Ecocide

Ecocide is human impact on the environment causing mass destruction to that environment.

Ten nations have codified ecocide as a crime. Activities that might constitute ecocide in these nations include substantially damaging or destroying ecosystems, or harming the health and well-being of a species, including humans. It has been proposed that ecocide be a crime punishable by the International Criminal Court.

Aspects of ecocide

The roots of the word are the Greek ''oikos'' (home) and the Latin ''cadere'' (to kill).

Ongoing mass extinction and ecocide

It has been argued that the ongoing mass extinction of species is ecocide. US environmental theorist and activist Patrick Hossay argues that the human species is committing ecocide, via modern industrial civilization's effects on the global environment.

Climate change and ecocide

A notable example is damage to coral reefs from ocean acidification and warming. However ecocide of coral reefs has also been alleged from causes not related to climate change. Criminologists argue that the effects of climate change are a symptom of ever-growing demand from consumers associated with capitalism, combined with an almost total disregard for the long term damage, primarily global warming and rising sea levels caused by these emissions

However others argue that criminalizing ecocide will not tackle the root causes of the climate crisis. In countries without such a law, such as Australia, lawyers may be able to use other laws to protect ecosystems such as coral reefs by limiting greenhouse gas emissions.

Existing international law related to ecocide

The concept of ecocide as an international crime originated in the 1970s, after the use of Agent Orange by the United States during the Vietnam War devastated the local people and wildlife.

Rome Statute, environmental damage in time of war

Currently, there is only one provision in the Rome Statute of the International Criminal Court, related to War Crimes, which explicitly mentions damage to the environment. Article 8(2)(b)(iv) makes it a crime to

Treaty barring environmental modification as a tool of war

Although there is no international law of ecocide that applies in peacetime, in 1977 the United Nations adopted the Convention on the Prohibition of Military or any other Hostile use of Environmental Modification Technique which applied when a State was at war.

Article I of this Convention says, "Each State Party to this Convention undertakes not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party." There is no definition of the terms 'widespread, long-lasting or severe'.

Articles III states that "The provisions of this Convention shall not hinder the use of environmental modification techniques for peaceful purposes."

Efforts to expand the criminalization of ecocide in international law

In July 2019, a group of 24 scientists called for ecocide committed in conflict areas, including commissions indirectly related to conflict, to be punished as a war crime as well.

In 2010, environmental lawyer Polly Higgins proposed that the Rome Statute be amended to include the crime of ecocide. The proposal was submitted to the United Nations International Law Commission which is "mandated to promote the progressive development of international law and its codification". She defined ecocide as:

"The extensive damage to, destruction of or loss of ecosystems of a given territory, whether by human agency or by any other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished".

This definition includes damage caused by individuals, corporations and/or the State. It also includes environmental destruction from 'other causes' (i.e. harm that is not necessarily caused by human activity). The purpose was to create a duty of care to mitigate or prevent naturally occurring disasters as well as creating criminal responsibility for human-caused ecocide.

In December 2019 at the 18th session of the Assembly of States Parties to the Rome Statute of the International Criminal Court, two sovereign states, Vanuatu and the Maldives, in their official statements, called for ecocide to be added to the Statute.

In June 2021, an Independent Expert Panel for the Legal Definition of Ecocide produced a definition and proposed a draft amendment to the Rome Statute. This amendment identifies ecocide among the international crimes of genocide, crimes against humanity, war crimes, and the crime of aggression

Other crimes prosecuted by the International Criminal Court are crimes against humanity, war crimes, genocide, and the crime of aggression.

European Citizens' Initiative

On January 22, 2013, a committee of eleven citizens from nine EU countries officially launched the " European Citizens Initiative (ECI) to End Ecocide in Europe". The ECI is a tool created by the Lisbon Treaty to promote participative and direct democracy. It provides a way for EU citizens to initiate new laws or suggest amendments to existing legislation directly to the European Commission which is the institution which creates EU law.

This particular initiative aimed at criminalizing ecocide, the extensive damage and destruction of ecosystems, and investments in activities causing ecocide, as well as denying market access to the EU for products derived from ecocidal activities. Three MEPs, Keith Taylor, Eva Joly, and Jo Leinen, publicly gave the first signatures. The initiative did not collect the 1 million signatures needed, but was discussed in the European Parliament. The proposal has yet to be accepted by the United Nations.

Proposed definition in international law

On June 22, 2021, the Stop Ecocide Foundation submitted a formal definition for ecocide to the International Criminal Court to create a global legal precedent against which relevant cases of ecological destruction can be judged. The proposed definition of ecocide is:

"unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and widespread or long-term damage to the environment being caused by those acts".

The panel which created this definition was:

History

1970s

The word was first recorded at the Conference on War and National Responsibility in Washington DC in 1970, where American plant biologist and bioethicist Arthur Galston proposed a new international agreement to ban ecocide. Galston had identified the defoliant effects of a chemical later developed into Agent Orange. Subsequently, in 1970, he was the first to name massive damage and destruction of ecosystems as ecocide.

In an ''obiter dictum'' in the 1970 Barcelona Traction case judgement, the International Court of Justice identified a category of international obligations called ''erga omnes'', namely obligations owed by states to the international community as a whole, intended to protect and promote the basic values and common interests of all.

In 1972 at the United Nations Stockholm Conference on the Human Environment, which adopted the Stockholm Declaration, Olof Palme, the Prime Minister of Sweden, in his opening speech, spoke explicitly of the Vietnam War as an ecocide and it was discussed in the unofficial events running parallel to the official UN Stockholm Conference on Human Environment. Others, including Indira Gandhi from India and Tang Ke, the leader of the Chinese delegation, also denounced the war in human and environmental terms. They too called for ecocide to be an international crime. A Working Group on Crimes Against the Environment was formed at the conference, and a draft Ecocide Convention was submitted into the United Nations in 1973.

In 1973, a convention called on the United Nations to adopt a treaty on ecocidal warfare which would, among other matters, seek to define and condemn ecocide as an international war crime. The draft text recognized "that man has consciously and unconsciously inflicted irreparable damage to the environment in times of war and peace."

Westing's view was that the element of intent did not always apply. "Intent may not only be impossible to establish without admission but, I believe, it is essentially irrelevant."

In 1978, the Draft Code of Crimes Against the Peace and Security of Mankind discussions commenced. At the same time, State responsibility and international crimes were discussed and drafted.

The ILC 1978 Yearbook's ''Draft articles on State Responsibility and International Crime'' included: "an international crime (which) may result, inter alia, from: (d) a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas." Supporters who spoke out in favor of a crime of ecocide included Romania, the Holy See,Sub-Commission on Prevention of Discrimination and Protection of Minorities. Study of the Question of the Prevention and Punishment of the Crime of Genocide. 4 July 1978. E/CN.4/Sub.2/416, p.124 and p.130 Austria, Poland, Rwanda, Congo and Oman.

1980s

Ecocide as a crime continued to be addressed. The Whitaker Report, commissioned by the Sub-Commission on the Promotion and Protection of Human Rights on the question of the prevention and punishment of the crime of genocide was prepared by then Special Rapporteur, Benjamin Whitaker. The report contained a passage that "some members of the Sub-Commission have, however, proposed that the definition of genocide should be broadened to include cultural genocide or "ethnocide", and also "ecocide": adverse alterations, often irreparable, to the environment – for example through nuclear explosions, chemical weapons, serious pollution and acid rain, or destruction of the rain forest – which threaten the existence of entire populations, whether deliberately or with criminal negligence."

Discussion of international crimes continued in the International Law Commission in 1987, where it was proposed that "the list of international crimes include "ecocide", as a reflection of the need to safeguard and preserve the environment, as well as the first use of nuclear weapons, colonialism, apartheid, economic aggression and mercenarism".

1990s

The ILC 'Draft Code of Crimes Against the Peace and Security of Mankind' of 1991 contained 12 crimes. One of those was 'wilful damage to the environment (Article 26)'.

As of 29 March 1993, the Secretary-General had received 23 replies from Member States and one reply from a non-member State. They were: Australia, Austria, Belarus, Belgium, Brazil, Bulgaria, Costa Rica, Ecuador, Greece, Netherlands, the Nordic countries (Denmark, Finland, Iceland, Norway, Sweden), Paraguay, Poland, Senegal, Sudan, Turkey, UK, USA, Uruguay and Switzerland. Many objections were raised, for summarized commentary see the 1993 ILC Yearbook. Only three countries, the Netherlands, the United Kingdom and the United States of America, opposed the inclusion of an environmental crime. The issue of adding a high test of intent ('wilful') was of concern: Austria commented: "Since perpetrators of this crime are usually acting out of a profit motive, intent should not be a condition for liability to punishment." Belgium and Uruguay also took the position that no element of intent was necessary for the crime of severe damage to the environment (Article 26).

In 1996, Canadian/Australian lawyer Mark Gray published his proposal for an international crime of ecocide, based on established international environmental and human rights law. He demonstrated that states, and arguably individuals and organizations, causing or permitting harm to the natural environment on a massive scale breach a duty of care owed to humanity in general. He proposed that such breaches, where deliberate, reckless or negligent, be identified as ecocide where they entail serious, and extensive or lasting, ecological damage; international consequences; and waste.

Meanwhile, in the ILC, 'wilful and severe damage to the environment' (Article 26) had been tasked to a working-group: "The Commission further decided that consultations would continue as regards rticle 26…the Commission decided … to establish a working group that would meet … to examine the possibility of covering in the draft Code the issue of wilful and severe damage to the environment ... the Commission decided by a vote to refer to the Drafting Committee only the text prepared by the working group for inclusion of wilful and severe damage to the environment as a war crime."

In 1998, the final Draft Code was used as inspiration for the Rome Statute at the United Nations United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, which was held in Rome. The Rome Statute was the founding document of the International Criminal Court (ICC), to be used when a state is either unwilling or unable to bring their own prosecutions for international crimes.

Ecocide was not included in the Rome Statute as a separate crime, but featured in relation to a war-crime. The test for this war crime was narrower than previous proposed tests. Under the Environmental Modification Convention 1977 (ENMOD) the test for war-time environmental destruction is 'widespread, long-term or severe', whereas Article 8(2)(b) of the Rome Statute 1998 modified the ENMOD test with the change of one word to 'widespread, long-term and severe'. Article 8(2)(b) limited environmental harm to circumstances when "Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated."

2010s

The proposal for the crime of ecocide was submitted to the United Nations by a private party. In March 2010, British "earth lawyer" Polly Higgins submitted to the United Nations an amendment to the Rome Statute, proposing that "ecocide" be legally recognized as the fifth international Crime against peace. The Rome Statute currently acknowledges four crimes against peace: genocide; crimes against humanity; war crimes; and the crime of aggression. Each of these crimes affects human victims. While Higgins' proposed definition of ecocide attends to inhabitants' "peaceful enjoyment", the victim the amendment is primarily promising to protect is not human but environmental.

In 2011, a mock Ecocide Act was drafted and then tested in the UK Supreme Court via a mock trial by the Hamilton Group.

In 2012, a concept paper on the Law of Ecocide was sent out to governments. In June 2012 the idea of making ecocide a crime was presented to legislators and judges from around the world at the World Congress on Justice Governance and Law for Environmental Sustainability, held in Mangaratiba before the Rio +20 Earth Summit, the United Nations Conference on Sustainable Development. Making ecocide an international crime was voted as one of the top twenty solutions to achieving sustainable development at the World Youth Congress in Rio de Janeiro in June 2012.

In October 2012 a range of experts gathered at the international conference ''Environmental Crime: Current and Emerging Threats'' held in Rome at the UN Food and Agricultural Organization Headquarters hosted by the United Nations Interregional Crime and Justice Research Institute (UNICRI) in cooperation with United Nations Environmental Programme (UNEP) and the Ministry of the Environment (Italy). The conference recognized that environmental crime is an important new form of transnational organized crime in need a greater response. One of the outcomes was that UNEP and UNICRI head up a study into the definition of environmental crime, new environmental crime and give due consideration to the history of making ecocide an international crime once again.

In May 2017 a drafting committee convened by the grassroots citizen's movement End Ecocide on Earth, consisting mainly of international ecological policy attorneys Valarie Cabanes, Koffi Dogbevi, and Adam Cherson, published an Ecocide Amendments Proposal in mark-up format, covering jurisdiction, substantive criminal law, procedural due process, declaratory judgements, reparations, and individual or corporate penalty provisions within the existing Rome Statute framework.

In November 2019 Pope Francis, addressing the International Association of Penal Law (AIDP), called on the international community to recognize ecocide as a “fifth category of crime against peace.”

In December 2019 at the 18th session of the Assembly of States Parties to the Rome Statute of the International Criminal Court, two sovereign states, Vanuatu and the Maldives, in their official statements,called for serious consideration of the addition of a crime of ecocide to the Statute.

2020s

In late November 2020, a panel of international lawyers chaired by British law professor Philippe Sands and Zambian judge Florence Mumba started drafting a proposed law criminalizing ecocide.

In May 2021, the European parliament adopted 2 reports advancing the recognition of Ecocide as a crime.

In order to enforce implementation and increase citizens’ trust in EU rules, and to prevent and remedy environmental damage more effectively, Parliament demands that the Environmental Liability Directive (ELD) and the Environmental Crime Directive (ECD) be improved

Also in May 2021 the 179 members of the Inter-Parliamentary Union passed an almost-unanimous resolution stating the IPU "Invites the IPU Member Parliaments to... examine the possibility of recognizing the crime of ecocide..."

Existing domestic ecocide laws

Ten countries have codified ecocide as a crime within their borders during peacetime. Those countries followed the wording of Article 26 of the International law Commission (ILC) Draft which referred to ''intentionally'' causing "widespread, long-term and severe damage to the natural environment" within the context of war - bearing in mind that Article 26 was removed from the final draft submitted to the Rome Statute of the International Criminal Court in 1996.

None of the ten countries established procedures to measure 'intention'. The effectiveness of these laws also depends on other factors including the availability of procedures for enforcement, and the need for an independent judiciary and respect for the rule of law. Many of the countries with national laws of ecocide in place are ranked very highly for corruption and low for respect for the rule of law by Transparency International.

France 2021

In 2021, The French National Assembly approved the creation of an "ecocide" offence as part of a battery of measures aimed at protecting the environment and tackling climate change. Offenders will be liable to up to 10 years in prison and a fine of 4.5 million euros ($5.4 million)

Georgia 1999

Article 409. Ecocide: "Ecocide, i.e. contamination of atmosphere, land and water resources, mass destruction of flora and fauna or any other action that could have caused ecological disaster – shall be punishable by ..."

Armenia 2003

Article 394. Ecocide: "Mass destruction of flora or fauna, poisoning the environment, the soils or water resources, as well as implementation of other actions causing an ecological catastrophe, is punished ..."

Ukraine 2001

Article 441. Ecocide: "Mass destruction of flora and fauna, poisoning of air or water resources, and also any other actions that may cause an environmental disaster, – shall be punishable by ..."

Belarus 1999

Art 131. Ecocide: "Deliberate mass destruction of flora and fauna, or poisoning the air or water, or the commission of other intentional acts that could cause an ecological disaster (ecocide), – shall be punished by ..."

Ecuador 2008 (Constitutional), and 2014 (Criminal Code)

While Ecuador does not formally use the term "ecocide," any intentional damage to the environment in either war or peacetime is classed as a criminal offence, and the country is the first in the world to make Nature a subject (rather than an object) of strong constitutional rights and guarantees.
Constitution, Art. 71: Rights of Nature "Nature or Mother Earth, where life occurs and reproduces, has the right of holistic respect of her existence and the maintenance and regeneration of her vital cycles..."

Kazakhstan 1997

Art 161. Ecocide: "Mass destruction of flora or fauna, poisoning the atmosphere, land or water resources, as well as the commission of other acts which caused or a capable of causation of an ecological catastrophe, – shall be punished by..."

Kyrgyzstan 1997

Art 374. Ecocide: "Massive destruction of the animal or plant kingdoms, contamination of the atmosphere or water resources, and also commission of other actions capable of causing an ecological catastrophe, shall be punishable ..."

Moldova 2002

Art 136. Ecocide: "Deliberate mass destruction of flora and fauna, poisoning the atmosphere or water resources, and the commission of other acts that may cause or caused an ecological disaster shall be punished ..."

Russia 1996

Art 358. Ecocide: "Massive destruction of the animal or plant kingdoms, contamination of the atmosphere or water resources, and also commission of other actions capable of causing an ecological catastrophe, shall be punishable by ..."

Tajikistan 1998

Art 400. Ecocide: "Mass destruction of flora and fauna, poisoning the atmosphere or water resources, as well as commitment of other actions which may cause ecological disasters is punishable ..."

Uzbekistan 1994

Art 196. Pollution of Natural Environment: "Pollution or damage of land, water, or atmospheric air, resulted in mass disease incidence of people, death of animals, birds, or fish, or other grave consequences – shall be punished ..."

Vietnam 1990

Art 342 Crimes against mankind: "Those who, in peace time or war time, commit acts of ... as well as other acts of genocide or acts of ecocide or destroying the natural environment, shall be sentenced ..."

See also

* Ecophagy
* Ecotage
* Environmental crime
* Environmental disaster
* Environmental justice
* Holocene extinction
* Involuntary manslaughter
* List of environmental issues
* Operation Ranch Hand
* Rights of nature
* Scorched earth
* War on drugs#Aerial herbicide application
* Water scarcity
* Toxic colonialism

References

Further reading

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* Wijdekop, Femke. (2016). "Against Ecocide: Legal Protection for Earth.
Great Transition Initiative

External links

Official website of Stop ECOCIDE



Official website of the European citizens' initiative

The story of stuff

To stop climate disaster, make ecocide an international crime. It's the only way
''The Guardian''. 24 February 2021.

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Ecocide
Environmental justice
Environmental law
Theories of law
International criminal law
Global environmental issues
Environment and society
Proposed laws