17 Mar Legally Defining Ecocide: Implications for Addressing Environmental Racism and Prioritizing Human Health in International Law
Carly A. Krakow is a PhD Candidate in International Law and Judge Rosalyn Higgins Scholar at the London School of Economics and earned her MPhil in International Relations and Politics from the University of Cambridge. Twitter: @CarlyKrakow.
Acknowledgement: I am grateful to Gerry Simpson for his comments on an earlier version of this piece. Photo credit: Fibonacci Blue
Is it possible to develop a definition of ecocide that enforces long-overdue accountability for widespread environmental harm, while also prioritizing international law’s role for combatting environmental racism and local-level environmental injustice?
In November 2020, the Stop Ecocide Foundation announced that they had convened an expert panel to draft a definition of ecocide. The panel is co-led by barrister and professor Philippe Sands QC, and former UN international prosecutor Dior Fall Sow. The Stop Ecocide Foundation’s website explains that ecocide is “mass damage and destruction of ecosystems—harm to nature which is widespread, severe or systematic”, language that could form a starting point for an official definition. The formation of this panel is a significant international justice development, with a few key caveats to bear in mind. First, a legal definition of ecocide must explicitly prioritize environmental racism and local-level environmental injustice. Second, the expert panel must account for how environmental harms, and environmental impacts on human health, can already be recognized within existing international criminal law.
Environmental Racism and Local Human Rights
Polly Higgins submitted a proposal for an international law of ecocide to the United Nations Law Commission in 2010. Higgins, a celebrated lawyer and activist who spearheaded the cause for recognition of ecocide before her untimely death at the age of fifty in 2019, proposed an amendment to the Rome Statute with the following definition of ecocide:
“Ecocide is the extensive damage to, destruction of or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished”.
This definition has evolved and one explicit meaning for the term does not exist—hence the necessity of the new panel.
The term ecocide, for many, will quickly conjure up shocking images of low-lying island nations being swallowed up by rising seas, dramatic depictions of deforestation, and disturbing photos of wildlife suffering amid massive oil spills. Many of these images are displayed on the Stop Ecocide Foundation website. They do important work to help make a potentially broad and abstract concept tangible. These images, as representations of the devastation of environmental exploitation and the climate crisis, are key for getting a sense of what the crime of ecocide is all about.
Equally important, however, are local-level instances of environmental injustice that are insidious and appear smaller in scale, but have long-term, catastrophic effects for already-marginalized communities of color and Indigenous communities. Take, for example, the now-infamous water crisis in the majority-Black city of Flint, Michigan in the United States. In Flint, the water supply for over 100,000 people was contaminated with dangerous levels of lead, and there was a Legionnaires’ disease outbreak when state officials switched the city to a cheaper water source in the midst of a financial crisis. Neither the health of the people of Flint, nor the poisoned drinking water, appear to technically fall under the categories of “mass destruction of ecosystems” or “harm to nature”. Is there space for recognition of these detrimental harms, which emanate from resource access denial, within the realm of international criminal justice?
The International Criminal Court (ICC) is “a court of last resort” that “seeks to complement, not replace, national Courts”. One might ask what water access in a place like Flint has to do with ecocide, or with international criminal law? Flint, after all, is not an armed conflict zone. The answer is that although it is widely presumed that a country like the US is equipped to rectify rights violations in a situation such as the one in Flint on the city, state, or national levels, without the need to venture into the realm of international justice, these presumptions have often led to disappointment.
Another example is Detroit, Michigan, also a majority-Black community subject to water injustice in recent years due to city-mandated water shutoffs for residents unable to pay their water bills. The UN ultimately did play a role in putting international pressure on Detroit’s government to pause water shutoffs (though the city later resumed shutoffs). Catarina de Albuquerque, then-Special Rapporteur on the human right to water and sanitation, visited Detroit, noting,
As Monica Lewis-Patrick, president and CEO of We the People of Detroit, put it, when water was withheld in Detroit, it was like being “a refugee in the city because of the imminent threat”. In the US, Black children are twice as likely as other children to develop asthma, a staggering figure that reflects the reality that communities of color are subject to “pollution inequity”, and seventy-five percent more likely to live in “fence-line” communities—communities subjected to toxic emissions from industrial facilities in direct proximity to their homes.
Would a crime of ecocide account for, or at least acknowledge, these forms of injustice? Would a crime of ecocide complement existing mechanisms for achieving environmental justice at local levels? Even if these local-level examples of environmental injustice were never to reach the ICC, to what extent does the formalization of the crime of ecocide also play a role as a deterrent, and in the setting of an international standard and norm for environmental justice?
A formalized crime of ecocide cannot be reasonably expected to enumerate all forms of environmental injustice within its definition, and recognition of the gravest, most largescale crimes against the environment would be viewed by many environmental justice advocates as a welcome and long-overdue development. But how can language defining ecocide be drafted to recognize environmental racism? Without language that recognizes crimes involving environmental harm that explicitly target minority and marginalized groups, could the formalization of ecocide risk normalizing conceptualizations of environmental justice and environmental crimes as projects that are about the planet, without due regard for the most marginalized and subjugated groups inhabiting it? Without attention to environmental racism, could the formalization of ecocide risk excluding those who are relentlessly victimized by environmental injustice? International criminal law’s existing role in accountability for environmental injustice sheds some light on these questions.
The ICC and Environmental Injustice
Three situations at various stages at the ICC—Sudan, Afghanistan, and Palestine—offer further insight into what the implications of environmental harms have been so far in international law, and how formalization of ecocide could change the treatment of environmental injustice.
Omar Al Bashir, former president of Sudan, was charged by the ICC Prosecutor with war crimes, crimes against humanity, and genocide beginning in 2009, notably including leading a government that contaminated “the wells and water pumps of the towns and villages primarily inhabited” by targeted groups (as noted by Tara Smith), and encouraged members of government-allied tribes to resettle the lands of targeted groups. Sudan is an example where a leader has been pursued for harms to the environment and to public health, as recognized under existing Rome Statute crimes.
The ICC investigation in Afghanistan is ongoing, but as in Iraq and other locations that have been subjected to US military invasion or a US military presence in recent decades, the US military has come under attack for the use of burn pits—open-air burning of toxic materials, believed to release carcinogens and neurotoxins. Research about Iraq has confirmed that exposure to burn pits has led to birth defects in civilians, and after years of advocacy the US government has responded with legislation to recognize the illnesses of US military veterans who became ill after exposure to burn pits. The government has taken no comparable actions to support or compensate civilians in countries that were invaded or occupied. Could US officials be prosecuted for Rome Statute crimes for knowingly exposing Afghans to toxins? While it does not seem that such alleged crimes would meet ecocide’s potential legal threshold for “widespread harm to nature”, such actions could qualify as genocide, or crimes against humanity, for their damaging impacts on targeted groups.
A third relevant illustration is the investigation of alleged crimes in Palestine, where denial of water access and destruction of olive groves has a direct impact on Palestinians’ abilities to live and survive. The illegality of harm to the Palestinian environment, and denial of water access, has already been noted in the 2004 ICJ Advisory Opinion “Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory”. According to a 2016 policy paper, the ICC Office of the Prosecutor intends to prioritize crimes that involve the “illegal exploitation of natural resources”, “land grabbing”, and “destruction of the environment”, all potential crimes in the context of the situation in Palestine. (Allegations of land grabbing have also played a major role in Cambodia.)
Environmentally-related harms such as water access denial, or land grabbing, are covered under existing Rome Statute crimes. These harms should not have to meet a high new threshold, which could potentially be set out in the definition of ecocide, to prove that they amount to “widespread” harm to nature in order to be considered crimes under the Rome Statute. Although it is clear from the Darfur situation that the Office of the Prosecutor has capacity to prosecute environmental harms under existing Rome Statute crimes, explicit acknowledgment of the relationship between ecocide, and local-level environmental racism and environmental injustice, would be a highly beneficial aspect for the drafters to include in their definition of ecocide.
Jojo Mehta, chair of the Stop Ecocide Foundation, speaks compellingly about the promise of the crime of ecocide, such as the potential for “a change in people’s moral conception” and its potential to be a key deterrent to prevent corporations and governments from continuing to carry out widescale environmental harms with impunity. Mehta also notes that ecocide would likely “have to involve mass, systematic or widespread destruction” such as Amazon deforestation on a huge scale, deep sea bottom trawling, or oil spills, rather than, as The Guardian recently put it, “chopping down a single tree on a village green”. It is important, however, that a crime of ecocide be formulated in a manner that recognizes that, sometimes, “chopping down a single tree” is the sign of a deeper problem—such as land dispossession in the Palestinian West Bank, where intermittent destruction of olive trees has proven to be part of a long-term process of environmental injustice. Water contamination or denial of water access for a single city, as in Flint or Detroit, or violations of the rights of Indigenous peoples, as with the Dakota Access and Keystone XL pipelines, are also issues that deserve attention from international criminal law, even if these harms might not seamlessly meet the threshold for “widespread” environmental harm. Connections between these harms and the international climate crisis make it likelier that they would be recognized, but is environmental injustice at local scales alone not sufficiently harmful to justify recognition within international law?
International Criminal Law: A Flawed Enterprise?
A critique that has been launched against efforts to formalize ecocide is that international criminal law is a flawed enterprise, and the wrong home for a formalized crime against the environment. Allegations of an “Africa bias” and Eurocentrism at the ICC due to the disproportionate number of situations investigated in African countries, for example, have been cited as evidence of the Court’s untenability, as have a series of state withdrawals. (Two went ahead, while two were rescinded.)
Is formalization of ecocide still a positive step forward, even if international criminal law is, indeed, untenable and flawed? In answering this question, it is important to note that crimes recognized under the Rome Statute, as it currently stands, already include potential recognition of environmental injustice, as my research has argued. Genocide, for example, includes
“Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part” and war crimes including “grave breaches of the Geneva Conventions”,
including laws outlined in the 1977 Additional Protocol I, which prohibits destruction of
“objects indispensable to the survival of the civilian population, such as foodstuffs, agricultural areas for the production of foodstuffs, crops, livestock, drinking water installations and supplies and irrigation works”.
It is vital that any legal definition of ecocide acknowledge and engage with this existing inclusion of environmental injustice as an aspect of genocide and war crimes. This will help ensure that crimes in which the most significant harm is for people as part of nature, in addition to nature in the first instance, are not overlooked. (The appointments of Philippe Sands and Dior Fall Sow are highly promising in this regard, as Sands’s extensive expertise in war crimes and genocide, and Sow’s experience as an advisor and consultant to international courts and tribunals, suggest that the definition of the crime of ecocide will be attentive to these necessary links to existing Rome Statute crimes.)
International criminal law is flawed, but it is one tool available in the fight against environmental injustice. In the coming weeks and months, activists and the public must make our support for addressing environmental racism in the ecocide definition explicitly known, and must emphasize the importance of developing a crime of ecocide that helps to also strengthen recognition of existing international crimes pertaining to local-level environmental injustice.