Protecting the Environment through International Criminal Law?

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The recent proposal by the Independent Expert Panel for the Legal Definition of Ecocide (IEP) to create a core international crime of ecocide displays great confidence in the regulatory potential of criminal law, but the proposal lacks sufficient reasoning and the drafters offer practitioners little help with the intricate problems arising from their draft definition.

The proposal in essence consists of a new Article 8ter of the Rome Statute of the International Criminal Court (ICC), which would add a fifth core crime of ecocide to the existing four (genocide, crimes against humanity, war crimes, and the crime of aggression). The authors define ecocide as the commission of “unlawful or wanton acts 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.” In terms of criminal policy, this proposal fits into a general trend towards using (criminal) law to protect the environment – think, for example, at the level of international law, of 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 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. Yet they do not provide any empirical data to back up this hope, and criminological research on criminal law’s effectiveness – in both negative and positive terms – in fact points in a less hopeful direction.

The proposed crime of ecocide builds on the first three of the abovementioned core crimes in a range of ways. 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). This is certainly eye-catching, but hardly justified. It is not surprising therefore that the IEP does not justify why serious environmental crimes should actually be equated with the intentional destruction of entire humane groups within the meaning of the genocide crime. Indeed, it cannot do so since the attack on the environment is not a direct attack on a human (specifically protected) group and the attacker does not, as the genocidaire, act with a specific intent to destroy (for a similar critique see Heller here). But there is a deeper problem with the use of the term “ecocide”. While the International Law Commission had always referred more matter-of-factly to serious environmental crimes, environmental activists, most notably Polly Higgins, introduced this term at the beginning of the 21st century. This reflects, on a deeper philosophical level, the trend from an anthropocentric to a bio- or ecocentric world view, and this view seems also to have informed the IEP. However, the proposal is not consistent in its self-proclaimed ecocentric approach, since it allows for a cost-benefit analysis in case of lawful environmental damage (limiting the actus reus to “unlawful” acts to be defined by national law) and thus reintroduces – through the back door, as it were – the anthropocentric perspective. This point has been developed – in direct reaction to one of the drafters – by Kevin Heller (first here, then in more detail here and here), and I largely share his view. In sum, you either take an ecocentric view (as implicit in the term “ecocide”) and then prohibit and criminalise any (lawful or not) serious and intentional environmental damage, or you opt for a more anthropocentric view (allowing, inter alia, for a cost-benefit analysis) but then do not, in fact, advocate a crime of ecocide.  

Further, the proposal adopts the structure of crimes against humanity within the meaning of Article 7 ICC Statute, with the (general) definition of the crime in the first paragraph followed by the definition of specific (not all) elements in the second. In terms of content, the wording is based on the environmental war crime of Article 8(2)(b)(iv) ICC Statute, according to which, in international armed conflicts, intentionally conducting an attack in the knowledge that it will cause, among other things, “widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated” is punishable. In essence, the proposal extends this crime to times of peace, but makes some substantive changes. Firstly, the proposed crime is not limited to military attacks, but covers any unlawful and wanton conduct; second, the environmental damage to be anticipated is defined partly cumulatively (“severe and either widespread or long-term”) and partly alternatively (“widespread or long-term”); third, the “substantial likelihood” – not the certain occurrence – of the environmental damage is made the object of reference of the (cognitive) mental element (“knowledge”).

These prima facie observations already show that the practical application of this new crime – if ever adopted by the ICC’s Assembly of States Parties at all (which is not very likely in this writer’s view; in the same vein see Heller here) – will pose difficult interpretive problems. It is therefore unfortunate that the drafters only provide a roughly five-page explanatory text. While it is not possible to deal with all problems of interpretation here, let me highlight three in particular. First, the reference to Article 8(2)(b)(iv) ICC Statute raises the question – which the drafters do not address – of the relationship between the latter provision and the new Article 8ter. While it would be conceivable to read Article 8ter as a posterior lex specialis, the speciality argument would conflict with the narrower scope of Article 8(2)(b)(iv), in fact making the latter provision the more specific crime.

Second, the new crime is conceived as a crime of endangerment, i.e., an inchoate offence which entails the (mere) danger (risk) of the realisation of a harmful result (for a profound discussion from a comparative perspective see Duff/Hörnle, in Ambos et al., eds., Core Concepts in Criminal Law and Criminal Justice, Volume 2, CUP forthcoming 2022); in fact, the requirement of substantial likelihood of environmental damage suggests a concrete endangerment offence, with the likelihood that environmental damage will occur as the dangerous result. In this respect, the IEP’s commentary rather misleadingly refers to other crimes of the ICC Statute, which at a closer glance are conceived differently, however, in particular genocide being a specific intent crime (intent to destroy a protected group) with a cut-off result (the actual destruction of the group). Finally, the subjective requirements remain unclear. In this respect, the drafters want to deviate from Article 30(2)(b) ICC Statute, which they consider too strict with regard to consequence, and propose a “recklessness or dolus eventualis” standard. Quite aside from the fact that these concepts cannot be equated and one encounters numerous different definitions for each of them (cf. Ambos, Treatise on International Criminal Law, Volume 1, OUP, 2nd ed. 2021, pp. 374 ff.), the actual wording of the proposed crime – “knowledge that there is a substantial likelihood” – seems to entail a higher (cognitive) threshold than recklessness or dolus eventualis for the very use of the term “knowledge”. In other word, if the drafters had clearly wanted to propose a lower subjective threshold they should have formulated the subjective elements of the crime more straightforwardly (using a recognized definition for either a form of recklessness or dolus eventualis; crit. also Heller here). Moreover, the draft remains silent on the question of which subjective requirements should apply with respect to 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). Apparently, the IEP lacked input from criminal law practitioners, especially prosecutors (although in Alex Whiting it had at least one member with this experience, now part of the Prosecution at the Kosovo Specialist Chambers).

All in all, apart from the technical shortcomings of the proposed “ecocide” crime, it is doubtful whether a new, stand-alone core crime is needed to better protect the environment. It is arguably more sensible, especially from a practical point of view, to further develop in case law those elements in the existing international core crimes which have an environmental ingredient and on which the draft definition of ecocide partly draws.

The author wants to thank Margaret Hiley for her invaluable assistance in preparing this English version.

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