Legal experts define a new international crime: 'Ecocide'



Legal experts define a new international crime: 'Ecocide'

Katie Surma, Inside Climate News and Yuliya Talmazan
Tue, June 22, 2021, 

This article was published in partnership with Inside Climate News, a nonprofit, independent news outlet that covers climate, energy and the environment. It is part of "The Fifth Crime," a series on ecocide.

A panel of 12 lawyers from around the world has proposed a legal definition for a new crime that the lawyers want to see outlawed internationally: ecocide, or widespread destruction of the environment.

The definition’s unveiling on Tuesday is the first major step in a global campaign aimed at preventing environmental catastrophes like the Deepwater Horizon oil spill, the deforestation of the Amazon rainforest — and, more broadly, climate change.

The Netherlands-based Stop Ecocide Foundation, along with a coalition of environmentalists, lawyers and human rights advocates, has been pushing since 2017 to make ecocide a crime prosecuted by the International Criminal Court. The court currently prosecutes just four offenses: genocide, crimes against humanity, crimes of aggression and war crimes.

If the campaign to criminalize ecocide succeeds, the international court would be able to hold accountable those most responsible for major ecological harms, including business and government leaders.

The definition released on Tuesday, the result of months of work by the team of a dozen lawyers, describes ecocide 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 being caused by those acts.”

If this definition is adopted as the fifth crime before the international court, it would signal that mass environmental destruction is one of the most morally reprehensible crimes in the world, advocates said.

“None of the existing international criminal laws protect the environment as an end in itself, and that's what the crime of ecocide does,” Philippe Sands, professor of international law at University College London and co-chair of the panel that drafted the definition, said at an online news conference Tuesday.

The International Criminal Court has not commented on the panel’s efforts.

There is still a long road ahead before the ecocide definition could be adopted by the court. One of the court’s 123 member countries would need to submit the definition to the United Nations secretary-general, triggering a formal multistep process that could lead to an amendment of the Rome Statute, which sets the court’s rules.

But legal scholars say the panel’s work could still have effects at the International Criminal Court and beyond, regardless of whether ecocide is officially made an international crime.

“It is an essential exercise because environmental damage is growing phenomenally,” said David J. Scheffer, a former U.S. ambassador-at-large for war crimes issues who led the U.S. delegation that negotiated the International Criminal Court’s founding treaty. “Ecocide, by its mere existence, will heighten the issue of the environment.”
The campaign

The International Criminal Court’s four existing crimes focus on harm to humans, not the planet — so the lawyers who began working late last year to craft an ecocide definition had to largely start from scratch.

They wanted it to be strict enough to be meaningful, but they also wanted it to be appealing enough to win support from most of the world’s nations, which are historically reluctant to cede sovereignty to international institutions.

“A perfect definition does you no good if states ignore it or worse, become hostile to the enterprise and set the effort back,” said Nancy Combs, an expert in international criminal law and professor at William and Mary Law School. “If the panel’s calculations are wrong, the whole thing could go bust.”

Related: A growing number of world leaders advocate making ecocide a crime before the International Criminal Court, to serve as a “moral line” for the planet.

The definition aims to be less of a sledgehammer and more of a guardrail for governments and businesses that are most responsible for ecological harm.

“We hope that that approach comes up with something which is potentially effective,” Sands said, but not “so widespread in its effects that states run away and throw their arms up in horror.”

The definition also had to be general enough to address all manner of environmental harms and keep pace with evolving science but specific enough to put would-be wrongdoers on notice of what counts as criminal behavior.

The six-month endeavor required an unprecedented collaborative effort between international criminal lawyers and environmental lawyers, two professions that until now have rarely intersected.
The definition

The 165-word definition resembles the court’s other four crimes in some ways, including by implementing high thresholds, like “widespread” and “severe” damage.

But the new potential crime differs in one major respect: harm to human beings is not a prerequisite for ecocide. That shift would be a major development for international criminal law, which mainly focuses on human injuries, Richard Rogers, a British lawyer and one of the panelists, said.

The definition is also notable for what it doesn’t include. The panel chose not to incorporate a list of examples of ecocide for fear that something would inevitably be left out, possibly signaling that the excluded act may not qualify, lawyers said.

That choice also had a political dimension. The panel did not want countries to feel they were being targeted by examples. “We felt that it was best to keep that door shut,” Sands said.

Sands believes the definition would cover actions that contribute to climate change, though the specifics aren’t yet clear. It may come down to whether the actions are also unlawful, under other national or international laws, he said.
What’s next

Now that the panel has delivered its definition, Stop Ecocide’s diplomatic work will kick into high gear to marshal political backing.

The support, or lack thereof, will act as a bellwether for how serious governments are about combating climate change, pollution and biodiversity loss.

Lawmakers from close U.S. allies like France, Belgium, Finland, Spain, Canada, Luxemburg and the European Union have voiced their support for making ecocide a crime. Major greenhouse gas emitters like the United States, China, India and Russia are not members of the court but could weigh in on diplomatic negotiations.

If one of the court’s member countries formally proposes an ecocide crime, triggering the start of the amendment process, then at the court’s next annual meeting in December, the countries would hold a vote on whether to take up the proposal. Then, the countries would debate the crime’s definition, a process that could take years, or even decades.

In the meantime, Jojo Mehta, the co-founder of Stop Ecocide Foundation, expects just the prospect of the crime to shift the behavior of some businesses, governments, insurers and financers.

And lawmakers from around the world have already expressed interest in enacting their own national ecocide laws, using the panel’s definition as a starting point.

“Even if some states only revise their domestic law, that would be a success,” Christina Voigt, a Norway-based international law professor and one of the panelists, said.

Above all, the new definition is stimulating debate about whether mass environmental damage should be illegal.

“We fully expect that attention from around the world will expand significantly as a result of this definition emerging,” Mehta said, “and that public interest and demand for this very concrete legal solution will steadily increase.”