20 Jun A Tale of Two Definitions: Fortifying Four Key Elements of the Proposed Crime of Ecocide (Part I)
[Matthew Gillett is a Senior Lecturer (Associate Professor) at the University of Essex Law School and a United Nations Special Mandate holder (Vice-Chair of Working Group on Arbitrary Detention), who previously prosecuted cases before the international courts. The views herein are those of the author alone and do not necessarily reflect those of any other person or organization.
The author was a member of the UCLA Promise Institute Working Group on the use of International Criminal Law to Protect the Environment. See the Working Group’s report.]
This two-part post addresses four facets of the Independent Expert Panel‘s (“IEP”) 2021 proposed definition of Ecocide and contrasts them with the corresponding elements of the definition of Ecocide (reproduced here) proposed by the Author in his book: “Prosecuting Environmental Harm before the International Criminal Court”. Part 1 examines the IEP’s lack of enumerated underlying crimes and its framing of Ecocide as a crime of endangerment. Part 2 examines the IEP’s use of the term “wanton” and its approach to the element of “lawfulness”. This comparative analysis is designed to fortify pivotal elements of the definition of crime of Ecocide.
Overview: The Historic Opportunity to Define Ecocide
Renowned plant biologist Arthur Galston had the misfortune of seeing his research on the effects of triiodobenzoic acid exploited to develop Agent Orange, which was used to such ruinous effect during the Vietnam War. He subsequently sought to ban its use and enhance legal protections of the environment. Efforts on this front have accelerated in recent years, including with the Independent Expert Panel‘s 2021 proposed definition of Ecocide. However, Galston’s cautionary tale should be taken on board, and close heed should be paid to the risks of such a definition being misinterpreted or misused, whether by polluters seeking to green-wash their activities or by over-zealous governments seeking to suppress opposition.
To mitigate these risks, this post examines four facets of the IEP’s proposed definition of Ecocide. It contrasts them with the elements of the definition (reproduced below) proposed by the Author in his book. The debate is timely, with anthropogenic environmental disasters, such as mass deforestation in the Amazon, and the destruction of dams in Ukraine, continuing to arise. Posts on this blog (and other sites) from commentators such as Kevin Jon Heller, Darryl Robinson, Donna Minha, and Michael Karnavas, have already analyzed the IEP’s definition, but without systematically juxtaposing its terms against an alternative proposal. The presentation of options is important, as States are actively considering adopting the crime of Ecocide, as signalled by the European Parliament agreeing the text for a new Environmental Crimes Directive in April 2023.
1. The Absence of Enumerated Acts: A Fatal Flaw?
The IEP’s proposed definition of Ecocide is striking in its omission of any underlying acts. This contrasts with the structure of all existing crimes under the Rome Statute. Moreover, several national systems which define Ecocide provide at least an indication of the underlying conduct which is prohibited, albeit in relatively broad terms, such as Article 441 of the Ukrainian Criminal Code (referring to mass destruction of flora and fauna and poisoning of air or water resources) and Article 169 of the Penal Code of the Republic of Kazakhstan (referring to mass destruction of flora or fauna and poisoning of the atmosphere, land and water resources).
Omitting underlying acts is problematic from a human rights perspective. It potentially clashes with the fundamental principle of legality. Human rights bodies such as the United Nations Working Group on Arbitrary Detention have highlighted the need for criminal laws to be “formulated with sufficient precision so that individuals can access and understand the law, and regulate their conduct accordingly…Charges involving vague and imprecise offences jeopardize the ability of individuals to exercise their fundamental rights and are likely to result in arbitrary deprivation of liberty.” Similarly, the European Court of Human Rights has held that criminal law must not be extensively construed to an accused’s detriment, for instance by analogy (Kokkinakis v. Greece, para. 52).
Given that considerable tracts of human industry could potentially be covered by Ecocide, it is imperative to provide guidance as to which acts are prohibited. For conduct which is not inherently transgressive, such as developing dwellings, building transport networks, and implementing agricultural projects, there is a need for specificity to allow people and organisations to know which conduct will attract criminal prosecution. Failing to do so will overly chill people’s willingness to engage in productive, and often necessary, industrious activities.
Omitting underlying acts is also problematic for Ecocide’s symbolic effect. Listing Ecocide alongside other atrocity crimes in the Rome Statute sends a powerful deontological message about the limits of tolerable human behaviour. However, if there is no mention of which conduct is prohibited, the symbolic message will be dissipated. Potential transgressors may interpret it narrowly as inapplicable to their own conduct and continue with environmentally harmful practices. Environmental protectors may interpret it broadly and think that the legal work has been achieved. This mismatch in expectations will undermine the utility of the Ecocide project as a symbolic collective statement.
By contrast, the Author’s definition has a chapeau and seven underlying acts. Six of these are based on existing environmental law regimes. The last (“(g) any other acts of a similar character, where those acts involve unsustainable harm”) is in some ways equivalent to the underlying crime against humanity of other inhumane acts set out in Article 7(1)(k) of the Rome Statute. As has been pointed out previously by Darryl Robinson, most of these environmental regimes do not criminalize conduct. Including such offences could revive debates about the ICC’s jurisdiction to adjudicate crimes that are not established in customary international law, particularly in relation to non-State parties pursuant to UNSC referrals. However, this issue will inevitably arise irrespective of the definition adopted, as the Court will have to adjudicate specific underlying conduct. By precisely listing underlying acts, the Author’s definition of Ecocide will at least adhere to the requirements of legality, thereby obviating a potentially existential challenge to the criminal definition of Ecocide.
It may be argued that including specific underlying acts will deter States from signing up to the amendment, as they will feel that legitimate conduct is being targeted. However, if the goal is to get political support, rather than establishing a criminal prohibition for Ecocide, then it must be asked why the ICC is the forum being proposed. Conversely, if the endeavour seeks to enshrine a legal prohibition, then it must adhere to international human rights protections such as the principle of legality and nullum crimen sine lege.
2. A Crime of Endangerment?
A second major issue is the IEP’s framing of Ecocide as a crime of endangerment. The IEP’s definition does not require any actual environmental harm to have occurred. Instead, the unlawful or wanton acts must be committed with knowledge of the “substantial likelihood” that they could cause the requisite level of harm to the environment. The lack of any result requirement could undermine the gravitas of Ecocide (and in turn impact on the gravitas of the ICC project as a whole). It is strange to call someone an “écocidaire” if they did not actually cause any harm to the environment.
The IEP argues that Genocide is also a crime of endangerment [IEP booklet, p.8]. However, the analogy is misplaced. Genocide requires not only the commission of an underlying act, such as killing or serious bodily or mental harm, but also the specific intent to destroy the targeted group in whole or in part. Consequently, at least some harm to the group must be inflicted for genocide to be proved. The IEP’s formulation of Ecocide contains no such requirement, nor any specific intent to harm the environment.
Additionally, the IEP refers to the crime in Article 8(2)(b)(iv) of the Rome Statute, which is formulated as an endangerment crime. However, a key motivation for adopting Ecocide is to provide a level of protection going beyond that highly constrained war crime, which is restricted to international armed conflicts and even then only applicable when the exacting proportionality test is met.
Moreover, the reference to a “substantial likelihood” exacerbates the vagueness of the overall formulation. The attached commentary provides no further explanation of this. This is a missed opportunity, as a rich vein of jurisprudence on “substantial likelihood” has been developed at the ad hoc tribunals [see e.g. ICTY: Prosecutor v. Tihomir Blaškić, Appeals Judgement, para.42)]. The counter-factual analysis required to assess whether the perpetrator knew there was a substantial likelihood of environmental harm being “caused” by their acts would benefit significantly from guidance, as environmental harm will typically be multi-causal, requiring an intricate disentangling of the relative effects of various human and non-human causes.
By contrast, the Author’s definition requires a result, in the form of severe and widespread or long-term environmental harm. That result requirement could be seen as limiting the preventive function of Ecocide. However, if an attack or unlawful form of environmental destruction is initiated but frustrated for some reason, liability can be imposed for “attempt” under Article 25(3)(f) of the Rome Statute.
Whether Ecocide is framed as a crime of endangerment or one of result, a key element will be intent. Based on experience, it will be more feasible to infer intent in cases of actual environmental harm than mere endangerment. In this light, the symbolic and practical ramifications of enacting a crime that does not require any actual damage to the environment should be carefully reconsidered.