How ‘Ecocide’ Could Become an International Crime

(Bloomberg) -- From oil spills to open-pit mining, clear-cut logging to heavy-net trawling, humans continue to scar the planet despite mountains of legislation, regulation and good intent. Some environmental lawyers want to make destruction of an ecosystem an international crime -- “ecocide” -- on par with genocide or war crimes. Past attempts were stymied by the challenge of defining what would constitute a crime. But amid rising concern about climate change, a new definition has been published that could make ecocide the first new crime added to international law since 1948.

1. What is ecocide?

The term was coined in 1970 by Arthur W. Galston, an American biologist. It’s derived from the Greek oikos, meaning home, and the Latin caedere, meaning to demolish or kill. In 1972, then-Swedish Premier Olof Palme used the word in reference to the U.S. having sprayed the defoliant Agent Orange during the Vietnam War to eliminate forest cover and crops for enemy troops. Since then, there have been several attempts to codify ecocide into international law, as genocide was following World War II. Ecocide was included in the early drafts of the Rome Statute, the document adopted in 1998 that established the International Criminal Court (ICC). That’s the permanent, independent tribunal, based in The Hague, that’s designed to hold accountable those who commit genocide, war crimes and crimes against humanity. But ecocide was dropped in 1996 as a category of crime after the U.S., the U.K. and the Netherlands argued it was insufficiently defined.

2. What’s the proposed new definition?

An expert panel of international lawyers convened by the Netherlands-based Stop Ecocide Foundation issued a proposal in June defining ecocide as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.” The idea is to add ecocide to crimes over which the ICC can claim jurisdiction.

3. Why is a new definition needed?

Lawyers who worked on the proposal say ecocide doesn’t require proof of harm to humans, as crimes against humanity do. (In January, indigenous leaders in Brazil asked the court to investigate whether President Jair Bolsonaro’s policies regarding the Amazon rainforest and traditional communities constitute crimes against humanity. No decision has been made.) The new definition would also account for acts of omission, for instance a failure to prevent a rise in greenhouse gas emissions, which contribute to global warming. Supporters of the proposal also say placing ecocide on a par with war crimes and genocide would give it gravitas and that the threat and shame of being arrested and tried alongside dictators in The Hague would be a deterrent.

4. Does anything like this currently exist?

Significant environmental destruction is partially prohibited under a United Nations convention that took effect in 1978, but it applies only during wartime. Some individual nations have laws related to ecocide. And national courts have become an increasingly successful arena for campaigners to hold governments and countries to account over pollution and climate change. In a landmark ruling in May, a Dutch court ordered Royal Dutch Shell Plc to do more to slash its greenhouse gas emissions, saying in the decision that “companies have the responsibility to respect human rights.”

5. Who supports making ecocide a crime?

In 2019, Pope Francis urged the International Association of Penal Law to recognize ecocide as the “fifth category of crime against peace.” Activist Greta Thunberg donated 100,000 euros ($119,000) in prize money to the Stop Ecocide Foundation. French President Emmanuel Macron in 2019 described forest fires in Brazil as ecocide and has promised to “carry on this fight on behalf of France.” Belgian Foreign Minister Sophie Wilmes has also expressed support along with politicians from Vanuatu and the Maldives, nations vulnerable to rising sea levels.

6. What do critics say?

They say the ICC is a flawed institution and an ecocide law could constrain economic development. On the first point, the ICC has 123 members, but its holdouts include three of the top five world economies -- the U.S., China and India -- as well as Russia, Israel, Qatar, Iraq and Libya. These non-members aren’t exempt from ICC actions but can be investigated by the court only upon direction by the United Nations Security Council. Some criticize the ICC as slow, with weak management and ineffective prosecutions. The court’s existence didn’t deter atrocities in places like Myanmar or Sri Lanka. (Jojo Mehta, chair of the Stop Ecocide Foundation, acknowledges “all kinds of problems” with the ICC but says it’s “the only global mechanism that directly accesses the criminal justice systems of all its member states.”) On the question of economic development, some argue that the Earth is a resource and see ecocide laws as tipping the legal scales too far in the direction of protecting nature and away from human needs. The head of Medef, a French business group, told lawmakers his members fear being stigmatized if people interpret ecocide as, “the economy kills.”

7. What are the next steps?

A member nation of the ICC would need to formally propose an amendment to the Rome Statute to establish ecocide as a crime under the court’s jurisdiction. Vanuatu and the Maldives are seen as leading candidates to do so. After a deliberation and debate process that could stretch for years, it would take a two-thirds supermajority of ICC nations to enact the amendment. Even then, there surely would be battles ahead regarding country-by-country adoption of ecocide law and enforcement of any ICC actions.

The Reference Shelf

• A QuickTake explainer on the ICC, and another on the implications of the Dutch court ruling for Big Oil.
• The Stop Ecocide Foundation panel’s full proposal.
• Stop Ecocide’s website, and another for End Ecocide, a group associated with the European Citizens Initiative.
• A library of ecocide law documents co-managed by the University of California, Los Angeles.
• A Law Gazette article on the drafting committee for ecocide law.
• Further reporting by the BBC’s Future Planet, the Economist and Time magazine.

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