Peru and the Domestic Criminalisation of Ecocide

Peru’s Justice and Human Rights Commission of the Congress has just published a unified bill that would add the crime of ecocide to the Peruvian penal code. The next step is for Congress to approve the bill and the President to promulgate it.

Here is Art. 1 of the unified bill, as translated by ClaudeAI:

Article 305-A. Ecocide

305-A.1. Anyone who, knowingly, provokes, carries out or omits an act that causes serious damage that is extensive or irreversible to the environment or its components, to environmental quality or health, or to the integrity of ecological processes shall be punished with:

• Prison sentence of no less than ten years and no more than fifteen years
• Fine of 365 to 730 day-fines
• Disqualification according to article 36, sections 1, 2, 3, 4

305-A.2. For the purposes of this article, the following definitions are established:

a. Serious damage: That which causes adverse changes, disturbances, or notable damage to the atmosphere, soil, subsoil, or terrestrial, maritime, or underground waters, including serious impacts on human life, animal and plant life, natural, cultural, or economic resources.

b. Extensive damage: That which extends beyond a limited geographical area, crosses state borders, or affects an entire ecosystem or an entire species.

c. Irreversible damage: That which is definitive or can only be mitigated through natural recovery processes over a prolonged period.”

As Stop Ecocide International notes, the unified bill’s “definitions of ‘grave’, ‘extensive’ and ‘irreversible’ damage align closely with the definition of ecocide formulated by the Independent Expert Panel convened by the Stop Ecocide Foundation in 2021.”

What they don’t note, however, is that the actus reus of the Peruvian definition of ecocide nevertheless differs from the IEP definition of ecocide in a fundamental way: namely, it does not distinguish between unlawful and lawful acts and thus does not require environmental damage caused by lawful acts to “be clearly excessive in relation to the social and economic benefits anticipated.” In other words, the Peruvian definition doesn’t permit anthropocentric balancing of any kind. If a perpetrator knowingly causes the requisite environmental damage, he or she is guilty of ecocide regardless of whether the act was ostensibly lawful or how that act might benefit humans.

I think this is a very good thing. I’ve written ad nauseam about why it’s a bad idea for a definition of ecocide to permit anthropocentric balancing for ostensibly lawful acts, so I won’t repeat the argument here. Instead, I want to point out that recent practice, albeit limited, seems to indicate that states are more willing to deviate from the IEP definition of ecocide than I anticipated. Unfortunately, the most common deviation to date has been to limit ecocide to unlawful acts, which will make ecocide far more difficult to prosecute. That limitation is part of both Belgium’s new ecocide law and  the EU’s recently adopted Environmental Crime Directive. Peru, however, seems intent on going the opposite way — making ecocide easier to prosecute by not permitting anthropocentric balancing for ostensibly lawful acts.

It remains to be seen whether future national ecocide laws will adopt the IEP definition or will deviate from that definition in ways that make ecocide either easier or more difficult to prosecute. I believe states should do what Peru is set to do — reject the IEP definition of ecocide in favour of one that does not permit perpetrators to cause serious damage simply because the “social and economic benefits” to humans are significant enough.