Your Guide to Ecocide: Part 1

[Darryl Robinson is a Professor at Queen’s University, Faculty of Law (Canada), specializing in international criminal justice.]

In recent weeks, there has been lively debate on the crime of ecocide, in response to the proposed definition from the International Expert Panel (see here, here, here, here, here,  here, here, and here).  In two posts, I offer you an overview – or a “map” – of the issues, the available options, and the legitimate criticisms applicable to each option.  Most importantly, I will show why combining international criminal law (ICL) with international environmental law (IEL) raises fascinating novel challenges that are not initially evident to those of us trained in ICL.  As a result, there is no elegant “magic bullet” solution; discussion of a definition will have to be a clear-eyed conversation about which set of criticisms to live with.

For over a year, I have been involved in research and discussions on the fascinatingly difficult issues in defining ecocide, as part of a UCLA Promise Institute project.    I was previously involved in drafting ICC crimes, and I initially assumed that the same basic method would apply.  For war crimes and crimes against humanity, we turned to international humanitarian law (IHL) and international human rights law (IHRL), and drew upon the prohibitions that (i) were concrete and applicable to individual actors, and (ii) for which there was a wide moral consensus that the acts were worthy of criminalization.  For the crime of aggression, delegates did the same thing, drawing on the public international law prohibition. 

The eye-opening discovery for me, as I studied IEL treaties and spoke with IEL experts, is that IEL simply does not have concrete and absolute “prohibitions” on conduct in the same manner as IHL or IHRL.  IEL is much more circumspect and cooperative; it requires states to “take into account” particular considerations; it sets principles for sharing common resources; it balances economic development and environmental harm.  To a vastly greater extent that IHL or IHRL, IEL largely leaves it to national systems to do the balancing of economic needs and environmental harms. Even the most famously successful prohibitions, such as on CFC emissions, were moderated in different ways, such as allowing developing countries to meet basic needs.  One of the few concrete prohibitions in IEL treaties is on “illegal traffic in hazardous waste”, but even then illegality hinges on the lack of national permits. 

This frustrates the normal instincts of an ICL jurist: we need clear and concrete prohibitions, and we generally do not want to refer to national legality or illegality, because ICL is concerned with duties that transcend national law.  The initial reactions of my friends Kevin Heller and Kai Ambos are the correct, understandable responses of any conscientious ICL jurist, and match my initial reactions.  But I will show why there is no simple solution, and outline the imperfect options.

The main ingredients of a definition likely include: (1) an impact threshold, (2) a fault standard, and (3) some manner of aligning ecocide with environmental law.  The first two will generate debates as lively as any in ICL, but the third is the most extraordinary puzzle, and will be the sole focus of my second post.

Good or Bad Idea?

The first debate will be whether a crime of ecocide is a good or bad idea.  After all, criminal law is a blunt instrument, to be used with restraint and with mindfulness of its limits and side-effects.  Curbing the ongoing and rapid anthropogenic destruction of the natural environment will require systemic societal reforms, with complicated trade-offs.  Criminal law is not a suitable tool to address these issues.  Supporters of ecocide must recognize all of these limitations, in order to identify the strategic role, if any, of criminal law, as part of a comprehensive solution.

Nonetheless, there are great merits to an international crime of ecocide.  While pollution is addressed in various domestic laws, these laws are patchy, irregular, under-enforced and often corrupted.  The crime of ecocide would shine a stronger light on environmental harms of staggering magnitude.  The harms frequently transcend borders, thus warranting international interest and concern.  A main value of the crime of ecocide may be its “expressive function”: to help underscore that massive environmental harm is not a “mere” regulatory matter.  Destruction of the general shared habitat on which human and other life depends is one of the gravest threats to humanity, warranting a place alongside the serious crimes.  Furthermore, criminal law has often tended to turn a blind eye to “white collar” crime by wealthy elites. Ecocidal acts are commonly committed by enterprises of the global North while acting in the global South, with impacts in the global South.  A crime of ecocide may help reduce such structural injustices by reframing the most rapacious acts as criminal and not commercial.  Even if one believes that there should be a lot less recourse to criminal law, ecocide is among the most serious harms that deserve to be criminalized. 

Which Forum?

Currently, political attention is on amending the ICC Statute to add ecocide.  However, it is worth noting that the ICC is already over-loaded with the crimes currently under its jurisdiction.  The ICC would handle very few ecocide cases in the decades to come.  The ICC Statute also does not include corporate actors, who would often be central actors in a crime of ecocide.

One alternative is a simple convention.  A convention with a significant number of parties, each incorporating the crime in domestic law, could have far more impact.  National systems can also address corporate actors.  A convention could also encourage states to adopt crimes for environmental harms less serious than ecocide.  Headway could be made even without a treaty.  A mere declaration, with a sufficiently accepted definition, could provide states with comfort to adopt it into national laws with extra-territorial jurisdiction. 

List of Acts or General Formula?

Ecocide could be drafted (i) as a general formula (like in the Panel definition), or (ii) with a ”chapeau” and a list of acts, like crimes against humanity.  A list of acts is desirable for specificity and predictability.  However, the main problem – and this was a surprise to me and may surprise other ICL jurists – is that, unlike IHL or IHRL, IEL generally does not succinctly specify conduct that is outright prohibited.  As just one example, the Convention on Bio-Diversity (Art 14) requires states to “duly take into account” significant adverse impacts on biodiversity, and to assess projects “with a view” to avoiding or minimizing harms.  Lists of acts can be created, but at best they will itemize some prima facie problematic acts, not prohibitions; additional ingredients are still needed for the acts to be unlawful, let alone criminally punishable.  The limited value of a list of acts is one argument for the general formula approach.

Impact Threshold?

An impact threshold will distinguish “mere” domestic offences from those warranting international criminalization.  There are a few contenders for an impact threshold, but for reasons of space, I will focus on the one that has the most attention and is likely the most viable.  This is the “widespread, long-term and severe” (hereafter, “WLS”) threshold, from Additional Protocol I and the ILC draft Code of Crimes (1994).  The Panel definition adopts the WLS formula, but makes “widespread” and “long-term” disjunctive alternatives. 

Jurists will surely debate disjunctive versus conjunctive approaches.  It is a natural reflex of every progressive person to push for a disjunctive test, on the reasoning that it will be easier to prosecute and will catch more conduct.  However, a principled approach must also consider less-obvious countervailing considerations, such as maintaining a threshold that justifies international criminalization, building a critical mass of support among states, and preserving the stigma of the crimes.  For example, surely the foreseen impact must always be “severe” to warrant the label “ecocide”. 

Fault Standard?

Another major point of contention will be the appropriate fault standard.  Kevin has rightly pointed out that even though “ecocide” sounds like “genocide”, the recent Panel definition (and most other proposals) does not include the “specific intent” requirement like that in genocide.  While a 1973 proposal by Richard Falk suggested a specific intent, the ecocide literature has largely moved away from it.  The reason, as Kevin correctly notes, is that “specific intent” would make no sense in ecocide; people rarely if ever set out with the purpose of harming the environment as such.  The suffix “cide” (from the Latin caedere) simply means “to kill” or “to cut down”.  The suffix does not entail that there must be a specific intent or any focus on groups.  Consider for example homicide, suicide, fratricide, parricide, regicide, germicide, insecticide and so on.  In my understanding, the point of the term “ecocide” is that it is striking: it conveys the gravity of destroying the habitat on which our lives and health depend, and it does so more forcefully than the labels typically used for regulatory environmental offences. 

At the other end of the spectrum are fault standards like strict or absolute liability, negligence, or criminal negligence.  These standards are often used in environmental offences.  However, they might be too low for a most serious international crime.

That leaves two intermediate contenders: either “intent” or some level of subjective foresight.  “Intent” raises similar problems to those in the genocide discussion above; people rarely have “direct intent” (purpose) of harming the environment.  There would still be “indirect intent” (knowledge of substantial certainty).  However, WLS environmental harm frequently cannot reach a “virtual certainty” standard.  So, an intent standard may arguably exclude too much.

The remaining alternative is to require subjective foresight of some likelihood (or high likelihood) of harm.  Kevin correctly notes that doing so departs from Article 30 of the ICC Statute, which refers to knowledge that something “will occur in the ordinary course of events”.  However, Article 30 is merely a “default” rule, specifying a mental element where none is provided.  Article 30 expressly allows for different approaches; it applies “unless otherwise provided”.  ICC drafters have “otherwise provided” in several instances (command responsibility, superior responsibility, all contextual elements, age of children, flags of truce, distinctive emblems).  Knowledge can relate to risks (see eg. the Elements for Art 8(2)(b)(vii) – “could result”).

If the subjective foresight route is taken, then jurists will debate the appropriate level of certainty.  My hope is that any such discussions will consider all of the factors, including facilitating prosecution on one hand, and the culpability principle and the stigma of ICL on the other hand.

Materialization of Harm or Endangerment?

Another issue in defining ecocide will be whether to require causation: must the WLS harm actually materialize, or is it sufficient that the person proceeds despite foresight of WLS harm?  In other words, will the crime be based on “materialization of harm” or on an “endangerment” rationale?  The endangerment approach avoids the problem of “moral luck”: whether the harm actually ensues is a matter of luck, it is the choice to proceed with foresight of WLS harm that supplies the fault.  There are core crimes rooted in endangerment: for example, genocide (which does not require that destruction of a group be achieved), declaring no quarter, or launching an attack despite disproportionate risk. 

On the other hand, others may credibly opine that the stigma of ecocide requires actual causation of WLS harm.  There are some downsides with that approach.  Causation in environmental cases can be enormously tricky, particularly in cases of multiple contributing harms.  If states do consider a definition requiring causation, it will be important to turn to national legislation and cases in several countries ameliorating the causation issues in complex environmental cases.

Aligning with Environmental Law?

However, by far the most difficult issue is how to align the crime of ecocide with environmental law.  The difficulties are not immediately obvious, so this will be my main contribution in these two posts.  The challenge is comparable to “squaring the circle”: marrying the requirements of criminal law (precision, foreseeability) with environmental law (which involves balancing of different interests and principles).  This challenge is the source of most of the controversy around ecocide, as I will explain in the next post.