Jamie Dunkerley discusses the case for creating a crime of 'ecocide'.
“Words really matter,” Professor Philippe Sands QC offers to the audience at a recent International Criminal Court (ICC) side event. This insight highlights his knowledge of the importance of labelling acts at a global level to ‘categorise thinking’ and focus minds. Having previously written on the origins of crimes against humanity and genocide in his memoir East West Street, Sands – an international lawyer – is well-suited to his role as co-chair of the expert panel tasked with creating a legal definition of a new international crime of ‘ecocide’ – killing of the environment.
‘Ecocide’ was first coined by the bioethicist Professor Arthur Galston in 1970 to describe the lasting defoliating damage caused by the chemicals in Agent Orange, used in bombing raids during the Vietnam War. Yet, it was not until Jojo Mehta and the late Polly Higgins founded the Stop Ecocide campaign in 2017 that the implementation of ecocide as an international crime garnered popular support.
A law of ecocide would see acts of ‘massive environmental damage’, such as oil spills, large-scale deforestation and extensive pollution, become criminalised. This is, perhaps, not as radical as some would believe: individual states can already set their own laws on environmental protection; and the ICC hitherto has had and continues to possess the power to punish environmental offences, but only within the bracket of the four crimes under the jurisdiction of the court – genocide, crimes against humanity, war crimes and crimes of aggression. An international crime of ecocide would thus be a more readily actionable offence that individuals could be charged with, as well as a significant global symbol.
The Stop Ecocide movement advocates for ecocide to be the fifth crime added to the Rome Statute of the ICC. For this to happen, a draft definition of ecocide has to be formulated: this would then be proposed as an amendment to the Rome Statute by a State Party to the ICC. States would then be required to implement the law into their own legal systems. Professor Sands and Dior Fall Sow, a former international prosecutor, are already chairing the expert panel that has been convened to compose a draft definition of ecocide that is ‘robust’ but will not ‘open the floodgates’, nor be ‘overly onerous’ for prosecutors to prove.
Some of the key considerations that need to be tackled by the drafters before the definition is ready for submission were set out at the official side event of the 19th Session of the Assembly of State Parties to the ICC. For example, will the crime be ‘ecocentric’ or ‘anthropocentric’? That is, it needs to be decided whether criminalising ecocide punishes harm to the environment per se, or whether harm to humans must have been caused by the act. Similarly, drafters would have to determine the scope of the crime: whether it would encapsulate acts of ‘massive environmental damage’ solely, or if the definition should aim to criminalise a broader range of activities such as contributing to ‘climate change’ and emissions-based offences.
Parliaments and governments around the world have already expressed their support for the recognition of ecocide. Sophie Wilmès, Belgium’s Deputy Prime Minister, offered her country’s backing in December 2020 for the possibility of recognising the crime of ecocide, while French President Emmanuel Macron promised to support the principle of criminalising ecocide in a citizens assembly in June 2020. Papal approval of the initiative in 2019 should allay any fears that the creation of a ecocide law is solely the mission of ‘mung bean-munching, eco freaks’ – to quote British Prime Minister Boris Johnson in relation to other green policies.
The UK is a notable omission in the list of states that have voiced their endorsement of the potential for ecocide to be an international crime. Surprisingly, ‘ecocide’ has barely been mentioned in Hansard, despite Prime Minister Johnson setting out plans for a ‘green industrial revolution’ and Britain’s hosting of the COP26 Climate Change Conference this November. It would be a pertinent statement of intent for the Government and parliamentarians from across the House to express their support for the creation of a new environmental offence.
Creating a crime of ecocide – as Sands soberly puts it – will not serve as a ‘magic bullet’ that will address the multitude of issues that contribute to the climate crisis. However, a ‘moral red line’ will be drawn that focuses attention and shifts global attitudes by including ecocide within the Rome Statute of the ICC. This symbolic effect would be in addition to the practical outcomes of having an enforceable, workable and effective international crime that could be readily used to hold those responsible for severe environmental harm to account. The British Government and Parliament would do well to take heed of their global counterparts’ actions and lend their words in support of the creation of a crime of ecocide – the planet will thank them for it.