“Law is a tool for change. We must use it to protect the Earth, our only home.“

James Thornton, CEO of ClientEarth

Climate change is dragging the planet to an irreversible environmental destruction. The legal world is also confronted with a new concept in the current global crisis: Ecocide. Can the international criminalization of this concept contribute to environmental protection efforts?

History of Crime of Ecocide

The concept of ecocide entered our lives when Prof. Arthur Galston, a biologist from Yale University, used the term at the “Conference on War and National Responsibility” in 1970 and proposed a new international treaty to prohibit ecocide. Galston said that the environmental damage caused by the US use of Agent Orange in Vietnam should be punished just like genocide.

The person who brought this crime to the international public agenda was Swedish Prime Minister Olof Palme. Palme also referred to the Vietnam War as ecocide at the United Nations (UN) Environment Conference in 1972.

In 1978, the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities, proposed to add the offense of ecocide to the Genocide Convention, but no result was achieved.

Definition of Ecocide

Crime of Ecocide, which does not yet have a generally accepted legal definition, was defined in 2021 by an independent panel of experts commissioned by the campaign group Stop Ecocide International as “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“.

Brief definition of terms;

• The phrase “severe and widespread or severe and long-lasting” emphasises that the environmental damage must be severe. Otherwise, the damage will not be classified as ecocide.

• • Severe means very serious adverse changes, degradation or damage to any element of the environment, including human life or natural, cultural or economic resources.
  • Widespread refers to damage that extends beyond a limited geographical area, crosses state boundaries, or affects an entire ecosystem or species or large numbers of people.
  • Long-term means damage that is irreversible or cannot be compensated by natural recovery within a reasonable time.

• “Illegal or wanton acts“

• • Illegal includes activities that are prohibited by law and harmful to the environment.
  • Wanton means the reckless disregard of harms that would be clearly excessive compared to the expected social and economic benefits.

Recent Report of the European Law Institute (ELI)

The European Law Institute (ELI), a non-profit organization established to work, advise and provide guidance for the development of European law, has also produced an ecocide report.

The report proposed a draft EU directive setting minimum rules for the offense and proposed to extend the competences of the European Public Prosecutor’s Office to cover ecocide offenses. This is intended to improve existing legal arrangements and thus prevent serious environmental offenses committed in peacetime and by private individuals.

According to Interpol, environmental crime is the third most lucrative criminal business in the world, after drugs and counterfeit goods, and ahead of human trafficking.

The report states that existing laws are fragmented, often inapplicable, and insufficient to act as a deterrent. In order to ensure effective protection of the environment, Member States are required to provide serious deterrent penalties for environmentally harmful activities that constitute crime of ecocide as defined in the report. Inciting, aiding, and abetting the offense of ecocide should also be punishable and, given the gravity of the offense, no statute of limitations should apply.

It has been argued that whistleblowers who report irregularities should benefit from the whistleblower protection set out in Directive 2019/1937 of the European Parliament and of the Council (EU) so that they are not discouraged from reporting their concerns or suspicions due to fear of reprisals.

Domino Effect

Crime of Ecocide has a cumulative effect like dominoes. Deliberate environmental disasters, such as the burning of large quantities of fossil fuels, industrial fishing, oil spills and deep-sea mining, directly affect one another, ultimately affecting all other forms of life (animals, plants, flowers, etc.) that are essential for creating the ecosystem necessary for a healthy natural environment.

For example, deforestation, one of the most common examples of ecocide, leads to soil erosion, which in turn leads to insufficient food production, forcing indigenous peoples to abandon their centuries-old natural settlements.

Environmental crimes such as illegal mining of gold and diamonds, unlawful fishing, and hazardous waste smuggling undermine legitimate trade, robbing developing countries of an estimated $91 to $259 billion each year. Tax revenues from these activities could be used, for example, for schools, infrastructure investment, health care, and business development.

Is Criminalization the Solution?

“If something is a crime, we place it below a moral red line.“

Jojo Mehta, Stop Ecocide International

Although they do not directly criminalize ecocide in their domestic laws, there are states that criminalize the destruction of ecosystems, flora and fauna. States like Russia, Kyrgyzstan, Kazakhstan, Moldova, Vietnam, Uzbekistan, Tajikistan, Russia, Kyrgyzstan, Kazakhstan, Moldova, Vietnam, Uzbekistan, Tajikistan and France provide high penalties for this crime.

It is still a matter of debate whether ecocide should be recognized as an international crime.

Those who think that it should be a crime argue that corporate owners and financiers would not want to be included in the category of war crimes, and thus a deterrent effect would arise. In addition, international responsibility would be expanded and individuals at the top of industries, financial institutions, and governments, rather than organizations or states, would face charges in the ICC, which is based on individual criminal responsibility.

According to Stop Ecocide International, if ecocide is recognized as a crime, cases could include deforestation of the Amazon, major oil spills, mining or other environmental disasters related to nuclear accidents.

Yet there are several challenges to overcome for all this.

Rome Statute Must Change

Making ecocide an international crime depends on the enactment of a new law or the amendment of the Rome Statute.

The Rome Statute, the founding text of the International Criminal Court (ICC), currently lists four international crimes:

• Genocide
• Crimes against Humanity
• War Crimes
• Offenses of Aggression

NGOs are working towards the recognition of ecocide as a fifth international crime that could be prosecuted before the ICC. If this happens, unlike the four existing international crimes, ecocide would be the only crime for which human harm is not a prerequisite for prosecution.

In order to amend the Rome Statute, a country must first make a proposal. This proposal must be approved by a majority of the 124 States Parties to the Rome Statute to proceed to negotiations. For the amendment to be adopted, it needs the support of at least two-thirds of the members.

If the amendment succeeds at all these stages, each member state retains the right not to ratify it. This outcome would impose limitations on the ICC’s jurisdiction over the territories and nationals of members. In addition, states that are not parties to the Rome Statute would not be affected by the amendment, thus further limiting the reach of ecocide legislation.

In addition, the long-term nature of environmental crimes may conflict with judicial processes that demand quick results, as the ICC often focuses on sudden and extreme acts of violence, and may cause them to fall behind in priority.

The long-term nature of the offense also makes it difficult to prove that the perpetrator acted in anticipation of the effects and with the knowledge that it would harm the environment.

Despite the Challenges; Ecocide Should be Recognized

Considering these and other challenges, it is clear that the process of criminalizing and prosecuting ecocide poses numerous legal and practical hardships. As the law alone cannot solve all the problems, far greater systemic changes are required to achieve the goals.

Nonetheless, growing global awareness, civil society efforts and legislative initiatives at the national level increase hope for the inclusion of ecocide in international criminal law. While there is still a long way to go before ecocide is recognized as an international crime, as Rachel Killean, lecturer at Queen’s University Belfast, states, the movement continues to gain momentum.

 

Lara Çabukol, Law Apprentice