The Improved Ecocide Conversation Begins

[Darryl Robinson is a Professor at Queen’s University, Faculty of Law (Canada)]

Matthew Gillett and Rohit Gupta make several excellent points in their two-part response (here and here) to my two newest articles about ecocide, Humans Matter Too and a Challenge for Ecocide Scholarship. I would urge readers, before drawing conclusions about my articles based on the portrayal in those posts, to look at the articles themselves. I believe most readers will find my claims to be modest and measured. My articles urge ecocide scholarship to engage more thoroughly with environmental ethics (especially nuances of ecocentrism), empirical implications, and the limits of criminal law.  Gillett and Gupta’s posts are a welcome start, because they engage with those questions. There is far more agreement between us than might initially appear.

Humans Matter Too

My first article, discussed in Gillett and Gupta’s first post, advances a modest claim: that we should not reject outright any consideration of human needs as we discuss a crime of ecocide (p. 2). I saw in the ecocide literature a recurring understandable error, namely, mistaking the term ‘anthropocentric’ as referring to anything ‘human-related’, so that taking into account anything human-related was dismissed (p. 4-9). Relatedly, many commentators in the ecocide conversation were using the term “ecocentric” as strictly excluding human interests. I showed that this is not what the terms are generally understood to mean in environmental ethics, the field from which they are drawn (p. 9-11). Ecocentrism encompasses all living things, including humans. I demonstrated this with extensive quotes from that field, but one could easily give many more quotes with a longer review. My concern was that the misunderstanding was “short-circuiting” debate on the hardest issues (p. 3).  

Human suffering and well-being are legitimate considerations, even from an ecocentric perspective. That should not be objectionable. My goal was to encourage a “second phase” of ecocide debate better rooted in environmental ethics (p. 3,14).

Gillett and Gupta worry that I “over-emphasize” humans. However, my argument was that human interests are not excluded from concern. My goal was to take off the table the oft-seen categorical dismissal of human concerns, so that we can start the “more nuanced debate” about what weight to give to human interests (p. 2, 7). I suggested that the approach should be truly ecocentric and long-term (p. 7), not short-term or exploitative (p. 2), or biased in favour of humans (p. 2, 7, 12) or giving “primacy to economic development over environmental protection” (p 12); I indicated that “human interests should not eclipse non-human interests” (p. 3). Recognizing that humans need some accommodation still leaves

“salient questions about how the balancing between human and non-human interests should be done, and whether it will be conducted in a way that favours humans.  Each of these concerns is sound.  … That brings us to the more nuanced debate that I am trying to enable … how to make sure that any balancing or accommodation of interests is done is a suitably ecocentric way.” (p. 12)

Thus, I am delighted by Gillett and Gupta’s statement that it is “not about excluding the other interests entirely”, but rather what “prioritization” is given.  This is exactly what I urged in “Humans Matter Too”: not excluding human concerns ab initio, as some ecocide literature was doing.  

Gillett and Gupta refer to “Darryl Robinson’s label of misanthropic”. However, it is not “my” label; I explicitly drew it from environmental ethics literature (p. 10), where it is in use in a longstanding conversation. It is used inter alia to describe a common misunderstanding of ecocentrism (p. 10). It is a label for disregarding human rights or needs within the broader whole. Ecocentric scholars have (rightly) answered claims of being misanthropic by showing that ecocentric concern includes humans. I quoted, for example, Vucetich, explaining that ecocentrism includes humans and noting that “disregarding humans… is misanthropic and should be guarded against” (p. 10). I could have quoted many other ecocentric scholars (see eg Washington et al, explaining that ecocentrism is not misanthropic, because it includes human concerns). The discussion on avoiding misanthropic approaches in environmental ethics is broad, and there is not space to canvass it here (see eg here at part 4 and 5).  (There is a history in which some who see nature as excluding humans have taken actions that disproportionately harm vulnerable groups such as Indigenous populations. Ecocentrism, as generally understood in environmental ethics literature, avoids these problems because it includes humans within its holistic assessment).  

As environmental ethics scholars have noted, the term in this context does not mean “an active dislike for or hatred of humanity” (p. 4). Similarly, I clarified, 

“Of course, none of the commentators denouncing references to human benefits or harms are meaning to be ‘misanthropic’.  Their well-intentioned aim is to protect the environment… However, a misunderstanding of terms is leading to an overly stark stance against factoring in human needs” (p 8). 

That was my quarry: a problematic idea, often voiced in the literature – an idea rejected by environmental ethics scholars. Unfortunately, scholars in the ecocide conversation were falling into the human-excluding misunderstanding that is described by ecocentric environmental ethics scholars as misanthropic.  

To avoid possible future misunderstandings: some people have made unsound claims of ‘misanthropy’ to resist environmental measures. I use it in the same way as nonanthropocentric scholars.

Gillett and Gupta open with a provocative rhetorical question, “is it misanthropic to focus ecocide centrally on the natural environment?”. But the answer is clearly no. I for one have never suggested otherwise. I have advocated for six years for a crime that focuses centrally on the natural environment. We are in agreement that an environmental crime is primarily about protecting the environment.

Gillett and Gupta raise a valuable objection about including harms to humans in ecocide. They argue that, if humans are part of nature, then a mass industrial accident hurting only humans could be ecocide. I agree that there is something odd about calling an industrial accident harming only humans “ecocide”. Surely the crime requires, foremost, harm to non-human aspects of nature.  This is something there to be thought about and worked upon.  But I would not exclude the suffering of humans when assessing the “severity” element. Their suffering counts even if the humans live in cities (or in “human constructed dwellings”, as Gillett and Gupta say). In my reading of environmental ethics literature, ecocentrism does not parse out the humans in that way. But this is a conversation that can continue. 

Addressing Empirical Implications

Gillett and Gupta’s second post reacts to my second article, “A Challenge for Ecocide Scholarship”.  The article argued the ecocide conversation needs to engage in some way with the empirical implications of different formulations for a crime of ecocide. I hope that readers will find that suggestion sensible. 

In the ecocide literature, many commentators were calling for a crime of ecocide that criminalizes all harm crossing a certain threshold, without any further qualifiers (qualifiers that I call a “wrongfulness requirement”). The International Expert Panel proposed “unlawful or wanton” as a wrongfulness requirement; some scholars and drafting groups have proposed alternatives; and many scholars proposed an absolute rule with no wrongfulness requirement at all. The third position is entirely understandable, because at first glance, “severe” harms seem extraordinary, rare, and outright unjustifiable. My article engages specifically with the third position; I outline largely-overlooked questions that need to be addressed, as otherwise some form of wrongfulness requirement seems to be needed. Namely, on closer inspection, given that impacts cannot be zero, there appear to be cases where actors providing essential services to hundreds of millions of people may reach very high thresholds, meeting plausible definitions of “severe”, even if they take all measures to mitigate harm. It is uncomfortable and unsettling to contemplate that possibility, but I urge you to read the analysis, where I unpack what appears to be a quite grim picture of painful trade-offs. If there are indeed situations where the least harmful alternative (from an ecocentric perspective) still meets the threshold, then ecocide law needs some way to deal with that.  

I said that, based on available information, these appear to be legitimate prima facie concerns, that are serious enough to warrant at least being addressed (p. 3, 4, 7, 11). I did not venture any definitive factual conclusions (p. 4). My agenda is to promote sound policy; I emphasized that convincing responses would be a “welcome advancement” (p 3, 4, 7). Possible responses could be empirical, ie. showing that the problem does not arise, or ethical ie. showing that we should not be concerned about resulting deprivations (p. 3, 11). In the absence of such responses, some form of wrongfulness requirement seems to be needed. I specified that I am not arguing for any particular wrongfulness formula, only showing why some such formula appears to be needed (p. 4). My message, in effect, is ‘here are legitimate questions that should be addressed in a criminalization initiative’.  

I at no point said that scholars advocating for an absolute ban on high-impact activities are misanthropic. On the contrary, I observed that the arguments are well-intentioned and understandable, that the potential problems are not obvious, and that scholars might have good counterarguments (p. 2-3). (The term ‘misanthropic’ appeared in a different article on a different issue, in accordance with its narrow usage in environmental ethics literature, for the error of excluding human interests entirely.)

I did not say that the absolute ban approach overlooks elementary science. Readers will see that my ‘science’ point was much narrower, about ecological footprints and tensions of stewardship (p. 6 and see Humans Matter, p. 2, 4). 

Exploring Solutions: Formulations for Wrongfulness Requirements

Gillett and Gupta object that I do not discuss alternative solutions for a wrongfulness requirement, which they believe amounts to a “strawman” argument. However, my topic was exclusively about showing why some form of wrongfulness requirement is needed (p. 4, 17). I explained that I was not advancing or defending any particular wrongfulness formula, that several alternatives have been suggested, and that I would address options for wrongfulness element in a future article (p. 4, 17). My aim was to encourage “many sharp minds” to brainstorm on solutions (p. 17).

It is wonderful that Gillett and Gupta are advancing possible solutions, as that is precisely what I was encouraging. Although evaluating different solutions is outside the scope of my article, I will join them by offering a few brief thoughts.

Gillett and Gupta raise an excellent objection that the type of all-things-considered balancing that I describe would be too vague for a criminal law test.  I agree. This is an understandable misunderstanding, because I see that was not clear. When I conveyed all of those considerations, I was describing the underlying ethics, ie ecocentrism as described in environmental ethics, that can inform our thinking about ecocide. I was not talking about drafting. Indeed, I specified that when I talk of the need to somehow balance human and non-human interests, “I do not necessarily mean that a proportionality test must be expressly baked into the ecocide definition… I simply mean that there has to be some criterion that directly or indirectly makes such balancing … possible.” (p. 13). I gave the example of an “unlawful” test, which would incorporate appropriate principles and prior procedures by reference.  Thus, I did not argue that “ecocide necessitates an ex post facto form of balancing”; indeed, I even specified that is not my position. I agree on the need for sufficient precision in criminal law (see my previous writings at pp. 340-1). 

Gillett and Gupta argue that ecocide might not cover harms that are a “normal part of everyday existence” because ecocide only applies to acute harms caused by one actor. However, the examples I gave were all specifically instances where a single actor provides a service for tens or hundreds of millions of people, and thus has very large impacts. Thus, unfortunately, the concern remains unresolved. (I also agree that not all of my examples were about survival; I discussed that and explained why they still matter (p. 8, 14)). 

I am open to the idea of adding hard upper limits to permissible conduct (see Killean and Short at p. 7), perhaps based on planetary boundaries. But I argue that the crime is much more effective if it includes a more commonly-attainable “severity” standard that subjects activities to the scrutiny of some wrongfulness test (p. 5, 12-13). 

As for alternative wrongfulness requirements, a plausible option advocated by Gillett and Gupta is a form of ‘regulatory defence’, as in the Promise Institute definition or the “Gillett definition”.  To be clear, the “Gillett definition” is heavily based on the Promise Institute definition, as Matthew acknowledges. I was the primary drafter of the relevant provision of the Promise Institute definition. Obviously, I support my own proposal. Gillett and Gupta portray me as being in philosophical opposition to the Promise Institute definition’s wrongfulness provision, which is perplexing, given that I wrote it. Accordingly, we are on the same page that those are among the options. As promised in the article, I will return another time to the exploration of possible formulations.  

Conclusion

In my two recent articles, I urge a generally enthusiastic ecocide literature to engage more carefully with environmental ethics, empirical implications, and limits of criminal law. I was aware of the near-inevitable risk that, in doing so, I would be misperceived as less committed to the environment, or as trying to weaken regulation (perhaps because of a love of floods and forest fires). I proceeded anyway, because my aim is to promote a thoughtful, informed discussion that can produce real reforms to strengthen environmental protection..

Gillett and Gupta offer some good points that are steps toward that more productive conversation. Given that they in the end support a wrongfulness requirement, it would seem that the apparent disagreements with the arguments supporting such a requirement are perhaps not that deep. Indeed, we seem to converge on one of the possible solutions. I hope that scholars will read my arguments closely to see that they are advanced with care, mapping out options to strengthen the debate.