Of Ecocide and Misanthropy: A Response to Darryl Robinson, Part II

Introduction

The first of this two-part piece argued that Darryl Robinson’s ‘misanthropic’ label against some ecocide scholarship is misplaced. This second part turns to his companion article. Robinson therein argues that those ‘misanthropic’ ecocide scholars who posit that “all severe harm should be criminalised outright”, regardless of the social and economic benefits anticipated or produced thereby, are promoting an “absolute approach”. He argues that “this view overlooks elementary science: humans must have some ecological footprint to survive” (emphasis added), and that “some activities […] may entail ‘severe’ harm even with all feasible mitigation measures”. Ecocide, according to him, must then be subject to a ‘wrongfulness requirement’ which necessitates an ex post facto form of balancing, namely:

“does the activity serve a pressing need; do the long-term benefits outweigh the long-term harms; is it the least harmful alternative; and are all feasible measures taken to minimise harm”

with “inter-species justice or the interests of the Earth community as a whole” as the external metric. In the definition of ecocide proposed by the Independent Expert Panel (‘IEP’), this balancing manifests in the ‘wanton’ requirement, namely, that conduct be committed with:

“reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated”.

This second of our two-part piece contends that: (1) by looking to an ex post facto ‘balancing’ exercise, instead of an accessible ex ante test, Robinson’s approach conflicts with the principle of legality; and (2) instead of adding more discretionary balancing, the formulation of ecocide, needs to integrate ‘more law’ to distinguish wrongful ecocidal conduct from lawful activities that nonetheless seriously impact the natural environment. As the International Criminal Court’s Working Group on Amendments grapples with generating a workable formulation of ecocide, this should be the primary focus of ecocide scholarship.

The Balancing of Anthropocentric Interests in Ecocide

The ‘wanton’ requirement, as currently formulated by the IEP (and Robinson’s reference to a similar type of balancing test, which he does not further specify), makes it so that only those harms to the environment which do not involve justificatory social and economic benefits would be criminalised by ecocide. When considering that any environmental harm is overall harmful to humans, this means that it is only upon a net negative human impact basis that the crime operates. This is the central concern of anthropocentricisation, namely, not that human-related interests are included, but that their manner of inclusion is justificatory.

Effectively, the IEP approach would place no limit on the amount of harm inflicted on the natural environment as long as a countervailing anthropocentric interest could be shown. Moreover, the scales are heavily tipped against the natural environment, as the IEP demands that environmental harm must be ‘clearly excessive’ to social and economic benefits. Though Robinson describes this as a ‘wrongfulness’ requirement, he  is effectively hinging ecocide on a ‘reasonableness’ requirement – “an invitation to tolerance, to the recognition of a range of acceptable answers” (p. 141). Judges would thus be required to decide ex post facto whether an activity was ‘reasonable’. This diverges from the usual criminal approach of determining ‘wrongfulness’ by reference to a pre-existing clearly delineated proscriptive rule or set of criteria, set out in law at the time of the conduct in question.

Robinson attacks other ‘no balancing’ approaches as unrealistic. However, in doing so, he sets up a straw man to knock down. In fact, some of the other formulations do not eschew any human-related considerations or a ‘wrongfulness’ requirement, but instead incorporate these considerations into the formulation of the crime and its enumerated underlying acts, while also allowing for environmental law frameworks to be relied on where relevant to distinguish between acceptable and unacceptable harm to the natural environment.

The Threshold for Impermissible Harm

All leading ecocide formulations feature a harm threshold. This threshold has multiple dimensions: qualitative (through ‘severe’), quantitative and spatial (through ‘widespread’), and temporal (through ‘long-term’). Of these, ‘severe’ is defined by the IEP as “very serious adverse changes, disruption or harm to any element of the environment”; however, the IEP provides no further guidance on what must or should constitute ‘very serious’. What is clear, however, is that the harm threshold takes into account the occurrence of anthropogenic environmental harm – which is a normal part of everyday existence. Ecocide is not designed to address the entirety of environmental harm caused by humankind’s activities across whole sectors such as agriculture, animal husbandry, aviation or military/security. Instead, ecocide concerns the causing of acute harm by one actor (or others in a common criminal plan) through conduct which is subject to some degree of spatial and temporal cumulation or cohesion. Thus, many of Robinson’s examples of ‘justifiable high-impact activities’ may not even be impugned by ecocide in the way he presages; not to mention that some of these examples are demonstrably not necessary for survival (see, for one example, the United Kingdom’s Civil Aviation Authority’s passenger survey consistently reporting ‘leisure’ as a purpose of travel for an overwhelming majority). The idea that any degree of environmental harm is justifiable ex post facto as long as there was a counter-vailing human interest, opens the gates to the unlimited destruction of nature. This begs the question of why ecocide exists at all, if it fails to set any deontological limit on the amount of destruction that cannot be overcome by simply pointing to opposing human interests.

The Mens Rea Requirement

Robinson also does not fully address the significance of the mens rea requirement. Most scholars agree that a mental state is required for ecocide, though there may be disagreements as to the requisite state (informed also by the specific structure of the intended jurisdictional forum). Thus, an accused must either have intention, knowledge, or be in reckless disregard of the impermissible environmental harm their conduct will cause. It may then be argued that compliance or a genuine attempt to adhere to standards that have been set out in international environmental law (‘IEL’) (and other relevant international law obligations) may serve as exculpatory evidence as to mens rea (see Gillett’s ecocide definition, p. 348, fn. 147). IEL is particularly salient to the current question since its very purpose is:

“preventing and reducing serious anthropocentric harm to the environment, whilst balancing this imperative against the right to development”

p. 26

Instead of the judges having to decide ex post facto on the policy-type issue of what the appropriate balance between environmental harm and human-interests should be, incorporating this into the mens rea would see jugdes focus on the much more familiar exercise of assessing an accused’s mens rea to see if efforts were made to adhere to appropriate safeguards for the sake of the environment.

Instead of the judges having to decide ex post facto on the policy-type issue of what the appropriate balance between environmental harm and human-interests should be, incorporating this into the mens rea would see jugdes focus on the much more familiar exercise of assessing an accused’s mens rea to see if efforts were made to adhere to appropriate safeguards for the sake of the environment.

Justifications v. Excuses

To minimize the uncertainty and discretion in applying ecocide, one option is to imagine a ‘legality exception’. Rather than exonerating the wrongfulness through ex post facto balancing of policy interests (as in the IEP’s definition), this would address the lack of wrongdoing (culpability) in adhering to, and relying in good faith on, applicable legal regimes, particularly IEL, as an excuse (see, for example, Gillett’s ecocide definition, here, p. 350, premised on being:

“both (a) strictly in accordance with international law, particularly international environmental law, and (b) authorized by a competent national authority”).

Ex Ante Balancing

A fundamental concern with Robinson (and the IEP)’s approach is that it effectively requires ex post facto assessment according to an extremely broad discretionary balancing test (the reasonableness test discussed above). It is preferable to instead adopt a deontological position, which incorporates the balancing of human-related interests into the definition itself as far as possible, and thereby is accessible to the public ex ante. In this respect, the Gillett or Promise Institute formulations diverge from the approaches of Robinson and the IEP, which are instead utilitarian. By jettisoning the ad hoc (case-by-case) and ex post facto definitional hinge of balancing from ecocide, the Gillett or Promise Institute  formulations hinge the determination of whether ecocide was committed and the responsibility thereof to an ex ante assessment of the accused’s conduct (and not its utility), enhancing thereby compliance with the principle of legality, particularly certainty and sufficient notice. Though Robinson acknowledges that balancing may “be done at the legislative stage”, he does so, unexplainably, only for select situations, and not ecocide as a whole. A further positive step in this direction would to enumerate acts of ecocide (see definitions of the UCLA Promise Institute’s Group of Experts, here, and Gillett, here).

The ‘More Law’ Approach

A core problem with the IEP’s definition is that it places vast discretion in the hands of judges to balance environmental harm against ‘social’ and ‘economic’ ‘benefits’, each of which remains undefined and inherently indeterminate.

Any such case-to-case balancing would be controversial and would raise the risk of subjectivity and unpredictability to the detriment of the legitimacy of ecocide. For one illustration, consider how one may determine, for ecocide, the clear excessiveness of a direct attack on a natural gas field (resulting in greenhouse gas emissions causing impermissible harm) against the social and economic benefits genuinely anticipated by the attacking state of being able to end the conflict by destroying, what it considered, critical ‘war-sustaining infrastructure’. The acute challenges that arise during war crimes trials concerning balancing incidental civilian harm against the roughly analogous ‘military advantage’ – which, at least in principle, is narrowly defined and grounded in international humanitarian law – is well documented (see Rogier Bartels). The IEP’s ‘social and economic benefits’ are neither grounded in pre-existing law nor narrowly defined. Ecocide should not be subjected to such vague prescriptive parameters, particularly if balancing is done ex post facto and ad hoc, rather than based on a pre-existing criteria listing underlying acts constituting ecocide.

To assist judges with the differentiation of lawful from unlawful conduct, and to assist the general public to plan their conduct, we argue that a court applying the IEP’s definition of ecocide needs ‘more law’, that is, it should integrate specificities and derive legitimacy from established international legal frameworks, which should be appropriately adapted to the criminal context in accordance with the principle of legality (see generally, here (pp. 14–15) and here). As noted above, existing international environmental law is particularly salient for the purposes of ecocide. But ‘more law’ does not only benefit international criminal law. It may trigger a feedback loop, demanding further precision and prohibition-focused development of IEL, and, in turn, enhancing ecocide’s compliance with the principle of legality and reducing the fragmentation of international law.

On the concern about whether obligations and principles incurring state responsibility can inform individual criminal responsibility, this is not unprecedented, as existing core international crimes – particularly, crimes against humanity and the crime of aggression – provide sufficient precedent. A proposal for how these may be incorporated is discussed elsewhere (see ‘framework integration’, here (p. 1013)).

‘The Misanthrope’

The curious reader may have wondered the deeper significance of appending Pieter Bruegel the Elder’s (c. 1525–1569) masterful ‘The Misanthrope’ (signed and dated 1568) to this two-part piece. The visual capture by the dominating and brooding figure of the hooded old man – convincingly interpreted by Margaret Sullivan as Timon of Athens – is obvious. He walks with a bitter frown, consumed by his “disenchantment and rejection of the world”, unbeknownst to tribulations around him: thorn-like objects in his path, and, unmissably, the surreptitious thief enclosed in a transparent globe, an allegory to the “aggressive and active” human world. The text beneath lay bare what is apparent: “Because the world is so deceitful, I go in mourning”. The two protagonists, for our purposes, represent the duality of misanthropy and anthropocentrism; both targeted towards the proverbial ‘Man’, the former a reservoir of outward condemnation or inward isolationism, and the latter self-serving and perfidious, whether for benevolent or malevolent reasons. The inspective reader, however, will notice the triality actually depicted. As one turns to the rear, we are confronted with the modest shepherd, diligently tending to his grazing herd (black sheep and all) with their well-being and interests his vocation. He presents the middle path of ecocentrism. It is the modest shepherd we attempt to channel in shifting the focus of ecocide away from ‘Man’ and towards the natural environment. Like the shepherd who sells his flock’s wool, we do not deny human subsistence or survival. We simply wish to tend now to the silent and oft-forgotten interests of the natural environment per se. This can be done through a robust and detailed formulation of ecocide, in accordance with the principle of legality, to complement the existing crimes already set out under the Rome Statute, which are rightly designed to protect humans and their interests.