Progress is increasingly being made in the pursuit of the formal recognition of the crime of ‘ecocide’ – “killing of the environment”. With the convening of an expert drafting panel of internationally-renowned lawyers, an endorsement from the European Parliament’ ENVI Committee, and backing from various individual states, ecocide could soon be a formalised, enforceable legal term on the global stage.
Work remains to be done, however, in terms of the broad themes and purpose of defining the crime, as well as the linguistic specificities of the definition. Speaking at the official side event of the 19th Session of the Assembly of State Parties to the International Criminal Court (ICC), Kate Mackintosh, a member of the expert drafting panel, struck a cautious tone in setting out some of the key considerations that the panel must tackle before ecocide can become a functioning crime as an amendment to Rome Statute of the International Criminal Court (ICC).
AN ‘ECOCENTRIC’ VS ‘ANTHROPOCENTRIC’ APPROACH
At its core, the very essence of the crime needs to be decided. Mackintosh has framed this as a dichotomy between creating an ‘ecocentric’ or ‘anthropocentric’ crime. A decision must be made as to whether the crime punishes harm to the environment per se, or whether human harm needs to have resulted from the act. If the anthropocentric approach is adopted then, in each individual instance, human harm would have to be proven in court. This may lead to difficulties: frequently, human harm takes time to manifest from environmental destruction. Mackintosh points to the ‘slow, yet accelerating impact of climate change’ as an example, continuing that an ecocentric crime would be far easier to prove and would help foster a greater sense of environmental stewardship.
Similarly, how far-reaching is the scope of the crime going to be? The definition could be narrowly put, encapsulating only ‘massive environmental damage’ such as oil spills or egregious deforestation. Or the drafters could define ecocide broadly, setting out to criminalise ‘climate change’. While criminalising emissions-based acts would have a sizeable effect on the environment, it would be far more difficult to criminalise and prosecute these actions than more specifically defined examples of environmental harm. A broad definition would, in theory, have a far greater effect in protecting the environment, but a narrow view of ecocide would potentially allow for a more time and cost efficient approach.
This gets to heart of the conceptual matter that needs to be first addressed when defining ecocide. Does the international community seek a readily actionable offence that will allow for charges and convictions? Or, is the aim of creating the crime of ecocide to – as Jojo Mehta, cofounder of the Stop Ecocide campaign, puts it – set out a ‘moral red line’, an ethical stake in the ground that shifts the ‘cultural mind-set as well as the legal reality’.
DEFINING THE SCOPE OF CRIMINAL LIABILITY REMAINS A CHALLENGE
Any definition, on a practical level, would need to include the crime’s actus reus: what specific acts would constitute an offence. In relation to fossil fuels and emissions-based crimes, would it be the extraction, refinement or combustion, or even the sale of such materials, that would warrant criminal liability?
Similarly, a threshold will need to be set for criminal liability for emissions-based crimes if they are to be deemed to constitute ecocide. It is a necessity, in the present and in the near future, to continue burning fossil fuels to some extent, but a level of emittance would need to be set that leads to liability if breached. This could be a set limit on emission levels, or a percentage of the world’s emissions that would need to be exceeded to establish criminality. Mackintosh also has suggested that the defining of the crime could take a different tack, and only seek to focus on acts which are already deemed criminal, such as fraud or corruption, in relation to emissions.
Finally, there are certain concerns pertaining to how any form of ecocide law would work ‘in action’. Mackintosh has clarified that a crime of ecocide would be ‘forward-looking’, or prospective, in that it would not seek punish historical acts. This is nothing new: prospectivity is fundamental to the Rule of Law; but it does raise the potential risk of larger actors such as transnational corporations or even foreign states ‘skewing responsibility’ through legal maneuvering, perhaps leading to unfair punishments directed to those in the Global South. Mackintosh has suggested that the law of ecocide could include a criminal law equivalent of the Common But Differentiated Responsibilities principle that is already enshrined within the UN’s Framework Convention on Climate Change. This principle acknowledges the need for individual and collective state responsibility regarding environmental problems, whilst also recognising the varying degrees of influence that states of differing economic development exert over environmental issues. Including this principle in the definition of ecocide would prevent states in the Global South receiving a disproportionate and unfair amount of action against them.
Formalising a crime of ecocide will not be a ‘magic bullet’ – as international lawyer and panel member Philippe Sands has soberly put it – that will solve all our environmental troubles. Questions need to be answered and hurdles need to be overcome to make ecocide a ‘workable’ and ‘effective’ crime on the international level. Yet, with the convening of a draft panel, and the endorsements from countries such as Belgium, Spain and Finland, sizeable progress has been made in the creation of enforceable deterrents to protect our planet.
Jamie is a law graduate from the University of Bristol and is a prospective Public International Law LLM student. He aims to work at firm specialising in International Law and civil liberties. Jamie is particularly interested in the study of the rise of authoritarianism around the globe, especially in Turkey and India.