Legal Experts Settle on Definition for ‘Ecocide’
A panel of 12 legal experts from around the world on Tuesday released a proposed definition for a new international crime called “ecocide” covering “severe” and “widespread or long-term environmental damage” that would be prosecuted before the International Criminal Court in the Hague, alongside genocide, crimes against humanity, war crimes and crimes of aggression.
The panel’s announcement was seen by environmentalists and international legal scholars as a significant step in a growing global campaign to criminalize ecocide, which requires one of the court’s 123 member nations to formally request consideration of a fifth crime within the court’s purview. The process could take years to complete.
“The four existing international crimes focus on the wellbeing of human individuals and groups … and rightly so,” Philippe Sands, the noted international human rights attorney and author who co-chaired the panel, said during a virtual press conference. “We don’t in any way wish to diminish those vastly important crimes. But what is missing is a place for our natural world. None of the existing international criminal laws protect the environment as an end in itself, and that’s what the crime of ecocide does.”
|THE FIFTH CRIME: ECOCIDE
An ongoing series, produced in collaboration with Inside Climate News and NBC, about the campaign to make “ecocide” an international crime. See all stories in the series here.
While the United States, Russia, China and India, the world’s leading greenhouse gas polluters, are not members of the court and remain outside its jurisdiction, the legal scholars said the panel’s work will have effects at the tribunal and beyond, regardless of whether ecocide is officially made an international crime.
David J. Scheffer, a former U.S. ambassador at large for war crimes issues who led the U.S. delegation that negotiated the International Criminal Court’s founding treaty, known as the Rome Statute, said that drafting the definition “will heighten the issue of the environment for the court’s prosecutor, whether or not it’s ultimately adopted.”
“I think it is an essential exercise because environmental damage is growing phenomenally,” Scheffer said of the panel’s work.
If ultimately successful, legal scholars said the crime of ecocide could be used to hold the individuals most responsible for major ecological harms accountable, including business, insurance, financial and government leaders.
Even consideration of the crime, they said, could signal that mass environmental destruction is now considered one of the most morally reprehensible crimes in the world. A small but growing number of world leaders, including Pope Francis and French President Emmanuel Macron, have begun using the word “ecocide” to connote an offense they say poses a threat to humanity and remains beyond the reach of existing legal conventions.
The panel was convened late last year by the Stop Ecocide Foundation, based in the Netherlands, with the hope that one of the International Criminal Court’s 123 member countries would submit its definition to the United Nations Secretary General, triggering a formal, multistep process towards amending the Rome Statute, which governs the court.
Senegalese lawyer Dior Fall Sow, alongside Sands, served as co-chair of the panel, which included Deputy Chairs Kate Mackintosh, executive director of the Promise Institute for Human Rights, UCLA School of Law, and Richard J, Rogers, a partner at Global Diligence and executive director of Climate Counsel (U.K.). Members included Alex Whiting, a former International Criminal Court prosecutions coordinator and professor at Harvard Law School, and Valérie Cabanes, an International jurist and human rights expert from France.
Crafting the definition was a necessary first step because, unlike the court’s other four crimes, ecocide has no international precedent, leaving the court’s member countries without a foundation in law to start the amendment process.
The 165-word definition begins: “For the purpose of this Statute, ‘ecocide’ means 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 panel defined “widespread” as “damage which extends beyond a limited geographic area, crosses state boundaries, or is suffered by an entire ecosystem or species or a large number of human beings.”
The panel wrote that “‘severe’ means damage which involves very serious adverse changes, disruption or harm to any element of the environment, including grave impacts on human life or natural, cultural or economic resources,” and defined “long-term” as “damage which is irreversible,” or which cannot be redressed through natural recovery within a reasonable period of time.”
Without a prior treaty or other legal precedent to work from, panelists had to construct the crime from scratch, ensuring it is sellable to the world’s nations, which are historically reluctant to cede sovereignty to international institutions.
“A perfect definition does you no good if states ignore it, or worse, become hostile to the enterprise and set the effort back,” said Nancy Combs, an expert in international criminal law and professor at William and Mary Law School. “If the panel’s calculations are wrong, the whole thing could go bust.”
The definition is aimed at being less of a sledgehammer and more of a guardrail for governments and businesses that are most responsible for ecological injuries. “This is not about catching every single horror that occurs in relation to the environment, but those horrors that cross the threshold, and are of international concern,” Sands said. “And we hope that that approach comes up with something which is potentially effective, but not, if you like, so widespread in its effects that states run away and throw their arms up in horror.”
The definition also had to be general enough to address all manner of environmental harms, capable of keeping pace with evolving science, and specific enough to put would-be wrong doers on notice of what is and is not criminal behavior.
The six-month endeavor required close collaboration between international criminal lawyers and environmental lawyers, two specializations that until now have rarely intersected.
But the new law differs in one major respect from the other four crimes prosecuted by the International Criminal Court: harm to human beings is not a prerequisite for ecocide. That shift away from an anthropocentric focus is a major development for international criminal law, which mainly focuses on human injuries, said Rogers, the co-deputy chair.
The definition is also notable for what it doesn’t include. The panel chose not to incorporate a list of ecocidal examples, such as the deforestation of the Amazon or the Chernobyl nuclear meltdown, for fear that something would inevitably be left out, possibly signaling that the excluded act may not qualify as ecocide. By leaving final determinations in the hands of the court’s judges, the panel’s definition is flexible enough to endure into the future when new forms of environmental destruction may emerge, the lawyers said.
That choice also had a political dimension. The panel did not want countries to feel they were being targeted in any way by listing examples. “We felt that it was best to keep that door shut,” Sands said.
But he did weigh in on climate change.
“I’m loath to mention any particular examples, but the authorization, for example, in an industrialized country of a massive new coal field and a massive new coal fired power plant without properly taking into account impacts on the climate system, I think, could arguably come within this definition,” Sands said.
Whether acts that contribute to climate change qualify as ecocide likely will come down to whether they are also unlawful under other national or international laws, he added. The burgeoning body of climate change jurisprudence, including decisions from the Netherlands, France and Germany, holding governments accountable for their failure to adequately reduce greenhouse gas emissions, could take on new significance should the court’s member countries adopt the panel’s definition. “A failure to act is an act,” Sands said.
Scheffer called the panel’s definition an “impressive work product” and said it had “performed a great service to introduce a well-defined and pragmatic definition.”
Combs called the definition “very well-thought out” and said that it “clearly shows a deep knowledge and appreciation for the dual fields that inform it: international criminal law and environmental law.”
“I also think it does a nice job of balancing the need for the definition to have sufficient ‘teeth’ to have impact with the concomitant need to not scare off states’ parties,” she said.
But it’s possible, Sands said, that polluting acts by non-member states that go beyond their borders and affect member nations could be prosecuted by the court, should ecocide become a crime.
“This issue is front and center with ecocide, as its cross-border characteristics are blatantly evident,” Scheffer said.
Now that the panel has delivered its definition, the Stop Ecocide Foundation’s diplomatic work must kick into high gear if the process is to marshal political backing from countries around the globe.
The support, or lack thereof, will act as a bellwether for how serious governments are about combating climate change, pollution and biodiversity loss.
In December 2019, the low-lying island nations Vanuatu and the Maldives, especially vulnerable to the effects of climate change, called for the court’s member countries to consider adding ecocide to its remit. And lawmakers from close U.S. allies like France, Belgium, Finland, Spain, Canada, Luxemburg and the European Union have also voiced their support. The United States, China, India, and Russia could weigh in through diplomatic negotiations over the fate of the proposed crime.
If one of the court’s member countries triggers the start of the amendment process, then at the court’s next annual meeting, called the Assembly of States Parties, a majority of countries present and voting must agree to take up the proposal for it to proceed. This year’s meeting is scheduled for December 6 to 11.
Then, countries would debate and negotiate the crime’s definition. Those talks could take years, Scheffer said. Debate over the crime of aggression preceded the adoption of the Rome Statute in 1998 and lasted until 2010. That crime didn’t come into effect until 2018. “It would be surprising if you would see a widely enforceable crime of ecocide at the ICC within the next 10 to 15 years,” Scheffer said.
But Jojo Mehta, executive director of the Stop Ecocide Foundation, said she expects the process to move more quickly, estimating a four to five year time frame based on a “rapidly changing” political climate. “We’ve been hearing from so many different directions that this is the decisive decade for taking action on climate and ecological crisis,” she said.
Two-thirds of the court’s members, at least 82 countries, must agree to adopt the new definition. And, finally, each country must independently choose whether to ratify the new crime. If each of those procedural hurdles are cleared, the court would only have jurisdiction over the crime within the territories of the countries that ratify it and only beginning one year after the respective country ratified the amendment.
No country has publicly committed to formally starting the amendment process and Mehta wouldn’t name the nations which have expressed interest in consultations.
One of the contenders could be Belgium.
The country made international headlines last December when its foreign minister, Sophie Wilmès asked the court’s member states to examine the possibility of introducing ecocide into the Rome Statute.
Belgian Green MP Samuel Cogolati has been spearheading efforts to introduce domestic ecocide legislation for nearly a year. On Tuesday, he praised the new definition, saying it’s “pragmatic, realistic, but also legally sound—anchored in international treaties and jurisprudence.”
He welcomed seeing the concept of ecocide go from a “slogan” and a kind of rallying cry to something firmly grounded in law.
Cogolati, 32, said he planned to submit a resolution using the new definition to the external affairs committee in the Belgian Parliament next week—in what he hopes will be its first official endorsement on the international stage. It will contain a formal demand to the Belgian government to use the definition and submit an amendment to the Rome Statute, he said. It could go to a Parliamentary vote as early as July, Cogolati added.
Even if the International Criminal Court process takes years, or ultimately fails, the panel’s work will still have groundbreaking impacts legally and otherwise.
Mehta expects just the prospect of the crime to shift the behavior of some businesses, governments, insurers and financers.
And various lawmakers from around the world, like Cogolati, have already expressed interest in enacting their own national ecocide laws, using the panel’s definition as a starting point. “Even if some states only revise their domestic law, that would be a success,” Christina Voigt, Norway-based international law professor and one of the panelists, said.
The campaign could also have an impact on the International Criminal Court’s new prosecutor, Karim Asad Ahmad Khan, who took office earlier this month. Even in the absence of a standalone ecocide crime, the court has tools to go after perpetrators of some environmental disasters and the Office of the Prosecutor has already identified environmental destruction as a priority area, though to date no such cases have been initiated.
The proposed ecocide crime could also nudge the court’s judges to think about innovative ways to use the court’s reparations programs and direct funds towards restoring ecosystems that will restore victim’s ways of living, Scheffer said.
Above all, the new definition is stimulating debate about whether mass environmental damage should be illegal. “We fully expect that attention from around the world will expand significantly as a result of this definition emerging, and that public interest and demand for this very concrete legal solution will steadily increase,” Mehta said at Tuesday’s press conference.
Enactment of an ecocide law would mark a sea change in the development of international criminal law, which historically has focused on crimes with roots in the post-World War II Nuremberg and Tokyo tribunals, like war crimes and crimes against humanity.
Ecocide, on the other hand, didn’t come into the public lexicon until the 1970s, when the world witnessed the ecological destruction from the United States’ use of agent orange during the Vietnam war.
Supporters of the campaign say the world has changed over the past 75 years and laws must change with it to address what they say is an existential threat to humanity. They also cite the revolutionary work of Hersch Lauterpacht, who wrote portions of the Nuremberg charter, and Raphael Lemkin, who, influenced by exposure to Ottoman and Nazi attacks on Armenians, Jews and others, pushed for the creation of an international crime of genocide, which he named in his 1944 book Axis Rule in Occupied Europe.
At the time, Lemkin’s goal seemed sisyphean. But, by 1948, he had helped secure the UN’s unanimous approval of the Convention on the Prevention and Punishment of Genocide.
“What Raphael Lemkin did in 1945 with his definition of genocide and Lauderpacht did with his definition of crimes against humanity was to change the world by allowing pieces of paper to be written which said, ‘this is a line that cannot be crossed…and if you cross it, you will be committing an international crime,’ and that, I think sets the precedent that I have in mind, that Dior has in mind, that our panel members had in mind,” Sands said. “It’s about recognizing that there are certain lines that cannot be crossed anymore.”
The Fifth Crime is an ongoing series, produced in collaboration with Inside Climate News and NBC, about the campaign to make “ecocide” an international crime. See other installments here.