A relatively new term that’s been hackneyed over the past four decades is ecocide. Ecocide is any activity that causes significant damage to or destruction of an ecosystem to the point where the peaceful enjoyment of a portion of the planet is significantly diminished. This notion, while ambitious, is overly broad in scope. Whether in whole or in part, the destruction of ecosystems is incompatible with the freedom humans have over the earth and our tendency to alter our environments.
Ecocide is not restricted to state-sponsored actions. Corporations are equally capable of perpetrating ecological destruction, which partially exists due to the current parameters that businesses operate internationally. Campaigns of today, supported by the likes of Greta Thunberg and Extinction Rebellion, seek to enshrine the paramount damage done to the natural world, otherwise termed as ‘ecocide’, within the clasps of international law. On the face of it, the issue seems to badger to the extent that the safety of our planet rests on the shoulders of powerful government resolutions.
However, the empty rhetoric reveals itself when the limitations of ICC corner the much-awaited entry of ecocide as a fifth international crime, and how campaigns like Stop Ecocide might be easy to spell but are tough on technicalities. The campaign strives to see ecocide added to the list of crimes that the International Criminal Court (ICC) can try at the highest level, at par with other crimes against peace like genocide, war crimes, and crimes against humanity. While this move reflects the purview and intricacies of the damage to the environment caused by corporations, it falls short of an absolute solution. Regardless of its intention, criminalizing ecocide is insufficient to deal with the causes of ecological decline. This article will analyse how the principle of deterrence and “state” responsibility over individualistic responsibility cannot be applied to any crime in general, let alone ecocide.
Is the advocacy of wanting a fifth crime against peace a viable meliorism? Can it realistically achieve the goal of environmental protection?
Genocide and Ecocide; Not Brothers in Hand
On the propitious date of the 22nd of June 2021, an association of well-renowned legal scholars and lawyers formed the Independent Expert Panel for the Legal Definition of Ecocide (IEP) to bring about a viable and valid definition of the term ‘ecocide’. They dispatched their hope that the definition put forth by their intellectual minds would prove worthy of consideration of an amendment to the Rome Statute of the ICC. Ecocide, as conceptualized by them, would serve to form a new international crime:
For the purpose of this Statute, “ecocide” means unlawful or wanton acts committed with the knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.
This perspective of ‘crime’ mentioned here gives room for much further thought. What strikes the amateur mind would be that the term ‘ecocide’ bears so little resemblance to the act of ‘genocide’, which is hinted to be the brainchild of the latter. What we should blatantly understand is that the stark difference between the two lies in what lights the fire in both these concepts. Genocide is a result of absolute criminal intent, conspiracy and its execution, while ecocide, on the other is avarice and laxity, which also gives it a leeway to be criminalized but, in its entirety, having a different legal process, and not in an international court where its focal point is on armed conflicts. It should be essential that we drill it into our conciseness that ecocide without a doubt cannot be equated to genocide and put on the same level of crime parity.
Genocide is an abominable crime synthesized by syndicates to obliterate a large group of people. What we may be essentially doing is belittling the victims of the Holocaust or the Isaaq genocide. Ecological degradation could cause much harm and obstacles for humans in the manner of migration, famine and other such instabilities. Nevertheless, this is unparalleled to the planned execution of humans through deliberate criminal intent by specific individuals in a situation of genocide. The desire to rid the world of specific groups is at the heart of genocide, as reflected in the protected group and specific intent requirements. The proposed definition has no close connection to how genocide or war crime has been defined. Ecocide raises the issue of nature’s rights. Since when have non-human objects gained the legal status of having a specific international crime attributed to them?
The most problematic of the lot is the phrase in the definition, which says: “wanton acts committed with knowledge. ‘Wanton’ here means they neglect to consider the damage that would clearly exceed the benefits in terms of economic and social well-being. Therefore, the perpetrator knowing that his or her actions will cause severe and widespread environmental damage is inadequate as proof. The damage must also be expected to exceed the social and economic benefits anticipated. Proving that the perpetrator knew there was a substantial likelihood his or her actions would cause environmental damage will be difficult enough; it will be nearly impossible to prove that the perpetrator also knew the expected environmental damage would be excessive in relation to the expected economic and social benefits. It is more important to criticize the need for wantonness in the definition of ecocide.
A comment from the Panel emphasizes that “the Panel was mindful that socially beneficial activities can cause severe and long-term damage to the environment” and concludes that “not all activities likely to cause severe and long-term damage to the environment are illegitimate, or even undesirable. That means it is okay to cause extensive and long-term damage to the environment as long as humans benefit from it. On what grounds the IEP calls such an anthropocentric view of environmental destruction as ecocide is hard to fathom. Either we criminalize or do not criminalize the act of knowingly destroying the environment. The environment either exists to serve us human beings, or it does not. There is no defence for the middle ground selected by the IEP – destroying the environment knowingly is only criminal if humans do not have a good enough reason.
Strict Liability Crimes and the Rome Statute
Article 11 of the Rome Statute, which elucidates on Jurisdiction ratione temporis, emphasises that the ICC has jurisdiction only concerning crimes committed after the entry into force of this Statute. International criminal law does not encompass strict liability as part of its existing framework. The reason for advocating ecocide to be a strict liability crime is that the mental element of intention is not required to deem a person guilty of the crime. To all intents and purposes, this seems like a logical decision as proving endangerment to public welfare over intent or knowledge of Crime can be easy on the plaintiff for the simple reason that the stipulation of intent or knowledge would allow corporations to use the defence that they were unaware of what was going on or the potential environmental consequences of their actions. If intent did not matter, this would be eliminated.
The drawback shines as we discover that if ecocide were to be deemed a crime, the ICC’s trial could not be availed. Art 30(1) of the Rome Statute states that liability arises for a crime within the ICC’s jurisdiction only if ‘the material elements are committed with intent and knowledge.’ To be under the jurisdiction of the International Criminal Court (ICC), a person is required to have intent where (a) In relation to conduct, that person means to engage in the conduct; (b) In relation to a consequence, that person means to cause that consequence or is aware that it will occur in the ordinary course of events.
This essentially stipulates that upon amendment, any crime that must be deemed an “international crime” must have the requirement of intent or knowledge. With a significant endorsement of including ecocide under the Rome Statute under a strict liability offence, the above argument proves itself to be a limitation to the same.
The Corporate Bait in International Law
It is often told that “With great power comes great responsibility.” In this case, maybe not.
When it comes to corporations and their involvement in any international law violation, whether that is genocide or ecocide, it is almost as if they are untouchable. According to the law, companies have a ‘legal personality that is distinct from the persons who run the corporation. Currently, a company/corporation cannot be held liable for an international crime under international criminal law. This can be exemplified in the case of The Ajka alumina sludge spill, 2010, Hungary.
The sludge spill caused hundreds of injuries and deaths. If ecocide, with its proposed definition, was implemented into the Rome Statute to fit in as an international crime, this incident would have been considered a case of ecocide. In that case, The Alumina plant, which belonged to The Magyar Aluminium Zrt Group, a Hungarian company could not have been sued in its entirety. Solely the proprietor or the members of the board would have been sued according to Article 25, which explains Individual Criminal Responsibility.
This would serve as the primary stumbling block. Without a doubt, one can say that any formal inclusion of an ecocide crime in international law will be met with significant opposition due to the political power these stakeholders possess, and the economic ties to various activities. Thereby, it links us to another grey area where we have to question the mechanism in itself, which is whether the ICC would be the pertinent system to prosecute a great number of negligent and greedy company heads.
The ICC is charged to prosecute those ‘individual’ perpetrators with criminal intent. This would surely prove to be a heinous task in the case of ‘ecocide’. Single-Handedly, one of the most critical constraints of the ICC, which does not happen to be under their control, is the autonomy of states, especially non-state parties. In a utopian scenario, where the ICC happens to have no flaws and indiscriminately tries cases, it still has no power or level of legitimacy, making it an utterly impotent organisation.
This is how the concept of the jurisdiction of The International Criminal Court works, in short. A State must first consent to become a party to the Statute by ratifying or acceding to it. Once it is a party, it accepts the court’s jurisdiction. This automatic jurisdiction represents a major advance in international law because, in the past, the acceptance of jurisdiction has, in most cases, be subject to additional State consent. The court’s jurisdiction will not be retroactive. It can only address crimes committed after the entry into force of the Statute and the establishment of the court. But, it has no jurisdiction over matters involving individual criminal responsibility.
This is where the role of states and their autonomy comes into the frame. What are the prospects for cooperation among states that are not parties to the ICC? The ICC naturally hopes that all states will fully cooperate and irrevocably with it and provide it with the necessary assistance to carry out the mission that the international community has entrusted to it. However, from the standpoint of states, it is clear that before providing any assistance to the ICC, they must first fully consider their national sovereignty and security.
Criminalizing ecocide would exacerbate rather than alleviate the core issue of corporate power, which is part of the problem in the first place. The goal of all climate justice proponents ought to be, to reduce the conditions that cause such harm in the first place, and criminalization is diametrically opposed to this. Is the ICC challenging sovereign states’ exclusivity, or is it simply imposing certain restrictions and limits on state authority and competing with the state in the exercise of authority?
Unlike Stalin’s 1944 deportation of Chechens – which constituted a crime against humanity – nobody in the Soviet Union voluntarily planned the Chornobyl disaster. The Dow Chemical Company did not knowingly cause the death of thousands of people in Bhopal the way Saddam Hussein did in Northern Iraq by using chemical gas. If ICC cannot devise a mechanism that would aid in delivering apt environmental justice, then who would? That is how the spotlight falls on the domestic legal system to prosecute those perpetrators lurking in the shadows of environmental injustice.
Many countries already have their set of laws to criminalize ecological degradation, and one does not simply need to complicate it with the abstract nature of the terminology ecocide. By extension, and to put it simply, any work done to protect our environment is indeed applause-worthy. The IEP should be acknowledged for the time and effort put into making a precise and applicable definition of ecocide.
However, what they fall short of is that the ‘crime’ proposed cannot be conferred as a brother of the concept of genocide, mens rea provisions which cannot be practically applied and as a whole has a rather anthropocentric approach when wanting to make it on the same level of crimes against humanity. Criminalising ecocide is not a one-way ticket to resolving the world’s environmental problems. The practicalities of this problem need to be acknowledged, and impediments need to be overcome to make ecocide a potent international crime.
The article talks about the term ‘Ecocide’ and the impact it has on the environment. It strives to bring to light the various reasons for the criminalisation of Ecocide to make it harder for large trans-governmental institutions to harm the environment. It takes a deep delve into the ICC, its jurisdiction and the impacts of criminalising ecocide and what it would mean for sustainability and the future of humanity.
- All-China Environment Federation vs Dezhou Jinghua Group Zhenhua Decoration Glass Co, Ltd  Intermediate People’s Court of Dezhou, Shandong Province, De Zhong Huan Gong Min Chu Zi No. 1 (Civil Judgement) (Intermediate People’s Court of Dezhou, Shandong Province).
- Sophie Yeo, ‘Ecocide: Should killing nature be a crime?’ (BBC Future Planet, 6 November 2020) https://www.bbc.com/future/article/20201105-what-is-ecocide> Accessed 21 January 2022
- Independent Expert Panel for the Legal Definition of Ecocide (IEP), Independent Expert Panel for the Legal Definition of Ecocide COMMENTARY AND CORE TEXT (2021) Art. 8
- Richard A Falk, ‘Environmental Warfare and Ecocide — Facts, Appraisal, and Proposals’  4(1) Bulletin of Peace Proposals 80-96
- Mark Notaras, ‘Should Ecocide Be Deemed a Crime against Peace?’ (Our World – Brought to you by United Nations University, 5 March 2010) <https://ourworld.unu.edu/en/should-ecocide-be-deemed-a-crime-against-peace> Accessed 23 January 2022
- Kevin Heller, ‘Skeptical Thoughts on the Proposed Crime of “Ecocide” (That Isn’t)’ (OpinioJuris, 23 June 2021) <http://opiniojuris.org/2021/06/23/skeptical-thoughts-on-the-proposed-crime-of-ecocide-that-isnt/> Accessed 25 January 2022
- Independent Expert Panel for the Legal Definition of Ecocide (IEP), Independent Expert Panel for the Legal Definition of Ecocide COMMENTARY AND CORE TEXT (2021)
- Jamie Dunkerely, ‘Drafting ‘Ecocide’: Key Considerations’ (Human Rights Pulse, 14 February 2021) <https://www.humanrightspulse.com/mastercontentblog/drafting-ecocide-key-considerations> Accessed 27 January 2021
- Jorun Baumgartner, ‘Jurisdiction Ratione Temporis’, Treaty Shopping in International Investment Law (2016) <https://oxford.universitypressscholarship.com/view/10.1093/acprof:oso/9780198787112.001.0001/acprof-9780198787112-chapter-7> Accessed 20 January 2022.
- Polly Higgins, Earth Is Our Business (Shepheard-Walwyn 2013).
- Janet S. Harring, ‘Index Of Contributors Of Articles, Shorter Articles, Comments And Notes’ (1979) 28 International and Comparative Law Quarterly.
- Dr Gwynn MacCarrick, ‘TERMS OF REFERENCE 6’, INTERNATIONAL MONSANTO TRIBUNAL (2016).
- Murray A. Pickering, ‘THE COMPANY AS A SEPARATE LEGAL ENTITY’ (1968) 31 The Modern Law Review.
- David Scheffer, ‘Corporate Liability Under The Rome Statute’ (2016) 57 HARVARD INTERNATIONAL LAW JOURNAL <https://harvardilj.org/2016/07/corporate-liability-under-the-rome-statute/> Accessed 21 January 2022.
- Stefan Ruyters and others, ‘The Red Mud Accident In Ajka (Hungary): Plant Toxicity And Trace Metal Bioavailability In Red Mud Contaminated Soil’ (2011) 45 Environmental Science & Technology <https://www.researchgate.net/publication/49727189_The_Red_Mud_Accident_in_Ajka_Hungary_Plant_Toxicity_and_Trace_Metal_Bioavailability_in_Red_Mud_Contaminated_Soil> Accessed 21 January 2022.
- Rome Statute of the International Criminal Court, 1998 (Last Amended 2010)
- ‘The International Criminal Court: The Mandate Of The International Criminal Court’ (Hrw.org, 2022) <https://www.hrw.org/legacy/backgrounder/africa/icc0904/2.htm> Accessed 26 January 2022
- Ibid (17).
- ‘Basis Of The Court’S Jurisdiction | International Court Of Justice’ (Icj-cij.org, 2022) <https://www.icj-cij.org/en/basis-of-jurisdiction> Accessed 26 January 2022.
- ‘Customary IHL – Rule 102. Individual Criminal Responsibility’ (Ihl-databases.icrc.org, 2022) <https://ihl-databases.icrc.org/customary-ihl/eng/docindex/v1_rul_rule102> Accessed 26 January 2022.
- ‘State Cooperation And The Challenge To International Criminal Justice’ (The Wire, 2022) <https://thewire.in/law/state-cooperation-and-the-challenge-to-international-criminal-justice> Accessed 26 January 2022.
- Dominik Eisenhut, ‘Sovereignty, National Security And International Treaty Law The Standard Of Review Of International Courts And Tribunals With Regard To ‘Security Exceptions’ (2010) 48 Archiv des Völkerrechts.
Submitted by Afrah Abdul and Aryan Nair, second year law students pursuing B.A.LL.B. from National University of Advanced Legal Studies, Kochi.