Symposium Exploring the Crime of Ecocide: Can Deforestation Amount to Ecocide?

[Shirleen Chin is the Head of Advocacy & Strategic Partnerships for the Stop Ecocide Foundation, based in The Hague, that runs the “Stop Ecocide: Change the Law” Campaign.]

[This symposium was convened by Shirleen, who was inspired by attending an Expert Working Group on international criminal law and the protection of the environment at the Promise Institute for Human Rights at UCLA School of Law in Spring 2020. See here for the original Opinio Juris symposium which emerged from that meeting.]

In July 2019, President Jair Bolsonaro of Brazil said, “Brazil is a virgin that every foreign pervert desires”. His words can be construed as uncouth, chauvinistic and even violent. His subsequent actions on the Amazon, can only be described as a tragedy, effectively destroying and robbing Brazilians and the international community of the Earth’s lungs, intergenerational equity and the fundamental rights to life, food, water and a healthy environment.

Violence and Impunity

In its 2019 report on “Rainforest Mafias”, Human Rights Watch claimed that violence and impunity fuels deforestation in Brazil, perpetrated by criminal networks. It is no wonder that illegal logging is one of the biggest low-risk-high-profit multi-billion industries. The same year, Global Witness also reported that the logging sector has the highest increase in murders of environmental defenders globally since 2018, at 85% or 24 victims. It is important to note that non-fatal attacks, unreported disappearances, intimidation and threats are also used to silence any opposition to deforestation. Since taking office, President Bolsonaro has introduced aggressive policies to push for the expansion of mining and agribusiness in the Amazon by eliminating standing rainforest protections, thus enabling criminal networks to continue their reign of terror. The accusations made against Bolsonaro include genocide, ecocide and ethnocide and his villainous role is perpetuated even more by the publicity he generates.

However, there are others like Bolsonaro who, in the pursuit of billions of dollars, cause enormous amount of damage and destruction at the expense of people’s lives and the environment. In other parts of the tropical world, such “villains” may be less vocal and visible but their deeds are just as egregious; the same disappearing acts and violence associated with deforestation are just as prevalent in countries like Colombia (Revolutionary Armed Forces of Colombia/FARC), Indonesia (Suharto), Malaysia (Taib Mahmud), Liberia (Charles and Robert Taylor) and the Democratic Republic of Congo (Tajideen family linked to Hezbollah).

The Prosecution Problem

The above actors have never been prosecuted for their crimes against the environment or for causing the deaths of environmental and human rights defenders. Although they may be charged for existing international crimes under international criminal law (the International Criminal Court (ICC) currently only has jurisdiction over four atrocity crimes: crimes against humanity, war crimes, genocide and crime of aggression), there is still a stark absence of an international crime against the environment to charge them for the mass environmental damage and destruction that they inflicted or ordered.  Moreover, if left to the domestic jurisdictions of these actors, there may be no will or ability to take effective legal action.

In other domestic environmental cases where company executives were successfully charged under civil or administrative law, justice appears as a consolation prize to victims because environmental/social externalities are merely factored in as business costs and the remedies received (if any) lack the teeth of criminal law. The question is how many more assaults to the world’s forests and its people must there be before these individuals are stopped – can deforestation amount to ecocide?

Ecocide

Nearly five decades after it was used for the first time to describe the use of Agent Orange by the United States’ military forces in the Vietnam War, the word “ecocide” is finding its way into legal lexicon again. The crime of ecocide has been described as:

“Serious loss, damage or destruction of ecosystems, including cultural or climate heritage”.

The mass damage and destruction inflicted on the world’s rainforests could fall under this description. Wanton razing of the Amazon, Borneoan, Liberian and Congolese forests, homes to indigenous peoples, and species humankind have yet to know, gateways to rich cultural knowledge for future generations and key stabilisers of the global climate system simply should not go unpunished.

The Rome Statute is the governing document of the International Criminal Court (ICC) and in its Preamble, the following is established:

“Determined to put an end to impunity for the perpetrators of these [most serious] crimes and thus to contribute to the prevention of such crimes”.

Because the ICC currently only has jurisdiction over four atrocity crimes, impunity remains high for the political and corporate elites who condone widespread deforestation and violence.  Consequently, there is a pressing need for a new law that would deter individuals from making decisions that result in mass damage and destruction of the environment and that would signal the condemnation of the international community towards those that commit such acts.

In 2016, the ICC took a policy stand on selecting and prioritising “crimes that are committed by means of, or that result in, inter alia, the destruction of the environment, the illegal exploitation of natural resources or the illegal dispossession of land.” In part, this signalled a recognition that the destruction of the environment as a modus operandi and its subsequent impact can occur outside of war (Article 8(2)(b)(iv) Rome Statute), hence also during peacetime and should warrant prosecution. While this is a step in the right direction, the adoption of a new crime of ecocide is a necessary development to ensure the protection of the environment.

A Global Concern

Taken together, the totality of damage to the environment from deforestation has pushed the planet to a tipping point of ecosystem collapse and many innocent lives are at stake. Climate science has pointed repeatedly to deforestation as one of the major causes of climate change. Carbon emissions from deforestation accounts for 20% of global greenhouse gases and because the effects of climate change can have an impact elsewhere in the world, international jurisdiction may be required. Ultimately, by destroying forests, the peoples and future generations will not able to peacefully enjoy the ecosystems they need to exercise their rights to life, food, water and a healthy environment.

Some have suggested that the duty to protect the environment will become erga omnes in the future (see here, here and here). Under international criminal law, where there is a violation of an obligation erga omnes, there should be a duty to ensure that an individual assumes international criminal responsibility. When looked upon this way, there is solace in the fact that the environment is a common concern of the international community and that its protection is of paramount importance. Rather than continuing on a destructive and unsustainable path, the international community could pave the way for more resilient economies that is built upon non-destructive and dissuasive principles by calling for ecocide to be recognised as a fifth atrocity crime at the International Criminal Court.

A Necessity

Despite no consensus on the definition of international crime, a post-Nuremberg definition offers some guidance:

“A crime against international law is “an act committed with intent to violate a fundamental interest protected by international law or with knowledge that the act will probably violate such an interest, and which may not be adequately punished by the exercise of the normal criminal jurisdiction of any state” (Wright 1947). 

The above description could apply to emerging crimes of the 21^st century, such as ecocide, whereupon the ICC has a duty to consider in tandem with its role in fighting impunity, and promoting the rule of law, human rights and human dignity. Thus, in answering the question to this article, deforestation can amount to a future international crime of ecocide.

The crime of ecocide is the missing crime that is necessary to attribute criminal responsibility to those who have misused their positions without regard for their people, the international community and the ecosystems which they rely upon. In the words of another part of the Preamble to the Rome Statute, it is time that the ICC heed the calls to make ecocide an international crime “for the sake of present and future generations.”