A Legal Definition of Ecocide

Abstract

Stop Ecocide Foundationan NGO founded by Polly Higgins and Jojo Mehta, defines 'ecocide' as serious harm to the environment: "mass damage or destruction to ecosystems, committed with knowledge of the risks." Currently there is only one provision in the Rome Statute which mentions environmental damage. It is Article 8(2)(b)(iv). Article 8 is concerned with war crimes. Ecocide is part of several domestic criminal codes, but it has not yet been accepted as an international crime by the UN. Stop Ecocide Foundation strives to make ecocide an international crime by recommending an amendment to the Rome Statute of the International Criminal Court. If ecocide would be added to the Rome Statute as a fifth international crime, it could become an arrestable offense. This way offenders who are responsible for actions or decisions leading to grave environmental harm would become liable to criminal prosecution. In order to realize this amendment, Stop Ecocide Foundation convened an Independent Expert Panel for the Legal Definition of Ecocide, which submitted a legal definition of ecocide on 22 June, 2021.

Stop Ecocide Foundation, an NGO founded by Polly Higgins and Jojo Mehta, defines 'ecocide' as serious harm to the environment: "mass damage or destruction to ecosystems, committed with knowledge of the risks."

Ecocide is part of several domestic criminal codes, but it has not yet been accepted as an international crime by the UN.

Stop Ecocide International strives to make ecocide an international crime by recommending an amendment to the Rome Statute of the International Criminal Court. If ecocide would be added to the Rome Statute as a fifth international crime, it could become an arrestable offense. This way offenders who are responsible for actions or decisions leading to grave environmental harm would become liable to criminal prosecution.

Currently there is only one provision in the Rome Statute which mentions environmental damage: Article 8(2)(b)(iv). Article 8 is concerned with war crimes. 

In order to realize this amendment, Stop Ecocide Foundation convened an Independent Expert Panel for the Legal Definition of Ecocide, which submitted a legal definition of ecocide on 22 June, 2021.

The 4 international crimes mentioned in article 5 of the Rome Statute are genocide, crimes against humanity, war crimes and the crime of aggression. The crime of ecocide is concerned with the most heinous crime on nature. 

Three proposed amendments have been recommended by the Panel. These additions are proposed to be included into the legal framework of the Rome Statute of the International Criminal Court:

1 Addition of a preambular paragraph 2 bis, 

2 Addition to Article 5 (1), i.e. the crime of 'Ecocide' (Article 5 (1)(e)).

3 Addition of Article 8 ter: 

‘For the purpose of this Statute, “ecocide” means 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.’

In Article 8 ter (2) the meaning of the terms 'wanton', 'severe', 'widespread', 'long-term' and 'environment' is defined in more detail.

In contrast to the other four international crimes which are anthropocentric in focus, the recommended definition of the crime of ecocide is ecocentric in nature. It is not focused on humans and the well-being of humans but on the protection of the environment. 

In the words of Philippe Sands, co-chair of the Expert Panel:  "I think it has to be a concept that embraces the idea that the environment as an end in itself, and not an objective to be assured exclusively as a means of assuring the well-being of human beings. [...] . "I sense that on ecocide there is a will to shift things away from a human-centered approach. Whether it happens in practise depends on political will in our new age of nationalism."

The concept of ecocide was first used during the Vietnam War by Philip Galston during the Conference on War and National Responsibility in Washington DC in 1970. Another effort was made by Swedish Prime Minister Olof Palme, who emphasized the need of an international environmental regulatory system to fight grave environmental degradation during the UN Environmental conference in Stockholm in 1972. During the following decades efforts to address the problem of ecocide as a serious crime continued. Another example of an effort to criminalize ecocide was made in 2010 by Polly Higgins, a British environmental lawyer. She submitted a draft law of ecocide to the United Nations Law Commission. Higgins proposed an amendment to the Rome Statute by introducing ecocide as a 'fifth international crime against peace'. 

Currently there exists no single international legal framework of international environmental criminal law to prosecute ecocide and severe environmental destruction.

For over half a century, humanity has been coping with serious global environmental problems, involving the most heinous crimes on the environment, also described as ecocide. C.C. Jalloh, one of the Expert Panel members, expressed being hopeful that the outcome of the draft definition of ecocide will "prove useful to States" and that it "might even catalyze a much needed amendment to the Rome Statute of the International Criminal Court to finally include ecocide in the list of most serious crimes of concern to the international community as a whole.” 

There are several advantages of proposing the international crime of ecocide as an as an amendment to the Rome Statute.  An adoption of the proposed definition of ecocide as recommended by the Expert panel could help to create a stronger international legal framework to help humanity cope with ecocide. Being incorporated in the Rome Statute the international crime of 'ecocide' would become part of the 'hard law' international legal framework. When the crime of ecocide would become part of the Rome Statute it would also ensure coherence across jurisdictions because an amendment to the Rome Statute would also enter the domestic legal systems of ratifying countries. And since the ICC works with a one-state, one-vote basis, both small and big nations have an equally powerful vote.

However, in order to facilitate the adoption of the legal definition of ecocide into the Rome Statute, one of the member-countries of the ICC would have to formally submit the recommendation made by the Expert Panel to the United Nations Secretary-General. Subsequently, a majority of members of the ICC needs to vote on this proposal. In addition, a vote in favor of 2/3 majority of States Parties to the Rome Statutes is needed. 

You can find more publications in the Peace Palace Library catalogue about ecocide here. For more information about environmental crimes, look here. Please look here for information about environmental protection.

Bibliography manually

Books

Broswimmer, F.J., Ecocide : A Short History of Mass Extinction of Species, London, Pluto Press, 2002.

Cabanes, V., Un nouveau droit pour la Terre : pour en finir avec l'écocide, Paris : Éditions du Seuil, 2016. 

Ellefsen, R., R. Sollund, and G. Larsen (eds.), Eco-global Crimes : Contemporary Problems and Future Challenges, Farnham, Ashgate, 2012.

Grinde, D.A., Johanssen, B.E. Ecocide of Native America. Environmental Destruction of Indian Lands and Peoples, Sante Fe, Clear Light, 1995.

Heller, K.J., "Skeptical Thoughts on the Proposed Crime of “Ecocide” (That Isn’t)", Opinio Juris, 23 June 2021.

Higgins, P., Earth is Our Business. Changing the Rules of the Game, London, Shepheard-Walwyn, 2012.

Higgins, P., Eradicating Ecocide : Laws and Governance to Prevent the Destruction of our Planet, London, Shepheard-Walwyn, 2010.

McCuen, G.E., Ecocide and Genocide in the Vanishing Forest. The Rainforests and Native People, Hudson, G.E. McCuen Publications,1993.

Neyret, L. (sous la dir. de), Des écocrimes à l'écocide : le droit pénal au secours de l'environnement, Bruxelles, Bruylant, 2015.

Nicholson, M., Evaluating Ecocide. Invaluable or Invalid? Ecocide Act, [S.l. : s.n.], 2012.

White, R.D., Environmental Crime, Cheltenham, Elgar, 2020. [E-book].

White, R.D., Heckenberg, D., Green Criminology : An Introduction to the Study of Environmental Harm, New York, Routledge, 2014.

Zierler, D., The Invention of Ecocide : Agent Orange, Vietnam, and the Scientists Who Changed the Way We Think About the Environment, Athens, University of Georgia Press, 2011. 

 

Articles

Crook, M., and D. Short, "Marx, Lemkin and the Genocide–Ecocide Nexus", The International Journal of Human Rights, Vol. 18 (2014), No. 3, pp. 298-319. [E-article].

Gray, M.A., "The International Crime of Ecocide", California Western International Law Journal, Vol. 26 (1996), No. 2, pp. 215-271. [E-article].

Higgins, P.,  D. Short, and N. South, "Protecting the Planet: A Proposal For a Law of Ecocide", Crime, Law and Social Change, Vol. 59 (2013), No. 3, pp. 251-266.[E-article].

Johnstone, Ecocide and the Geneva Protocol, Foreign affairs, Vol. 49 (1970-1971), No. 4, pp. 711-720. [E-article].

Kring, F., "Ecocide - Greening the International Criminal Court?", Humanitäres Völkerrecht : Informationsschriften, Vol. 30 (2017), No. 1-2, p. 36-43.

Lindgren, T., "Ecocide, Genocide and the Disregard of Alternative Life-systems", The International Journal of Human Rights, Vol. 22 (2018), No. 4, pp. 525-549. [E-article].

White, R., and O. Hasler, "Ecocide:  Violence Against the Planet", in: Dekeseredy, W., C.M. Rennison, and A. Hall-sanchez (eds.),  Routledge International Handbook of Violence Studies, Abingdon, Routledge, 2019, pp. 309-319. 

Zimmerer, J., "Climate Change, environmental violence  and Genocide", The International Journal of Human Rights, Vol. 18 (2014), No. 3, pp. 265-280. [E-article].