Ecocide and Anthropocentric Cost-Benefit Analysis

In my previous post, I criticised the Independent Expert Panel for the Legal Definition of Ecocide (IEP) for endorsing a definition that is unjustifiably anthropocentric. In particular, I criticised the idea that “knowingly” causing a substantial likelihood of either widespread or long-term severe environmental damage is not criminal unless it is “wanton,” defined as “reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated.” I rather caustically summarized that requirement as saying it’s fine to destroy the environment as long as humans benefit enough from the destruction.

On Twitter, one of the members of the IEP, Christina Voigt, pushed back against my criticism. She began by pointing out that the wantonness cost-benefit analysis applies only to lawful acts that involve a substantial likelihood of causing either widespread or long-term severe environmental damage:

The requirement of reckless disregard for the disproportionate environmental damage (i.e. wanton) applies to lawful acts only. In this situation, disregard of excessiveness of the damage is the «criminalizing» factor. The alternative would have been to capture illegal acts only.

I responded by noting that, in fact, capturing only unlawful acts was not the IEP’s sole alternative. It could also have criminalized engaging in any act that the perpetrator knew involved a substantial likelihood of causing either widespread or long-term severe environmental damage, regardless of whether that act was lawful or unlawful. Under that definition — which I endorse, as I made clear in my previous post — the “criminalizing factor” for ecocide is simply that the perpetrator knew his or her act was likely to cause the requisite environmental damage but committed the act anyway. The rationale for that broader definition is straightforward: people shouldn’t engage in acts that they know pose a substantial risk of causing severe and either widespread or long-term damage to the environment, no matter how anthropocentrically beneficial that act might be.

To be sure, the IEP’s distinction between unlawful and lawful acts — subjecting the latter but not the former to anthropocentric cost-benefit analysis — might make sense if the vast majority of acts that are likely to cause the requisite environmental damage are unlawful under either international or national law. I am not an environmental law expert, but that hardly seems to be the case. The IEP itself acknowledges in the commentary that “[i]nternational environmental law contains… relatively few absolute prohibitions, and it leaves the bulk of the protection to be formulated at the national level, through national laws.” And it cites a report of the UN Secretary-General whose central conclusion is that “gaps and deficiencies [exist] at multiple levels” in international environmental governance.

Because of international law’s inadequacies, the lawfulness or unlawfulness of most acts that threaten the environment will be determined by national law. That is not exactly a reassuring prospect. There may well be some states with robust environmental-law regimes, but in most states — rich or poor, North or South — environmental protections range from inadequate to effectively non-existent. For example, I am writing this post from my kitchen in rural Victoria, a beautiful part of a wealthy and developed state, Australia. When I typed “inadequacy of national environmental laws” into Google, the first news article to come up, from The Guardian earlier this year, was entitled “Australia Urged to Overhaul Environment Laws and Reverse ‘Decline of Our Iconic Places’.” Here is how it begins:

The Morrison government must overhaul Australia’s environmental laws, including establishing new independent bodies to take on responsibility for monitoring the environment and enforcing compliance with the law, a once-in-a-decade independent review has found.

The final report from the review of the laws finds the environment is suffering from two decades of failure by governments to improve protection systems meant to ensure the survival of the country’s unique wildlife.

The head of the review, the former competition watchdog head Graeme Samuel, made 38 recommendations to transform the Environment Protection and Biodiversity Conservation (EPBC) Act.

They include short-term reforms, including the immediate introduction of legally-binding national environmental standards to boost protection, and longer-term changes needed to address the “trajectory of environmental decline”.

An adequate survey of national environmental laws is obviously beyond the scope of this post. My point is simply that there is not a single state in the world that makes it impossible to cause widespread or long-term severe environmental damage through lawful acts. There are also many states in which, due to the inadequacy of domestic law, most environmentally destructive acts are lawful. And, of course, in some states the government itself is responsible for environmental destruction — whether or alone or, as in the Niger Delta, through an unholy alliance with multinational capital. Why, then, would we want to impose an anthropocentric cost-benefit analysis on lawful acts that otherwise satisfy the definition of ecocide — ie, acts that the perpetrator knew involved a substantial likelihood of causing widespread or long-term severe environmental damage but committed anyway? Why is that mens rea and actus reus not enough for criminalization?

Here is where Voigt’s second response to me on Twitter comes in. In response to my pointing out that the IEP did not have to distinguish between unlawful and lawful acts, but could instead have eliminated the anthropocentric cost-benefit analysis completely, she tweeted the following:

… and such «genuinely ecocentric» approach would then include, for example, every new railroad, motorway, school, hospital, perhaps even wind- or solarpark or hydro-power plant that is lawfully developed – and be the best guarantee for the «ecocide» initiative to fail.

This is a remarkable claim. Does the IEP as a whole believe that building even one school or one hospital involves a substantial risk of causing widespread or long-term severe environmental damage? Does the IEP as a whole believe that building a wind farm necessarily involves that kind of risk?

If this is only Voigt’s position, the IEP should say so — publicly. Because I think it is deeply problematic to assert that building a school or hospital or wind farm will qualify as ecocide unless the crime contains an exception for lawful acts that are anthropocentrically beneficial. I am not an expert on sustainable development, but is it really impossible to build a school or a hospital or a wind-farm in an eco-friendly way? Groups that know more than I don’t seem to think so. To mention only one example, the World Wildlife Fund of Norway — the state where Voigt teaches — has concluded that, at least in the North Sea, “[w]ith proper planning and mitigation measures it is possible to construct offshore wind farms without significantly damaging the environment.”

Voigt’s position also strikes me as conceptually problematic. Can ecocide really be equated with the environmental damage caused by a single building or group of wind turbines — thus necessitating an anthropocentric escape valve to avoid overcriminalization? Isn’t the essence of ecocide, to quote the Stop Ecocide Foundation’s own website, “mass damage and destruction of ecosystems,” not the damage caused by individual, localized acts? After all, here are some of the acts that the Stop Ecocide website identifies as ecocide: “deep sea bottom trawling, which destroy entire ecosystems by dredging the ocean floor”; “mountaintop removal” for mining; “fracking”; “[n]uclear accidents such as Chernobyl and Fukushima“; and “industrial emissions.” Those kinds of acts involve environmental damage far in excess of the damage caused by building a school or hospital or wind farm.

To be clear, I don’t think ecocide is limited to the kinds of acts Stop Ecocide mentions. I applaud the IEP for requiring the substantial risk of severe environmental damage to be either widespread or long-term, thus making the crime’s actus reus easier to satisfy than the actus reus of the related war crime in Art. 8(2)(b)(iv) of the Rome Statute. And I think it was wise of the IEP to adjust ENMOD’s definition of widespread to include transboundary harm and “egregious acts of environmental damage that harm thousands of people in a single city or population centre.”

But note the language in that sentence: “egregious acts.” Ecocide is — or should be — a very serious crime, one that requires environmental damage that goes well beyond the damage that is inherent in all human development activities, even the best intentioned.

That is why I question Voigt’s position — and hope that the IEP does, as well. It is also why I reject the anthropocentric cost-benefit analysis that the IEP applies to all lawful acts of development, no matter how environmentally destructive. (Or intentionally destructive, for that matter.) My position is simply this: if a lawful act designed to benefit humans cannot be carried out in a way that does not involve a substantial likelihood of causing severe damage to the environment that is either widespread or long-term, it should be criminal to commit that act if the perpetrator is aware of the substantial risk. Full stop. Whether causing the damage is “worth it” for anthropocentric reasons is beside the point.

NOTE: I am not necessarily opposed to creating an international crime that prohibits lawful acts whose expected environmental harm exceeds or clearly exceeds their anthropocentric value — essentially a peacetime equivalent to Art. 8(2)(b)(iv). But any such crime should be considered a crime against humanity, thus emphasising its anthropocentric nature. I think giving the name “ecocide” to a crime that permits the knowing infliction of widespread or long-term severe environmental damage as long as the act in question creates adequate “social and economic benefits” for humans unjustifiably dilutes the concept of ecocide.