In June 2021, a panel of legal experts convened by the Stop Ecocide Foundation (called the Independent Expert Panel for the Legal Definition of Ecocide (Panel)) unveiled a proposal to make mass environmental destruction an international crime (Proposal). The Proposal involves adding new Article 8 ter to the Rome Statute of the International Criminal Court (ICC), which would place ecocide alongside existing international crimes of genocide, crimes against humanity, war crimes, and the crime of aggression. Although encouraging to see environmental protection as the focus of international legal efforts, the Proposal raises serious questions for international criminal law practitioners. Some of these are considered below.
So, what’s the proposed definition?
The Panel defines 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’ (Proposal, p 5).
A number of aspects of the draft definition are drawn from existing international law agreements, making its construction feel more familiar. For example, the Proposal reflects the structure of Article 7 of the Rome Statute relating to crimes against humanity: the first paragraph sets out the crime, and the second paragraph defines the crime’s core elements. In terms of language, the words ‘widespread’, ‘long-term’ and ‘severe’ replicate those in Article 8(2)(b)(iv) of the Rome Statute concerning damage to the environment during international armed conflict. This article prohibits intentionally conducting an attack in the knowledge that it will cause ‘widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated’. New Article 8 ter would essentially extend this war crime to times of peace, and cover environmental damage that is both cumulative and alternative (‘severe and either widespread or long-term’).
Further, the authors explain that the term ‘ecocide’ is conceived in a similar way to ‘genocide’ (Proposal, p 6), which means serious environmental crimes – at least conceptually – are placed on the same level as the intentional destruction of, or intention to destroy, protected human groups. This formulation reflects a trend towards a nature-centered (ecocentric) rather than human-centered (anthropocentric) approach to protecting the environment, and it certainly conveys the gravity of causing environmental damage. But the Panel does not explain how conduct captured by the crime of ecocide equates to the deliberate targeting and killing of protected human groups under the crime of genocide. Some explanation is needed here given that the definition of ecocide does not cover lawful acts of damage to the environment which fall short of the threshold of ‘wanton acts’,, effectively allowing States to determine what constitutes legitimate environmental destruction pursuant to national laws and policies. Obviously no such exception exists for acts of genocide.
For its part, ‘wanton acts’ of environmental destruction refers to damage ‘which would be clearly excessive in relation to the social and economic benefits anticipated’ (Proposal, p 5), meaning that States and corporate polluters could justify environmental destruction on the basis that humans stood to gain from it. Such benefit does not need to materialise; it simply needs to be anticipated. So in real terms the Panel’s definition of ecocide would do little to deter our Environment Minister from approving new coalmines, or our Prime Minister from filling the Indo-Pacific with floating nuclear reactors. Both projects have the capacity for serious and irreversible environmental harm, yet both can be explained in relation to Australia’s economic or physical security. The Proposal therefore takes an anthropocentric approach to ecocide, as humans are able to decide the scope of permissible environmental destruction through a cost-benefit analysis.
As well as conceptual problems, the Panel’s draft definition of ecocide also faces interpretative issues. Take for example the proposed mens rea, being ‘knowledge that there is a substantial likelihood’ the perpetrator’s acts will cause ‘severe and either widespread or long-term damage to the environment’. The term ‘knowledge’, found in Article 30 of the Rome Statute, has been interpreted by ICC judges as requiring perpetrators to be aware that their actions are ‘virtually certain’ to bring about a prohibited outcome (see, eg, Lubanga Appeal Judgment). ‘Substantial likelihood’, on the other hand, sets a lower cognitive threshold of subjective awareness. In its commentary, the Panel explains that the ICC’s definition of knowledge ‘was too narrow and would not capture conduct with a high likelihood of resulting in severe and either widespread or long-term damage to the environment. Therefore the Panel proposes a mens rea of recklessness or dolus eventualis, requiring awareness of a substantial likelihood’ of certain consequences (Proposal, p 11). Aside from conflating the concepts of recklessness and dolus eventualis, the Panel appears to use the term ‘knowledge’ when it actually means awareness. Or perhaps the Panel uses the term ‘awareness’ when it means knowledge? Either way, the requisite mental element for ecocide needs to be clarified. (See also Ambos here and Heller here).
Then there is the grueling process of amending the Rome Statute, which requires agreement of two thirds of States Parties (Article 121(3)). Even if this could be achieved within a reasonable timeframe to prevent species suicide, the crime of ecocide would only apply to those States who agree to the amendment. So those States most likely to commit ecocide, or permit such conduct on its territory, would simply decline to accept. With this in mind, it is unlikely a new international crime of ecocide will offer, as the Panel suggests, a ‘practical legal tool’ for protecting the environment (Proposal, p 3).
A way forward?
Despite these issues, the creation of a criminal offence addressing environmental destruction at the very least declares the importance of protecting the environment, not only because of its relationship to humans but also for its intrinsic value. Indeed, under the Panel’s definition, human populations do not need to suffer harm before impugned conduct is prosecuted. Moreover, ‘environment’ is defined broadly to include ‘the earth, its biosphere, cryosphere, lithosphere, hydrosphere and atmosphere, as well as outer space’ (Proposal, p 5), so ecocide would effectively cover acts that contribute to global warming regardless of whether the impact of those acts is immediately felt.
Picking out problems is much easier than presenting solutions. The Panel has proposed something the international community can start to grapple with. Even if the draft definition of ecocide is not adopted anytime soon (or ever), it provides some foundation for future discussion in this important space. It is one step in the right direction.
Stephanie Erian is an Assistant Editor of the ILA Reporter.
Suggested citation: Stephanie Erian, ‘Can international criminal law protect the environment?’ on ILA Reporter (20 September 2021) <https://ilareporter.org.au/2021/09/can-international-criminal-law-protect-the-environment-stephanie-erian/>