ECOCIDE: TOWARDS A RECOGNITION UNDER INTERNATIONAL CRIMINAL LAW

Crimes against the environment are perpetrated daily by large industries and governments that directly damage nature to promote their own economic profit. In order to challenge this behavior, the ‘Stop Ecocide Foundation’ founded in 2017 in the Netherlands promotes and facilitates steps towards making ecocide a crime recognized in the Rome Statute of the International Criminal Court (ICC). 

The historical path towards the definition of ecocide

Still to our days, environmental damages caused by humans are not considered to be international crimes. They could be counted as such only if they have a proven effect on people. However, human made natural damages and disasters have been the cause of the contemporary climate crisis and environmental emergency.

As a matter of facts, notwithstanding the numerous scientific warning, the systemic even if sometimes non-intentional perpetration of behaviors leading to ‘ecocides’ are witnessed globally. From the destruction of the Amazon Forest to the overfishing of the North Sea to the tar sands of Canada and oil extraction in the Niger Delta human made disasters lead to grave implications on regional biodiversity and livelihoods. 

The term ecocide derives from the Greek and it is made of the words oikos meaning “habitat or environment” and cide that means “to kill”. The term dates to around 50 years ago, when in the 1970s when Professor Arthur Galston of Yale University wanted to promote the adoption of a law addressed at banning ‘ecocide’ or what he defined as the “willful destruction of the environment.” 

His willingness to end this type of crimes derived from the United States’ deployment of a toxic chemical during the Vietnam War. The chemical, named Agent Orange was found to have a devastating impact on the local ecology and health of the human population and the “Vietnamese people who were exposed to the sprays probably were ingesting toxic quantities”.

Moreover, the term was also used at the UN Stockholm conference by Swedish Prime Minister Olof Palme during the first international conference on the environment in 1972. 

In addition, some representatives of island nations started to manifest their support to the promotion of a legal ban to the crimes of ecocide. The Vanuatu ambassador John Licht, and Ahmed Saleem, a member of parliament in the Maldives, both said it was far past time to make ‘ecocide’ a criminally punishable act

The definition

The contemporary campaign to make it a crime was started by Polly Higgings a UK barrister and sustainability visionary. She presented a definition of ecocide in 2010 to the UN Law Commission that read as follows: “Ecocide is extensive loss, damage or destruction of ecosystems of a given territory(ies)… such that the peaceful enjoyment of the inhabitants has been or will be severely diminished.”

The same definition was employed and supported also by Pope Francis, the Swedish activist Greta Thunberg, and the French President Emmanuel Macron in their call to support the for fight for ecocide to become an international crime.

After this first definition, more had to be done to try to provide an effective response to the increasing concern that not enough is being done to contrast climate change and environmental damages. The official definition required some improvements and a more restrictive approach in the context of the international legal scenario.

Therefore, following some more years of research and improvements, a group of experts from 12 different countries constituted by international environmental lawyers, researchers and diplomats from the ‘Stop Ecocide Foundation’ came up with a clear and legally robust definition of ecocide.

This definition, contained in a draft law published in June 2021, defines ecocide as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and widespread or long-term damage to the environment being caused by those acts”. This crime can be described as a one of recklessness. As a matter of facts, the perpetrator acted in the knowledge that there was “substantial likelihood” of serious harm arising from their conduct, but they continued in their action anyway.

One of the panelists also specified that the “culpability for the crime of ecocide attaches to the creation of a dangerous situation, rather than to a particular outcome”.

Therefore, ecocide is an umbrella term for all forms of the mass damage of ecosystems, from industrial pollution to the release of micro plastics into the oceans.

The importance of the legal definition of ecocide

This definition was indeed extremely important to set the bases for the abovementioned draft law. Currently those crimes that are found to be harmful to the environment are recognized to be taking place only during times of armed conflict.

As customary international humanitarian law (IHL) underlines in article 35(3) of Additional Protocol I to Geneva Convention the “destruction of the natural environment may not be used as a weapon.” It follows that “the use of methods or means of warfare that are intended, or may be expected, to cause widespread, long-term and severe damage to the natural environment are prohibited.” 

However, the independent panel of lawyers highlighted that the “most severe environmental damage occurs during times of peace, a situation that currently falls outside the jurisdiction of the ICC.”

Indeed, if this law will be adopted by the International Criminal Court, ecocide will become the fifth international crime against peace that the court prosecutes alongside war crimes, crimes against humanity, genocide, and the crime of aggression. 

As underlined by professor Philippe Sands QC, of the University College in London, the crime of ecocide has a more innovative and original approach. Differently from the other four, that focus exclusively on the wellbeing of human beings, the term ecocide introduces a new non-anthropocentric approachaimed at putting the environment at the heart of international law. 

Conclusion and analysis 

Finally, the importance of passing a law recognizing ‘ecocide’ as an international crime will result in two main achievements. The first one is that the law will prevent future investments in environmentally damaging financial activities.

As a matter of facts, no company or organization would be willing to invest in something potentially criminal and therefore they would stay away from environmentally threatening actors. The second element is that laws have a clear influence on social norms, providing significant societal and behavioral shifts.

The recognition of ecocide would therefore promote the public, corporate and governmental awareness that the environmental safeguard of Planet Earth should be at the center of every political, economic and legal deal. Making ‘ecocide’ and international crime would promote to making sustainability and the protection of our ecosystem a top priority aiming at slowing and hopefully stopping human made disasters and climate change. 

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