Ecocide

Ecocide is criminalized human activity that violates the principles of environmental justice, as by substantially damaging or destroying ecosystems or by harming the health and well-being of a species (including humans). 
Ecocide has not yet been accepted as an internationally punishable crime by the United Nations.
Aspects of ecocide.
As a concept, ecocide refers to both naturally occurring processes of environmental or ecosystem decline and destruction of the environment that is caused by human activity. For instance, the migration of invasive species to a given area which leads to the diminishment or extinction of endemic species in that area is a form of ecocide.
Climate change and ecocide.
The present geological era is called the Anthropocene because the activities of humans ("anthropo") are influencing the Earth's natural state in a way never seen before. The most notable example is the atmosphere which is being transformed through the emission of gases from fossil fuel use: carbon dioxide, methane, chlorofluorocarbons etc. Criminologists argue this is a symptom of ever-growing demand from consumers associated with capitalism, combined with an almost total disregard for the long term damage, primarily global warming and rising sea levels caused by these emissions. U.S. environmental theorist and activist Patrick Hossay argues that the human species is committing ecocide, via modern industrial civilization's effects on the global environment.
As a proposed international crime.
The concept of ecocide as an international crime originated in the 1970s, after the use of Agent Orange by the United States during the Vietnam War devastated the local people and wildlife.
Rome Statute.
Currently, there is only one provision in the Rome Statute of the International Criminal Court, related to War Crimes, which explicitly mentions damage to the environment. Article 8(2)(b)(iv) makes it a crime to:
"Intentionally launch an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or 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".
In 2010, environmental lawyer Polly Higgins proposed that the Rome Statute be amended to include the crime of Ecocide. The proposal was submitted to the United Nations International Law Commission which is "mandated to promote the progressive development of international law and its codification". She defined ecocide as:
"The extensive damage to, destruction of or loss of ecosystems of a given territory, whether by human agency or by any other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished".
This definition includes damage caused by individuals, corporations and/or the State. It also includes environmental destruction from 'other causes' (i.e. harm that is not necessarily caused by human activity). The purpose was to create a duty of care to mitigate or prevent naturally occurring disasters as well as creating criminal responsibility for human-caused ecocide.
In December 2019 at the 18th session of the Assembly of States Parties to the Rome Statute of the International Criminal Court, two sovereign states, Vanuatu and the Maldives, in their official statements, called for serious consideration of the addition of a crime of ecocide to the Statute.
European Citizens' Initiative.
On January 22, 2013, a committee of eleven citizens from nine EU countries officially launched the "European Citizens Initiative (ECI) to End Ecocide in Europe". The ECI is a tool created by the Lisbon Treaty to promote participative and direct democracy. It provides a way for EU citizens to initiate new laws or suggest amendments to existing legislation directly to the European Commission which is the institution which creates EU law.
This particular initiative aimed at criminalizing ecocide, the extensive damage and destruction of ecosystems, investments in activities causing ecocide and denying market access to the EU for products derived from ecocidal activities. Three MEPs, Keith Taylor, Eva Joly, and Jo Leinen, publicly gave the first signatures. The initiative did not collect the 1 million signatures needed, but was discussed in the European Parliament. The proposal has yet to be accepted by the United Nations.
Environmental destruction during war.
Although there is no international law of ecocide that applies in peacetime, in 1977 the United Nations adopted the Convention on the Prohibition of Military or any other Hostile use of Environmental Modification Technique which applied when a State was at war.
Article I of this Convention says, "Each State Party to this Convention undertakes not to engage in military or any other hostile use of environmental modification techniques having widespread, long-lasting or severe effects as the means of destruction, damage or injury to any other State Party." There is no definition of the terms 'widespread, long-lasting or severe'.
Articles III states that "The provisions of this Convention shall not hinder the use of environmental modification techniques for peaceful purposes."
In July 2019, a group of 24 scientists called for ecocide committed in conflict areas, including commissions indirectly related to conflict, to be punished as a war crime as well.
History.
1970s.
The word was first recorded at the Conference on War and National Responsibility in Washington DC in 1970, where Arthur Galston proposed a new international agreement to ban ecocide. Galston was an American biologist who identified the defoliant effects of a chemical later developed into Agent Orange. Subsequently, a bioethicist, he was the first in 1970 to name massive damage and destruction of ecosystems as ecocide.
In an "obiter dictum" in the 1970 Barcelona Traction case judgement, the International Court of Justice identified a category of international obligations called "erga omnes", namely obligations owed by states to the international community as a whole, intended to protect and promote the basic values and common interests of all.
In 1972 at the United Nations Stockholm Conference on the Human Environment, which adopted the Stockholm Declaration, Olof Palme, the Prime Minister of Sweden, in his opening speech, spoke explicitly of the Vietnam War as an ecocide and it was discussed in the unofficial events running parallel to the official UN Stockholm Conference on Human Environment. Others, including Indira Gandhi from India and Tang Ke, the leader of the Chinese delegation, also denounced the war in human and environmental terms. They too called for ecocide to be an international crime. A Working Group on Crimes Against the Environment was formed at the conference, and a draft Ecocide Convention was submitted into the United Nations in 1973.
Dai Dong, a branch of the International Fellowship of Reconciliation, sponsored a Convention on Ecocidal War which took place in Stockholm, Sweden. The Convention brought together many people including experts Richard A. Falk, expert on the international law of war crimes and Robert Jay Lifton, a psychohistorian. The Convention called for a United Nations Convention on Ecocidal Warfare, which would, among other matters, seek to define and condemn ecocide as an international war crime. Richard A. Falk drafted an Ecocide Convention in 1973, explicitly recognizing at the outset "that man has consciously and unconsciously inflicted irreparable damage to the environment in times of war and peace."
Westing's view was that the element of intent did not always apply. "Intent may not only be impossible to establish without admission but, I believe, it is essentially irrelevant."
In 1978, the Draft Code of Crimes Against the Peace and Security of Mankind discussions commenced. At the same time, State responsibility and international crimes were discussed and drafted.
The ILC 1978 Yearbook's "Draft articles on State Responsibility and International Crime" included: "an international crime (which) may result, inter alia, from: (d) a serious breach of an international obligation of essential importance for the safeguarding and preservation of the human environment, such as those prohibiting massive pollution of the atmosphere or of the seas." Supporters who spoke out in favor of a crime of ecocide included Romania, the Holy See, Austria, Poland, Rwanda, Congo and Oman.
1980s.
Ecocide as a crime continued to be addressed. The Whitaker Report, commissioned by the Sub-Commission on the Promotion and Protection of Human Rights on the question of the prevention and punishment of the crime of genocide was prepared by then Special Rapporteur, Benjamin Whitaker. The report contained a passage that "some members of the Sub-Commission have, however, proposed that the definition of genocide should be broadened to include cultural genocide or "ethnocide", and also "ecocide": adverse alterations, often irreparable, to the environment – for example through nuclear explosions, chemical weapons, serious pollution and acid rain, or destruction of the rain forest – which threaten the existence of entire populations, whether deliberately or with criminal negligence."
Discussion of international crimes continued in the International Law Commission in 1987, where it was proposed that "the list of international crimes include "ecocide", as a reflection of the need to safeguard and preserve the environment, as well as the first use of nuclear weapons, colonialism, apartheid, economic aggression and mercenarism".
1990s.
The ILC 'Draft Code of Crimes Against the Peace and Security of Mankind' of 1991 contained 12 crimes. One of those was 'wilful damage to the environment (Article 26)'.
As of 29 March 1993, the Secretary-General had received 23 replies from Member States and one reply from a non-member State. They were: Australia, Austria, Belarus, Belgium, Brazil, Bulgaria, Costa Rica, Ecuador, Greece, Netherlands, the Nordic countries (Denmark, Finland, Iceland, Norway, Sweden), Paraguay, Poland, Senegal, Sudan, Turkey, UK, USA, Uruguay and Switzerland. Many objections were raised, for summarized commentary see the 1993 ILC Yearbook. Only three countries, the Netherlands, the United Kingdom and the United States of America, opposed the inclusion of an environmental crime. The issue of adding a high test of intent ('wilful') was of concern: Austria commented: "Since perpetrators of this crime are usually acting out of a profit motive, intent should not be a condition for liability to punishment." Belgium and Uruguay also took the position that no element of intent was necessary for the crime of severe damage to the environment (Article 26).
In 1996, Canadian/Australian lawyer Mark Gray published his proposal for an international crime of ecocide, based on established international environmental and human rights law. He demonstrated that states, and arguably individuals and organizations, causing or permitting harm to the natural environment on a massive scale breach a duty of care owed to humanity in general. He proposed that such breaches, where deliberate, reckless or negligent, be identified as ecocide where they entail serious, and extensive or lasting, ecological damage; international consequences; and waste.
Meanwhile, in the ILC, 'wilful and severe damage to the environment' (Article 26) had been tasked to a working-group: "The Commission further decided that consultations would continue as regards [Article 26] …the Commission decided … to establish a working group that would meet … to examine the possibility of covering in the draft Code the issue of wilful and severe damage to the environment ... the Commission decided by a vote to refer to the Drafting Committee only the text prepared by the working group for inclusion of wilful and severe damage to the environment as a war crime."
In 1998, the final Draft Code was used as inspiration for the Rome Statute at the United Nations United Nations Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court, which was held in Rome. The Rome Statute was the founding document of the International Criminal Court (ICC), to be used when a state is either unwilling or unable to bring their own prosecutions for international crimes.
Ecocide was not included in the Rome Statute as a separate crime, but featured in relation to a war-crime. The test for this war crime was narrower than previous proposed tests. Under the Environmental Modification Convention 1977 (ENMOD) the test for war-time environmental destruction is 'widespread, long-term or severe', whereas Article 8(2)(b) of the Rome Statute 1998 modified the ENMOD test with the change of one word to 'widespread, long-term and severe'. Article 8(2)(b) limited environmental harm to circumstances when "Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or 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."
2010s.
The proposal for the crime of ecocide was submitted to the United Nations by a private party. In March 2010, British "earth lawyer" Polly Higgins submitted to the United Nations an amendment to the Rome Statute, proposing that "ecocide" be legally recognized as the fifth international Crime against peace. The Rome Statute currently acknowledges four crimes against peace: genocide; crimes against humanity; war crimes; and the crime of aggression. Each of these crimes affects human victims. While Higgins' proposed definition of ecocide attends to inhabitants' "peaceful enjoyment", the victim the amendment is primarily promising to protect is not human but environmental.
In 2011, a mock Ecocide Act was drafted and then tested in the UK Supreme Court via a mock trial by the Hamilton Group.
In 2012, a concept paper on the Law of Ecocide was sent out to governments. In June 2012 the idea of making ecocide a crime was presented to legislators and judges from around the world at the World Congress on Justice Governance and Law for Environmental Sustainability, held in Mangaratiba before the Rio +20 Earth Summit, the United Nations Conference on Sustainable Development. Making ecocide an international crime was voted as one of the top twenty solutions to achieving sustainable development at the World Youth Congress in Rio de Janeiro in June 2012.
In October 2012 a range of experts gathered at the international conference "Environmental Crime: Current and Emerging Threats" held in Rome at the UN Food and Agricultural Organization Headquarters hosted by the United Nations Interregional Crime and Justice Research Institute (UNICRI) in cooperation with United Nations Environmental Programme (UNEP) and the Ministry of the Environment (Italy). The conference recognized that environmental crime is an important new form of transnational organized crime in need a greater response. One of the outcomes was that UNEP and UNICRI head up a study into the definition of environmental crime, new environmental crime and give due consideration to the history of making ecocide an international crime once again.
In November 2019 Pope Francis, addressing the International Association of Penal Law (AIDP), called on the international community to recognize ecocide as a “fifth category of crime against peace.”
In December 2019 at the 18th session of the Assembly of States Parties to the Rome Statute of the International Criminal Court, two sovereign states, Vanuatu and the Maldives, in their official statements, called for serious consideration of the addition of a crime of ecocide to the Statute.
2020s.
In late November 2020, a panel of international lawyers chaired by British law professor Philippe Sands and Zambian judge Florence Mumba started drafting a proposed law criminalizing ecocide.
Existing domestic ecocide laws.
Ten countries have codified ecocide as a crime within their borders during peacetime. Those countries followed the wording of Article 26 of the International law Commission (ILC) Draft which referred to "intentionally" causing "widespread, long-term and severe damage to the natural environment" within the context of war - bearing in mind that Article 26 was removed from the final draft submitted to the Rome Statute of the International Criminal Court in 1996.
None of the ten countries established procedures to measure 'intention'. The effectiveness of these laws also depends other factors including the availability of procedures for enforcement, and the need for an independent judiciary and respect for the rule of law. Many of the countries with national laws of ecocide in place are ranked very highly for corruption and low for respect for the rule of law by Transparency International.
Georgia 1999.
Article 409. Ecocide: "Ecocide, i.e. contamination of atmosphere, land and water resources, mass destruction of flora and fauna or any other action that could have caused ecological disaster – shall be punishable by ..."
Armenia 2003.
Article 394. Ecocide: "Mass destruction of flora or fauna, poisoning the environment, the soils or water resources, as well as implementation of other actions causing an ecological catastrophe, is punished ..."
Ukraine 2001.
Article 441. Ecocide: "Mass destruction of flora and fauna, poisoning of air or water resources, and also any other actions that may cause an environmental disaster, – shall be punishable by ..."
Belarus 1999.
Art 131. Ecocide: "Deliberate mass destruction of flora and fauna, or poisoning the air or water, or the commission of other intentional acts that could cause an ecological disaster (ecocide), – shall be punished by ..."
Ecuador 2008 (Constitutional), and 2014 (Criminal Code).
While Ecuador does not formally use the term "ecocide," any intentional damage to the environment in either war or peacetime is classed as a criminal offence, and the country is the first in the world to make Nature a subject (rather than an object) of strong constitutional rights and guarantees.
Constitution, Art. 71: Rights of Nature "Nature or Mother Earth, where life occurs and reproduces, has the right of holistic respect of her existence and the maintenance and regeneration of her vital cycles..."
Kazakhstan 1997.
Art 161. Ecocide: "Mass destruction of flora or fauna, poisoning the atmosphere, land or water resources, as well as the commission of other acts which caused or a capable of causation of an ecological catastrophe, – shall be punished by..."
Kyrgyzstan 1997.
Art 374. Ecocide: "Massive destruction of the animal or plant kingdoms, contamination of the atmosphere or water resources, and also commission of other actions capable of causing an ecological catastrophe, shall be punishable ..."
Republic of Moldova 2002.
Art 136. Ecocide: "Deliberate mass destruction of flora and fauna, poisoning the atmosphere or water resources, and the commission of other acts that may cause or caused an ecological disaster shall be punished ..."
Russian Federation 1996.
Art 358. Ecocide: "Massive destruction of the animal or plant kingdoms, contamination of the atmosphere or water resources, and also commission of other actions capable of causing an ecological catastrophe, shall be punishable by ..."
Tajikistan 1998.
Art 400. Ecocide: "Mass destruction of flora and fauna, poisoning the atmosphere or water resources, as well as commitment of other actions which may cause ecological disasters is punishable ..."
Uzbekistan 1994.
Art 196. Pollution of Natural Environment: "Pollution or damage of land, water, or atmospheric air, resulted in mass disease incidence of people, death of animals, birds, or fish, or other grave consequences – shall be punished ..."
Vietnam 1990.
Art 342 Crimes against mankind: "Those who, in peace time or war time, commit acts of ... as well as other acts of genocide or acts of ecocide or destroying the natural environment, shall be sentenced ..."