Ecocide: an Ambiguous Crime?

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One year ago, a panel of legal experts convened by the Stop Ecocide International Foundation (Expert Panel) proposed that the Statute of the International Criminal Court (ICC) be amended to expand the ICC’s jurisdiction to include ecocide. To effect this change, the Expert Panel drew up the following definition of the crime of ecocide:

‘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.’

According to this definition, conduct must meet two thresholds to qualify as ecocide. First, the conduct must be committed with knowledge of a substantial likelihood of serious damage. Second, it must either be unlawful in domestic or international law or wanton, meaning that it must committed ‘with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated.’

In this post, I intend to show that the drafting of this definition, which intimately connects ecocide to aspects of both International Humanitarian Law (IHL) and the ICC Statute, is dictated by the necessity to maximize its chances of being adopted by a large majority of States. The drafting also appears to be justified by the need to mask the uncertain nature of the crime of ecocide. Indeed, while it is increasingly accepted that the massive destruction of the environment affects significant international values and interests and ultimately constitutes a threat to peace and security, ecocide does not yet qualify as an international crime under customary or conventional international law.

Ecocide, an IHL Violation?

The link between the proposed ecocide definition and IHL is obvious. It directly borrows the terms ‘severe’, ‘widespread’ and ‘long-term damage’ from Art. 35(3) and Art. 55 of Additional Protocol I (AP I). There is, however, a significant difference between these texts in that these terms are put in the alternative in the proposed definition, while they are cumulative in AP I. That said, it remains questionable whether the reference to these requirements is appropriate, given that they have acquired a restrictive connotation in the IHL context, so restrictive in fact that some scholars have considered them to be  inapplicable in practice. Even more fundamentally, it should perhaps be asked whether it is justifiable to root ecocide in IHL concepts. This seems particularly awkward when the proposed definition does not require that ecocide be committed in the context of an armed conflict. Moreover, damage caused to the environment is already recognized as a war crime in international armed conflict by Art. 8(2)(b)(iv) of the ICC Statute. Reproducing constitutive elements that originate from an IHL convention seems to indicate that the ambiguous notion of ecocide, in order to be included in the ICC Statute and to be generally accepted by States, needs to receive some sort of ‘blessing’ from a widely ratified IHL instrument.

This brings to mind an old debate regarding crimes against humanity. To fall under the jurisdiction of the Nuremberg Tribunal, such crimes had to be committed ‘in execution of or in connection with’ a crime against peace or a war crime. At the time, this link was deemed justified by the fact that the inclusion of crimes against humanity in Art. 6 of the Nuremberg Charter was revolutionary: for the first time in history, atrocities perpetrated against a State’s own nationals or its allies could qualify as international offenses (see here). As this approach represented a significant encroachment upon State sovereignty and, potentially, a violation of the principle nullum crimen sine lege, it was felt necessary to link crimes against humanity to commonly accepted international crimes. However, this relationship with the laws of war had the downside of preventing crimes against humanity from instantly becoming independent crimes. It took time and energy for international institutions, States, judges, and scholars to progressively accept the removal of such a linkage with war related criminality. It is beyond the scope of this post to recall the long evolution of crimes against humanity (on this subject, see here and here). It suffices to highlight here that, 50 years after Nuremberg, Art. 5 of the Statute of the International Criminal Tribunal for the Former Yugoslavia (ICTY) was still requiring a link to an armed conflict. In 1996, the ICTY Appeals Chamber (in Tadić) finally admitted that, under customary international law, this requirement was no longer a ‘substantive element’ of crimes against humanity, but only a ‘jurisdictional condition’ imposed by the Security Council. Art. 3 of the Statute of the International Criminal Tribunal for Rwanda (ICTR) and Art. 7 of the ICC Statute have endorsed this interpretation, which is now largely accepted (see, e.g., here, and here).

It is true that the proposed definition does not as such connect ecocide to war crimes or to other undisputed ICC crimes. That said, the provision of the Nuremberg Charter on crimes against humanity and the proposed definition of ecocide both seem to be inspired by a similar idea. A link with an existing international crime – in the case of crimes against humanity – or existing components of an international crime – in the case of ecocide – is considered indispensable to facilitate their recognition at the international level and their acceptance by States. But what should have been learnt from the Nuremberg experience is that the creation of a dubious relationship with the laws of war – albeit for legitimate purposes – contributed to diluting the essence of crimes against humanity, which is now finally recognized as protecting the dignity of civilian populations and their fundamental rights when seriously threatened, not only by hostilities, but also by other forms of mass violence. In the same vein, the proposed definition of ecocide might itself ultimately lead to hiding the fundamental essence of this crime, which is to safeguard environmental values and standards when threatened by harmful activities whatever they are (military or non-military), whenever they occur (before, during, or after an armed conflict). This is even more so the case when, by connecting environmental criminality to a branch of international law that is deeply anthropocentric, the proposed definition largely takes away the ‘ecocentric’ dimension of ecocide. 

Ecocide, an ICC Crime?

The proposed definition is also heavily influenced by provisions contained in the ICC Statute, as illustrated by the three following examples. First, the definition refers to a ‘proportionality test’ (wanton damage must ‘be clearly excessive in relation to the social and economic benefits anticipated’). This directly echoes a similar test introduced in the context of war crimes by Art. 8(2)(a)(iv) of the ICC Statute (damage must ‘be clearly excessive in relation to the concrete and direct overall military advantage’). Such a proportionality test – which was not originally foreseen in Art. 35(3) and Art. 55 of the AP I – illustrates the delicate tension that exists among States between the protection of the environment on the one hand and the preservation of their strategic interests on the other. Should a similar balancing exercise between environmental considerations and socio-economic interests be conducted for ecocide? Some scholars have already shown that this comparison would be inapplicable in practice and seriously detrimental to the protection of the environment. Second, the intentional element (‘knowledge of substantial likelihood’) of ecocide has, to a certain extent, been guided by Art. 30 of the ICC Statute and, thus, excludes the applicability of (serious) ‘negligence’ (see here). Also encompassing the responsibility of persons who failed to exercise their duty of care to prevent serious environmental damage would have expended the mens rea standard, thereby offering additional opportunities for the prosecution of complex conducts harming the environment. Third, by mirroring Art. 25(1) of the ICC Statute, which recognizes the principle of individual criminal responsibility, the proposed definition does not envisage corporate liability. Thus, it excludes the possibility of multinational companies being directly sanctioned for the significant role they play in the destruction of the environment and being directly obliged to repair the damage that they cause  (see, e.g., here, here, and here).

By rooting the proposed definition of ecocide in the ICC Statute, the panel wanted to be ‘realistic’, in order to maximize the chances of building a consensus among States parties around the definition (see here). However, at the same time, by being constrained by several contingencies imposed by the ICC system, the proposed definition appears to be overly restrictive. This observation should be seen in view of the fact that the ICC was originally conceived as a means of repressing specific types of mass criminality (including against the environment) that occur in crisis situations. In other words, the ICC was not designed for the repression of multifaceted environmental activities occurring in peacetime, such as illegal mining, illegal deforestation, trafficking of waste and endangered species. These activities are most often rooted in other forms of organized violence, like corruption and money laundering, which escape the jurisdiction of the ICC. Moreover, the prosecution of such complex criminal practices would require judges, prosecutors, and defence counsel to have highly specialized legal and scientific knowledge and expertise, which, at present, many do not possess. It would also require important amendments to the current ICC rules of procedure and evidence. These rules should, for instance, contemplate the gathering, and the introduction in court, of technical evidence which relates to the adverse effects that hazardous substances have on living organisms (statistical or toxicological evidence) or relates to the progress of disease within a given population or area (epidemiological evidence). Specific provisions on environmental sanctioning and reparation should also be envisaged (for a discussion on the difficulties arising from the prosecution of environmental crimes, see here).

Ecocide, an International Crime?

Ultimately, anchoring ecocide in existing IHL and ICL instruments seems to be a way of masking the uncertain nature of this crime. Three reasons are frequently invoked in support of marking ecocide as the ‘fifth international crime’. First, the ‘safety of the planet’ is increasingly recognized as being among the core ‘supra-national’ values and interests that must be protected internationally. This is evidenced by the fact that ecocide is often referred to as being ‘of concern to the international community as a whole’ (see, e.g., here). Second, the massive exploitation and destruction of natural resources usually transcend national borders by involving or affecting the interests of several States. To stop these exploitation and destruction, coordinated action at the international level is required. Third, the commission of environmental criminality on a massive scale usually threatens peace and security, like any other international crime.

These moral/political grounds could play a role in advancing the criminalization of activities that severely harm the environment, but these grounds do not alone suffice to make these activities proper international crimes. Indeed, it is usually agreed that the criminalization of a given conduct needs to be supported by a formal binding source of international law, a customary norm or a widely ratified treaty (assuming that a treaty could directly impose individual criminal responsibility without parallel customary incrimination, an assumption which remains disputed). In any event, there is currently no general State practice that univocally considers ecocide to be a crime under customary international law. Several organizations, such as the European Parliament and the United Nations Environment Programme, have urged States to formally criminalize ecocide in their domestic laws and consider subjecting it to the principle of universal jurisdiction. However, as of today, only a dozen of them have formally adopted such laws. The many environmental conventions that have been ratified over the last decades do not even make environmental criminality a ‘transnational crime.’  Indeed, these conventions do not impose obligations upon States to criminalize and prosecute serious violations of these conventions at the national level (see here, and here). Most confine themselves to providing a general description of transnational activities that are – or that are not – permissible, and to establishing guidelines to prevent or reduce their transborder impacts (see here).

In this context, it is tempting, as it clearly tempted the Expert Panel, to raise ecocide to the rank of an international crime by directly incorporating it into the ICC Statute, alongside other undisputed international crimes. If the consequence of such   incorporation remains unclear (depending on whether the ICC Statute is considered to be jurisdictional or substantive in nature), it would undoubtedly contribute to a wider recognition of ecocide as a criminal offence at the international level and, through the complementarity mechanism, at the national level too. This temptation led the Expert Panel, aspiring to even a slight chance of success, to propose an overly restrictive definition of ecocide. Given, however, that the ICC is currently unsuited to prosecute and try this type of criminality, it is likely that any success in adding ecocide to its jurisdiction will remain purely symbolic.    

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Comments

Darryl Robinson says

September 1, 2022

Hi Jérôme,
This is a great piece, thoughtfully mapping out the very real challenges for defining ecocide. The issues are not insurmountable, if we can find a way to concretize the content. You're also right to raise the methodological question (should the focus be ICC first, or a wave of state adoption first?). I map out some options here, and this may be of interest for you and other readers:

https://academic.oup.com/jicj/advance-article-abstract/doi/10.1093/jicj/mqac021/6593930

All best wishes,
Darryl

Jerome de Hemptinne says

September 2, 2022

Dear Darry,
Thanks!
I had indeed read your excellent piece and was particularly sensitive to the idea of basing the definition of ecocide on the notion of crimes against humanity for both conceptual and legal reasons. Conceptual reason: crimes against humanity, like ecocide, apply in both in peace and war times (it is interesting to see in this regard that the Malabo Protocol is talking about, not only 'attack', but also 'entreprise' to cover, among other things, environmental criminality). Legal reason: by listing the different acts that could qualify as ecocide, such an approach would contribute to clarify matters and gives a more concrete meaning to the notion of ecocide.
With regard to the appropriate forum, I do not think that the ICC is the appropriate court for the reasons indicated above. It is certainly true that imposing upon States obligations to criminalize ecocide and to prosecute or extradite would already be a significant progress. The creation of a specific international court would ideally be the best solution. But I realize that, today, there is no incentive among States to create such a court.