Mark Hillsdon reports on how 27 countries are now actively considering laws to put environmental destruction on a par with war crimes
Ecocide is an emotive word. First used to describe the human and environmental devastation caused by the use of the defoliant Agent Orange during the Vietnam War, it became the subject of regular discussions at the United Nations throughout the 1970s.
In 1998, the destruction of the environment was proposed as an international crime against peace, but ultimately wasn’t adopted as part of the International Criminal Court’s (ICC) Rome Statute, which includes genocide, crimes against humanity, war crimes and the crime of aggression.
Amending this statute remains the ultimate goal of Stop Ecocide International, which wants to expand international accountability for environmental harms, ensuring that individuals – those at the top of corporations, rather than the corporations themselves – can be prosecuted for the ecological damage caused by the organisations they head up.
It is a huge undertaking, a long game that involves cajoling, coaxing and wading through the complexities of international law. Yet Jojo Mehta, the passionate executive director of Stop Ecocide International, said in an interview that she is confident they are making headway.
The definition raises the bar for things that are already protected. It doesn’t invent new crimes
At the end of last year, the organisation found itself centre-stage at both COP27 in Egypt and Montreal’s Biodiversity COP15, and last month it was invited to stage a side-event at the World Economic Forum annual meeting in Davos, spreading the word to a new audience of businesses and investors.
Ecocide is officially a crime in 10 countries, including France, Ecuador and, ironically, both Russia and Ukraine, and Mehta says it is being actively discussed in another 27 countries.
In 2021, independent lawyers came together to frame a definition of ecocide as “unlawful or wanton acts committed with knowledge that there is substantial likelihood or severe and either widespread or long-term damage to the environment being caused by those acts”.
“This definition does not list specific acts,” says Mehta. Rather than alienating certain industries, it is a call to innovate and change the way in which things are done.
“The definition raises the bar for things that are already protected,” she says. “It doesn’t invent new crimes … If you do something in the knowledge that it is substantially likely to create severe harm, that is the crime.
“What we are seeing globally is this huge frustration at the lack of action (to curb the destruction of the environment).” Tighter regulations may only hurt companies in their pocketbooks, she says, “(but) once you introduce a criminal element, you start seeing changes in behaviour”.
The likelihood of anyone ever ending up in the dock at the ICC facing ecocide charges is so remote
Companies will need to start operating within new parameters, she says. Investors want stability, not the uncertainty of a chief executive being charged with criminal behaviour, high-profile court cases and the threat of compensation claims. “This is what criminal law can do that regulation won’t ever do,” Mehta adds.
Kevin Heller is an associate professor of public international law at the University of Amsterdam, who has also worked closely with the ICC. While he shares the desire to criminalise the destruction of the environment, he doesn’t think it is something the ICC will ever adopt.
International law is complicated, he says, and there is a huge difference between the ICC’s Assembly of State Parties adopting an amendment, and ratifying it so it becomes law. “The likelihood of anyone ever ending up in the dock at the ICC facing ecocide charges is so remote,” he says.
However, the act of putting forward an amendment to add ecocide to the Rome Statute could have a catalysing impact at a national level, he says, and “make states more likely to criminalise ecocide themselves”.
Working with individual states, says Heller, “is a much stronger avenue to try and push ecocide” than just pursuing the goal of an amendment to the Rome Statute.
Heller can see this thinking in the “pragmatic concessions” within the language of the 2021 definition, which he says was all about getting states on board. He believes a stronger definition is needed.
“Basically the (current) definition says that if you're benefiting humans enough, you can destroy the environment, and to me, that's not ecocide,” he says, dubbing it instead an “anthropocentric cost-benefit analysis”.
He adds: “This is the biggest criticism: it is not a truly eco-centric crime if any amount of environmental harm is acceptable.”
It's a lot of standards, a lot of guidelines, a lot of goals. It's not a lot of concrete prohibitions that are backed up
Instead, he says, a definition should enshrine the need for organisations to show they have done everything possible to limit the harm they cause.
Given the issues around amending the statute, it is tempting to look elsewhere for a legal solution, such as the EU's Environmental Crime Directive, which is currently being overhauled.
This month campaigners celebrated after a fourth of the five EU parliamentary committees that are revising the directive voted to support including the crime of ecocide, but such a change would also need to be approved by the entire EU Parliament, the European Commission and the Council of Ministers.
“Of course, we want other mechanisms for prosecuting environmental harm,” says Heller. “The problem is that they're so under-developed and so uneven ... it's such a patchwork. This is the problem with international law, particularly international environmental law. It's a lot of standards, a lot of guidelines, a lot of goals. It's not a lot of concrete prohibitions that are backed up.”
So does civil law hold the solution instead? Last year, the Spanish parliament approved a law that recognised Mar Menor, the biggest saltwater lagoon in Europe, as having rights, including the right to exist and the right to recover its natural balance. Other countries have also moved to grant personhood to non-human entities, including Canada, which has given legal status to the Magpie River, and Colombia, where the Atrarto River now has extra protection.
“You're not going to radically transform capitalism by giving legal personhood to animals and forests,” says Heller, “but you certainly can help in some areas; you can increase the amount of litigation, and that makes it more difficult for corporations to destroy the environment.”
Dr Wendy Schultz is the co-author of Law in the Emerging Bio Age, a wide-ranging report for the Law Society in the UK, in which she argues that legal frameworks have a key part to play in governing human interactions with the environment.
"Part of the issue is embedding some sort of framework for accountability and responsibility for the consequences of these things we do, and that's where law comes in," she says.
However, she warns, “granting legal rights to living systems can affect the way in which indigenous people use their traditional, cultural lands” since it could give corporations and governments the power to disenfranchise them.
I think we are at a point where no government is going to want to be seen directly opposing this
Perhaps the answer, she says, is a court dedicated to international environmental law. “The difficulty that we are so often stuck with is that laws are national, and nations have clear boundaries, and the living environment doesn't.”
For instance, she says, a company in a jurisdiction with tough ecocide laws could relocate its polluting factory over the border into a country where environmental laws are more relaxed, and poison two countries further downstream. Where do those countries turn? Where do they get justice? “We need an overarching and connected system of governance,” she says.
In December the ICC’s Assembly of State Parties convenes in New York and Mehta hopes that the current momentum behind ecocide could finally see an amendment tabled, even if it isn’t ultimately ratified. “I think we are at a point where no government is going to want to be seen directly opposing this,” she says.
This article is part of the February 2023 issue of Sustainable Business Review. See also:
Stop ecocide international International Criminal Court Rome statute EU Environmental Crime Directive