25 Sep Symposium Exploring the Crime of Ecocide: Accountability for Environmental Destruction–Ecocide in National and International Law (Part II) The Way Forward
[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 appropriate remedial action would be to impose stringent penalties on such companies, revoke their licenses and order that they refrain from engaging in such ecologically destructive activities. While strict liability is not a part of the current framework of international criminal law, there is support for the crime of ecocide being a strict liability offence to strengthen the pathway of prosecution in such cases. Polly Higgins and Mark Gray have advocated for it to be a strict liability crime, not requiring the mental element of intention. The amicus curiae brief on ecocide submitted to the International Monsanto Tribunal also presented a Model Ecocide Law which has been drafted in harmony with the view held by several commentators that ‘Ecocide law is a strict liability offence…This model law promulgates a general duty of care for ecocide crimes and victims but does not require intent or knowledge on the part of the crime’.
This is a departure from the conception of liability under international criminal law, which is fault-based. The common law, however, does accept that there are instances where proving mens rea is not required, for instance when the conduct has a propensity to endanger the welfare of the general public. By so doing, it recognises the fact that harm can be caused not only by negligent or intentional wrongdoing, but also by “a failure to meet an active and affirmative duty to protect public interests.” The movement towards the adoption of such an approach within the justice system can been seen from a survey of literature of various disciplines, which shows an increased emphasis in the 20th century on protecting public and social interests. Degradation of the environment has a direct impact on the well-being of human beings and other species, warranting the imposition of strict liability for such harm.
In view of the nature of the harm that can be defined as ecocide, the Draft Ecocide Law describes ecocide as a crime of ‘strict liability’ imposing an international and transboundary duty of care. The Preamble of the Draft Law, which originated in the UK, opens with the statement that the crime of ecocide is the 5th international Crime Against Peace, owing to the consequences of ecocide, including impacts on life and health of human beings and other species, impacts on future generations, heightened risk of conflicts owing to resource depletion and destruction, and so forth.
Of course, Art 30(1) of the Rome Statute states that liability arises for a crime within the ICC’s jurisdiction only if ‘the material elements are committed with intent and knowledge.’ This indicates that a new crime within the Rome Statute should also adopt a fault-based standard of liability. However, this may not be determinative, as Article 30(1) also states that this will be the case ‘unless otherwise provided.’
Moreover, while the current framework of international criminal law does not impose strict liability, the question is whether requiring intent or knowledge is appropriate in the case of corporations conducting activities that give rise to environmental harm. The requirement of intent or knowledge would enable corporations to take recourse to the defence that they were not aware of what was happening or what could be the possible environmental impacts of the actions taken. As Polly Higgins notes, absolute liability is justifiable as a person in a position of responsibility ‘knows, or should know, of the consequences arising out of any business activity’. Consideration must also be given to the precautionary principle which needs to be adhered to in the context of national and international environmental law. Imputing strict liability would ensure accountability. The focus on a stricter framework of liability is motivated by the objective of eradicating ecocide, which as Polly Higgins points out requires ‘radical and bold decisions’ through which ‘this unstoppable train of destruction that we have created’ can be brought to a halt. She goes on, ‘applying the brakes gently is not going to work; it is a juggernaut that has acquired such powerful momentum that it is careering out of control’.
The current trajectory of degradation of the environment endangers the welfare of the public and the stability of national economies. The very survival of life on earth is put at risk. To bring about justice and protect life itself, laws that ensure the interests of humans and other species need to be encouraged and formulated. In the context of environmentally harmful activities becoming more and more commonplace, and being conducted on a wide scale, it is indisputable that we need to ‘place the community at the centre and…ensure the well-being of our global commons’.
The rule of strict liability, as developed in Rylands v Fletcher ( UKHL 1), however, provides certain exceptions through which a defendant can avoid liability. The principle of strict and absolute liability avoids these exceptions. This principle was laid down by the Supreme Court of India in response to the Oleum gas leak which occurred in Delhi a year after the Bhopal disaster of 1984. To strengthen the accountability of corporations, the Supreme Court held that if an enterprise engages in a hazardous activity and harm occurs while it carries out such an activity, the enterprise would be held liable for the harm or damage on the basis of the principle of absolute liability. There would not be any recourse to the exceptions allowed under the rule of strict liability. As elucidated by the Supreme Court of India,
‘This rule [in Rylands v Fletcher] evolved in the 19th Century, at a time when all these developments of science and technology had not taken place…As new situations arise the law has to evolve in order to meet the challenge of such new situations. Law cannot afford to remain static. We have to evolve new principles and lay down new norms which would adequately deal with the new problems that arise in a highly industrialised economy’.
Through the principle of strict and absolute liability propounded in this civil law case by the Supreme Court of India, the threshold of the duty of care that corporations and industries need to abide by was raised, as hazardous activities engaged in for private profit ‘can be tolerated only on condition that the enterprise engaged in such hazardous or inherently dangerous activity indemnifies all those who suffer on account of the carrying on of such hazardous or inherently dangerous activity regardless of whether it is carried on carefully or not.’
The principle of strict and absolute liability, derived from tort law, has conceptual strength that makes it valuable in the context of international criminal law, particularly with regard to environmental harm.
Numerous ecocidal activities are taking place that are putting the life and health of current and future generations at risk, as well as endangering other species. The Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES) reported in 2019 that biodiversity is declining at an unprecedented rate and one million species are threatened with extinction. Habitat destruction plays a key role in this. The NASA Earth Observatory reports that all major tropical forests — including those in Africa, Southeast Asia, Indonesia and the Americas — are being destroyed.Deforestation in the Amazon has become so extensive that it is estimated by WWF that within the next ten years, there could be no trees left in over a quarter of the Amazon biome. Poaching, ocean acidification, over-fishing, climate change, and so forth are also accelerating degradation and loss of biodiversity.
A higher standard of penalisation on the basis of the principle of strict and absolute liability for corporations and states conducting activities that give rise to ecocide could pave the way for protection of the environment at a global and inter-generational scale. If incorporated into legal frameworks – nationally, regionally, as well as internationally – the crime of ecocide also has the necessary elements to deliver preventative justice as it enables a shift from the polluter pays principle to a ‘polluter no longer pollutes’ framework by imposing a strict duty of care.
Growing Legal Acceptance of the Crime of Ecocide
Legal acceptance of ecocide is growing, albeit slowly. In addition to the countries that have included the crime of ecocide in their penal codes, Courts in other countries have also begun to incorporate the terminology of ecocide. In a case dealing with development on two islands in Vembanad Lake, the longest lake in India, the High Court of the State of Kerala made a note of the concept of ecocide while analysing the marine biodiversity of the area. In relation to this, the High Court mentioned ecocide and its definition, as given in the Chambers Dictionary.
One of the countries that has incorporated the crime of ecocide in its Criminal Code (Article 374) is Kyrgyzstan. Criminal cases of ecocide were initiated there in response to the import of 9000 tons of radioactive coal into the country in 2012, which was delivered to schools, nursing homes and orphanages. The Office of the Prosecutor brought charges of ecocide against the head of the Kyrgyz company that shipped the radioactive coal, and opened criminal investigations against government officials who authorized the shipment. Charges against the head of the company were eventually dismissed due to lack of evidence and the government officials who had been implicated were also cleared of wrongdoing. Though not a successful outcome, it is noteworthy that the crime of ecocide is being applied by domestic Courts.
What is more, there has been successful litigation as well. The Environmental Court in Guatemala held the African palm oil corporation Reforestadora de Palma de Petén S.A. (REPSA) liable for ecocide, owing to contamination of the Pasión River which caused the deaths of millions of fish and other animals, impacting over 20 different species of fish and over 20 species of reptiles, birds, and mammals.
Stemming the Tide of Irreversible Ecological Destruction
Ecocide law is a natural progression and response to environmental harm occurring at a significant, often unprecedented scale – harm that strikes at the very foundation of life on earth by devaluing the interdependent relationship of human beings with nature. Biodiversity underpins human well-being, development and economic prosperity. Over half of the global GDP – amounting to around US$44 trillion – is moderately or highly dependent on ecosystem services. The poor are particularly impacted by changes to biodiversity, as 70% of people living in poverty depend, at least in part, on natural resources for their livelihoods. The time frame within which we would be able to stem the tide of natural resource degradation, biodiversity loss and climate change, restore ecosystems and ensure the well-being of current and future generations is fast reducing. Regulating and minimising environmentally destructive activities is a key step, and ecocide could be a powerful tool by which the activities of states and national and multi-national corporations can be regulated. Holding perpetrators of acts of ecocide strictly and absolutely liable for their activities could indeed help bring about a change in corporate and state practice in relation to the environment and thereby lead us towards a more sustainable future.