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Prosecuting ecocide

Sep 04,2021 - Last updated at Sep 04,2021

By Kate Mackintosh, Jojo Mehta, and Richard Rogers

LOS ANGELES — As floods, wildfires, record-high temperatures, and zoonotic disease make the climate and ecological crisis impossible to ignore, the world may be moving closer to agreeing that serious damage to our natural environment is more than just a matter for goodwill agreements. It may amount to an international crime.

The last time a new international criminal offense was introduced was after World War II. The Nuremberg and Tokyo Charters added crimes against humanity to the existing war crimes and crimes against peace (“aggression”), enshrining the idea that certain acts are so egregious that, whoever the immediate victim may be, they concern us all. Soon after, in 1948, a particular crime against humanity, genocide, was incorporated in a new treaty.

We may be witnessing an equivalent moment in our relationship to the environment. Last month, a diverse independent panel of international lawyers issued the draft text defining the crime of “ecocide”, to be proposed for inclusion in the Statute of the International Criminal Court (ICC). The parallels are clear: Adopting ecocide as an international crime acknowledges that severe damage to our environment is a crime against all of us, and that we can no longer leave it to regulation by individual states.

The panel, convened by the Stop Ecocide Foundation (on which we served), defined the crime as follows: 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.

Two thresholds must be met for acts to constitute the crime. First, there must be a substantial likelihood that they will cause severe and either widespread or long-term damage to the environment. Severity is necessary in all circumstances, and the likely damage must be either widespread, extending beyond a limited area, crossing state boundaries, or affecting an entire ecosystem or large number of people, or long-term (irreversible or irremediable through natural recovery within a reasonable period of time). This would cover situations such as the toxic pollution of a population center — a large number of people, but a relatively limited geographical area — or the destruction of a marine ecosystem, which might be limited in size but permanently lost.

To meet the second threshold, the damage must be either “unlawful or wanton”. Ideally, the environment would be adequately protected by national laws, and extreme violations would be international crimes. “Unlawful” deals with those situations. But national legislation varies, and international environmental law contains few outright prohibitions. And some legally permitted acts that harm the environment are socially desirable: Consider desperately needed housing, transport, or infrastructure projects. In such cases, international environmental law sets out principles — above all the principle of sustainable development, according to which states should behave. The term “wanton” in the ecocide definition serves an equivalent purpose, addressing legally permitted acts that are reckless, owing to the disproportionate level of likely harm.

To be recognised as an international crime alongside genocide, crimes against humanity, war crimes, and aggression, the crime of ecocide will need the support of at least two-thirds of ICC member states (currently 123 states in total). It will then become effective for any state that ratifies it. Individuals in positions of responsibility whose actions meet the definition will be subject to prosecution at the ICC, or by any national courts with jurisdiction, and sentenced to prison if convicted. This is a major shift from the status quo, where criminal sanctions are lacking, at the international level and often at national level too, for many of the worst cases of mass environmental destruction. In most jurisdictions, individuals or corporations only face financial penalties.

Criminalising ecocide could have a stronger deterrent effect than the prospect of genocide or war crimes charges do, because it is largely a corporate offense. Because a company’s value depends heavily on its reputation and investor confidence, managers would have much to lose by finding themselves in the same dock as a war criminal, the ICC prosecutes individual offenders rather than corporations. Even the risk of appearing to have committed an international crime may steer corporate decision-makers toward safer and more sustainable methods of operation. The hope is that the deterrent will take effect long before the law does, as the prospect of legislation becomes visible.

There are, of course, challenges to moving forward. The ICC is already navigating difficult waters, and it is clear from developments in France that domestic ecocide legislation can be problematic, the recently enacted Climate and Resilience Act 2021 includes a much-criticised weakening of the term.

But broad international support for the crime of ecocide can and must be garnered. Governments, including those of Vanuatu, the Maldives,France, Belgium, Finland, Spain, Canada, and Luxembourg, are already expressing interest. And parliamentary motions or draft laws have been submitted in a number of countries, including Belgium, Portugal, Brazil, France, Bolivia, Bangladesh, the United Kingdom, and Chile. Countries must not wait for catastrophe to stop the international crime of our time.

 

Kate Mackintosh is executive director of the Promise Institute for Human Rights at the University of California, Los Angeles School of Law. Jojo Mehta, co-founder and executive director of Stop ecocide International, is chair of the Stop Ecocide Foundation. Richard Rogers, founding partner of Global Diligence LLP, is executive director of Climate Counsel. Copyright: Project Syndicate, 2021. 

www.project-syndicate.org

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