A Tale of Two Definitions: Fortifying Four Key Elements of the Proposed Crime of Ecocide (Part II)

[Matthew Gillett is a Senior Lecturer (Associate Professor) at the University of Essex Law School and a United Nations Special Mandate holder (Vice-Chair of Working Group on Arbitrary Detention), who previously prosecuted cases before the international courts. The views herein are those of the author alone and do not necessarily reflect those of any other person or organization.

The author was a member of the UCLA Promise Institute Working Group on the use of International Criminal Law to Protect the Environment. See the Working Group’s report.]

Part 1 focused on two facets of the Independent Expert Panel‘s 2021 proposed definition of Ecocide (the lack of underlying crimes and its framing as a crime of endangerment). Part 2 now addresses two further elements (the use of the term “wanton” and the element of “lawfulness”) and contrasts them with the elements of the Author’s definition of Ecocide (reproduced here) proposed in his book.]

3. A “Wanton” Crime?

A third issue with the IEP’s definition of Ecocide concerns its use of the term “wanton”. Here, the IEP provides an explanation, stating that “wanton means with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated.” The term “wanton” is a somewhat antiquated one, but appears once in the Rome Statute, in Article 8(2)(a)(iv) of “[e]xtensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.” However, the IEP’s use of “wanton”, with its reference to social and economic benefits, diverges from any IHL definition of the term. Other commentators have already criticized the message sent by the idea of economic benefits, in particular, outweighing acts entailing risks of severe environmental harm. At the symbolic level, the prominent use of “wanton”, with its explicit reference to economic benefits potentially outweighing severe environmental harm, may be damaging. Notably, the European Parliament chose not to include “wanton” in its recently formulated version of Ecocide.

By contrast, the Author’s formulation uses the term “wilful”. It specifies that this encompasses “direct intent, as in purpose or virtual certainty regarding the environmental harm, as well as voluntarily assuming the risk of such harm occurring, when undertaking the underlying act”, and explains that “a person who genuinely takes appropriate and available measures designed to avoid environmental harm is not wilfully accepting the risk of environmental harm and therefore would not meet this element of the crime.” The term “wilful” is utilized in several Rome Statute crimes and is well-known under IHL. In this light, it will benefit from established jurisprudence to guide its interpretation.

Underlying act g) of the Author’s definition does potentially leave room for judges to consider social and economic benefits, along with the precautionary principle, the preventive principle, the ‘polluter pays’ principle, intergenerational equity, and common-but-differentiated responsibilities. However, the Author’s definition states that these terms must be considered in the framework of international environmental law, anchoring the judges’ assessments to legal provisions and principles rather than on broader notions of social and economic benefits in general. Moreover, this is just one element of an underlying crime and would still require a demonstration of the elements of the chapeau, including wilfulness.

Ultimately, whether the term “wanton” or “wilful” is preferred, it will be important that it is used in a coherent manner with other usages of the term in the Rome Statute and with relevant regimes such as IHL.

4. Should Otherwise Lawful Conduct be Considered Ecocide?

The final issue highlighted in this discussion is that of lawfulness. The IEP explains that unlawfulness extends to violations of national law, but provides no further explanation. Questions will arise about what this means if the positions under international and national law are inconsistent. But more contentiously, the structure of the IEP’s formulation shows that unlawfulness is not required to show Ecocide. Effectively, the IEP is asserting an entirely lawful act under international and national law would not be excluded from criminal sanction. This would be objectionable to governments engaging in development projects and other large-scale industries, to the extent they conduct lawful behaviour that nonetheless entails significant environmental impact. It would shine a spotlight on the fraught use of the term “wanton”, and its social and economic proportionality assessment, which will be difficult for criminal law judges to address.

Conversely, the Author’s definition explicitly includes lawfulness as an exception to Ecocide. It is a narrowly tailored exception, requiring a demonstration of lawfulness at the international and national levels. The onus would be placed on an accused to invoke it and provide a reasonable basis to do so (as an evidentiary burden). Given that the accused will usually have the easiest access to relevant permits and approvals, this approach constitutes a reasonable distribution of litigation responsibilities. 

Conclusion

The current movement to adopt Ecocide as a fifth crime under the Rome Statute or in a stand-alone treaty is not unprecedented. Several similar attempts have been made over the 20th and early 21st centuries. However, with humanity increasingly aware of its ability to engineer the destruction of its own habitat, there is impetus to adopt the crime of Ecocide and finally outlaw it at the international level. The crime presents a relatively low-cost political step that many governments may find attractive as the pressure mounts on them to take action against anthropogenic harm to the environment. Because of this, comparing and contrasting the details of the proposed definitions of Ecocide is not only essential but will potentially reap benefits in terms of tightening the definition and ensuring its legal functionality and symbolic impact. Above all, it is imperative to ensure that the definition of Ecocide sets out robust protection for the natural environment while also providing humans with fair warning as to which specific conduct will see them penalized as écocidaires.