10 Apr European Parliament Votes Unanimously for Ecocide
[Kate Mackintosh is the Executive Director of the Promise Institute for Human Rights at the UCLA School of Law, and was deputy co-chair of the Independent Expert Panel for the Legal Definition of Ecocide.]
In an exciting development for proponents of a new international crime of ecocide, the European Parliament on Tuesday agreed a text for the new Environmental Crimes Directive (“Draft Directive”) which prohibits environmental damage in terms almost identical to the Independent Expert Panel (“IEP”) proposal for the definition of the crime. The unanimous position is a big success for the activists and parliamentarians who campaigned to have ecocide included in the Draft Directive. In this post, I compare the European Parliament position to the IEP definition, and briefly consider what this latest step means for the emerging norm.
The Draft Directive would replace the existing EU Environmental Crimes Directive, Directive 2008/99/EC, which dates from November 2008. The IEP definition of ecocide appears in two different places in the Draft Directive: in the recitals or preambular paragraphs, and then in a new article 3(1a).
The IEP Definition
Readers may recall that IEP defined ecocide as follows:
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;
b. “Severe” means 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;
c. “Widespread” means 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;
d. “Long-term” means damage which is irreversible or which cannot be redressed through natural recovery within a reasonable period of time;
e. “Environment” means the earth, its biosphere, cryosphere, lithosphere, hydrosphere and atmosphere, as well as outer space.
The Draft Directive
Article 3(1a) of the Draft Directive establishes a basic category of behaviour which must be criminalized by Member States of the EU. Where this behaviour causes severe and either widespread, long-term or irreversible damage it must be treated as an offence of particular gravity, and it is this category that most closely resembles the IEP definition of ecocide.
Article 3(1a) provides:
Member States shall ensure that any conduct which causes or is likely to cause death or serious harm to any person’s health or substantial damage to the quality of air, the quality of soil or the quality of water, biodiversity, ecosystem services and functions, or to animals or plants constitutes a criminal offence when it is unlawful and committed intentionally. Member States shall ensure that any conduct causing severe and widespread, or severe and long-term, or severe and irreversible damage is treated as an offence of particular gravity and sanctioned as such in accordance with the legal systems of the Member States;
Member States shall ensure that the conduct referred to in paragraph 1 or paragraph 1a also constitutes a criminal offence, when committed with at least serious negligence;
While the IEP had proposed a recklessness standard for the international crime (knowledge of substantial likelihood), the Draft Directive criminalizes both intention and serious negligence, lowering the mens rea requirement.
Severity of Harm
“Offences of particular gravity” are defined in the Draft Directive as those causing severe and widespread, or severe and long-term, or severe and irreversible damage, closely mirroring the IEP threshold of “severe and either widespread or long-term”. The definitions of “widespread” and “long-term” in Article 2(1)(1)(b) and 2(1)(1)(c) respectively of the Draft Directive are identical to the IEP definitions. The definition of “severe” appears without the reference to grave impacts on economic or cultural resources ((2)(1)(1)(a)). The IEP definition drew on the Committee for Disarmament’s commentary to the ENMOD Convention and on military manuals of a number of countries for the reference to economic resources, and added the reference to cultural resources to make explicit the cultural value of elements of the environment, particularly to indigenous peoples.
Under the IEP definition, an act amounts to ecocide when it is either unlawful or wanton. The Draft Directive dispenses with wanton, but expands the definition of unlawful in comparison to the IEP. Article 2(1)(1)(2) of the Draft Directive provides that:
The conduct shall be deemed unlawful even if carried out under an authorisation by a competent authority in a Member State when the authorisation was obtained fraudulently or by corruption, extortion or coercion, or when such conduct breaches a condition of authorization;
Limiting the crime to conduct already deemed unlawful has the advantage of legal certainty, and makes sense in the context of the European Union, whose harmonised framework sets a minimum standard for environmental protection, not least through this very directive. One concern that the IEP had with limiting the international crime to unlawful acts was the dearth of firm prohibitions at an international level and the potential variation in national standards. The inclusion of the corruption, extortion or coercion elements is a valuable addition (and was one option proposed by the Promise Institute Group of Experts in April 2021).
Crime of Endangerment vs Crime of Result
While any conduct which causes or is likely to cause death, serious harm to health or serious environmental damage to the environment must be criminalised under the Draft Directive, the “offence of particular gravity” which most closely resembles the IEP ecocide requires the damage to result. This contrasts with the IEP definition, which is framed as a crime of endangerment. The prohibited behaviour in that proposal is unlawful or wanton acts carried out with the knowledge that there is a substantial likelihood that the requisite harm will result.
Finally, it will be noted that the simple yet expansive definition of the environment in the IEP proposal is quite different to that of the Draft Directive, which defines environmental damage as “serious harm to any person’s health, or substantial damage to the quality of air, the quality of soil or the quality of water, or to biodiversity, ecosystem services and functions, animal or plants, which is detrimental to anything that grows, blooms and lives, including but not limited to the damage as referred to in Article 2 of the Directive 2004/35/CE” (the Environmental Liability Directive). There is of course no authoritative definition of the environment in international law.
What of the term ecocide? It appears not in the articles but in Recital 16 of the Draft Directive, a preambular paragraph:
When an environmental criminal offence causes severe and widespread, or severe and long-term, or severe and irreversible damage to the quality of air, the quality of soil or the quality of water, or to biodiversity, to ecosystem services and functions, or to animals or plants, such offence should be considered a crime of particular gravity, and sanctioned as such in accordance with the legal systems of the Member States, covering ecocide, for which the United Nations are currently working on an official international definition.
The Draft Directive, which is a legislative resolution of the European Parliament, will now go into “trilogue” or negotiation between the Parliament, the EU Council and the Commission. The text that is finally adopted will be binding on all Member States of the European Union as to result, with each State at liberty to criminalise the acts in the Directive as they see fit. There is some risk that definitions will diverge at this point, but this unanimous draft bodes well for alignment. 27 Member States of the European Union adopting a crime of ecocide will spur the national-level “ecocide wave” which has been identified by other commentators, and has the potential to greatly advance international acceptance of the crime.