Skeptical Thoughts on the Proposed Crime of “Ecocide” (That Isn’t)

I have been eagerly awaiting the results of the Independent Expert Panel for the Legal Definition of Ecocide (IEP), which includes a number of excellent lawyers and some close friends. The exercise has always been largely symbolic: even if 2/3 of states parties are willing to support an ecocide amendment, which is unlikely, an amendment to Art. 5 of the Rome Statute — which ecocide would be — would apply only to states that formally accepted it. As with the aggression amendments, the states most likely to commit ecocide would simply decline to accept the ecocide amendment. (To be fair, the restrictive amendment regime is obviously not the fault of the IEP.) But ecocide’s dim practical prospects do not take away from the symbolic importance of affirming individual criminal responsibility for knowing environmental destruction. So for that reason alone the IEP deserves credit and our thanks for its efforts.

That said, I have to confess my disappointment with the definition of “ecocide” that the IEP has come up with. Here it is:

Article 8 ter Ecocide

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 proposed crime raises a number of significant issues. Perhaps most obviously, “ecocide” as defined here bears little resemblance to the concept of “genocide” that inspired it. The essence of genocide is the desire to rid the world of specific groups, as reflected in the protected group and specific intent requirements. There is nothing “group-like” about the definition of ecocide — and more importantly, the mens rea of ecocide is much lower than specific intent. (More on that below.)

To be clear, it would make little sense to base a definition of ecocide on the definition of genocide. Not even the most flagrant polluter says to himself, “gee, I really want to get rid of that noisy cicada species. I think I’ll dump toxic waste into its habitat.” And it would be neither desirable nor practically possible to limit the crime to the destruction of specific groups of animals or plants. But the proposed crime is not a form of genocide; it is much closer in nature and structure to a crime against humanity.

The commentary doesn’t explain why the IEP wants ecocide to be a fifth international crime instead of a twelfth crime against humanity. I assume there is a substantive reason and a conceptual one. The substantive reason would be to avoid subjecting ecocide to the contextual elements of crimes against humanity, which are not particularly well-suited to a crime that focuses on environmental destruction. And the conceptual reason would be to avoid the inherently anthropocentric nature of crimes against humanity (crimes against humanity) and to be able to call the crime “ecocide,” thus borrowing symbolic capital from genocide, the “crime of crimes.”

Neither reason is inherently problematic, even if the formalist in me rebels at eliding the structural differences between ecocide and genocide. But there are, I think, some serious problems with the IEP’s definition of ecocide — ones aggravated, not alleviated, by the commentary.

One significant concern is the mens rea of the crime, which is — to put it mildly — deeply confusing. Start with the obvious mens rea requirement: “knowledge that there is a substantial likelihood” the perpetrator’s acts will cause certain consequences. That definition of knowledge is very different than the one found in Art. 30(3) of the Rome Statute: “awareness that a… consequence will occur in the ordinary course of events.” In keeping with nearly all national criminal-law systems, the ICC’s judges have interpreted Art. 30(3) to require the perpetrator to be aware that his or her actions are “virtually certain” to bring about the prohibited consequence(s) — a much higher standard of subjective awareness than “substantial likelihood,” which is closer to recklessness.

Remarkably, the commentary openly acknowledges that its definition of knowledge is not actually knowledge:

Given the high thresholds for the consequences within the definition of ecocide, the Panel assessed that the Article 30 default mens rea for such consequences was too narrow and would not capture conduct with a high likelihood of resulting in severe and either widespread or long-term damage to the environment. Therefore, the Panel proposes a mens rea of recklessness or dolus eventualis, requiring awareness of a substantial likelihood of severe and either widespread or long-term damage.

So “knowledge” in the definition of ecocide really means recklessness or dolus eventualis — which raises the question of why the IEP decided to use the term “knowledge” instead. The answer, I’m willing to wager, is straightforward: the IEP knows full well the drafters of the Rome Statute were overwhelmingly opposed to including recklessness in the Rome Statute, deeming the crimes too serious to justify such an easily satisfied mens rea. That’s why you find recklessness only in the context of child soldiers and superior responsibility.

But let’s be honest: states are not going to be fooled. They will realise that knowledge actually means recklessness in the definition of ecocide. So I don’t understand why the IEP didn’t simply acknowledge that they think recklessness is more appropriate than knowledge and make the case for ecocide being the third exception to Art. 30’s default mens rea.

(It’s also worth noting that recklessness and dolus eventualis are not the same thing. The latter has both a cognitive and volitional element, while the former has only a cognitive element. But that is a minor point.)

The misdescription of ecocide’s mens rea is bad enough. Even more problematic is the expression “wanton acts committed with knowledge.” As paragraph 2 indicates, wanton here means “reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated.” The use of “wanton” imports another mens rea requirement, recklessness, into ecocide, this time with regard to the excessiveness of damage. So it is not enough for a perpetrator to “know” that his or her acts will cause “severe and either widespread or long-term damage to the environment.” He or she must also be aware that the damage will be “clearly excessive in relation to the social and economic benefits anticipated.” It will be difficult enough to prove that the perpetrator was aware there was a substantial likelihood his or her acts would cause the required environmental damage; it will be nearly impossible to prove that he or she was also aware the expected environmental damage would be clearly excessive in relation to the anticipated social and economic benefits. The requirement appears to require the perpetrator to make the value judgment in question (“this act won’t be sufficiently beneficial”), along the same lines of Art. 8(2)(b)(iv), which requires the perpetrator to be subjectively aware that an attack will cause excessive collateral damage instead of assessing the relationship between military advantage and civilian damage from the standpoint of a reasonable military commander. (Something Jessica Lawrence and I criticised in our article on that war crime.)

It is also unclear what “recklessness” means in “reckless disregard.” Is it “awareness of a substantial likelihood,” as with the knowledge requirement that is actually recklessness/dolus eventualis? Is it “awareness that a consequence is more likely than not,” as in many national criminal-law systems? Is recklessness purely cognitive, as implied by the non-inclusion of dolus eventualis? Neither the definition nor the commentary answer any of these questions.

That’s a criminal-law critique of “wanton.” The more important critique is that the wantonness requirement has no place  in the definition of ecocide. The commentary says that “the Panel was mindful that socially beneficial acts, such as housing developments and transport links, can cause severe and either widespread or long-term damage to the environment” and insists that “not all acts likely to cause severe and widespread or longterm damage to the environment are illegitimate, or even undesirable.” In other words, it’s fine to cause “severe and widespread or long-term damage to the environment” as long as humans benefit enough from the destruction. How the IEP can justify calling such an anthropocentric understanding of environmental destruction “ecocide” is difficult to understand. Either we criminalize the knowing destruction of the environment or we don’t. Either the environment exists to serve humans or it doesn’t. The least defensible solution is the middle path adopted by the IEP — that knowingly destroying the environment is criminal only if humans don’t have a good enough reason to destroy it.

Finally, a quick word about ecocide’s actus reus. I have no problem with how “severe,” “widespread,” and “long-term” are defined — and it’s good that the crime defines them, given that Art. 8(2)(b)(iv) does not. But it’s worth noting that ecocide uses a hybrid conjunctive/disjunctive test (“severe and either widespread or long-term damage to the environment”), while Art. 8(2)(b)(iv) is strictly conjunctive (“widespread, long-term and severe damage to the natural environment”). The asymmetry makes a certain amount of sense, given that it’s impossible to engage in armed conflict without causing some environmental damage. There should be less of a margin of appreciation for perpetrators in peacetime. But I don’t know whether states will approve of having two different formulations.

To sum up: anything that makes the international community pay more attention to the environmental destruction caused by human activity is worthwhile. The IEP should be applauded for devoting so much time and effort to advancing the concept of “ecocide.” But the crime they have come up with bears little resemblance to genocide, contains mens rea provisions that are unworkable, and — most unacceptably of all — remains significantly anthropocentric. For ecocide to become a useful concept, far more work needs to be done.

NOTE: I’ve been asked what my definition of ecocide would look like. It would fix the mens rea issues discussed above and eliminate any trace of anthropocentrism:

1. For the purpose of this Statute, “ecocide” means acts committed with awareness that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.

If an anthropocentric safety valve was necessary, I’d define ecocide as follows, replacing wanton’s recklessness with pure negligence regarding the cost/benefit analysis:

1. For the purpose of this Statute, “ecocide” means acts committed with awareness that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts, where a reasonable person would know that the expected environmental damage would be clearly excessive in relation to the social and economic benefits anticipated.