardrooms, shifting business priorities can be seen in recent shareholder action at ExxonMobil, Chevron and Total. International organisations are weighing in, with expert publications such as the International Energy Agency’s ‘Net Zero by 2050‘ report serving as a reminder that the clock is ticking towards the targets set by the Paris Agreement and the IPCC’s ‘Special Report on Global Warming of 1.5° C‘. In courts across the world, the ripples caused by early climate-related cases such as Urgenda and Friends of the Irish Environment have turned into a tidal wave of climate litigation with 53 cases filed already in 2021, including most recently a constitutional claim against Guyana reported on 1 June 2021 and a lawsuit against the Italian government reported on 5 June 2021.

Against this backdrop, calls for “ecocide” to be recognised as an international crime are being given serious consideration. The term, which refers to the mass damage and destruction of ecosystems, is not a new one. It was first used in 1970, when Professor Arthur W. Galston coined the term to describe the effects of the use of Agent Orange by the US in Vietnam. Galston proposed an international agreement to ban ecocide at the time. It was subsequently considered for inclusion as an additional crime in early drafts of what became the Rome Statute of the International Criminal Court (ICC), alongside the international crimes prosecuted at the Nuremburg trials (War Crimes, Genocide, Crimes Against Humanity), but was ultimately excluded.

Back on the international agenda

In recent years there has been renewed impetus towards criminalisation at a global and domestic level. Decades after ecocide was left out of the list of international crimes in the Rome Statute, there are increasingly vocal efforts to get it included within the ICC’s jurisdiction. In 2017, Stop Ecocide International was founded to facilitate steps towards the recognition of ecocide as an international crime under the Rome Statute. At the ICC’s annual assembly of States Parties in December 2019, the island state of Vanuatu called for the assembly to consider the introduction of a crime of ecocide. The following year, Belgium raised the issue in its official statement.

In 2020, a panel of international lawyers was convened by the Stop Ecocide Foundation to draft an official legal definition of “ecocide”. This Independent Expert Panel for the Legal Definition of Ecocide, chaired by Philippe Sands and Dior Fall Sow, aims to complete its work in June 2021. The European Law Institute has established a complementary project to consider the definition of ecocide as an international crime, with a view to drafting model laws for the European Union which would criminalise ecocide and provide for remedies in tort law and private international law. The project is intended to run from February 2021 to September 2022, building on the work of the Independent Expert Panel.

Furthermore, a report of the European Parliament in March 2021 on the effects of climate change called upon members states to work towards the recognition of ecocide as an international crime under the Rome Statute. A further report in April 2021 called on the Commission to consider the relevance of ecocide to EU legislation and diplomacy, including recognition of the term as an international crime.

Domestic developments

At the domestic level, as the concept has gained renewed traction with internal calls for criminalisation in states including Sweden, the UK, Portugal, the Netherlands and Canada. Several jurisdictions have already legislated for a crime of ecocide: for example Vietnam’s Penal Code (Article 394) criminalises “destroying the natural environment, whether committed in time of peace or war”; Russia’s Criminal Code (Article 358) criminalises “massive destruction of the fauna and flora, contamination of the atmosphere or water resources, as well as other acts capable of causing an ecological catastrophe”; and Armenia’s Criminal Code (Article 394) provides for a prison sentence of 10-15 years for “mass destruction of flora or fauna, poisoning the environment, the soils or water resources, as well as implementation of other actions causing an ecological catastrophe”.

Most recently, a new offence of ecocide forms part of an ambitious environmental bill passed by the French government on 4 May 2021. The legislation introduces penalties of up to 10 years imprisonment and a fine of up to €4.5 million for environmental destruction. However, the bill is facing opposition from both sides of the spectrum: from business lobbies who argue that it would effectively penalise economic activity, and environmental activists who believe it does not go far enough. Originally proposed as a crime by a citizens’ panel, the penalty was diluted to a civil offence when it went to the National Assembly. It is possible that the designation of ecocide as an international crime could have provided the clarity and moral weight needed to prevent this watering down.

The first attempt to bring a case based on the basis of an international concept of ecocide also occurred in Frances. Echoing the origins of the term, a claim was filed earlier this year by a former Vietnamese-American journalist against 14 agrochemical companies for supplying the US with Agent Orange during the Vietnam War. It was dismissed on jurisdictional grounds but the claimant intends to appeal, and the growing attention being given to climate change litigation could turn a spotlight on future developments in this case.

“Ecocide” as an international crime

Draft definitions of “ecocide” have emphasised the fact that the crime needs to be defined with sufficient specificity that it can be distinguished from ordinary environmental offences such as littering. As with other international crimes, the threshold must be high. The definition of crimes against humanity requires “widespread or systematic” acts, however this would not cover once-off events with catastrophic consequences such as oil spills. One option would be to include a non-exhaustive illustrative list of crimes, such as the examples given by Stop Ecocide which cover corporate activities causing ocean damage, deforestation, land and water contamination and air pollution.

As regards intention, the crime of ecocide has been proposed as a strict liability offence, unusual in international criminal law which ordinarily requires mens rea to establish liability (i.e., a fault-based approach). The rationale behind this is that it would be almost impossible to establish direct intention to commit such a crime, as the destruction of the environment is likely to be an indirect effect of productive activity, for example, greenhouse gas emissions from burning fossil fuels. However, Article 30 of the Rome Statute requires that the “material elements” of crimes under the ICC’s jurisdiction be committed “with intent and knowledge”, and the potential far-reaching impact of strict liability is likely to be too great an obstacle to agreement. Liability based on negligence is another option, but again may be considered too broad for certain stakeholders.

A further challenge is that corporations could not be held directly liable under the Rome Statute, so lawsuits would have to be brought against individuals representing offending corporations or the states where their operations are based. Given the political power these stakeholders have, and the significant economic interests involved with activities like mining, there will no doubt be significant opposition to any formal inclusion of a crime of ecocide in international law.

Pending the outcome of the Independent Expert Panel, it is important to note that to be effective as an international crime, any proposed definition will have to be accepted by states and achieve broad global political consensus to make the necessary amendments to the Rome Statute. The focus in the meantime should be on the end goal: prevention and deterrence of activity which is destroying our remaining ecosystems and causing irreversible climate change.

The moral of the story?

Criminalising ecocide in international law would send a powerful message about our collective priorities. It would push states to take prompt and effective legislative action at a domestic level, and it would add to the already substantial ethical pressure on large corporations to consider the impact of their business operations, even if they could not be charged with ecocide directly. There is evidence that popular support for the criminalisation of ecocide is growing, and as demonstrated by the serious academic and policy work being done at international and domestic level, it is clear that criminalisation is no longer seen as a radical or fringe concept.

The term “ecocide” sounds dramatic. It is more emotive than “contributing to pollution” or “increasing greenhouse gas emissions” or “investing in fossil fuels”. It communicates the gravity and urgency of the irreversible destruction being inflicted on the environment. It unambiguously casts major polluters as “villains”, perpetrators of a crime. Humans respond to a narrative, and criminalising ecocide has the potential to motivate individuals and corporations alike to take ownership of our planet’s story.