29 Jul Ecocide: Environmental Crime of Crimes or Ill-Conceived Concept?
Michael Karnavas is a criminal-defence attorney and former President of the Association of Defence Counsel of the ICTY. He currently represents Paul Gicheru at the ICC. This post first appeared on his personal blog.
… man has consciously and unconsciously inflicted irreparable damage to the environment in times of war and peace.
Richard A. Falk, 1973
And will continue to inflict irreparable harm. Environmental degradation and climate change are coming to the forefront of global anxieties with reports of CO2 emissions hitting record levels in 2020 (with a minor dip thanks to COVID), 178 million hectares of forest – an area the size of Libya – being deforested since 1990 (and continuing with impunity), and oil pipelines bursting, leaking into the sea, and causing massive damage to coastal communities (while underneath, 70% of the earth’s coral reefs are at risk due to long-term threats). More desertification, drought, fires, and floods are only expected – at least by the majority of 1.2 million people surveyed worldwide by the United Nations Development Programme who consider that climate change is a global emergency. And this is just peace time pollution. Aside from the obvious environmental damage caused during conflicts, War Junk – weapons and military materials such as landmines, cluster munitions, chemical and radiological weapons – also leaves environmental legacies post-conflict, restricting the use of agricultural land and polluting soil and water sources with explosives and deadly chemicals such as TNT, adamsite, Clark I and Clark II, tabun, and mustard gas, just to name a few.
Claiming that “scientific evidence points to the conclusion that the emission of greenhouse gasses and the destruction of ecosystems at their current rates will have catastrophic consequences for our common environment,” the Independent Expert Panel for the Legal Definition of Ecocide (IEP) assembled by the Stop Ecocide Foundation proposes that the Rome Statute be amended to include the crime of ecocide. Bold, impressive, even alluring. But is the proposed crime necessary, is the definition of it sound, and more pragmatically, how realistic is it that the Assembly of States Parties (ASP) will adopt a fifth international core crime – even if the proposed Article 8 ter crime of ecocide is considered necessary and sound?
The IEP’s Commentary and Core Text – packaged as a PR pamphlet-like exposé with three sets of portraits of each of the twelve members and the word “ecocide” handwritten over two of the sets of portraits (kitschy considering the seriousness of the matter), a one-page introduction and commentary that spans all but around five pages – made a big splash. Many in the social media sphere heralded this initiative as a new dawn for the environment and the beginning of the end of the culture of impunity for ecocide – a concept that was coined by Professor Arthur W. Galston at the Conference on War and National Responsibility in Washington, in 1970 and formalized into a definition in 1973 by Richard A. Falk in his initiative for an adoption of an Ecocide Convention. The term and Falk’s initiative picked up some formidable proponents and champions of stopping ecocide, most notably, the United Nations in its first study discussing the effectiveness of the Genocide Convention and proposing the adoption of ecocide as well as the inclusion of cultural genocide in the list of enumerated acts.
But not everyone has been swept up in this euphoria. Not that they are unappreciative of the initiative, or that they necessarily object to the concept of drafting a concise and well-founded definition of crimes against the environment in times of peace/non-armed conflict situations, or that they are unmoved by the ongoing destruction of our planet, or that they are soft on crimes that destroy the environment. To the contrary, the critics of the IEP’s proposed Article 8 ter are as enlightened and concerned as the IEP, but like me (I claim no enlightenment), they see this initiative as unrealistic, the definition replete with flaws, and the commentary remarkably wanting. Here’s my take.
Reading the IEP’s Commentary and Core Text for the first time was as underwhelming as it was confusing. I thought I might be missing something, that I wasn’t getting it. What exactly was this crime about? What exactly was the mens rea? What exactly would someone have to do to meet the actus reus requirements? What exactly is the purpose for calling this crime ecocide if this is not about attacking the environment or ecosystem per se with the specific intent required for the “cide” suffix (as in genocide) then? These are but a few questions that raced through my head. My initial reaction was, and remains, that this proposal is poorly conceived.
I hesitate to re-plow the grounds covered by other commentators, especially by Kevin Jon Heller (here, here, here,) and Kai Ambos (here) whose analysis and criticisms I share. I will nonetheless touch on some of the substantive issues as I see them concerning proposed Article 8 ter, hopefully adding something fresh and worthy to the debate. But first some general remarks.
My first issue is with the name: ecocide. No need to rehash the etymology; it is obvious even without reading the commentary that the IEP borrowed from Rafael Lemkin, who fathered the original conception of the crime of genocide, a term he coined by combining a Greek prefix with a Latin suffix. Ecocide literally translates to killing the eco(system)/environment. The IEP definition does not share the special intent to destroy in whole or in part the environment, because of it being the environment, as such. Hard to imagine that in a non-armed conflict setting (which is the narrow scope of the proposed crime), any individual or corporation (seemingly the target of this crime) would harbor such ecocidal intent. Realistically, proposed Article 8 ter does not (because it cannot) require specific intent. The mens rea is much lower, with the IEP remarking that the default mens rea in Article 30 of the Rome Statute (intent and knowledge) “was too narrow and would not capture conduct with a high likelihood of resulting in severe and either widespread or long-term damage to the environment,” opting instead, according to the commentary for a disjunctive mens rea of recklessness or dolus eventualis. The IEP’s proposed mens rea is confusing if not troubling: a casual and conflating application of knowledge, wanton/reckless disregard, and dolus eventualis. More on this later.
Mens rea aside, why borrow from genocide when the threshold is admittedly significantly lower and the crime itself has nothing in common with the suffix cide? For centuries states have been committing ecocide (in the literal meaning of the word, as opposed to the IEP’s definition) intentionally, knowingly, recklessly, negligently, unintendedly, and unknowingly. Some of the states are run by democratically elected individual(s), some not. For a variety of reasons – ideological, political, economic, social, financial, personal, corruption, ignorance, indifference – they are literally and figuratively killing the environment not just within their borders but beyond. This, in my opinion, is the real crime of ecocide – even if the special cidal intent is missing.
States are permitting, if not promoting, ecocide through projects large and small that erode the environment, pollute the air, deplete non-renewable resources, and sponsor the invention and manufacturing of weapons designed to harm not just the opposing side’s armed forces, but the environment as well. And so on.
I am all for stopping ecocide in the truest sense of the word – the killing of the environment by state practices and policies. But let’s be realistic. Who have been and who are likely to remain the guiltiest of the guilty écocidaires? Well, you can start with the permanent members of the United Nations Security Council and work your way down. It is not an East v. West or a North v. South issue. The two superpowers, the US and China (Russia remains one in the nuclear weapons domain, not economically) are strategic competitors. In the vital national interests of maintaining superiority or catching up, protecting the environment (domestically and abroad) is calculatedly given short shrift. Poor states have even less wiggle room, knowingly trading the long-term benefits of a clean environment for short-term economic development.
Holding states accountable for ecocide is where the focus ought to be. Ambitious? Yes. Practical? No. Pie in the sky? Maybe, at least in our lifetime, though the ongoing wrecking of our planet does not require an epiphanous awakening. But hey, even a humble defense lawyer claiming no expertise should be permitted to indulge in a bit of frolicking from the practical for some Galileo-like stargazing, to ponder the what ifs, and to imagine the seemingly unachievable.
My second issue is with the process from which the Commentary and Core Text emerged. I claim no expertise and far be it for me to question the expertise of the IEP, some of whom I know (others I know of), and all of whom I hold in high esteem and commend for this initiative and efforts.
In the Introduction, the IEP notes that during the drafting process they were “assisted by outside experts and a public consultation that brought together hundreds of ideas from legal, economic, political, youth, faith and indigenous perspectives from around the globe.” A highly inclusive process that deserves praise. Yet, who were the experts consulted in drafting the definition? Were they academics, judges, lawyers with particular expertise, such as in domestic criminal law and international criminal law? Presumably yes, since these are the folks that are most likely to pick up on and appreciate the nuances and devil-hidden details that are likely to be encountered in the application of this new crime, which, by the IEP’s own admission, deviates in some respects from other crimes under the Rome Statute. I am not passing judgment, but observations that struck me as I tried to grasp the nettles of the IEP’s Commentary and Core Text on ecocide.
Having done a bit of drafting and consultation on drafting legislation, I can attest to it being a painstaking process where aside from trying to reach compromise, it is essential to be exact and to have worked out all the permutations of its application so that when debated to be adopted, thoughtful reasoning and justification can be made for the law as a whole (what it aims to achieve), every word selected, every definition provided, every deviation from existing or recognized norms, every punctuation mark used, and so on. Much like given an oral exam, the drafters should be able to articulate with specificity why the law in needed, what is its intended purpose, how it will be implemented, whether other available options were considered, and if so, why were they passed over, etc.
A consultation process is highly advisable, though, in drafting a law such as the one we are discussing, the emphasis ought to be on consulting criminal law experts who, specific to the aim of having ecocide incorporated into the Rome Statute, are well-versed in International Criminal Law (ICL), the drafting of the Rome Statute, the jurisprudence of the International Criminal Court (ICC), as well as the jurisprudence of other international(ized) tribunals and courts. The reasons, as I’ve noted, should be obvious. Drafts should be circulated for comments. And when, as in this case, the draft appears to be settled among the IEP members, perhaps circulate the draft to an even wider range of professionals and experts so what emerges is well-vetted by experts in the field that will deal with the law.
Query whether a peer review was done once the IEP had settled on what they believed to be a solid draft (let’s call it an F-1 draft as opposed to a Final), so it could be picked apart in a thorough fashion? I wager to say no, as can readily be seen by the astute critics who in their busy schedules managed to whip up impressive posts pointing out the obvious, without drilling down as would normally be the case, time and space permitting. Considering that the IEP’s initiative was a private/voluntary project, there was no need to rush the drafting, vetting, and rolling out of its proposal.
As misleading the name ecocide may be when considering that the intent of the IEP was to lend the crime a caché commensurate with genocide, it is sufferable. The substantive shortcomings, however, are not. From a practitioner’s perspective they are far from trivial or cosmetic. So concerning and so obvious are they, that it is hard to fathom that the proposal was properly aired by specialists. If per chance my wager is ill-placed, then it would be interesting to see who the peer reviewers were and what comments, edits, proposals, etc., might they have provided.
Not to belabor the point, having objective, fastidious, and guarded experts scrutinize the text with the explanatory commentary, not only informs those who will ultimately consider the proposal (the ASP), but also garners momentum and support (beyond Twitter and LinkedIn). All efforts in getting the proposal to the intended decision-makers should be set out in a comprehensive commentary. Those consulted – unless they wish to remain anonymous – should be listed. The process should be explained in detail. The narrative should edify the reader more than providing pithy remarks on what was done or why certain choices were made or rejected. Regrettably, as it stands, and I mean no disrespect to the IEP, the Commentary and Core Text pamphlet, both in substance and presentation, is woefully inadequate for its intended purpose.
The third issue is the practicality of this proposal. Here is where, as a practitioner, I set aside any Galileo-like stargazing for some cold, down to earth, practical naval gazing – and I ask: is this proposal actually, feasibly, achievably implementable, or to put in crudely, is it a half-baked pie in the sky?
Let’s set aside any criticism there may be on the text (and there is plenty) and focus on what is being asked by the IEP: adding a fifth international core crime to the Rome Statute, which, according to the commentary, the rationae materiae scope “would develop the existing new law by extending the protections of the environment by international criminal law beyond times of armed conflict to times of peace.” I understand the need for visionary thinking in pushing boundaries. Maybe a crime is needed for assaults on the environment in non-armed-conflict circumstances similar to the IEP’s proposed Article 8 ter is intended to cover. I think not. But that’s beside the point. The question is whether, realistically and practically, this is the time for the ICC to boldly go where no international(ized) tribunal and court has gone before? Here again, I think not.
Let’s not mince words. From a practical point, proposed Article 8 ter is a non-starter. Just consider the history of the fourth international core crime – aggression. But an even more practical point: seriously, since the ICC opened for business, can anyone think of an ecocide crime (under IEP’s definition) subject to ICC jurisdiction that would have been examined, investigated, charged, and tried but for the absence of a boutique ecocide crime in the Rome Statute? I can’t. Nothing provided by the IEP shows that ecocide crimes fitting its definition are being committed with abandon or impunity, so much so that creating and adopting a new international core crime is warranted. Crimes against the environment or environmental crimes often occur, but as I’ve noted, many of them are state-sanctioned. Dare I also go out on a limb in opining that, by and large, the Rome Statute sufficiently provides for the prosecution of acts and conduct generally envisaged by the IEP, albeit not with the mens rea and actus reus as framed by them (either as underlying acts of genocide, crimes against humanity, or war crimes).
Thus far there have been no cases and no jurisprudence to speak of that have tested the contours of the ICC’s statutory provisions, so hard to say that somehow there is this gaping lacuna that requires the adoption of a boutique crime. And at the risk of beating a dead horse ad nauseum (having counseled repeatedly in prior posts about the need to go after low hanging fruit here, here, and here) with all the shortcomings and failures of the ICC (here I am specifically referring to its irrefutably abysmal track record), should not the ICC be targeting its efforts and resources on situations and cases that are within its capabilities and well with the margin of achieving positive results? Is this really the time, with a new Prosecutor and with all the challenges he is facing considering the sad state of affairs as noted by the Expert Report, to go off on a charge in support of amending the Rome Statute and adding a new international core crime (even if not flawed), when there are more pressing issues requiring his full attention?
And then what? Even when Philippe Sands QC, a member of the IEP, was asked to describe a scenario where proposed Article 8 ter would apply, Heller (here) convincingly showed what a prosecutorial nightmare it would be to secure a conviction. As much as we all need to concern ourselves with the ongoing assault on the environment, asking to the ICC to also become the environmental policeman (as some may see it under the IEP’s proposal), teeters on the brink of turning the ICC into the global juridical Leviathan – which, incidentally, some non-States Parties already perceive to be the ICC’s ambition. Better for the ICC to stay grounded and focused on what is within its capabilities and limitations.
The Mens Rea
As I’ve remarked above, the mens rea in Article 8 ter is troubling, confusingly conflating and mixing different mental elements. For purposes of analysis, let’s start with the “default” mens rea under Article 30 of the Rome Statute. It requires that the material elements of the crime are “committed with intent and knowledge.” Under Article 30(2), an Accused has intent where he or she “means to engage in the conduct” and or “means to cause [a] consequence or is aware that it will occur in the ordinary course of events.” “Knowledge” (including the terms “know” or “knowingly”), under Article 30(3) means “awareness that a circumstance exists or a consequence will occur in the ordinary course of events.”
Now let’s compare to the Core Text:
1. For the purpose of this Statute, “ecocide” means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.
2. For the purpose of paragraph 1:
a. “Wanton” means with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated.
In its commentary the IEP concedes that the proposed mens rea under Article 8 ter is incompatible with Article 30 and proposes a “mens rea of recklessness or dolus eventualis, requiring awareness of a substantial likelihood of severe and either widespread or long-term damage.” This explanation is not just deeply confusing (injecting two distinct mens rea into the mix), but contradicts the mens rea terms of “knowledge” and “wanton”/ “reckless disregard” in the text of Article 8 ter.
Knowledge: Curiously, the IEP throws “knowledge” into the definition of Article 8 ter while acknowledging that its definition of “knowledge” is not actual knowledge but “reckless disregard or dolus eventualis.” Thus, for some international core crimes “knowledge” would mean knowledge as defined and intended by the drafters of the Rome Statute, while for IEP’s ecocide, if adopted, “knowledge” would be in name only and would be one of two different mental states, also ascribed with defining features by the IEP.
Humbly, I confess, this is a first for me – though I defer to be corrected. Interestingly, Heller surmises that the IEP added the “knowledge” requirement since the ASP would be overwhelmingly opposed to including recklessness in the Rome Statute. Kai Ambos amplifies by astutely pointing out that the IEP’s wording – “knowledge that there is a substantial likelihood” – “entails a higher (cognitive) threshold than recklessness or dolus eventualis for the very use of the term ‘knowledge,’” and thus “if the drafters had clearly wanted to propose a lower subjective threshold they should have formulated the subjective elements of the crime more straightforwardly.” Sharing their views, put bluntly, this sort of sleight of hand has the whiff of a charade: since when is a rose by any other name not a rose?
Wanton/reckless disregard: Compounding the confusion, Article 8 ter also requires that the acts are “wanton” meaning they are committed with “reckless disregard for damage which would clearly be excessive in relation to the social and economic benefits anticipated.” Thus, the perpetrator must not only know that his/her acts will cause severe and widespread/long-term damage but also that the damage is “clearly excessive in relation to the social and economic benefits anticipated” when balancing the “environmental harms against social and economic benefits.”
Not only does it seem that a perpetrator would have to have a certain degree of clairvoyance, but more puzzling, how to prove it? Seemingly, this “wanton” requirement defeats the purpose of providing a lower mens rea of “recklessness or dolus eventualis” by making it exceptionally challenging for prosecutors to meet their burden of proof beyond a reasonable doubt for a criminal conviction (see here and here). Heller’s example of a CEO in the energy industry (coal, oil, and gas, in particular), a known (legal) polluter, illustrates the point. The prosecution would have to provide sufficient evidence to prove beyond a reasonable doubt that the CEO knew that the damage is clearly excessive in comparison to the social and economic benefits. Yet in applying for the permits for his energy plants and conducting his business, he conducted an environmental impact assessment, taking into account (under the domestic law and corporate policy), the environmental impact of his plants in relation to the socio-economic, cultural, and human health impacts. The state (let’s say a developing one in this illustration) approved the project, considering that despite the anticipated environmental damage, the plants would provide significant socio-economic opportunities for its citizens and money for the state coffers to develop the economy and build roads, schools, and so on.
So, how could the CEO have known at the time that he was committing the crime of ecocide that the damage he was about to cause was clearly excessive in relation to the anticipated social and economic benefits? According to Christina Voigt, a member of the IEP and professor of International Environmental Law at the University of Oslo, “[t]he architectural choice fell therefore on a definition which is dynamic, abstract, and general and hereby would capture wide range of possible perpetrators and acts; some of them might not even be foreseeable from our current state of knowledge”) (here). I am not sure if she is referring to “acts” or “perpetrators” when saying they “might not even be foreseeable,” but this statement taken as a whole (a law that is dynamic, abstract, and general) seems to encapsulate much of what the critics of proposed Article 8 ter find disquieting.
Responding to Heller’s criticism that the “wanton” requirement makes it nearly impossible to prove that an accused was aware that the expected damage would be clearly excessive in relation to the anticipated social and economic benefits, Voigt clarifies that the “wanton” requirement only applies to lawful acts: “The requirement of reckless disregard for the disproportionate environmental damage (i.e. wanton) applies to lawful acts only. In this situation, disregard of excessiveness of the damage is the «criminalizing» factor. The alternative would have been to capture illegal acts only.”
But what exactly does this clarify? The IEP’s distinction between lawful and unlawful conduct is not helpful considering that states permit environmental damage (more on this below). How realistic is to presume that the ASP would agree to criminalizing at the international what states consider to be lawful conduct at the domestic level, which, in many instances is committed by states and state-owned enterprises? Does this reflect the “realistic approach” in proposing a “pragmatic definition that (at least conceptually) would stand a chance to be supported by state parties to the Rome Statute,” as claimed by Voigt to have been one of the guiding “parameters” of the IEP? Hardly.
Dolus eventualis: The IEP conflates recklessness with dolus eventualis; the terms are not interchangeable, as at least some members of the IEP should have understood. The recklessness standard (used as an intermediate mens rea in civil, as opposed to criminal proceedings in the United States) means “[c]onduct whereby the actor does not desire harmful consequence but nonetheless foresees the possibility and consciously takes the risk.” By contrast, dolus eventualis requires an additional volitional element, with the Stakić Trial Chamber providing that:
The technical definition of dolus eventualis is the following: if the actor engages in life-endangering behaviour, his killing becomes intentional if he ‘reconciles himself’ or ‘makes peace’ with the likelihood of death. Thus, if the killing is committed with ‘manifest indifference to the value of human life’, even conduct of minimal risk can qualify as intentional homicide….”
Heller (here) offers two alternative definitions to ecocide, attempting to resolve the confusing mens rea. He would eliminate any trace of anthropomorphism, or alternatively, if “an anthropocentric safety valve was necessary,” he would replace the wanton/recklessness standard with “pure negligence regarding the cost/benefit analysis:”
For the purpose of this Statute, “ecocide” means acts committed with awareness that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.
For the purpose of this Statute, “ecocide” means acts committed with awareness that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts, where a reasonable person would know that the expected environmental damage would be clearly excessive in relation to the social and economic benefits anticipated.
Heller’s definitions may resolve the confusing mens rea in defining ecocide, but the mens rea is significantly lower than that of the IEP, that by his own reasoning, it would likely be summarily opposed by the ASP. If the drafters of the Rome Statute found recklessness to be too low and too easily satisfy the mens rea for the international core crimes, then negligence is a definite non-starter. Article 30 may provide some wiggle room in altering the mens rea in providing for specific intent crimes (“[u]nless otherwise provided…”), but considering the drafting history of the Rome Statute, it is highly improbable that the ASP would accept lowering the general mens rea requirement from knowledge and intent to a knowledge and recklessness and/or dolus eventualis standard(s) – as carelessly mixed by the IEP – or a pure negligence standard, as Heller offers.
The “Unlawful” Requirement
What exactly is unlawful environmental destruction? The IEP elaborates that “the qualifier ‘unlawful’ captures environmentally harmful acts that are already prohibited in law.” Finding the term “unlawful under international law” too narrow, they considered that “[i]nternational environmental law contains obligations for States in treaties and customary international law but relatively few absolute prohibitions, and leaves the bulk of the protection to be formulated at the national level, through national laws.”
The IEP’s core legal text is woefully superficial in failing to define what is lawful, or at least make reference to potential sources of applicable substantive law, considering the complex web of domestic and international environmental laws and regulations, and judgments from arbitration panels, the International Court of Justice (ICJ), and the International Tribunal for the Law of the Sea (ITLOS), which could have been used as resources in framing the punishable damage. It’s worth mentioning that since the 1972 Stockholm Declaration on the Environment (the first world conference on the human environment), states have adopted more than 900 environmental legal texts, including treaties to protect various areas of concern such as flora and fauna, endangered species, specific habitats, shared watercourses, hazardous wastes, transboundary impacts, and climate change. These texts include a myriad of procedural obligations and procedural mechanisms, such as mediation, arbitration, and tribunals such as the ICJ and ITLOS, whose judgments could have been used as assistance in defining the criminalized conduct.
Yet some treaties expressly permit environmental degradation. Take for example, Article 2 of the Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matters, which “taking into account the approach that the polluter should, in principle, bear the cost of pollution,” provides that “Contracting States shall endeavour to promote practices whereby those it has authorized to engage in dumping or incineration at sea bear the cost of meeting the pollution prevention and control requirements for the authorized activities, having due regard to the public interest.” Or take the Paris Climate Agreement, which seeks to address the “threat” of climate change, by:
- Holding the increase in the global average temperature to well below 2°C above pre-industrial levels and pursuing efforts to limit the temperature increase to 1.5°C above pre-industrial levels, recognizing that this would significantly reduce the risks and impacts of climate change;
- Increasing the ability to adapt to the adverse impacts of climate change and foster climate resilience and low greenhouse gas emissions development, in a manner that does not threaten food production; and
- Making finance flows consistent with a pathway towards low greenhouse gas emissions and climate-resilient development.
It bears underscoring that in some treaties, states agreed to accept environmental pollution. Take the Chemical Weapons Convention for example. It exempts states from declaring (or even acknowledging) dumped materials designed to kill which we (now) know to harm the environment. This further supports my thesis that ecocide in its truest sense is knowingly being carried out by states.
The IEP acknowledges that “[t]here are activities that are legal, socially beneficial and responsibly operated to minimize impacts that nonetheless cause (or are likely to cause) severe and either widespread or long-term damage to the environment.” Perhaps this is why they could not provide enumerated or underlying acts for the actus reus of ecocide, since this would have expressly criminalized what states currently believe is otherwise lawful and permitted activity. Here again, Heller’s hypothetical example informs. The coal mining CEO, who after being authorized through the Australian procedure, decides to approve a project even though he knew it was likely to cause widespread or long-term or severe harm to the environment. Presumably, the responsible Australian agencies, most likely with the backing and blessing of the elected government, would have also been aware that the damage to the environment would be widespread or long-term or severe or even irreversible. So why even distinguish between lawful and unlawful acts in the first place?
The Damage Threshold (Severe and Either Widespread or Long-Term)
The IEP adopted these terms drawing from existing provisions in Article 8(2)(b)(iv) the Rome Statute, which describes the prohibited damage under Articles 35 and 55 of Additional Protocol I to the 1949 Geneva Conventions. “Severe” is defined as “damage which involves very serious adverse changes, disruption or harm to any element of the environment, including grave impacts on human life or natural, cultural or economic resources.” “Widespread” is defined as “damage which extends beyond a limited geographic area, crosses state boundaries, or is suffered by an entire ecosystem or species or a large number of human beings.” And “long-term” is defined as “damage which is irreversible or which cannot be redressed through natural recovery within a reasonable period of time.”
Yet while these terms may have seemingly workable humanitarian law definitions, they are also scientific terms, and the ICC Judges – coming from their criminal law, international criminal law, and human rights backgrounds – may not necessarily be positioned to appreciate and assess the complex, scientific, and technical evidence presented by the parties, even with the assistance of experts.
In environmental cases, Courts are often called upon to make a precise judicial ruling in circumstances where the decisive facts concerning environmental harm cannot be immediately quantifiable at the time of adjudication. To illustrate, it is predicted that over time, chemical constituents will leak from munitions dumped at sea by states from World War I to the Cold War, resulting in slow discharge into the surrounding water and sediment, absorbing or dissolving in marine waters, binding to particles, or remaining in suspension in overlying waters, bioaccumulating and biomagnifying in living organisms through the food chain. But given the numerous pathways of exposure and mix of contaminants, it is almost impossible to link adverse ecological effects to certain substances.
Called upon to assess the severity under Article 8 ter in like circumstances, the ICC Judges would face a conundrum: they would have to assess the probative value and credibility of the complex scientific evidence proffered by the parties in deciding which evidence to rely on in making their findings – and this sort of assessment is not within their expertise. On the other hand, were the ICC Judges to rely too heavily on experts, this can be seen as an erosion of the judicial authority afforded to them by the ASP. Also, with Article 8 ter’s lowering of the burden of proof to recklessness, the ICC Judges would be well placed (alarmingly) to substitute their own perception of the risk for a scientific analysis of what is deemed “widespread,” “severe,” or “long-term” in the relevant scientific community.
Just a look at an environmental-related ICJ complaint or judgment illustrates the difficulty in making sense of the scientific evidence. In Pulp Mills, in considering whether Uruguay complied with its treaty obligations vis-à-vis Argentina in authorizing the construction of two pulp mills to be commissioned on the River Uruguay, the ICJ Judges had to:
determine whether the concentrations of pollutants discharged by the Orion (Botnia) mill are within the regulatory limits, … assess[ing] them against the effluent discharge limits — both in terms of the concentration of effluents in each liter of wastewater discharged and the absolute amount of effluents that can be discharged in a day — prescribed by the applicable regulatory standards of the Parties … and the permits issued for the plant by the Uruguayan authorities, since the Digest only sets general limits on “hydrocarbons”, “sedimentable solids”, and “oils and greases”, but does not establish specific ones for the substances in contention between the Parties.
Judges Al-Khasawneh and Simma remarked that the ICJ was assessing evidence in this case it simply could not understand, even when assisted by experts. Would the ICC Judges fare any better? Probably not.
No disrespect to the IEP, but frankly, the proposed ecocide as a fifth international core crime to the Rome Statute seems gimmicky (the rolling-out pamphlet doesn’t help) and too cute by half. It reminds me of the use of Michael Moorcock’s coined term “urbicide” in referring to urban restructuring in the United States during the 1960’s, and later in describing the attacks on the urban areas of Sarajevo and Mostar during the conflicts in Bosnia and Herzegovina in the 1990’s. Emotively beguiling as the term urbicide may seem to the destruction of urban centers (be it by social engineering or armed conflict) – a term specifically designed to conjure up visceral imagery (think of the aerial bombing and utter destruction of Dresden by the allied forces) – no one to my knowledge has tried to design a discrete international core crime of urbicide. War crimes and crimes against humanity provide sufficient coverage for crimes that fall under the rubric of urbicide – loosely or restrictively this term may subjectively be considered and defined.
Query whether the deeply flawed IEP proposal to include a new international core crime of ecocide in the Rome Statute is necessary. Put differently, can and will it do anything for the intended victims that cannot be done by the existing Rome Statute or through other avenues? Would not domestic civil (as opposed to criminal) trials be more effective in meting out heavy financial penalties to financially compensate victims and imposing injunctions to prevent future ecocide – at least in states with robust and functioning legal systems?
One approach may be to aggressively pursue domestic legal changes when it comes to imposing environmental injunctions and remedying victims of environmental damage. An alternative approach gaining momentum in domestic legal systems (particularly within indigenous spheres) is to recognize the rights of nature: affording legal personality to the environment (from lakes to oceans to mountains to mountains to ice caps). Yes! This means affording legal personality to the environment to grant it standing in court to sue on its own interests (there is at least one success story so far, with the Vilcabamba River in Ecuador winning a constitutional injunction in its favor). This approach of course requires a rethinking of our western conceptualization of the environment, but I think it merits consideration.
The IEP’s proposed ecocide needs a serious rethink. Start by scrapping the name ecocide for something which appropriately represents the essence of the crime, such as crimes against the environment (to borrow from the World Conservation Congress’s term used in the trans-national context for environmental crimes such as wildlife trafficking, and illegal fishing, logging, and mining). Consideration could be given to including Heller’s definitions as an added or alternative points of departure, though the mens rea is so watered down that it does not reflect what the drafters of the Rome Statute had in mind in defining the international core crimes falling within the ICC’s jurisdiction. Were the IEP to be disposed of using their current proposal as a working draft, it should be circulated for a serious critique be experts in criminal law and international criminal law. The re-drafting and circulating should continue until the kinks are worked out and a comprehensive commentary is produced that could then serve as a serious starting point for the arduous journey of convincing the ASP to amend the Rome Statute and add a fifth international core crime.
In the final analysis, the definition should express the elements of a crime that are: (a) clearly needed to fill an existing gap as claimed by the IEP (unconvinced, I recall my but for observation); (b) clearly articulated and absent of the sorts of flaws found in the IEP’s proposed definition of ecocide under Article 8 ter; and (c) clearly adoptable by the ASP.
Oh, and drop the portraits.
I am indebted to my colleague Mr. Noah Al-Malt’s exceptional contributions to this post. In addition to working with me at the international(ized) criminal tribunals and courts, Mr. Al-Malt is a member of the International Scientific and Technology Advisory Board on Underwater Munitions, which provides independent technical advice in response to sea-dumped munitions in addition to promoting dialogue among interested governments and international organizations.
 Black’s Law Dictionary 1298 (8th ed.2004) quoted by the United States Court of Appeals for the 9th Circuit in Fernandez-Ruiz v. Gonzales, 466 F.3d 1121 (9th Cir. 2006) (discussing the differences between “criminal negligence” and “recklessness” in concluding that neither recklessness nor gross negligence is a sufficient mens rea to establish the crime of violence).
 Declaration of the United Nations Conference on the Human Environment, U.N. Doc. A/Conf.48/14/Rev. 1(1973); 11 ILM 1416 (1972).
 Djamchid Momtaz, The United Nations and Protection of the Environment in Martin Ira Glassner (ed.), United Nations at Work 58 (1998).
 Convention on International Trade in Endangered Species of Wild Fauna and Flora, 27 UNTS 1087 (1973).
 Convention on Wetlands of International Importance Especially as Waterfowl Habitat, 14584 UNTS 246 (1971).
 Convention on the Law of Non-Navigational Uses of International Watercourses, 36 ILM 700 (1997).
 Convention on the Control of Transboundary Movements of Hazardous Wastes and Their Disposal, 1673 UNTS 126 (1989).
 Convention on Environmental Impact Assessment in a Transboundary Context, 1989 UNTS 309 (1991).
 Vienna Convention for the Protection of the Ozone Layer, 1513 UNTS 293 (1985).
 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction 1974 UNTS 45 (1993), Arts. III, IV. See also OSPAR Commission, Assessment of the Impact of Dumped Conventional and Chemical Munitions (updated 2009); HELCOM, Report on Chemical Munitions Dumped in the Baltic Sea, Baltic Sea Environment Proceedings No. 142 (2013); CHEMSEA, Results from the CHEMSEA Project – Chemical Munitions Search and Assessment (2014); Guilherme Lotufo, Gunther Rosen, William Wild, and Geoffrey Carton, Summary Review of the Aquatic Toxicology of Munitions Constituents, US Army Corps of Engineers (2013); Strategic Environmental Research and Development Program, White Paper, Munitions in the Underwater Environment: State of Science and Knowledge Gaps (2010).
 Guilherme Lotufo, Gunther Rosen, William Wild, and Geoffrey Carton, Summary Review of the Aquatic Toxicology of Munitions Constituents, US Army Corps of Engineers (2013), p. 77.
 Strategic Environmental Research and Development Program, White Paper, Munitions in the Underwater Environment: State of Science and Knowledge Gaps (2010), p. 7.
 HELCOM, Report on Chemical Munitions Dumped in the Baltic Sea, Baltic Sea Environment Proceedings No. 142 (2013), p. 58.
 Guilherme Lotufo, Gunther Rosen, William Wild, and Geoffrey Carton, Summary Review of the Aquatic Toxicology of Munitions Constituents, US Army Corps of Engineers (2013), p. 7.