The State of Ecocide: A Review of Ecocide and Its Challenges
By Suad Abdulkadir*
Ecocide is defined “as mass damage and destruction of nature, a root cause of the climate and ecological emergency that we now face” [1].The term was first coined by Professor Galston at the Conference on War and National Responsibility in Washington due to the use of Agent Orange [2], a herbicide during the Vietnam war. Marking the first time in which destruction of land by humans was considered a grave injustice influencing what ecocide is today. The most recent definition has been proposed by the Independent Expert Panel (IEP) in 2021 which defines ecocide as acts that cause environmental damage recklessly.This definition has faced criticism for the subjective test that poses issues for prosecutors. This article will focus on ecocide in the context of the ecocide international movement, which seeks to incorporate ecocide as a fifth crime at the International Criminal Court (ICC).Specifically, this article will analyse the challenges this movement has faced to enforce ecocide as a crime due to jurisdictional issues such as whether the ICC is capable of extending its mandate and if it is the appropriate avenue for ecocide to be prosecuted. I will also discuss the legality of the definition of ecocide and social and political challenges that have impacted this movement.Through my analysis, I have concluded that ecocide in its current state will not be effective in recognising ecocide as a fifth crime due to the significant challenges and criticism it faces.Therefore, I will also conclude that there needs to be a substantial change to the definition proposed by the IEP for ecocide to be recognised as a fifth crime at the ICC.
I.State of ecocide:
The importance of ecocide in being considered as a fifth crime under international law by the ecocide campaign, lies in its ability to hold corporations accountable across all jurisdictions [3].As large corporations and States exploit land for excessive monetary gain which significantly impacts the quality of life for humanity. They should be held accountable for the role they play in climate change.Organisations have advocated for ecocide to be considered a fifth crime under the Rome Statute; for the ICC to be the judicial arena to hold perpetrators accountable.Currently, several states such as Ecuador, France and Ukraine recognise ecocide, illustrating that the ecocide campaign is gaining significant traction in the international community.However, it still has many more steps before it can be effective in holding large polluters accountable.For example, while ecocide is a national crime under the French Climate & Resilience Act [4], it is limited to actions within France and the category of ecocide is of a much weaker standard than what the ecocide campaign has envisioned.As ecocide gains momentum in the international community, many States are moving to implement ecocide in domestic law. It should be noted that it is at this stage that civil society needs to be strategic in their advocacy and collaboration with governments to ensure that ecocide is not watered down. The implication of a watered down ecocide bill is that governments would be virtue signalling, while allowing corporations to escape strict liability as envisaged by NGOs and civil society for the crime of ecocide.Thus, while the current state of ecocide is exciting, as many countries seek to ratify ecocide in domestic law, there are many challenges ahead to ensure the codification of ecocide as an international crime is effective in realising its aim of holding large polluters accountable.
II.The challenges facing ecocide:
II.I Definition of ecocide and legality:
One of the key issues facing the ecocide campaign is the debate surrounding the legal definition of ecocide, and the impact it has on its legality The definition proposed by the IEP is:the…’unlawful or wanton acts committed with knowledge that there is substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts” [5].However, this definition has been criticised for its anthropocentric approach.By centering humans in a cost benefit analysis it legitimises environmental destruction, as corporations can argue that economic benefit derived from their actions outweigh the likelihood of environmental destruction, elucidating that the anthropocentric approach is inherently contradictory to the ecocentric approach [6]. Additionally, Kevin Jon Heller further points out the use of ‘knowledge’ as the criminalising factor “for ecocide is simply that the perpetrator knew his or her act was likely to cause the requisite environmental damage but committed the act anyway”[7]. Jon Heller’s candid explanation highlights the inconsistency of drafting the ecocide definition with a knowledge clause when grave environmental acts may not always be foreseen. Therefore, does the IEP then consider instances such as this not justifiable as ecocide? The knowledge bar within the clause limits the effectiveness of ecocide when environmental claims should come with strict liability to effectively minimise environmental degradation. Additionally, Rachel Killean notes that it will impact prosecutors as it will “pose a significant challenge to any prosecutor seeking to prove liability” [8].This further illustrates the tension within the ecocide campaign. Namely, between its aims and goals and the definition proposed, which does not align with the goal of holding perpetrators accountable. Resulting from how difficult it is to utilise the definition in practice.
Moreover, the definition proposed by the IEP has been criticised for the issues it raises if it were to be put into practice. For instance, Jon Heller has applied the definition to a hypothetical situation, in which a coal field project was authorised by a corporation in Australia [9]. One of the issues he has noted is the subjective test under ‘wantonness’ to determine if the CEO acted recklessly. In this case, it would require the prosecutor to provide evidence illustrating that the CEO knew of the environmental damage of the coal field, and that his action was in excess of any economic benefit derived from the project. Proving the CEO’s state of mind will be a difficult task for any prosecutor as the CEO’s actions and state of mind is subjective, thus making it open for interpretation. Moreover, the evidence available for prosecutors on the perpetrator's state of mind is likely limited, further making it difficult to satisfy the subjective test. For example, Jon Heller notes that if the “prosecution could establish that the environmental damage expected from the hypothetical coal project would be clearly excessive to the anticipated economic and social benefits. Nonetheless, this does not mean the coal CEO committed ecocide by approving the project” [10]. It is important to note the approval of the project itself does not make the CEO liable for ecocide, notably as his actions are legal in Australia and if they were to be prosecuted in the ICC under the ecocide definition, their state of mind and knowledge must be proven under the subjective test. Evidently, the subjective test proposed by the IEP is not appropriate as it will make it difficult to prosecute ecocide, and thus an objective test should be utilised.
An objective test would require an assessment based on what the reasonable person would do, rather than considering the specific individual, leading to a fairer and effective assessment of ecocide that will make it easy to use in practice. Jon Heller argues that by using an objective test, it will “only require perpetrators like the CEO to contemplate the possible excessiveness of their development projects, it would also prohibit them from assessing the costs and benefits in an unreasonable way” [11]. The current definition proposed by the IEP is ineffective, and creates significant procedural issues if put into practice and will turn the courtroom into a “battle of experts” [12] between prosecutors and defendants in order to apply this definition.Considering the procedural limitations facing the ICC, ecocide in its current definition will be unable to yield results, thus lacking the impact it is aiming for.
II.II Jurisdictional and procedural issues:
The jurisdiction of ecocide is another issue facing the ecocide campaign. Specifically, a key issue is whether the ICC would be a viable avenue to prosecute ecocide as a fifth crime without the amendment of the Rome Statute. The ICC is limited in its mandate, to the extent of consent of the State Parties to the Rome Statute in applying the core crimes specified in Article 5 [13]. This is significant as it will require all 123 States that have ratified the Rome Statute to consent to the addition of ecocide to the Rome Statute. This poses a significant barrier to the ecocide campaign in realising ecocide as the fifth crime under the Rome Statute. Moreover, another limitation of the ICC is that it prosecutes individuals only. The ecocide campaign aims to hold large corporations and States accountable for their role in climate destruction, making this limitation significant. This is illustrated in paragraph 1 of Article 25 which refers to “natural persons” [14]. Thus, it raises the question of whether the goal is truly to hold corporations such as oil giants accountable for the environmental destruction they have caused. In such a case the ICC may not be a viable avenue. Even if the ecocide campaign was to take this as a concession, it dilutes the effectiveness of ecocide, as the largest environmental polluters are large corporations. The Carbon Majors report states that fossil fuel corporations “ are linked to “71% of industrial greenhouse gas emissions since 1988” [15]. This exemplifies that the importance of holding corporations accountable is to effectively tackle ecocide to the extent the ecocide movement envisions to to minimise and prohibit environmental degradation.
Another challenge facing the ecocide campaign is that it may increase the workload of the court, further straining its capacity. The court’s ability to handle its current mandate has been questioned. At the 18th ICC Assembly of All State Parties a resolution “establishing an Independent Expert Review to reform the Court with a focus on the Office of the Prosecution” was passed [16]. However, in 2020 the Independent Expert Review provided a full report that was adopted at the 19th ICC Assembly of All State Parties, which includes a variety of recommendations on how the court can tackle the issues it is facing, such as the low conviction rates and cases investigated that are impeding justice [17]. Therefore, although the court is facing capacity issues, it is taking the necessary steps to ensure it is effective in combating injustice, paving the way for ecocide to be potentially considered. Notably, small island States such as the Republic of Vanuatu and Maldives who are greatly affected by climate change showed support for ecocide to be considered at the ICC 18th Assembly of All State Parties. Vocalising their support for such an amendment and stating that “ such an amendment would assist in protecting humanity against unprecedented challenges posed by the climate emergency” [18]. This further illustrates that there is support for the realisation of ecocide, despite the court facing a capacity issue. The ICC is a great avenue to pursue ecocide as a fifth crime due to the broad reach of jurisdictional oversight amongst its 123 State Parties, providing ecocide with a platform to effectively criminalise degradation of the environment globally.
Additionally, a critique facing the ecocide campaign is that the Rome Statute already considers environmental crimes, suggesting there is no need for further measures in the statute. The Rome Statute system already takes into account environmental crimes within Article 8(2)(b)(iv): such as ”... incidental loss of life or injury to civilians or damage to the civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive…” [19]. This illustrates that the Rome Statute includes environmental crimes. However, the distinction to be made is whether it is exclusive to during wartime. Moreover, the clause above takes an anthropocentric approach, which is not the necessary aim of the ecocide campaign; which takes an ecocentric approach to environmental crimes. Additionally, the clause has been criticised for being too strict and unlikely to be enforced [20]; requiring the environmental damage to be “excessive” and to also consider the impact to civilians in its proportionality assessment. However, Ukraine has stated they are bringing an ecocide case against Russia for the damage to the Kakhovka dam [21]. This case is significant as it will be the first precedent of Article 8(2)(b)(iv) in use, providing a clear assessment on if the current article is enough or if ecocide’s calls are legitimate; thus requiring ecocide to be considered a fifth crime.
To conclude, the key issues the ecocide campaign is facing in relation to whether the ICC is a viable avenue, is overcoming the ICC’s current mandate and obtaining the necessary State consents to pursue an amendment to the Rome Statute; the exclusion of corporate liability if ecocide was to be considered by the ICC; and the critique that the ICC already considers environmental crimes.
II.III Socio-Political challenges:
There are significant socio-political challenges facing the ecocide campaign. Notably, the ICC has been criticised for its over prosecution of African countries. Thus, it is justified to question if it can be an appropriate avenue for the prosecution of ecocide,particularly if the victims of ecocide are largely indigenous peoples. This is especially important considering the destruction of “resource rich regions” [22] in Africa by corporations, zealously mining minerals to expedite technology by destroying the land for the native people. For example, Peter Donatus states that “Poverty in the oil-rich Niger Delta in Nigeria, for example, is a direct consequence of an ecocide” [23]. Another example is the mining by large corporations in the Congo Basin, which was approved by the Congolese government. This has been criticised for the potential of ecocide resulting in the environmental destruction due to the importance of the Congo Basin to the global environmental ecosystem. “There is, therefore, an urgent need for the criminalization of mass deforestation in the countries of the Congo Basin, through the adoption of appropriate ecocide laws to address this challenge” [24]. Thus, the ICC’s inability to hold Western nations accountable is a glaring concern for those committed to the protection of indigenous people’s rights through ecocide. Africa contributes “ only 3% of the emissions causing climate change, it is the most vulnerable region to its negative impact” [25]. Ecocide is directly linked to the protection of indigenous people’s rights, elucidating the importance of an impartial court that is not swayed by biases and Western powers.
As international law is State centred, the ecocide campaign will have to navigate the differing State interests to realise ecocide as a fifth crime at the ICC resulting in the watering down of its severity in place for a more acceptable definition of ecocide. This is elucidated as “international environmental and human rights standards are the product of the balance of power between political interests and thus not necessarily beneficial in the way originally envisioned by those championing the endeavour” [26]. For instance States have the ability to propose an amendment, thus the proposed ecocide definition can be contested by any of the 123 member States. A notable example of a crime being watered down as a result of State interests is Rapheal Lemkin’s Genocide Convention. “The Genocide Convention was stripped of its coherence and conceptual integrity, and a major method of genocide envisaged by Lemkin was not fully criminalized. As such, its applicability to a whole range of colonial and settler colonial contexts was thereby denied – which was exactly the intention of those ‘stakeholder’ states’ representatives who strongly objected to its inclusion”[27]. This illustrates the reality that if the ecocide campaign is set on its inclusion at the ICC, the definition may not become the stringent crime that can revolutionise climate change. It is also important to consider the role of States of “whose economies depend on human caused environmental disasters” [28]. These will tend to be more politically significant nations such as Germany, Australia, United Kingdom and Saudi Arabia, who host corporations that have contributed to climate change significantly. It would not be in their economic interest for a stringent definition of ecocide to rise in the ICC. Moreover, Sarlieve highlighted that China, United States of America and Russia should be considered although not parties to the ICC they could “use their diplomatic influence against such an initiative” [29]. Rachel Kilean and Damien Short have highlighted to mitigate the political influence and procedural challenges that ecocide will face to be included as fifth crime. For example, Whether the ecocide campaign should consider a convention, which “would benefit from being able to broaden its scope beyond that imagined by an ICC amendment” [30]. A convention is not without its faults, as it will still require State support, however, it will not be at the same level as needed to incorporate into the Rome Statute system, where a 2/3rds majority [31] (83 States) is needed and any State can put forth an argument for an amendment. However, ecocide has become ratified in many nations such as Belgium, which has outlawed ecocide nationally and internationally, making it the first European country to do so [32]. Therefore, it is clear that States are prioritising and seeing the importance of ecocide, which can positively influence the negotiation stage of the ecocide proposal at the ICC; making it easier for ecocide to be a crime under the Rome Statute.
III Conclusion:
In conclusion, there are significant challenges facing the ecocide campaign. Notably, the current definition of ecocide has been criticised for its practical application, impacting its ability to effectively address ecocide. Moreover, another challenge facing the ecocide campaign is procedural challenges with ICC being the judicial arena to prosecute ecocide due to the court’s operational capacity and more importantly the fact it can only prosecute natural persons, leading to corporations escaping scrutiny. Furthermore, the critique facing the ICC’s selective prosecution of African nations is a significant challenge facing the ecocide campaign due to the environmental destruction within Africa at the hands of Western corporations. Additionally, the politicisation of the ICC makes it difficult for the ecocide campaign to navigate without the potential of affecting the current definition, potentially leading to States pushing for a more watered down and potentially ineffective ecocide definition. The ecocide campaign has a long and bumpy road ahead before it is considered a crime at the ICC due to the significant challenges it is facing, and one of the ways to mitigate this is to consider other avenues other than the ICC, such as an ecocide convention. Nonetheless, with the ecocide’s rise in popularity amongst States ratifying it, this is a beacon of hope for the ecocide campaign that it is being taken seriously.
*
Suad Abdulkadir is a recent LPC LLM graduate from the University of Law and LLB with a Year Abroad graduate from the University of Leicester. She is the founder and editor in chief of Black Lawyers Journal, and is keen to empower black law students in overcoming the barriers in academic legal publishing. Her interest lies in environmental law, human rights, competition law and commercial law.
[1] What Is Ecocide (Stop Ecocide International) <https://www.stopecocide.earth/what-is-ecocide#:~:text=Ecocide%20is%20broadly%20understood%20as,emergency%20that%20we%20now%20face.> accessed 1st May 2024
[2] History, (Ecocide Law) <https://ecocidelaw.com/history/#:~:text=Professor%20Galston%20coined%20'ecocide'%20at,later%20developed%20into%20Agent%20Orange.> accessed 1st May 2024
[3] Who Are We (Stop Ecocide International) <https://www.stopecocide.earth/who-we-are-> accessed 1st May 2024
[4] French Climate and Resilience Act 2021 (France)
[5] Legal Defintion, (Stop Ecocide International) <https://www.stopecocide.earth/legal-definition > accessed 1st May 2024
[6] Kevin Jon Heller, ‘Ecocide and Anthropocentric Cost-Benefit Analysis’, Opinio Juris (26 June 2021) <http://opiniojuris.org/2021/06/26/ecocide-and-anthropocentric-cost-benefit-analysis/ > accessed 1st May 2024
[7] Ibid n(6)
[8] Rachel Killean, ‘The Benefits, Challenges and Limitations of Criminalizing Ecocide’, The Global Obsevatory (30 March 2022) <https://theglobalobservatory.org/2022/03/the-benefits-challenges-and-limitations-of-criminalizing-ecocide/> accessed 5th May 2024
[9] Kevin Jon Heller, ‘The Crime of Ecocide in Action’ Opinio Juris (28 June 2021) <http://opiniojuris.org/2021/06/28/the-crime-of-ecocide-in-action/ > accessed 6th May 2024
[10] Ibid n(9)
[11] Ibid n(9)
[12] Ibid n(9)
[13] Melanie Schneider, ‘Is there a need for an international crime of ecocide and what are the comparative strengths and weaknesses of using ecocide in the context of the ICC to establish legal accountability for actions which cause mass environmental degradation?’ (BA Liberal Arts and Sciences thesis, Tilburg University, 2018-2021), Tilburg University <http://arno.uvt.nl/show.cgi?fid=156313 > accessed 14th May 2024
[14] Rome Statute of the International Criminal Court, 1988, Art 25(1)
[15] Carbon Majors Report - July 2017 https://www.cdp.net/en/articles/media/new-report-shows-just-100-companies-are-source-of-over-70-of-emissions
[16] Maud Sarliéve, ‘Ecocide: Past, Present, and Future Challenges’ (29 June 2020) <https://link.springer.com/referenceworkentry/10.1007/978-3-319-71065-5_110-1> accessed 14th May 2024
[17] ‘New Report Shows just 100 companies are source of over 70% of emissions’ (Carbon Majors Report, July 2017) <https://www.coalitionfortheicc.org/review-icc-and-rome-statutesystem#:~:text=2020%20%E2%80%93%20The%20Independent%20Expert%20Review,civil%20society%20and%20states%20parties.> accessed 14th May 2024
[18] Maud Sarliéve, ‘Ecocide: Past, Present, and Future Challenges’ (29 June 2020) <https://link.springer.com/referenceworkentry/10.1007/978-3-319-71065-5_110-1> accessed 14th May 2024
[19] Rome Statute of the International Criminal Court, 1988, Art 8(2)(b)(iv)
[20] Rachel Killean and Damien Short, ‘A critical review of the Law and Politics of Ecocide’ (27 November 2023) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=460568> accessed 15th May 2024
[21] ‘Ukraine to launch “ecocide” case against Russia following dam destruction’, Euro News (5 December 2023) <https://www.euronews.com/2023/12/05/ukraine-to-launch-ecocide-case-against-russia-following-dam-destruction> accessed 15th May 2024
[22] Peter Donatus,’ Ecocide in the Niger Delta’, Climate and Capitalism (24 September 2016) < https://climateandcapitalism.com/2016/09/24/ecocide-in-the-niger-delta/ > accessed 15th May 2024
[23] Ibid n(22)
[24] Mutoy Mubiala, ‘ Climate Change and Mass Deforestation in the Congo Basin’, Policy Brief Series No.127 (Torkel Opsahl Academic Epublisher, 2022) <https://www.toaep.org/pbs-pdf/127-mubiala/> accessed 16th May 2024
[25] Ibid n(24)
[26] Rachel Killean and Damien Short, ‘A critical review of the Law and Politics of Ecocide’ (27 November 2023) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4605681> accessed 15th May 2024
[27] Ibid n(26)
[28] Maud Sarliéve, ‘Ecocide: Past, Present, and Future Challenges’ (29 June 2020) <https://link.springer.com/referenceworkentry/10.1007/978-3-319-71065-5_110-1 > accessed 14th May 2024
[29] Ibid n(28)
[30] Rachel Killean and Damien Short, ‘A critical review of the Law and Politics of Ecocide’ (27 November 2023) <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4605681 > accessed 15th May 2024
[31] Maud Sarliéve, ‘Ecocide: Past, Present, and Future Challenges’ (29 June 2020) <https://link.springer.com/referenceworkentry/10.1007/978-3-319-71065-5_110-1> accessed 14th May 2024
[32] ‘Belgium becomes first European Country to recognise Ecocide as an International level crime’, Stop Ecocide International, 2024. <https://www.stopecocide.earth/2024/belgium-becomes-first-european-country-to-recognise-ecocide-as-international-level-crime> accessed 16h May 2024
