Lawyers Are Working to Put 'Ecocide' on Par with War Crimes. Could an International Law Hold Major Polluters to Account?


Mélissa Godin TIME
Fri, February 19, 2021

Extinction Rebellion Climate Crime Invesigators

Police watch as Extinction Rebellion "crime scene investigators" in white suits and masks put up climate crime scene tape to investigate areas of ecocide in a performance outside the Brazilian Embassy on Sept. 7, 2020 in London, United Kingdom Credit - Mike Kemp—In Pictures, via Getty Images

When a Nigerian judge ruled in 2005 that Shell’s practice of gas flaring in the Niger Delta was a violation of citizens’ constitutional rights to life and dignity, Nnummo Bassey, a local environmental activist, was thrilled.

Bassey’s organization, Friends of the Earth, had helped communities in the Niger Delta sue Shell for gas flaring, a highly polluting practice that caused mass disruption to communities in the region, polluting water and crops. Researchers had found that those disruptions were associated with increased rates of cancer, blood disorders, skin diseases, acid rain, and birth defects—leading to a life expectancy of 41 in the region, 13 years fewer than the national average.


“For the first time, a court of competence has boldly declared that Shell, Chevron and the other oil corporations have been engaged in illegal activities here for decades,” Bassey said on Nov. 14, 2005, the day the Federal High Court of Nigeria announced the ruling. “We expect this judgement to be respected and that for once the oil corporations will accept the truth and bring their sinful flaring activities to a halt.”

Yet the judgement was not respected. A United Nations report published six years later found that Shell had not followed its own procedures regarding the maintenance of oilfield infrastructure. Today, Shell is still gas flaring in the Niger Delta.

In the 15 years since the ruling, Bassey has come to believe that Shell’s executives might have been held accountable had the case gone to the International Criminal Court (ICC). “Shell could ignore [the case] because it wasn’t in the international media but if it had gone to the ICC, it would have gotten global attention and shareholders would have known what the company was doing,” he says. “If we had had an ecocide law, things would have turned out differently.”

The word “ecocide” is an umbrella term for all forms of environmental destruction from deforestation to greenhouse gas emissions. Since the 1970s, environmental advocates have championed the idea of creating an international ecocide law that would be adjudicated in the ICC and would penalize individuals responsible for environmental destruction. But the effort has gained significant traction over the past year, with leaders from Vanuatu, the Maldives, France, Belgium, the Netherlands—as well as influential global figures like Pope Francis and Greta Thunberg—expressing their support. Although there are questions about whether the ICC as an institution has the teeth to prosecute any crimes, Bassey and other activists believe the law will act as a powerful deterrent against future forms of environmental destruction. “We will not get different outcomes in cases of exploitation and marginalisation unless we reimagine the laws that govern us,” Bassey says.

In December 2020, lawyers from around the world gathered to begin drafting a legal definition of ecocide. If they succeed, it would potentially situate environmental destruction in the same legal category as war crimes, genocide and crimes against humanity. But even within the movement, questions remain on how far the law should go — and who might fall under its jurisdiction.
The history of the ecocide movement

The term ecocide first rose to the public consciousness in 1972, when Olof Palme, the premier of Sweden, used the term at a United Nations environmental conference in Stockholm to describe the environmental damage caused by the Vietnam War. At the conference, an ecocide convention was proposed but never came to pass.

The idea resurfaced again in the 1990s when the ICC, the world’s first permanent international criminal court, was being created. As a court of last resort, the ICC was established not to override national courts but to complement them, creating a global tribunal that would adjudicate the gravest crimes of concern to the international community. When lawyers came together in 1998 to draft the Rome Statute, the founding document of the ICC, there was a law in the pipeline that would have criminalized environmental destruction.

But the law never came about. “My recollection is that there was just no political support for it,” says Philippe Sands, who was involved in drafting the preamble of the Rome Statute in 1998 (and who would go on to co-chair the expert panel formed in 2020 to draft a legal definition of ecocide). Environmental destruction, Sands says, was not on the public’s consciousness.

This began to change in 2017 when Polly Higgins, a British barrister, launched the Stop Ecocide campaign alongside environmental activist Jojo Mehta. Higgins, who sold her home in 2010 to raise funds to combat environmental destruction, wrote an influential book, Eradicating Ecocide, that informed the legal debate. When the campaign launched a few years later, it quickly gained unprecedented momentum: Greta Thunberg donated €100,000 of the money she received from that year’s Gulbenkian Prize for Humanity to the cause, and for the first time in history, several world leaders publicly backed the idea. Fast-forward three years and now, an expert panel of international criminal lawyers is drafting a definition of ecocide. “Six months ago, we never would have believed where we are at now,” says Mehta. Higgins, sadly, never lived to see her campaign bear fruit, dying in 2019 at the age of 50.

Environmental advocates believe an ecocide law at the ICC would be groundbreaking. While some countries have national laws on environmental harm, there is no international criminal law that explicitly imposes penalties on individuals responsible for environmental destruction. If adopted, experts say there are three main areas where an ecocide law would make a difference.

The first is the symbolic impact of having the ICC elevate environmental destruction to the same level as genocidal crimes. Mehta argues that the fear of being labelled an ecocide criminal could create incentives for leaders to behave more responsibly. “A CEO doesn’t want to be seen in the same bracket as a genocidal maniac,” she says.

The second area where this law could make a difference is by setting a legal precedent, creating a bandwagon effect where international law could prompt changes in national criminal laws, as countries look to signal their environmental commitment to others. ICC laws have influenced national policies before: several countries, including Germany and the Netherlands, have adopted national laws that criminalize ICC crimes.

The third way an ecocide law could be useful is by prosecuting environmental crimes that fall outside of national jurisdictions. This is especially helpful in poorer countries where legal barriers make it difficult to hold foreign companies accountable. An ecocide law, Bassey says, would create an arena in which marginalized communities in countries like Nigeria have a voice against powerful, polluting actors. “Most of this ecocide devastation is happening in communities where voices are not heard,” he says.


A picture taken on March 22, 2013 shows gas flare at Shell 

Cawtharine Channel, Nembe Creek in the Niger DeltaPius 

Utomi Ekpei—AFP via Getty Images

Advocates of an ecocide law also believe it would change the way the environment is valued. “There is something powerfully urgent about the idea that nature has rights,” says Mitch Anderson, founder and executive director of Amazon Frontlines, an organization that works with Indigenous communities in the Western Amazon to protect their lands. “The [ecocide] law would ensure that nature has a legal voice.”

There’s still a long way to go, though. While lawyers are expected to finish a draft of the law by the end of spring, it will take at least 3 to 5 years before the law might be ratified. Drafting the law is just the first of many steps: a member state needs to propose it to the ICC, at which point, 50% of ICC states have to approve it. States will then need to convene to debate the exact definition of the law before eventually, adopting and ratifying it.

But if passed, an ecocide law would be unique in the ICC’s history, not only because of what it would protect but who it could go after—the heads of countries and corporations that are big polluters. Historically, the ICC has been criticized for targeting only African dictators while turning a blind eye to Western leaders responsible for mass atrocities. But with an ecocide law, powerful white men—who are often disproportionately represented in extractive industries—could face criminal charges. “The ecocide movement is powerful not only in the legal precedent it could set for protecting rivers, forests, oceans and the air but also in the names and faces it identifies as being behind this destruction,” says Anderson. “[They] may not look like the picture we’re used to seeing.”

Oil and gas companies contacted by TIME did not want to comment on whether they support an ecocide law, but the International Association of Oil and Gas Producers (IOGP) said in a statement they “want to further improve the environmental performance and reduce the likelihood and consequences of incident.”

What counts as ecocide?

Bassey is confident that many of the world’s worst environmental offenses —such as Chevron’s pollution of the Ecuadorian Amazon in the 1990s or the ongoing coal-seam fires in Witbank, South Africa—could have been prevented had an ecocide law been in place. “If we had an ecocide law, no one would allow this to go on,” he says. In theory, that might be true. But in practice, much depends on how the term is defined.

Sands, the co-chair of the panel drafting the law, is concerned that the bar for what counts as “ecocide” could be set too high. There’s historical precedence for such a scenario: When the idea of “genocide” was first proposed in 1944 by Raphael Lemkin, a Polish lawyer, he envisioned a law that would prosecute individuals that killed members of a national, ethnic, racial, religious or political group. But when member states—many of whom who were worried about their own histories of discrimination—came together to actually draft the law in 1948, they decided that lawyers needed to prove not only that an individual killed members of a group but that they did so with the specific intention to kill.

The result is that most genocide trials heard by the ICC have not ended with a guilty verdict because the burden of proof is too high. Sands is worried the same mistake might be made with the definition of ecocide. “It will never be possible to prove that someone intended to destroy the environment on a massive scale,” he says. “If we set the bar too high, we won’t catch anyone.”

On the other hand, if the bar is set too low—if the ecocide law encompasses too many types of alleged environmentally destructive acts, and implicates too many types of people and institutions—it may lose political support. Many people might get behind an ecocide law that charges mega-corporations for polluting on a grand scale; it is less likely they would support a law that penalizes anyone who destroys the environment in any way. The lawyers drafting the definition didn’t want to offer their opinion on what, specifically, a “low bar” would look like out of concern that doing so would put at risk their ability to advocate for a more robust law.

But even if a robust ecocide law is put in place, the movement faces another big challenge: the limited legal powers of the ICC. On its own, the ICC does not have the authority to enforce laws; it is completely reliant on its member states to arrest and surrender the accused. If a country does not comply—if it does not arrest the accused individual—there is no trial. In addition, over 70 countries are not members—including the United States. Some of the biggest fossil fuel corporations, such as Exxon Mobil and Chevron, are American owned, meaning they would be unlikely to be drawn into a prosecution.

Lawyers working on the ecocide law are acutely aware of these limitations. “Let’s not be starry eyed about our legal international frameworks at the international level,” Sands says. “Let’s be realistic.” Holding perpetrators of environmental destruction to account, he says, must ultimately be done at the national level. Nevertheless, international criminal law can be a tool that catalyzes thinking and helps set a precedent. Although only four people have been convicted at the ICC since it began hearing cases in 2002, the creation of ICC law has influenced national policy through the norms and precedents it helped to generate. Advocates of ecocide believe the law could do something similar.

“We know one law won’t change everything,” says Mehta. “But without something like this in place, it’s hard to see how these [environmental] targets will be met.”

Should Harming Mother Earth Be a Crime? The Case for Ecocide

By Reynard Loki ***

April 26, 2024
Source: Originally published by Z. Feel free to share widely.


Stop Ecocide International logo



The destruction of nature might one day become a criminal offense adjudicated by the International Criminal Court.

On December 3, 2019, the Pacific island state of Vanuatu made an audacious proposal: Make ecocide—the destruction of nature—an international crime. “An amendment of the Rome Statute could criminalize acts that amount to Ecocide,” stated Ambassador of Vanuatu John Licht at the International Criminal Court’s (ICC) annual Assembly of States Parties in the Hague. He was speaking on behalf of his government at the assembly’s full plenary session. “We believe this radical idea merits serious discussion.”

Since then, the idea has become less radical: Amid the intensifying global climate emergency, interest has been mounting among nations and diverse stakeholders—spanning international bodies, grassroots organizations, and businesses—that ecocide be formally recognized as an international crime, joining the ranks of genocide, crimes against humanity, war crimes, and crimes of aggression, which are the four core international crimes established by the Rome Statute of the ICC. These crimes are not subject to any statute of limitations.

Environmental activists are pushing to elevate the concept of ecocide—literally, the “killing of the ecosystem”—as the fifth international crime to be adjudicated by the ICC. If it becomes a reality, those who commit environmental destruction could be liable to arrest, prosecution, and punishment—by a fine, imprisonment, or both.

The European Union, in February 2024, took a step in the direction of criminalizing cases that lead to environmental destruction and “voted in a new directive” that makes these crimes comparable to ecocide, according to Grist. “The new law holds people liable for environmental destruction if they acted with knowledge of the damage their actions would cause.” The article adds that environmental crime is the “fourth most lucrative illegal activity in the world, worth an estimated $258 billion annually,” according to Interpol, and is only growing with each passing year.

Ecocide proponents want laws being pushed across various international organizations and government agencies to cover the most egregious crimes against nature, which could ultimately include massive abuses to the living environment, such as oil spills, illegal deforestation, deep-sea mining, mountaintop removal mining, Arctic oil exploration and extraction, tar sand extraction, and factory farming. British barrister and environmental lobbyist Polly Higgins defined ecocide as “extensive damage… to such an extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished.”

Ecosystem Services: Existential and Economic Value

Healthy, functioning ecosystems provide a wide range of services to humanity and all life on Earth that are essential for the sustainable management and conservation of natural resources. These services can be categorized into four broad categories.

Provisioning Services: Healthy ecosystems provide food and water for humans and nonhuman animals, timber for building, and fiber for clothing and other industries.

Regulating Services: These services control conditions and processes, such as climate regulation, water purification, and pollination. Wetlands, for instance, purify water by filtering out pollutants, while forests help regulate climate by absorbing carbon dioxide.

Supporting Services: These services are necessary to produce all other ecosystem services. Examples include nutrient cycling, soil formation, and primary production. Soil organisms contribute to nutrient cycling, and the soil supports plant growth.

Cultural Services: Humanity obtains numerous non-material benefits from healthy ecosystems, including spiritual enrichment, cognitive development, reflection, recreation, and aesthetic experiences. Parks, beaches, and natural landscapes provide opportunities for recreation and relaxation, while cultural heritage sites offer historical and spiritual connections.

Ecosystem services are crucial for human well-being, economic prosperity, and societal development. To ensure that we continue to enjoy these services, we must protect ecosystems from the destructive harm of unsustainable exploitation. Ecocide laws can provide this protection.

War in Ukraine: Ecocide by Russia

Ukraine is seen as a “trailblazer” in pushing for recognizing ecocide crimes “within the realm of justice.” This thinking has especially gained momentum since Russia’s attack on the nation in February 2022, leading to the war on Ukraine being seen as a site of ecocide. On April 16, 2024, environmental, climate, and energy experts gathered at Franklin Environmental Center at Hillcrest in Middlebury, Vermont, for a panel discussion titled “Criminalizing Ecocide: Lessons From Ukraine in Addressing Global Environmental Challenges.” The event centered on the significant ramifications of Russia’s environmental transgressions in Ukraine within the broader scope of global environmental justice.

The panelists—including Marjukka Porvali from the European Commission (a specialist in environmental policy with a focus on Ukraine); Jojo Mehta, the co-founder of Stop Ecocide; Bart Gruyaert, project director at Neo-Eco Ukraine; and Anna Ackermann, a climate and energy policy analyst—discussed establishing legal precedents to prosecute the gravest offenses against nature, promoting a cultural shift toward taking environmental issues seriously, and navigating a fair transition—while responsibly utilizing critical resources for reconstruction.

The Ukrainian government “has [also] argued for using…[international criminalization of ecocide] as a tool to hold individuals accountable for environmental destruction in wartime.” Their call increased in the summer of 2023 when Russia destroyed the Kakhovka Dam, which not only killed people but also caused the spread of chemical pollution in the area.

Protecting the Future of Life on Earth

In 2017, Higgins and Mehta founded the Stop Ecocide campaign. Overseen by the Stop Ecocide Foundation, a charitable organization based in the Netherlands, the campaign is the only global effort to exclusively focus on the establishment of ecocide as an international crime to prevent further devastation to the Earth’s ecosystems. “Protecting the future of life on Earth means stopping the mass damage and destruction of ecosystems taking place globally,” states the Stop Ecocide Facebook page. “And right now, in most of the world, no one is held responsible.”

Vanuatu’s bold proposition was the first time a state representative made an official call for the criminalization of ecocide on the international stage since 1972 when then-Swedish Prime Minister Olof Palme made the argument during his keynote address at the United Nations Conference on the Human Environment in Stockholm.

“The immense destruction brought about by indiscriminate bombing, by large-scale use of bulldozers and herbicides is an outrage sometimes described as ecocide, which requires urgent international attention,” said Palme in his address. “It is shocking that only preliminary discussions of this matter have been possible so far in the United Nations and at the conferences of the International Committee of the Red Cross, where it has been taken up by my country and others. We fear that the active use of these methods is coupled by a passive resistance to discuss them.”

The Failure of the Paris Climate Agreement

That passive resistance to discussing the immense destruction of nature at the hands of humanity has largely continued. Though nearly 200 nations signed the Paris Agreement in 2015—designed to avoid irreversible climate change by limiting global warming to “well below” 2 degrees Celsius—the countries’ commitments are not nearly enough. As they stand, the promises put the Earth on course to heat up between 3 and 4 degrees Celsius above the historic baseline by 2100.

Although the Paris Agreement mandates the monitoring and reporting of carbon emissions, it lacks the authority to compel any nation to decrease its emissions. Considering this shortcoming, the landmark agreement has been a failure. This failure inspired more than 11,000 scientists from 153 countries to sign a “World Scientists’ Warning of a Climate Emergency” declaration in January 2020. Another 2,100 scientists have signed it as of April 9, 2021.“An immense increase of scale in endeavors to conserve our biosphere is needed to avoid untold suffering due to the climate crisis,” the scientists warned.

Society did not heed the warning: Two years later, in 2022, worldwide carbon dioxide emissions from the combustion of fossil fuels reached a record high.

“A 100 countries say they are aiming for net-zero or carbon neutrality by 2050, yet just 14 have enacted such targets into law,” Carter Dillard, policy director of the nonprofit Fair Start Movement and author of Justice as a Fair Start in Life: Understanding the Right to Have Children, wrote in the Hill in April 2022.

“[T]he Paris Agreement, which itself allowed for widespread ecological destruction, is failing,” said Dillard, whose organization supports the emergence of smaller families not only to tackle environmental degradation but also to establish “fair starts” for the children born today who have to face the prospect of growing up on a rapidly deteriorating planet. “Meanwhile, in real-time, global warming is already killing and sickening people and damaging fetal and infant health worldwide,” Dillard wrote. “Maybe it’s time for a rethink and a deeper approach.”

A Broken Legal Framework

One deeper approach would be to protect the natural environment through the legal system since, as the Paris Agreement has shown, non-binding commitments that are not subject to possible punishment and remain unfulfilled are ultimately meaningless.

Higgins pointed out the illogical state of our current legal system, which shields perpetrators of crimes against nature: “We have laws that are protecting dangerous industrial activities, such as fracking, despite the fact that there is an abundance of evidence that it is hugely harmful in terms of carbon emissions, biodiversity loss, and the catastrophic trauma it can cause communities that are impacted by it.”

“The rules of our world are laws, and they can be changed,” she said in 2015. “Laws can restrict, or they can enable. What matters is what they serve. Many of the laws in our world serve property—they are based on ownership. But imagine a law that has a higher moral authority… a law that puts people and planet first. Imagine a law that starts from first do no harm, that stops this dangerous game and takes us to a place of safety.”

Ecocide Movement Growing

While the ecocide movement was dealt a blow when Higgins died in 2019 after a battle with cancer, it picked up speed, aided not only by Vanuatu’s proposal but also by high-profile supporters like French President Emmanuel Macron, who said, “The mother of all battles is international: to ensure that this term is enshrined in international law so that leaders… are accountable before the International Criminal Court.”

Environmental protection is becoming more of a concern among the general public, many of whom take a dim view of elected leaders’ inaction. According to a 2024 CBS News poll, 70 percent of Americans favor government action to address climate change. Half of Americans believe that it is a crisis that must be addressed immediately. Almost a quarter of human-caused greenhouse gas emissions come from the industrialized destruction of natural landscapes to support agriculture, forestry, and other uses to support human society. By criminalizing widespread environmental destruction with no remediation, ecocide laws can be a vital tool in dealing with the climate crisis.

A 2024 Conservation in the West poll revealed a deep-seated worry about the environment’s future among two-thirds of voters across eight Western U.S. states. Their concerns ranged from low river water levels and loss of wildlife habitat to air and water pollution. Interestingly, the survey found that 80 percent or more of these voters support the idea of energy companies bearing the costs of cleaning up extraction sites and restoring the land after drilling activities. This view is not far from the belief that environmental destruction should be treated as a criminal offense.

Meanwhile, three-quarters want the U.S. to generate all of its electricity from renewable sources within 15 years, according to a poll conducted by the Guardian and Vice in the run-up to the 2020 presidential election. In December 2020, as world leaders marked the fifth anniversary of the Paris Agreement, UN Secretary-General António Guterres urged every country to declare a “climate emergency.”

The general public is warming to the idea of criminalizing the destruction of nature, with more than 99 percent of the French “citizens’ climate assembly”—a group of 150 people randomly selected to help guide the nation’s climate policy—voting to make ecocide a crime in June 2020.

“If something’s a crime, we place it below a moral red line. At the moment, you can still go to the government and get a permit to frack or mine or drill for oil, whereas you can’t just get a permit to kill people because it’s criminal,” said Mehta. “Once you set that parameter in place, you shift the cultural mindset as well as the legal reality.”

“The air we breathe is not the property of any one nation—we share it,” Palme said in his 1972 address. “The big oceans are not divided by national frontiers—they are our common property. … In the field of human environment there is no individual future, neither for humans nor for nations. Our future is common. We must share it together. We must shape it together.”

Greta Thunberg called for a shift in our legal system regarding the environment. “We will not save the world by playing by the rules,” said Thunberg, who has become the face of the international youth climate movement. “We need to change the rules.”

Ecocide Laws Moving Through European Parliaments

In February 2024, the Belgian parliament passed a revised penal code endorsing the punishment of ecocide at national and international levels. This landmark decision makes Belgium the first European nation to acknowledge ecocide within the realm of international law.

“Belgium is now at the forefront of a truly global conversation around criminalizing the most severe harms to nature and must continue to advocate for the recognition of ecocide at the International Criminal Court, alongside genocide,” said Patricia Willocq, director of Stop Ecocide Belgium. “In order to fully protect nature, it is necessary that those that would willfully destroy vast swaths of the natural world, in turn causing untold human harm, should be criminalized.”

Scotland may follow suit. On November 8, 2023, Labour Member of the Scottish Parliament Monica Lennon introduced a proposed ecocide bill in the Scottish Parliament that could lead to substantial penalties for those found guilty of the large-scale destruction of the environment, potentially resulting in up to 20 years of imprisonment. If passed, it would establish Scotland as the first country in the United Kingdom to implement strict consequences for environmental damage.

Lennon initiated a consultation that was set to conclude in February 2024. The government responded by confirming that Circular Economy Minister Lorna Slater would discuss the proposed measures with Lennon. Following the conclusion of the consultation phase on February 9, 2024, the bill now needs the backing of at least 18 parliamentary members to advance to the next stage.

“Thousands of overwhelmingly supportive submissions have been received from members of the public and institutions in the space of just four months and Greens Biodiversity Minister Lorna Slater has now written indicating her government’s support,” reported John Ferguson, political editor of the Sunday Mail, on March 24, 2024.

“This is a promising development and I welcome the Scottish Government’s support,” said Lennon. “Ecocide law is emerging around the world in a bid to prevent and punish the most serious crimes against nature. My proposed bill to stop ecocide in Scotland is gaining widespread support, and this encouraging update from the Scottish Government is a boost to the campaign.”

The Case for Ecocide Laws

If implemented, ecocide laws would protect ecosystems and preserve biodiversity, an essential element for maintaining healthy ecosystems that support all life forms, including humans. These laws would safeguard natural habitats, reduce environmental damage, and significantly mitigate climate change by preserving carbon sinks like forests and curbing greenhouse gas emissions from industrial activities.

Critically, enshrining ecocide as a crime would hold individuals and corporations accountable for environmental harm, promoting a sense of justice and responsibility in interacting with the natural world. Enforcing laws against ecocide also encourages sustainable practices and resource management, fostering a more harmonious relationship between human activities and the environment over the long term.

Together, these reasons reflect broader efforts that stretch across disciplines and activist frontlines—from environmentalism and nature rights to social justice and the law—toward sustainable development, conservation, and responsible stewardship of the planet for current and future generations. Part of that stewardship is eradicating “institutional speciesism,” cultivating ecocentrism, and seeing our place in the natural world in the context of the entire planetary ecosystem—as one species among a multitude of interdependent species.

Philippe Sands, a lawyer who is a member of a panel launched in November 2020 to draft a definition of ecocide and who has appeared before the ICC and the European Court of Justice, told the Economist in 2021, “My sense is that there is a broad recognition that the old anthropocentric assumptions may well have to be cast to one side if justice is truly to be done, and the environment given a fair degree of protection.”

This article was produced by Earth | Food | Life, a project of the Independent Media Institute.

*** REYNARD IS THE NAME GIVEN A FRENCH FOX CHARACTER WHO IS A TRICKSTER

LOKI NORSE GOD OF CHAOS ALSO A TRICKSTER

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.”

What it means if 'ecocide' becomes an international crime

BY JOJO MEHTA, OPINION CONTRIBUTOR — 07/10/21 

© Getty Images

Ecocide means to destroy the environment, but when considered etymologically, from the Greek and Latin, it signifies to kill one’s home.

When we were first able to view, and photograph, the Earth from space, our planetary perspective changed. Suddenly “home” had a whole new meaning. Nowhere, as far as our technology has been able to discern, is there evidence of any planet like Earth — anywhere else that can sustain life as we know it.

In its recent 11,700-year period of climatic stability, that is what our planetary home has done, facilitating the spread and technological advance of human civilization. While benefiting many in terms of material comfort, life expectancy and societal support structures, this advance has increasingly taken place within a framework of thought that perceives nature as “other” — a resource to be exploited, or a foe to be conquered. The Oxford English Dictionary even defines nature as “opposed to humans.”

With this perspective, ever since the industrial revolution, we have been — at first unwittingly, now recklessly and even knowingly — disrupting the biological, chemical and atmospheric systems on whose stable interaction we intimately and profoundly depend. Greenhouse gas emissions are just one part of this story. Bit by bit, with each felled forest, polluted river system, species extinction, oil spill, toxic waste leak, nuclear or mining disaster, we are committing ecocide. Relentlessly, and with startling rapidity, we are killing our home — while exacerbating social injustice, racial inequality and resource conflict along the way.

And because our legal system doesn’t treat environmental destruction with the seriousness we are now beginning to understand it warrants, we are doing this with impunity.

The word “ecocide” was first used on the international stage by Swedish Prime Minister Olof Palme at the UN environment conference in Stockholm (1972), when he stated that “destruction brought about... by large scale use of bulldozers and pesticides is an outrage sometimes described as ecocide, which requires urgent international attention.”

Nearly 50 years later, the world is at last beginning to pay that attention. Last month an expert panel of top international criminal and environmental lawyers, convened by the Stop Ecocide Foundation, proposed a legal definition of the term, suitable for adoption into the Rome Statute of the International Criminal Court (ICC) as a fifth crime alongside genocide, crimes against humanity, war crimes and the crime of aggression. Responding to the explicit call of climate-vulnerable island nations Vanuatu and the Maldives, directly impacted by rising sea levels and heavy tropical storms, such a move would criminalize, “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.”

The warmth of response to this legal definition has been remarkable. Sparking articles in over 100 global publications in the first week, from the Financial Times to Der Spiegel and from Bloomberg to Le Monde, it has also prompted political action. From Bangladesh to the Caribbean to the UK (where an amendment to the government’s Environment Bill includes the newly released definition in full), diplomats and politicians are joining a conversation which already includes EU states such as France and Belgium and has the support of public figures as influential and diverse as Pope Francis and Greta Thunberg.

Since the International Criminal Court’s mandate is the prosecution of individuals, the addition of ecocide to the list of crimes considered “of most serious concern to the international community as a whole” would make key corporate and political actors personally liable to criminal prosecution in any ratifying state, should their decisions threaten severe and either widespread or long-term environmental damage — thus creating an enforceable deterrent to help prevent finance from flowing to projects that could destroy ecosystems. Nothing concentrates the mind like having one’s personal freedom on the line.

Moreover, ecocide law may prove to be not just a stick but also a carrot. Setting a criminal parameter will not only steer activity away from hazards — acting as a kind of health and safety law for the planet – but is likely to stimulate innovation and development in a healthy direction in a wide range of economic sectors. Many of the solutions we need to transition to sustainability are already available — renewable energy, regenerative agriculture, circular economy — but aren’t being supported or developed at scale while finance continues to flow towards the same old destructive approaches, leaving those who would do the right thing at a disadvantage.

Criminalizing ecosystem destruction at the highest level could also shore up and strengthen the whole edifice of environmental law, supporting all those working to improve regulation and best practice, from frontline activists to academics, scientists, NGOs and policymakers.

While it would be naive to believe that establishing this crime would be a silver bullet for all of our environmental woes, or even prevent all ecocides, it is difficult to see how our planet’s life-support systems can be adequately protected — or indeed Paris targets and UN Sustainable Development Goals realistically approached — without a “hard stop” intervention of this kind. This year’s NDC synthesis report from the UNFCCC certainly suggests that we’re not doing well without it. Goodwill agreements and raised ambitions are clearly not up to the task.

But perhaps the most powerful effect of defining and criminalizing ecocide as an international crime may be that of beginning to shift cultural and moral assumptions. Our understanding of our place in, and responsibility towards, the natural world is in dire need of a reality check. Calling out and condemning ecocide for what it is may be exactly what is required if we are to begin to transform our relationship with the Earth from one of harm to one of harmony. That may be the best way to ensure our children, and our children’s children, will still be able to call this beautiful planet “home.”

Jojo Mehta is co-founder and executive director of Stop Ecocide International and chair of the charitable Stop Ecocide Foundation. She co-founded the public campaign in 2017 (alongside legal pioneer the late Polly Higgins) to support making severe harm to nature an international crime and has overseen the growth of the global movement while coordinating legal developments, diplomatic traction and public narrative.

UK environmentalists commend EU’s decision to criminalise ‘ecocide’


“That’s how it’s done."

Gabrielle Pickard-Whitehead 

LEFT FOOT FORWARD

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On February 27, EU lawmakers voted overwhelmingly to make the most serious cases of environmental damage a crime. The vote in the European Parliament saw 499 votes in favour a, just 100 against, and 23 abstentions.

Under the updated environmental crime directive, those responsible for the deliberate destruction of the ecosystem, including illegal logging and habitat loss, will face tougher penalties, including prison sentences.

The vote means that the European Union is the first international body to criminalise eco crimes. EU member states now have two years to bring the updated directive into national law.

The move was hailed by environmentalists across Europe. The EU is “adopting one of the most ambitious legislations in the world,” said Marie Toussaint, a French lawyer and MEP for the Greens/European Free Alliance Group.

“The new directive opens a new page in the history of Europe, protecting against those who harm ecosystems and, through them, human health. It means putting an end to environmental impunity in Europe, which is crucial and urgent,” she added.

In its latest assessment on environmental crime, Europol, the European Union Agency for Law Enforcement Cooperation, warns how crimes against the environment threaten the survival of all living species. They also have a huge financial impact, which is set to increase further.

“Opportunities for high profits, legal discrepancies among countries, low risk of detection and marginal penalties make environmental crime a very attractive business for criminal entrepreneurs,” the assessment states.

The decision to criminalise ‘ecocide,’ that is the destruction of the natural environment by deliberate or negligent human action, was embraced by environment and pro-Europe groups in the UK.

“That’s how it’s done,” said Mike Galsworthy, chair of the European Movement UK, in reference to the vote.

“Bring it on,” wrote anti fossil fuel campaigners, Raw Foundation.

“An excellent start,” said Space4Wildlife.

“Finally,” said Victoria Johnson, an associate professor of political sociology.

In the UK, calls for making ecocide a crime are growing. In September 2023, Camden became the first UK council to call for the destruction of nature to be formally recognised as a crime. A motion urging for ecocide to be recognised as a crime that damages the environment and endangers the future of the planet, received cross-party support from councillors.

A group of lawyers were brought together by the Stop Ecocide Foundation, which argues ecocide should be added to the crimes considered by the International Criminal Court. In a speech at the time, Professor Philippe Sands KC, asked Camden Council to support the idea of making environmental breaches an international crime. He defined “ecocide” as the “unlawful or wanton acts committed with the knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.”

He said the council’s move would “send a signal to councils around the world: to Mexico, to Columbia, to Bangladesh, Cameroon.”

“The motion before you is really to push international consciousness. Act global think local, think local act global,” he added.

Gabrielle Pickard-Whitehead is a contributing editor to Left Foot Forward

WAR IS ECOCIDE

The ‘silent victim’: Ukraine counts war’s cost for nature

Wheat plantations burnt after Russian airstrikes in Donetsk oblast. 

Photograph: Miguel Medina/AFP/Getty Images
A year of war in UkraineUkraine

Investigations are under way in the hope this is the first conflict in which a full reckoning is made of environmental crimesRussia-Ukraine war – latest news updates
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Jonathan Watts 

Global environment editor

THE GUARDIAN

Mon 20 Feb 2023 

Toxic smoke, contaminated rivers, poisoned soil, trees reduced to charred stumps, nature reserves pocked with craters: the environmental toll from Russia’s war with Ukraine, which has been detailed in a new map, might once have been considered incalculable.

But extensive investigations by Ukrainian scientists, conservationists, bureaucrats and lawyers are now under way to ensure this is the first conflict in which a full reckoning is made of environmental crimes, so the aggressor can be held to account for a compensation claim that currently stands at more than $50bn (£42bn).


The environment ministry has set up a hotline for citizens to report cases of Russian “ecocide”, which so far number 2,303, and issues weekly updates of the tally. The latest edition estimates that in the past year:

Ukraine has had to absorb or neutralise the impact of 320,104 explosive devices.


Almost one-third of the country (174,000 sq km) remains potentially dangerous.


Debris includes 230,000 tonnes of scrap metal from 3,000 destroyed Russian tanks and other military equipment.


A hundred and sixty nature reserves, 16 wetlands and two biospheres are under threat of destruction.


A “large” number of mines in the Black Sea threaten shipping and marine animals.


Six hundred species of animals and 880 species of plants are under threat of extinction.


A third of Ukrainian land is uncultivated or unavailable for agriculture.


Up to 40% of arable land is not available for cultivation

Altogether the losses from land, water and air pollution amounted to $51.4bn, estimated Oleksandr Stavniychuk, the deputy head of the department of environmental control and methodology, at a recent workshop in Kyiv.

In part, this is effective wartime propaganda. At a time of heightened climate sensibilities, the Ukrainian government knows it can win hearts and minds by reminding the outside world that it is an environmentally conscious, food-producing, forward-thinking democracy that has been defiled by a fossil-fuel dictatorship that pays as little respect to nature as it does to the sovereignty of its neighbours.

But the implications of opening this new environmental-legal front are further reaching. It is also part of a broader and very modern battle that aims to tap scientific research, information technology, communication strategies and groundbreaking lawsuits in a way that puts a higher value on nature than most nations have recognised until now.

It is almost certainly the most detailed tally of wartime environmental destruction ever undertaken. During the Vietnam war, there was an outcry over the use of Agent Orange defoliants. In the Gulf war, considerable attention was focused on the burning of oil wells. But there has been nothing with the same range and ambition as the hotchpotch assessments now under way by civil society, universities and the government.

Those involved in this collective intelligence operation would not normally be classified as combatants, but much of their work requires considerable courage.

The gutted remains of a car in front of damaged trees following a battle between Russia and Ukrainian forces on the outskirts of Chernihiv in April 2022. 

Photograph: Petros Giannakouris/AP


Kateryna Polyanska is a young landscape ecologist who travels the country, taking samples from bomb craters and photographs of environmental damage in national parks. This requires trips close to conflict zones and areas that have not yet been cleared of unexploded ordnance. The dangers are very real. On one trip, she came across a fox that had been killed by a mine. On another, she could hear the sound of nearby shelling. But she feels the risk is worth taking.

“Last year, I started doing this investigation by computer using only satellite images, but I decided I needed to see it with my own eyes,” she said. “War is not just about direct impacts, it is also the destruction of our nature and environment.”

At first, she was afraid to enter the craters, some of which are more than 3 metres deep. But after she had done 20, she jokes that she became a crater connoisseur.

The samples are sent back to a laboratory where they are tested for toxic chemicals, such as white phosphorus. This is necessary to decide how to rehabilitate the land and whether to advise local people to avoid potentially contaminated streams.

The environmental cost of the war in Ukraine

Hotspots among the thousands of ecological crimes reported since Russia’s invasion

Black Sea

200 mile

Guardian graphic. Source: Greenpeace

Some areas, she said, were charred, while others looked like moon landscapes. Among the most shocking environmental destruction was the bombing of ancient chalk slopes, a unique ecosystem in the Holy Mountain national park. “When you see craters there, you know it will never recover. The chalk slopes were formed over 100m years and then destroyed in one year of war.”

The worst damage is not always visible. “It is not just the explosive material, it is rocket fuel and shrapnel and wire … All these little tiny pieces of pollution have a huge impact on nature. You can’t imagine the scale of the impact.”

Most of her work focuses on assessing damage and potential hazards for people and nature. But rehabilitation and recompense play a part too.

Polyanska works for the Environmental People Law organisation, which brings together scientists and lawyers. They – like other civil society and government bodies in Ukraine – are building legal cases against Russia in the international criminal court under article eight of the Rome statute, which covers ecological crimes. In addition, the Geneva convention forbids “methods or means of warfare that are intended to cause or may be expected to cause widespread, lasting and severe damage to the natural environment”.

Some legal scholars and environmentalists hope Ukraine can push international law a step further by securing recognition of “ecocide” for crimes against the living natural world. This term, popularised by the British environmental lawyer Polly Higgins, has not yet been defined in international law, but Ukraine is one of several former Soviet bloc countries that have passed ecocide legislation. This is already being used. The prosecutor general’s office is processing 11 criminal proceedings under article 441 on ecocide of the criminal code of Ukraine. In November the president of Ukraine, Volodymyr Zelenskiy, told the G20 summit that the recognition of ecocide and the protection of the environment were among 10 key proposals in the Ukrainian formula for peace.

Independent of the government, conservation groups have mobilised and repurposed themselves to gather evidence. Ukraine’s biggest environmental NGO, Ecoaction has collated reports of more than 840 incidents and collaborated with Greenpeace to plot them on an interactive “environmental damage map”. Using satellite images, they have measured and highlighted the biggest physical impacts.

Among them are the attacks on industrial centres such as Odesa, Donetsk and Lviv, which released billowing clouds of benzopyrene, carbon monoxide, nitrogen oxides, and other toxic chemicals. War has also sparked vast forest fires, particularly in the Luhansk oblast, where 17,000 hectares of forest have been charred.

The Zaporizhzhia nuclear power plant. 

Photograph: Alexander Ermochenko/Reuters

Of greatest concern, for humans at least, is Europe’s biggest nuclear plant at Zaporizhzhia, which has suffered fires, damage to power lines and now faces a threat to its cooling system from the low water levels in the Kakhovka reservoir which is controlled by Russia. Both sides have caused damage to water systems, but Russia was the initial aggressor and has gone much further in targeting industrial facilities and residential areas.

Yuliia Ovchynnykova, a Ukrainian MP who serves on a parliamentary environment committee, has launched an appeal for international recognition of Russia’s environmental crimes, which led to the Council of Europe adopting documents on ecocide. She is looking for more support from overseas lawmakers.

She says more than 2m hectares of forest have been destroyed, wrecking ecosystems and putting at risk rare endemic species such as pearl cornflowers, which can be found only on sandy steppes on the outskirts of Mykolaiv, or the bare tree, which is grows in a narrow area of the Stone Graves reserve in Donetsk. The war, she said, had made people realise the value of nature in a new way. As well as providing ecosystem services such as fresh water, clean air and fertile soil, Ovchynnykova said the country had a greater appreciation of the security benefits of places such as the Polissia – Europe’s largest holdout of wild nature – which is a natural protective barrier of hundreds of thousands of square kilometres of forests, swamps, floodplains, lakes and wet meadows. Similarly, when Russian troops attacked Kyiv early in the war, the detonation of a dam on the Irpin River created a swamp barrier against their advance.

Other impacts are indirect. In both countries, industry and agriculture lobbyists are using the crisis to push for looser protections for nature and open up more land for development. Manufacturing of missiles and other weapons causes pollution and emits carbon dioxide, as do the explosions and fire they ignite. The war is so far responsible for 33m tonnes of CO2 and postwar reconstruction is estimated to generate another 48.7m tonnes.


The sanctions war against Russia: a year of playing cat and mouse

This belies the oft-stated idea that nature benefits from humanity’s misfortune. That may have been true in the past in isolated no-go areas – wildlife has flourished in the heavily-mined demilitarised zone between North and South Korea, and – until the Ukraine war started – the contamination zone around the site of the Chornobyl nuclear disaster. But there is no such upside in a hot conflict. Even Chornobyl’s former sanctuary status has been eroded. Russian troops dug trenches in the locale, raising concerns that they might have unearthed radioactive soil.

Most abuses of nature go unreported in the media. “Nature is suffering. The environment is the silent victim of the war,” said Olena Maslyukivska, an environmental economist. As a member of a working group to calculate compensation, she is trying to address this and believes a restoration tax should be levied on Russian oil or Russian oligarchs as part of any peace deal.

Kateryna Polyanska collects a soil sample from a bomb crater.

 Photograph: Misha Lubarsky/The Observer

For now though, the fighting, burning and polluting continue, as does the effort to measure the horror. The researcher Polyanska plans to get back on the road in spring, after the winter snows have thawed. When the war is finally over, she hopes reconstruction can be used to improve as well as restore Ukraine. “I hope we can do things in a more ecological way. We need more green technology in industrial centres and perhaps there are some dams that we shouldn’t rebuild. We need deep scientific study.”

Other campaigners are also looking forwards. Denys Tsutsaiev of Greenpeace said Ukraine needed mechanisms and resources for nature restoration: “It’s an essential part of improving the health of people who suffer from the war and getting back to normal life.”

TAR SANDS
Big Oil's pollution in Canada is poisoning the environment — and may even be deadly


Nicholas Kusnetz, Inside Climate News
Sun, November 21, 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.

FORT McMURRAY, Alberta — The land around Jean L’Hommecourt’s cabin was once miles away from the noise of the world. On long summer days, she would come with her mother to gather berries from the forest and to hunt moose when the leaves turned yellow and the air crisp.

But over the last two decades, the cabin has been surrounded by the expanding mines of Alberta’s tar sands, where oil companies have dug vast open pits to extract a heavy form of crude called bitumen. L’Hommecourt and her Indigenous community of Fort McKay, about 35 miles north of Fort McMurray, have watched as the companies have replaced their traditional lands with a 40-mile string of mines, stripping away subarctic boreal forest and wetlands and rerouting waterways.

“It’s an invasion of our territory, invasion of us trying to be out on the land,” L’Hommecourt said. Over the years, more and more workers have shown up in the area, stopping her along the road to tell her that she couldn’t hunt moose or that she was trespassing.

“‘You’re the trespasser,’” she tells them. “‘I shouldn’t have to be answering your questions — you answer mine.’”

Jean L'Hommecourt warms at the fire outside the cabin she has built near the Fort McKay First Nation's village, about an hour's drive north of Fort McMurray in Alberta. (Michael Kodas)

Oil and gas companies like ExxonMobil and the Canadian giant Suncor have transformed the tar sands — also called oil sands — into one of the world’s largest industrial developments, covering an area larger than New York City. They have built sprawling waste pits that leach heavy metals into groundwater and processing plants that spew pollutants into the air, sending a sour stench for miles.

The mines’ ecological impacts are so vast and so deep that L’Hommecourt and other Indigenous people here — mostly from the Dene and Cree First Nations — say the industry has challenged their very existence, even as it has provided jobs and revenue to Native businesses and communities. People in this region have long suspected that the tar sands mines were poisoning the land and everything it feeds.

The economic benefits of the development are immense: Oil is Canada’s top export, and the mining and energy sector as a whole accounts for nearly a quarter of Alberta’s provincial economy. The sands pump out more than 3 million barrels of oil per day, helping make Canada the world’s fourth-largest oil producer and the top exporter of crude to the U.S. But the companies’ energy-hungry extraction has also made the oil and gas sector Canada’s largest source of greenhouse gas emissions, according to a government report.

The largest oil sands companies have pledged to reduce their emissions, saying they will rely largely on government-subsidized carbon capture projects. Yet oil companies and the government expect output will climb well into the 2030s. Even a new proposal by Prime Minister Justin Trudeau to cap emissions in the oil sector does not include any plan to lower production.

Some lawyers and advocates have pointed to the tar sands as a prime example of the widespread environmental destruction they call “ecocide.” They are pushing the International Criminal Court to outlaw ecocide as a crime, on par with genocide or war crimes. While the campaign for a new international law is likely to last years, with no assurance that it will succeed, it has drawn attention to the inability of countries’ laws to contain industrial development like the tar sands, which will pollute the land for decades or centuries.

Mike Mercredi, who is Dene and lives in Fort Chipewyan, about 100 miles north of Fort McKay, noted that the name of his people translates as “people of the land.”

“It’s in our name of who we call ourselves,” he said. “We are the land. So when you’re destroying that land, when you’re committing ecocide, you’re committing genocide.”

Julie King, an Exxon spokeswoman, said, “ExxonMobil is committed to operating our businesses in a responsible and sustainable manner, working to minimize environmental impacts and supporting the communities where we live and work.”

Leithan Slade, a spokesman for Suncor, pointed to agreements the company has signed with First Nations, adding that “Suncor sees partnering with Indigenous communities as foundational to successful energy development.”

L’Hommecourt is intimately familiar with the partnerships through her work as an environmental coordinator and researcher for the Fort McKay First Nation, of which she is a member, and in that position she has fought to protect whatever shreds of land she could.

Her cabin is only 20 miles from town as the crow flies, but the drive takes more than an hour, because the road has to loop around several mines. The land, she said, is where she can think in her language, Dene, “where in the outside world it’s all English.”

“You get that sense of belonging here,” she said, “and that’s what I want for our peoples, to have their land back.” She added, “If you have your land back, you have everything.”
The tar sands

The only way to fully appreciate the scope of the tar sands is to see the mines from the air. Flying across the region from the north, the twisting channels of the Peace-Athabasca Delta dominate the landscape, snaking through forest and marshlands with not a road or a power line in sight.

The terrain gives way to a mixture of forest, muskeg and drylands, where the sandy soil rises to the surface. Out of nowhere, straight lines emerge — a wide, unpaved highway and paths leading to squares carved out of the forest, where companies have explored for oil.

Then the mines come into view. Billowing plumes of smoke fill the sky. Flames shoot out of flare stacks. The forest’s green is replaced by vast black holes pockmarked with giant puddles. From the air, the dump trucks and the shovels look like toys, hauling mounds of bitumen from newly dug pits. As the plane nears its descent, the cabin fills with a tarry stench.

“It’s just the most completely ludicrous approach to industrial and energy development that is possible, given everything we know about the impact on ecosystems, the impact on climate,” said Dale Marshall, the national program manager for Environmental Defence, a Canadian advocacy group.

To extract bitumen from the sand, oil companies heat it and then treat it in a slurry of water and solvents. In other parts of Alberta, where the sands are too deep to mine, the bitumen is melted in place and extracted through wells by pumping high-pressure steam underground. The deeper deposits cover a much larger area than the mines, more than 50,000 square miles.

The Syncrude Operation north of Fort McMurray, Alberta, Canada. (Michael Kodas)

The extraction requires enormous amounts of energy: In 2018, the latest year for which figures are available, oil sands producers consumed 30 percent of all the natural gas burned in Canada. Collectively, the mines’ and deep-extraction projects’ greenhouse gas emissions about equal those of 21 coal-fired power plants, and that’s just to get the crude out of the ground.

The operations also pump out nitrogen oxides, sulfur oxides and polycyclic aromatic hydrocarbons, traces of which have been detected by scientists in soils and snowpack dozens of miles away.

The mines guzzle vast quantities of water, with nearly 58 billion gallons drawn from the region’s rivers, lakes and aquifers in 2019, according to government figures. Much of that ends up as toxic liquid waste laced with hydrocarbons, naphthenic acids and carcinogenic heavy metals. Oil companies have been collecting the “tailings” in waste ponds, which have grown exponentially in size and now cover more than 100 square miles. Regulatory filings show that the ponds are expected to continue to expand well into the 2030s. While companies are required by law to eventually reclaim them, only a fraction have been reclaimed so far.

Next to one pond, a coal-black mountain of debris towers over the water. High-voltage lines buzz overhead. Air cannons ring the pond and blast several times every minute, creating a constant explosive din. Industrial iron scarecrows are dressed with safety vests and helmets. The noise and the display are meant to scare off the millions of migratory birds that arrive in northern Alberta every year.

Scarecrows dressed like workers and devices that produce loud explosions that sound like gunshots are spread out around a Syncrude tailings pond with toxic water that could kill birds that land on it north of Fort McMurray (Michael Kodas)

Sometimes even those defenses fail, however, or the birds ignore them and land anyway — tens of thousands every year, according to a 2016 report to provincial regulators, obtained this year by The Narwhal, a nonprofit Canadian news organization.

Ottilie Coldbeck, a spokeswoman for the Alberta Energy Regulator, which oversees the industry, said the research in the report “was not considered complete.”
The history

White explorers set their sights on the tar sands as soon as they arrived. In 1789, Sir Alexander Mackenzie reported seeing veins of “bituminous quality” exposed along the Athabasca River. Within a century, prospectors and geologists had identified “almost inexhaustible supplies” of petroleum in the area. The only obstacle seemed to be the people living above it.

In 1891, the superintendent general of Indian affairs recommended drafting a treaty “with a view to the extinguishment of the Indians’ title” to open access to petroleum and other minerals. Within eight years, First Nations leaders had signed Treaty 8, in which they surrendered title of 325,000 square miles of land to the British crown while retaining the right to hunt, fish and trap freely throughout the area.

The tar sands remained largely beyond reach for decades, however, until Americans, driven by nationalistic ambitions, invested vast sums of capital.

When J. Howard Pew, of Sun Oil Co., opened the first commercial mine in 1967, the people of Fort McKay were not happy, said Jim Boucher, who led the First Nation as chief for three decades, until 2019. Sun Oil, now Suncor, took over an important summer hunting ground called Tar Island, he said. “There was no discussion, no consultation,” Boucher said.

The fur trade had provided the nation’s members with one of their few sources of income. But it collapsed just as the oil industry was taking hold, and they had few alternatives but to turn to the oil companies’ rapidly expanding mines.

“We had no choice,” Boucher said.

After he became chief in 1986, Boucher formed the Fort McKay Group of Companies to work with the oil industry, and over the following decades he oversaw partnerships with energy companies that would eventually net hundreds of millions of dollars for the community.

The income has allowed Fort McKay to build subsidized housing and to pay for education and elder care, achievements that Boucher rattles off proudly. Enrolled members receive quarterly dividends.

Jim Boucher was the chief of the Fort McKay First Nation from 1986 untill 1994 and again from 1996 until 2019. (Michael Kodas)

Some First Nations have fought the development with lawsuits. The Beaver Lake Cree Nation, to the south, sued the federal and provincial governments in 2008, saying its treaty rights had been violated by the cumulative effects of development. Even though it got a ruling five years later allowing the case to proceed, the case is still awaiting trial, with a court date scheduled for 2024.

Each of the area’s First Nations has signed “impact benefit agreements” with the oil companies that can include limits on certain practices, like water withdrawals, quotas for hiring Indigenous people and direct payments to the nations. But even as the impact agreements have secured benefits, they have deepened reliance on an industry that is consuming the land that was once the base of the Indigenous economy and culture.

​​L’Hommecourt, who is Boucher’s cousin, said she holds no resentment toward him for tying their people’s fate to the industry.

“He did what he had to do, and as a chief I commend him,” L’Hommecourt said. “They call us the richest little First Nation in Canada.”

Boucher lost his grandfather’s cabin, where he learned to hunt and trap as a boy, to a mine dug by Syncrude, a consortium of oil companies. A cabin Boucher later built for his father, to the north, now sits on a postage stamp of land, he said, surrounded by newer mines.

“It’s empty. That’s how the cabin is to me,” Boucher said. “So I don’t go there anymore. No joy.”

The effects

While the mines cover an expansive area, their impact on the environment reaches much farther.

The town of Fort Chipewyan sits where the Peace and Athabasca rivers empty into Lake Athabasca, about 90 miles north of the closest mine, and the land here offers a glimpse of what existed before. The mostly Indigenous residents can still hunt and trap in unbroken stretches of boreal forest.

But while the nights are quiet and the air smells clean, the industry’s presence is strong. Kids zoom around town on ATVs, while the supermarket displays boxes of 87-inch flat-screen TVs — ”toys,” as some residents call them, that only those who work in the industry can afford.

And despite the lake’s distance from the development, the flesh of some animals that drink from it is laced with some of the same heavy metals that collect in the waste pits.

In 2010, a paper published in the Proceedings of the National Academy of Sciences found elevated levels of mercury, lead, nickel and other heavy metals in the river downstream of oil sands development, as well as in Lake Athabasca. Three years later, another study in the same journal examined lake sediments surrounding Fort McMurray and found that a group of chemicals that include cancer-causing compounds started rising in the 1960s and ʼ70s, when oil sands development began.

The Athabasca Chipewyan and Mikisew Cree First Nations commissioned Stéphane McLachlan, an environmental scientist at the University of Manitoba, to test the tissues of animals, and in 2014 he released a report finding elevated levels of toxic pollutants — including arsenic, mercury and polycyclic aromatic hydrocarbons — in the flesh of moose, ducks and muskrats in the region.

Provincial officials acknowledge that the mines’ waste ponds leak into groundwater. To “limit the risk” that the seepage will spread farther, the Alberta Energy Regulator requires companies to install drains, wells, sumps and underground walls to capture and contain the contamination, said Coldbeck, the agency spokeswoman.

An oil sands mine in Alberta, Canada adjascent to boreal forest outside of Fort McMurray. (Michael Kodas)

Federal and provincial officials have disputed research that has linked groundwater contamination to the waste pits, citing other studies that indicate that the compounds may be naturally occurring in groundwater because they are contained in bitumen.

But last year, the Commission for Environmental Cooperation, an environmental body created alongside the North American Free Trade Agreement, assessed all the published studies of water contamination and concluded that there was “scientifically valid evidence” that the waste pits were leaching contaminants into groundwater. The analysis noted that some research has concluded that the contamination reached the Athabasca River but that scientists were still debating the findings.

Asked about the report, Coldbeck said her agency “does not have any evidence” that contaminated groundwater has reached the Athabasca River. In response to a question about health concerns, she said the agency “is committed to ensuring that Alberta’s oil sands are developed in a safe and responsible manner” and referred questions to Alberta Health, the province’s public health agency.

A spokesperson for Alberta Health did not reply to requests for comment.

A spokeswoman for the Canadian Association of Petroleum Producers declined to comment, pointing instead to reports the group has issued about engagement with Indigenous communities and about greenhouse gas emissions.

Meanwhile, published surveys of cancer cases in Fort Chipewyan carried out in 2009 and 2014 came up with mixed results. Both showed higher-than-normal rates of certain cancers, including biliary tract cancers. One study determined that overall cancer rates were elevated. The other did not.

Alice Rigney, an elder with the Athabasca Chipewyan First Nation, blames the oil development for her nephew’s death from bile duct cancer, even as she acknowledges that there is nothing to prove the connection.

“They took it all away,” she said of the oil companies, speaking not just about her nephew but also about the broader environmental impacts. “What else is there to take?”
The future

The global oil industry is increasingly under assault, and Canada’s tar sands, because of the developments’ high greenhouse gas emissions, are a prime target of climate activists. Because new tar sands projects require billions of dollars of investment up front, many financial analysts say the era of opening new mines is over.

But even if production from the mines holds steady or declines gradually, their massive footprints are likely to expand for decades, because companies must continue to clear land to keep up production.

And whenever the mines do decline, the industry will face the challenge of what to do with the waste it has produced. The provincial government has secured $730 million from companies as collateral for a cleanup, but that will not even begin to cover the costs. While regulators’ official estimate of the liability for Alberta’s mining industry is $27 billion, an internal report obtained in 2018 by Canadian journalists estimated cleanup costs of more than $100 billion.

Jean L'Hommecourt visits a river near the Fort McKay First Nation's village about an hour's drive north of Fort McMurray in Alberta, Canada. (Michael Kodas)

L’Hommecourt said she is torn about whether she will remain here. “My heart is in the boreal forest,” she said. But her kids want to move away, and if they do, she might, too. The mines are coming closer to the cabin, and more roads are being blocked off.

Regulatory filings show that Imperial Oil plans eventually to reroute the creek that runs past her cabin to make way for its Kearl mine. If it does so, the land where the cabin sits would be buried by land cleared from elsewhere within the mine.

A spokeswoman for Imperial, Exxon’s Canadian affiliate, declined to comment specifically on the filings but said the company “has collaborative and unique relationship agreements with these local communities that provide mutual benefits.”

The cabin itself has been a symbol of L’Hommecourt’s resistance. It sits on an old trappers’ trail that Imperial’s workers began using about 10 years ago as an unpaved access road for exploration, marking it off with a “No Trespassing” sign. L’Hommecourt built her cabin in the middle of that road.

“I just said, ‘I don’t care,’” L’Hommecourt said. “I’m going to put my house right here, and this is where it’s going to be.” When company workers come by, she said, “I just tell them, ‘Turn around and go back, and if you have a problem with it, get your VP or whoever it is that you report to and then tell them to come and see me.’”

So far, no one has shown up.