Symposium Exploring the Crime of Ecocide: Accountability for Environmental Destruction–Ecocide in National and International Law (Part I)

[Tarini Mehta is Assistant Professor of Environmental Law, Assistant Dean of Student Affairs and Director of the Environmental Law and Science Advocacy Forum at Jindal School of Environment & Sustainability, O.P. Jindal Global University, India.]

[This symposium was convened by Shirleen Chin, founder of Green Transparency.  Shirleen was inspired by attending an Expert Working Group on international criminal law and the protection of the environment at the Promise Institute for Human Rights at UCLA School of Law in Spring 2020. See here for the original Opinio Juris symposium which emerged from that meeting.]

The destruction of natural resources for the sake of profit has become the norm. To counter this, the crime of ecocide is a powerful tool through which corporations and states can be held accountable for activities that disturb the delicate balance of the web of life and thereby impact current and future generations.  

Activities causing ‘extensive damage to, destruction of, or loss of ecosystem(s) of a given territory…to such an extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished’ (the definition of ecocide given by Polly Higgins to the UN Law Commission in 2010) have unfortunately become common place. Owing to this, each day 80,000 hectares of tropical rainforests are lost and 80,000 hectares more are degraded. Climate change is accelerating and global mean temperatures are increasing. If the current trend of greenhouse gas emissions continues ‘we may see a temperature increase of 3-5^o Celsius by the end of the century,’ The consequences of this will be catastrophic as oceans warm, sea levels rise, droughts increase, crops fail, and so forth. With this pattern of environmental degradation, every day ecocide is being committed. 

As a society we have come to recognise that certain acts are so grievous that they must be categorised as crimes that violate the very foundations of civilisation and humanity. Genocide, crimes against humanity, war crimes and torture are among them. Impacts upon the environment are noticeably absent from this set of crimes that offend humanity at its very core. Environmental degradation, however, impacts not only humans but all other species, putting the very survival of life on earth at risk. Therefore, ecocide can be viewed as an assault upon the integrity of the web of life. It is only right that such acts are prosecuted and penalised at a higher standard. Giving the crime of ecocide its rightful place as the fifth crime in the ICC Statute would be a key step towards strengthening the accountability of perpetrators of environmental harm. 

The ICC has complementary jurisdiction: it is a court of ‘last resort’, cases are meant to be admitted to the ICC only when national authorities fail in this regard. At the heart of this system is the idea that national courts should be the first port of call to deal with cases of serious violations.  If the crime of ecocide was tried in national courts, the full force of the country’s enforcement mechanisms could be brought to bear for the imposition of penalties, making arrests and so forth.  

Incorporation in the Rome Statute alone, however, will not be enough, as several countries are not party to it, much of Asia being a case in point; only 19 nations of Asia-Pacific are party to the Rome Statute. China and India, for instance, are major regional powers that are not party to the Rome Statute. They contribute heavily to transboundary pollution and climate change. It is vital, therefore, to find pathways for the incorporation and adjudication of the crime of ecocide within the national laws of Asian countries.   

The Ravaging Fires of South East Asia: Recurring and Uncontrolled Ecocide

South East Asia has witnessed some of the worst cases of ecocide caused by national and multi-national companies. The destruction caused by forest and field fires in Indonesia and to some extent in Malaysia is a case in point.These fires have a regional impact. Fires in Indonesia resulted in hundreds of schools being closed down temporarily, not only in Indonesia, but also in Singapore and Malaysia. Twelve national airports also had to close their operations. The scale of the damage becomes evident from the fact that the carbon, cyanide, methane and ammonia produced due to the fires that occurred in Indonesia in 2015 is estimated to be more than the entire annual emissions of the British, Japanese or German industry. There have been severe health impacts as well; the pollution has caused over a million people to suffer from respiratory ailments. Impacts on wildlife are severe as well. Such fires also have an effect on the global climate system (NASA, 2018). Devastation at this scale is the very definition of ecocide.  

The Indonesian fires originate largely due to the deliberate and illegal clearing of forests for palm oil and paper production, occurring mainly on land granted as concessions to these companies. This raises the question of corporate accountability for environmental harm.

In Indonesia, despite the perpetrators being known and criminal liability being a part of environmental law, the majority of the perpetrators tend to escape accountability. A study by Greenpeace Indonesia (2019), conducted on the basis of official government data and case reports together with mapping of burned areas, corroborates that offenders largely go unpunished or receive only mild sanctions. It was found that only a handful of the palm oil and pulp companies whose concessions had the largest burned areas had been punished through serious sanctions. The report stated that, ‘the Government of Indonesia claims to be serious about enforcing the law around forest fires, holding companies to account for fires on their land and deterring future fires. But this intention is not being implemented through a consistent and escalating use of serious civil/administrative sanctions against the offending companies.’   

Prosecutors tending to push for lower charges is a further problem.What is more, even when serious sanctions are imposed by courts, there is weak enforcement. Greenpeace further reveals in its report that none of the companies ordered to pay compensation had actually paid it. Between 2015-2019, judgments were delivered against nine companies in forest fire cases. They were ordered to pay a combined 3.15 trillion rupiah ($223 million) in fines. However, it was reported in October 2019 that only one had paid its fine of 78 billion rupiah or $5.5 million. A consequence of weak prosecution and enforcement is that several companies are repeat offenders.

Neighbouring Singapore, frustrated by the inability of the Indonesian Government to hold the perpetrators of these fires accountable, enacted the Transboundary Haze Pollution Act in 2014. The Act has extra-territorial application and enables Singapore to prosecute the external conduct of an entity that causes or contributes to domestic haze pollution. Its objective is to protect its citizens from the effects of the toxic haze and deter corporations from committing acts that cause haze pollution in Singapore. Its success has, however, been hindered by Indonesia’s refusal to cooperate. Indonesia has been critical of Singapore for taking such a step, considering it to be an invasion of its sovereignty. Whereas, Indonesia has, in fact, time and again been in breach of fundamental norms of international environmental law, such as the duty under customary international law to prevent transboundary harm. 

Within the obligation to prevent transboundary harm are a variety of due diligence obligations, i.e. to regulate activities that could give rise to transboundary harm, cooperate in good faith with other States, notify them in a timely manner about activities that have a significant risk of causing transboundary harm, as well as inform them when there are incidents that could cause such harm. There is also an obligation to provide other States with all information that may be available related to such activities, conduct consultations with them on preventive measures, and make available to nationals of other States judicial or other procedures for settling disputes and seeking redress. Indonesia has not only failed to regulate the fires effectively, it has also refused to cooperate with Singapore regarding provision of information required for cases brought under the Transboundary Haze Pollution Act. This has hindered the effective prosecution of perpetrators of these fires. Thus, companies responsible for burning over a million hectares of forest and peat lands, thereby impacting the life and health of people and wildlife, have evaded responsibility and accountability for their ecocidal acts. They continue to repeat their offenses with impunity.