Our planet finds itself in a global ecological crisis. The loss of animal and plant species is so large and fast that some claim our era to be the sixth mass extinction of geological time.[1] The actions of one single species – ours – is threatening the very climatological stability necessary for the continuance of life on Earth.[2] Present legislative instruments have proven insufficient to tackle this crisis. The need for successful legislation is adamant, and environmental groups are advocating for a variety of possible legal reforms. The acknowledgement of ecocide as a crime is one such legal attempt at saving the world.
Human-caused environmental disasters are brutally affecting ecosystems and societies around the world, today. Oil spills in the Amazon poison animals, plants, people, water, and land, render agriculture impossible, force indigenous peoples away from their ancestral lands, and cause cancer decades after the spill.[3] Deep-sea trawling turns ocean floors into marine deserts, exterminating entire ecosystems.[4] Palm oil production causes deforestation and elimination of the richest terrestrial ecosystems on the planet, while enforcing global warming through greenhouse gas emissions.[5] Nature, and the societies ultimately dependent upon it,[6] are in dire need of protection from catastrophically harmful acts such as these. If ecocide was recognised as a crime, these acts would be punishable.
So what’s the point of punishability? The idea of criminalising ecocide rests firmly on the notion that penal protection is effective protection: that punishability has an actual effect in preventing harm. According to basic criminal theory, there are six points of punishment.[7] Firstly, a criminalisation of ecocide can generally deter the public from taking the risk of punishment for committing ecocidal acts. According to this logic, fewer acts of ecocide will be committed simply because of the passing of the criminalising law. Those individuals who take the risk of punishment and are convicted, will be incapacitated from committing further harm, when the punishment temporarily removes them from societal agency. Under influence from the punishment, the convict has the chance of rehabilitation from harmful tendencies. When convicts are released back into societal agency, they will be specifically deterred from risking unpleasant punishment again. Punishment is also a form of moral retribution, marking that society does not accept the criminalised practices. Finally, punishment in the form of financial restitution can have some effect towards restoring harmed ecosystems, particularly if the convict has access to substantial economic resources. Through these mechanisms, penal protection is effective protection.
The protection-worthiness of natural systems is already recognised in international criminal law. The Rome Statute[8] considers it a war crime to, under certain circumstances in an armed conflict, cause long-term and severe damage to the natural environment (art. (2)(b)(iv)). International criminal law is not unaccustomed to prosecuting individuals for having damaged the environment. This possibility has, among other things, led to a global campaign working towards internationally criminalising ecocidal acts committed in times of peace, and not only in times of war.[9]
Stop ecocide is the pedagogically entitled campaign trying to make ecocide a crime under the Rome Statute. The Rome Statute is the constituting document of the International Criminal Court (ICC). ICC is a permanent institution with the power to exercise its jurisdiction over persons for the most serious crimes of international concern, according to art. 1 of the Rome Statute. There are currently only four crimes falling under the jurisdiction of the ICC: genocide, crimes against humanity, war crimes, and the crime of aggression (art. 5 of the Rome Statute). Art. 5 limits the jurisdiction of the court to “the most serious crimes of concern to the international community as a whole”. The stop ecocide movement stresses that ecological disasters like deforestation, ocean damage, land and water contamination and air pollution constitute serious damage of concern to the international community as a whole.[10] The movement has tasked itself with convincing the Parties of the Rome Statute to update this sentence, replacing the word ‘damage’ with ‘crime’.
If the campaign is successful, the ICC will have the right to convict a natural person (art. 25 of the Rome Statute) of having committed ecocide, with certain jurisdictional limitations. The ICC can convict a person of having committed a crime on the territory of Statute Parties, on the territory of States who have accepted the exercise of jurisdiction by the Court with respect to the crime in question, or on the territory of non-Party, non-collaborating States, if the person accused of the crime is a national of a State Party (art. 12). Neither China, Russia, India, nor the USA are currently Rome Statute Parties.[11] The exercise of jurisdiction is further limited by art. 13 and 15. There is, contrary to what the stop ecocide movement seems to claim,[12] no inherent obligation for States Parties to nationally prosecute individuals for having committed Rome Statute crimes.[13]
Making ecocide a crime under the Rome Statute would not automatically make ecocide a punishable crime in all of the world’s territories. The primary, Rome Statute-focused, goal of the stop ecocide movement is not a one-solution-fixes-all. Among international legal scholars, there is additional concern that the ICC is not the right forum to prosecute individuals for having committed ecocide. These concerns relate to the strong focus of the ICC on human rights abuses, the risk of an ecocide addition diminishing the four core crimes, and the lacking environmental knowledge of the ICC.[14] Moreover, due to the amendment process of the Rome Statute,[15] the success probability of an ecocide-adding amendment is low enough to have been called utopian.[16] The ICC campaign is, notwithstanding its weaknesses, not meaningless: The campaign raises awareness of possible criminalisation and may lead to increased openness towards seeing natural entities as worthy of protection, be it penal or otherwise.
For a truly effective and constructive penal protection of ecosystems, however, the argument for ecocide as a crime must thereby also be made towards national legislators, capable of making ecocide a crime under national jurisdictions. Due to their versatility, national criminal courts struggle less than the ICC with limitations in focus and knowledge. In addition, the prosecuting capacity of whole nations full of criminal courts is naturally larger than that of one single international court. National criminalisation can thereby, even if jurisdictional issues regarding transboundary ecocide may occur, be more effective in punishing more crimes. National criminalisation is also conveniently not dependent on the consensus of 82 different states.[17]
A main initial challenge for national legislators seeking to criminalise ecocide is the definition of the crime. In our exploitative economic system, there are few practices having no environmental destructive impact at all. A wide definition could thereby criminalise the business of most enterprises and individuals of today. This would, perhaps, be welcome from an ecological perspective, but would in its revolutionary aspect most likely not be adopted by parliaments.[18] Too narrow a definition, limited to including only the most disastrous of acts, would on the other hand render the ecocide criminalisation impotent. The key challenge for national legislators is balancing towards a definition which covers enough destructive practices to have an environmentally protecting impact, but not enough to make the criminalisation impossible to implement.
These difficulties in defining ecocide have been one of the main critical points against criminalisation.[19] The difficulties were, however, somehow amended when an international legal panel put together an exact proposed wording of the crime.[20] The document of the proposition holds no legal heft, but can serve as a source of inspiration for national legislators since it has considered the conflicts of interest necessary to consider. Additional inspiration can be taken from the criminal codes of states where ecocide is already a crime: such as Russia, Armenia, Belarus, Ukraine, and Kazakhstan.[21] National criminalisation is far from impossible.
In conclusion, the exploitative practices tearing ecosystems asunder, wrecking habitats, and annihilating species cannot be allowed to continue to undermine the future of life on this planet. The destruction, death, and fatal risks that companies and individuals wreak upon the global ecosystem must be met with consequences. If ecocide were recognised as a crime, the risk of substantial punishment could diminish the massively destructive practices causing the global ecological crisis of today.
Since present legal instruments have proven insufficient to hinder mass extinction and climate change, it is time to consider different measures. The recognition of ecocide as a crime can help deliver the environmental protection necessary to achieve a sustainable future for all of humanity, and all life on Earth. It is time to globally acknowledge the fatal harming of ecosystems as a criminal act. It is time for more legislators to criminalise ecocide.
Ida Edling, law student
[1] International Union for Conservation of Nature. Species Extinction – The Facts. International Union for Conservation of Nature. 2007-05-01. https://www.iucn.org/sites/dev/files/import/downloads/species_extinction_05_2007.pdf. (Accessed 2021-10-08).
[2] Masson-Delmotte, V., P. Zhai, A. Pirani, S.L. Connors, C. Péan, S. Berger, N. Caud, Y. Chen, L. Goldfarb, M.I. Gomis, M. Huang, K. Leitzell, E. Lonnoy, J.B.R. Matthews, T.K. Maycock, T. Waterfield, O. Yelekçi, R. Yu, and B. Zhou (eds.). Climate Change 2021: The Physical Science Basis. Contribution of Working Group I to the Sixth Assessment Report of the Intergovernmental Panel on Climate Change. Interngovernmental Panel on Climate Change. Cambridge University Press: 2021. In Press.
[3] Sierra Praeli, Yvette. More than 470 oil spills in the Peruvian Amazon since 2000: Report. Mongabay. 2020-10-06. https://news.mongabay.com/2020/10/more-than-470-oil-spills-in-the-peruvian-amazon-since-2000-report/ (Accessed 2021-11-25).
[4] Vergano, Dan. In Brief: Deep-sea Trawling Has “Devastating” Impact, Study Finds. National Geographic. 2014-05-19. https://www.nationalgeographic.com/science/article/140519-bottom-trawling-seafloor-oceans-damage-science (Accessed 2021-11-25).
[5] Jenkins, Clinton J; Pimm, Stuart L; Smith, Sharon J and Vijay, Varsha. The Impacts of Oil Palm on Recent Deforestation and Biodiversity Loss. PLoS One. 2016-07-27.
[6] Folke, Carl; Biggs, Reinette; Nordström, Albert V.; Reyers, Belinda and Rockström, Johan. Social-ecological resilience and biosphere-based sustainability science. Ecology and Society. Vol. 21, No.3, 2016: 1.
[7] University of Minnesota Libraries. The Purposes of Punishment. University of Minnesota. 2010. https://open.lib.umn.edu/criminallaw/chapter/1-5-the-purposes-of-punishment/ (Accessed 2021-11-25).
[8] https://www.icc-cpi.int/resource-library/Documents/RS-Eng.pdf.
[9] Independent Expert Panel for the Legal Definition of Ecocide. Commentary and Core Text. June 2021. p. 3.
[10] Stop Ecocide International. What is ecocide? Stop Ecocide. https://www.stopecocide.earth/what-is-ecocide (Accessed 2021-11-22).
[11] Assembly of States Parties. The States Parties to the Rome Statute. International Criminal Court. https://asp.icc-cpi.int/en_menus/asp/states%20parties/Pages/the%20states%20parties%20to%20the%20rome%20statute.aspx#C(Accessed 2021-11-24).
[12] Stop Ecocide International. Making ecocide a crime. Stop Ecocide. https://www.stopecocide.earth/what-is-ecocide (Accessed 2021-11-22).
[13] A duty to nationally prosecute individuals for having committed international crimes occurs only if it is regulated in specific treaties. Such a duty to prosecute exists for certain international crimes, such as torture (art. 7 of the 1984 Convention against Torture), disappearances (2006 Optional protocol to the Convention against Torture), and war crimes constituting grave breaches of the Geneva conventions (art. 49 of the first Geneva convention, art. 50 of the second, art. 129 of the third and art. 146 of the fourth).
[14] Greene, Anastacia. The Campaign to Make Ecocide an International Crime: Quixotic Quest or Moral Imperative? Fordham Environmental Law Review. Vol. 30, Issue. 3, 2019: p. 36-40.
[15] The amendment process to add crimes to the Rome Statute requires, according to art. 121, a two-thirds majority of 123 States Parties. 82 states need to agree that ecocide is a crime, and one as serious as genocide, war crimes, crimes against humanity, and crimes of aggression.
[16] Mégret, Frederic. The Problem of an International Criminal Law of the Environment. Columbia Journal of Environmental Law. Vol. 36, Issue 2, 2011: p. 254.
[17] As is Rome Statute criminalisation, according to its art. 121.
[18] Undemocratic national legislators need not convince an entire parliament, but the likelihood of autocratic dictators being prone to criminalising self-enriching and largely destructive acts is perhaps not the highest.
[19] Greene, Anastacia. The Campaign to Make Ecocide an International Crime: Quixotic Quest or Moral Imperative? Fordham Environmental Law Review. Vol. 30, Issue. 3, 2019: p. 43.
[20] Independent Expert Panel for the Legal Definition of Ecocide. Commentary and Core Text. June 2021.
[21] Ecocide Law. Existing Ecocide Laws. https://ecocidelaw.com/existing-ecocide-laws/ Stop Ecocide International and the Promise Institute for Human Rights at UCLA School of Law. (Accessed 2021-11-25).
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