Your Guide to Ecocide – Part 2: The Hard Part

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

In part one of this post, I mapped out the main controversies and choices to be made in defining ecocide.  I now introduce the most difficult conundrum: how to align ecocide with environmental law.  The problems are not initially obvious.  Kevin Heller’s initial posts understandably express some horror at proposals that ecocide might hinge on the “illegality” or “wanton” nature of the conduct.  After all, surely causing widespread, long-term and severe (“WLS”) harm should be outright criminalized, full stop?  I had similar reactions at the start of my studies, and have had many conversations along the same lines.  In this post, I will explain why international environmental law (IEL) does not contain that type of outright prohibition and why it engages in balancing, and then I will map out some of the resulting options for a crime of ecocide.  Each option raises its own problems, so we are left with imperfect choices.  It is possible that someone – perhaps some reader of this post – may yet find some more elegant “missing link” to harmonize criminal and environmental law.

The Problem: Why Impact Alone is Not Enough

Are you reading these words on an electronic device?  Your device is made of rare earth and other materials that were torn from the earth, and then transported to factories, assembled, and shipped to you, with inevitable waste and pollution at each step.  The major computer-making companies have each created hundreds of millions of computers.  Given that scale, the operations of each major company easily surpass the WLS threshold, even if they are using the best affordable technologies and techniques to avoid and mitigate harms.  If knowingly creating a WLS impact were sufficient for ecocide, then the CEOs and directors of each company should go to prison.  Aren’t the consumers who created the demand and used the products also complicit? Where would you get your next computer once the main manufacturers are in prison?  Given the benefits of computers, would this outcome be good policy?  This is why environmental law looks not only at impacts, but also at benefits and at adequacy of measures to mitigate harms.

Have you ever flown in an airplane?  Even with available technology to reduce impact, air travel causes significant pollution.  The major airlines, with millions of flights, reach the WLS threshold.  Should they go to jail?  Are you complicit? Would ending air travel be good policy?  You might say that the solution is to use pollution-free aircraft, but do you have designs for such an aircraft?  Again, a nuanced approach, reflecting IEL, looks at impact, benefits, use of best available technology to mitigate harm, and other principles.

Do you eat food?  There are 7.8 billion humans on the planet.  Producing food to sustain the lives of billions of people causes very serious environmental harm – a major ecological footprint.  The major companies, bringing food to hundreds of millions of people, thereby also knowingly create WLS harm, even if they were to use best practices (sadly often they do not).  Problems similar to these arise in relation to the energy, vehicles, and products that you use. 

I point all of this out not because I am a cigar-chomping capitalist advocating the unabated plunder of the world’s resources.  I point it out to show why IEL is not as absolutist about harm as one might at first assume.  Of course, we need greener energy, transport, products, and food, as well as less consumerism.  But an incorrectly blunt criminal law will not achieve that societal transformation (nor would it attract a critical mass of support).

Here is the single hardest issue in ecocide: There are activities that may foreseeably cause WLS harm and yet they may be socially valuable, environmentally responsible, legal, and ethically appropriate.  Most of us are shocked by this, but consider again the points above about food, transportation, computers, and so on.   Indeed, to criminalize WLS harm simpliciter would create a strange incentive: Companies could avoid reaching the WLS threshold by splitting themselves into dozens of smaller companies, each doing smaller-scale operations.  But that would be very inefficient and wasteful, and it would do nothing to reduce pollution.  The constant changes in operations and loss of economies of scale would actually increase pollution. 

Thus, the goal should not be to punish actors for being the biggest actors; the goal should be to target those who cause egregious and irresponsible harms.  Focusing on egregious and irresponsible harm is the road consistent with environmental law.  It also has a chance of being adopted by states.  Given the wanton destructive activities around the world today, such a crime would be relevant and valuable.  A crime of ecocide aligned with IEL can strengthen the moral and social censure against the worst polluters, thus playing a part in the needed shift in consciousness.  IEL also includes special recognition for the situation of developing countries, so that South-North equities and efforts to eradicate poverty are also considered, which should help earn greater acceptability.

But how do we delineate the internationally punishable activities?  Criminal law requires fairly precise definitions and predictability, whereas IEL involves balancing and trade-offs, with few hard and clear prohibitions.  This is the “squaring the circle” problem. 

In domestic law, the quandary is usually solved in this way: (1) An environmental regulatory process assesses benefits and harms, and grants or withholds permission to operate with specified conditions.  (2) The offences generally involve doing the harmful activity without a permit.  This creates the requisite clarity for the criminal law (one either has or does not have permission), while the balancing is done at the stage of licensing and setting conditions.  The challenge for ecocide is that there is no similar international environmental regulator, so that option is not available.

How to Square the Circle?

Here are some of the known options.  Every possible option can criticized for some failing.  Some options can be combined as alternatives, mitigating the weaknesses of each, but any definition will be imperfect.

1. WLS Without Caveat: One option is to push for criminalization of WLS harm without any caveat. However, this option has the considerable negative policy problems noted above (eg coordinated efforts to create and distribute food).  Further, by focusing only on scale of operations, it creates an incentive to fragment and duplicate operations, which would increase pollution (whereas the IEL approach, examining adequacy of impact-reducing measures, incentivizes better practices).  Because of these problems, this option seems unlikely to get adopted.  Furthermore, while going beyond IEL is possible, it also raises the “leapfrogging” problem.  Generally, ICL criminalizes matters that have wide consensus among the international community as a whole; ICL’s contribution is to elevate those prohibitions to the status of crime.  Banning WLS harm outright is extremely attractive and probably necessary, but this should be pursued in IEL, which has better tools to think about how to reform and reconfigure human society to achieve it.  Criminal law is a clumsy and inappropriate tool for complex societal reform.  Getting states to criminalize ecocide will be incredibly difficult even if it conforms with existing IEL; pushing for a conception that has little acceptance may sink the ecocide project.

2. Adopt a Threshold So High that “Balancing” is Unnecessary: This option has the excellent merit of simplicity. The problem is that there is no quantum of harm that states have agreed to prohibit.  Perhaps states would agree to a new, no-balancing crime if the threshold were set as high as “exceeding planetary boundaries”, as suggested in one past proposal.  But such a high threshold makes the crime much less valuable, because there are lesser but still massive harms committed daily which are irresponsibly destructive.  The latter are destroying our shared habitat more than any one planet-killing project.

3. Illegality in IEL: This, I think, is the default starting point for ICL jurists, since ICL generally draws on international law. A definition could refer, for example, to “serious violations of international environmental law”, plus the impact threshold and fault standard. This approach clearly aligns ecocide with IEL.  However, the problem is that there are very few concrete prohibitions in IEL that could apply to actual conduct (eg.  maritime pollution or hazardous waste).  So this approach would catch relatively little, at least until customary IEL and case law fleshes out with more robust prohibitions.

4. Illegality in National Law: At first glance, this option is absolute anathema to ICL jurists (as it was to me). After all, ICL lays down rules that transcend national law.  However, given that IEL relies so heavily on national systems to do the prohibiting, it is arguably appropriate to refer to international illegality or national illegality.  Notice that this option does not say that national permission makes it ok to do something unlawful under international law. This option creates an alternative route, in addition to international unlawfulness.  Many of the worst environmental harms are already illegal under national law (as one illustration, it has been estimated that 95% of Brazilian deforestation is illegal), so this option catches a lot of the targeted conduct.  It should also be acceptable to states, because it does not intrude on sovereignty.  It also satisfies the legality principle.  Nonetheless, a concern with this approach is that national laws have highly variable standards; by default ICL prefers a single uniform standard.  (This downside may however be outweighed by the benefits).

5. Fraud or Corruption: An additional route to “wrongfulness” could be fraud, corruption, or deliberate misrepresentation.  These are clear and familiar concepts for criminal law.  Many of the worst environmental harms are accompanied by fraud or corruption.  There is widespread state consensus that fraud and corruption are wrong.  There is precedent as well – for example German law says that conduct is not “lawful” in national law if it was procured through fraud or corruption.  This option also creates a valuable incentive not to lie or to bribe to get approval for high-impact project.  This would not be the entirety of the formula, but it could be helpful as one of the alternatives.

6. Impact Assessment. A different direction is to engage in some type of balancing to identify projects that would clearly fail any legitimate impact assessment. An example of this is the Panel definition, which refers to “clearly excessive” harms (or earlier proposals referring to “wasteful” acts).  Admittedly, this option raises the problems that Kevin has rightly noted: uncertainty, complexity, and expensive litigation.  In my view, for legality reasons, any such review would have to be narrow (eg. “clearly” excessive), with a high level of mens rea, because otherwise the shroud of uncertainty hanging over industry leaders would be legally objectionable.  In support of this option, there is far more transnational jurisprudence on impact assessment than there is for the proportionality test in Article 8(2)(b)(iv) of the Rome Statute, so it may have more clarity than what states have already accepted. The definition or an understanding could even include a list of principles guiding the assessment (eg right to sustainable development, intergenerational equity, precautionary principle, common but differentiated responsibilities, polluter pays, etc).  However, this option can certainly still be criticized for its uncertainty.

7. Wilful Failure to Take Measures: A modification of the previous option would be to focus, more narrowly, on wilful failures to take readily-available measures to prevent, mitigate or abate harms. This option is less open-ended and more “factual” than the previous option, as it focuses only on mitigatory measures taken.  Any such provision should focus on truly egregious cases, not borderline calls, since ecocide is meant to be a serious international crime.  Consistently with IEL, “readily available” measures refers to affordable measures, taking particular account of the situation of developing countries.  Downsides of this option are that it does not examine whether the activity was worthwhile in the first place. It will also still raise qualms about ambiguity and ex post weighing by judges.

8. Combinations: Combinations of the above approaches, as alternatives, may reduce some of the weaknesses particular to each. For example, the Panel definition adopts both national and international illegality as well as its “wanton” test (a balancing test focused on egregious cases). Any combinations will still be imperfect.

9. Other Options: It is possible that there is yet some undiscovered elegant solution. I have not yet studied the wave of exciting recent cases, or other developments in customary IEL or rights-based environmental law cases, including indigenous rights, that may yet offer the “missing link”. For example, a definition might perhaps defer to national impact assessments, unless specified red lines are crossed (fraud, corruption, failures to consult, or specific human rights violations). 

Anthropo- or Eco-Centric? An Overstated Dichotomy

A lot of the recent debate has focused on whether the definition is or should be “ecocentric” (focused on the environment as an end in itself) or “anthropocentric” (focused on the resulting harm to humans and human interests).  I would suggest that this supposedly bright dividing line is an overstated dichotomy:  Protecting the environment also protects human health; conversely, protecting humans from environmental harm also protects the environment.  The plausible range of definitions will have features of both. 

A few commentators have suggested that, if the definition balances harms with social and economic benefits, then it is not ecocentric and thus it is “not ecocide” or otherwise a failure.  There are good reasons to be less categorical.  First, it will surprise many ICL jurists to learn that even environmental law itself is primarily anthropocentric.  So far, it has been the anthropocentric approach that has convinced humans to adopt environmental protections, enabling progress in environmental law.  Rightly or wrongly, contemporary IEL largely focuses on management of shared resources, global commons problems, negative transboundary externalities, and intergenerational equity (ie sustainable development not zero-impact).  The approach has produced major efforts to curb air and water pollution and control toxic products.  Some people are rightly pushing to make environmental law more ecocentric, which is valuable in many areas.  But in 2021, some anthropocentric dimension in ecocide is valuable (1) for consistency with IEL and thus legality and legitimacy, and (2) strategically, ie. convincing human officials to adopt the crime. 

Second, the definitional argument – that the crime is “not ecocide” unless it is purely ecocentric – implies that the speaker already has access to the Platonic essence of “ecocide”, in order to declare what it is and is not.  But ecocide is a construct that has not yet been constructed.  Surely the idea that ecocide might refer to the most serious violations of environmental law and principles is at least among the plausible options (some might say it is the most plausible option).  So I do not think it can be ruled ab initio off the table definitionally.

This is why I personally favour a “mixed” approach with ecocentric and anthropocentric aspects: both for principled legitimacy reasons and for acceptability (securing critical support for a definition that will help both humans and the environment).  Ecocide would still be ecocentric compared to other core crimes, since it is focused on the environment, but it would have the underlying concern with human interests that is common to all ICL crimes.

Conclusion

My aim was to show why defining ecocide is trickier than it first appears; it raises quite novel problems so that no simple solution is available.  Any path will have flaws.  Finding a solution might require ICL experts to reconsider our initial reactions (for example, our general shared resistance to letting national law play a role).  Alternatively, there may yet be other undiscovered elegant formulas to circumscribe the most egregious violations of environmental law.  Perhaps some reader of this post will have the “eureka” moment, providing the as-yet elusive missing link.