08 Nov Belgium Set to Criminalise Ecocide (Kinda Sorta)
Via its Minister for the Environment, the Belgian government has announced that it intends to incorporate the crime of ecocide into its Penal Code:
A concept now recognized in the national penal codes of 10 countries (Georgia, Armenia, Ukraine, Belarus, Kazakhstan, Kyrgyzstan, Moldova, Russia, Tajikistan, Vietnam and France), the crime of ecocide refers to all illegal actions that lead to the massive destruction of the environment and of nature in the broad sense.
For several years, many civil society actors have been calling for the recognition in international law of ecocide in a specific convention or in the Rome Statute of the International Criminal Court as the 5th crime against peace and security, alongside genocide, crimes against humanity, war crimes and the crime of aggression. A call that found an echo with Zakia Khattabi who, on March 20, launched an appeal to his fellow European ministers to create an alliance of progressive countries in favor of the inclusion of ecocide in the Rome Statute.
“Alongside the international dynamic, and to give it every chance of succeeding, it is important that States pave the way”, declared the Federal Minister for the Environment. “I am delighted and congratulated that Belgium is among the front runners in this area. I would like to thank my colleague Vincent Van Quickenborne for the excellent collaboration in this area”, she continues.
Any offense consisting of deliberately committing an illegal act causing serious, widespread and long-term damage to the environment, knowing that these acts cause such damage, will be qualified as the crime of ecocide. This crime will be punished with a level 6 sentence, which is particularly heavy since it provides for imprisonment ranging from 10 to 20 years.
Stop Ecocide International is understandably enthusiastic about this development. Indeed, it takes some credit in its press release: “[a]lthough somewhat narrower in scope, this is clearly aligned with the international consensus legal definition of the Independent Expert Panel convened by the Stop Ecocide Foundation.”
I think “clearly aligned” is a significant overstatement. There are in fact two fundamental differences between the Belgian definition of ecocide and the IEP definition, each of which narrows the crime’s scope. First, echoing Art. 55 of the First Additional Protocol and Art. 8(2)(b)(iv) of the Rome Statute, the Belgian definition requires an act to cause “serious, widespread and long-term” environmental damage. The IEP definition, by contrast, follows ENMOD and requires only that an act cause “severe and either widespread or long-term damage to the environment.” The actus reus of the Belgian definition is thus much more difficult to satisfy than the actus reus of the IEP definition, excluding serious environmental damage that is either widespread or long-term but not both. Indeed, in its Commentary, the IEP specifically criticised the conjunctive tests in AP1 and the Rome Statute as “unnecessarily high.”
Second, and perhaps even more importantly, the Belgian definition of ecocide criminalises only unlawful acts that case the requisite environmental damage, whereas the IEP definition criminalises both lawful and unlawful acts. I am on record as believing that the IEP’s balancing approach to lawful acts is deeply problematic, but at least the IEP definition doesn’t exclude lawful acts entirely. The Minister’s press release does not say whether the Belgian definition will extend to acts that are illegal under international law as well as under Belgian law. Even if it adopts the more expansive approach, though, the utility of the Belgian definition will be limited. Here is what the IEP says about its decision to include both international and national law in its definition of “unlawful”:
The introduction of the qualifier ‘unlawful’ captures environmentally harmful acts that are already prohibited in law. The Panel considered narrowing this to unlawful under international law. However, this was felt to be too narrow. International environmental law contains obligations for States in treaties and customary law but relatively few absolute prohibitions, and it leaves the bulk of the protection to be formulated at the national level, through national laws.
I don’t know very much about Belgium’s criminal environmental laws, so I can’t comment on whether they criminalise a wide variety of environmentally damaging acts. A quick glance at the two leading environmental performance indexes, however, creates reason for concern: Belgium ranks 68th for climate policy (36th overall) in the Global Sustainability Index and 58th for climate policy (21st overall) in the Environmental Performance Index.
Finally, a minor gripe about Stop Ecocide International’s own press release: the IEP definition of ecocide does not represent the “international consensus.” It represents the views of 13 experts, none of whom participated in the IEP on behalf of a state. To be sure, it is possible that the IEP definition may eventually become the international consensus. If Belgium’s dramatic narrowing of ecocide is any indication, however, that seems unlikely.