Ecocide: Will it be the Fifth International Crime

Introduction

Mankind and environment are interlinked and dependent to each other. The environment degradation has affected the current human generation radically and has posed the threat of the future generation as well. The worldwide situation of the health and expenses on health indicates the need of the legislative measure to save the environment in order to prevent most of the health issues. The current national level laws for sustainable development have jurisdiction of the limited territorial area and international law is required to protect the planet as a whole. The law should criminalise the damage to the environment and also promote its sustainable use. The sustainable use of environment is one thing and restoration of it in the same state is another. The need of hour is to make such developments that help to escalate the economy along with environment stability. The consideration of ecocide as an international crime is the single most powerful measure due to enlarged loss of biodiversity around the world and lack of reversing technique to compensate the system failure which helps to emphasise that the security of our planet must be guaranteed on an international scale.

Need of considering ecocide as international crime

The world leaders at UN Conference on Sustainable Development held in Stockholm in June 2022, to stress upon the binding principles and rules for consideration of ecocide as crime at ICC[1].

The first international conference on environment issues named UN Stockholm Conference held in 1972 for tackling the concerns regarding environmental degradation issues[2]. International organisations are weighing in with expert publications such as the International Energy Agency’s “Net Zero by 2050”[3] Report serving as a reminder that the clock is ticking towards the targets set by the Paris Agreement and the IPCC’s “Special Report on Global Warming of 1.5°C”[4].

It was first used in 1970, when Professor Arthur W. Galston coined the term[5] to describe the effects of the use of Agent Orange by the US in Vietnam. Galston proposed an international agreement to ban ecocide at the time. It was subsequently considered for inclusion as an additional crime in early drafts of what became the Rome Statute of the International Criminal Court (ICC), alongside the international crimes prosecuted at the Nuremburg trials (war crimes, genocide, crimes against humanity), but was ultimately excluded.

The population size of mammals, birds, fish, amphibians and reptiles have dropped by 68% on an average globally, and as much as 94% for Latin America as per the recent Report of Living Planet by WWF[6].

Similarly, the latest State of the World’s Plant and Fungi Report[7] led by the Royal Botanic Gardens, Kew, shows that 39% of the all plants and species– about 140,000 – face extinction[8] in the coming decades, with the degradation of natural resources and ecosystems the primary cause. As recently shown by the first UN Environment Programme synthesis report[9] and the first joint IPCC/IPBES Report[10], biodiversity loss and the climate emergency pose severe threats to humanity. Unlawful environment damage caused by international companies in low income, biodiverse countries further risks accentuating systematic injustice and global inequalities. Protecting nature is necessary to address biodiversity loss and the climate crisis simultaneously[11].

Analysis of the definitions and the proposed draft

The idea is not new, being first mooted by late Swedish Prime Minister Olof Palme. He had tried to push the ecocide idea at the 1972 environmental conference in Stockholm.[12]

Prof. Philippe Sands of the University College London, also a Queen’s Counsel was quoted by The Daily as saying:

“The four other crimes all focus exclusively on the well being of human beings. This one of course does that but it introduces a new non-anthropocentric approach, namely, putting the environment at the heart of international law, and so that is original and innovative. For me the single most important thing about this initiative is that it’s part of that broader process of changing public consciousness, recognising that we are in a relationship with our environment, we are dependent for our well-being on the well-being of the environment and that we have to use various instruments, political, diplomatic but also legal to achieve the protection of the environment.”[13]

In 2010, lawyer and environmental campaigner Polly Higgins lobbied the UN to create an international crime of ecocide. Although the UN rejected her argument, in 2016 the ICC said it would assess instances of environmental destruction as “crimes against humanity”.[14]

Corporate and State responsibility is also excluded under the Rome Statute. Meaning, corporations and States that cause water and air pollution or participate in illegal deforestation and cause oil spills during peacetime cannot be prosecuted for their environmental damage. Clearly, ICC crimes do not place any legal restrictions on harms that occur during times of peace.

The ICCs Rome Statute further defines crimes against humanity as “acts committed as part of a widespread systematic attack directed against any civilian population”. For many, the definition is too narrow to include ecocide as triable by the ICC.

Recently on 22-6-2021 a group of lawyers defined ecocide as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and widespread or long-term damage to the environment being caused by those acts”.[15]

  1. … “Wanton” means with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated;
  2. “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;
  3. “widespread” means 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;
  4. “long-term” means damage which is irreversible or which cannot be redressed through natural recovery within a reasonable period of time;
  5. “environment” means the earth, its biosphere, cryosphere, lithosphere, hydrosphere and atmosphere, as well as outer space.[16]

The definition provides two thresholds, first being the severe and either widespread or long term and secondly, the act is unlawful or wanton. Further, the commission of an offence will not arise merely from the pollution or damage to the environment. But from either the wilful omission of the safety protocols or having knowledge of the damage that will be caused.

Further, the mens rea definition given under Article 30 of the Rome Statute was considered too narrow to cover the severe and widespread or long-term damage to the environment[17].

The aim of the draft is to make the rising environment related issues punishable in order to prevent its further damage. Also the environment protection is directly linked to the protection of mankind and the planet in general.

National and international stance on environment protection

Various national and international case laws highlight that the need is to consider environment preservation and economic development hand in hand. The right to safe, clean and healthy environment has been included under the fundamental right of right to life which shows that the importance of environment and life are equally important.

In May 2021, the ruling of a court in the Netherlands ordered Royal Dutch Shell to cut its emissions by 45 per cent by 2030. In the same week, the Federal Court in Australia ruled that the Minister for the Environment owes a duty of care to safeguard Australian children from the impacts of climate change. Courts around the world are also increasingly hearing air pollution cases, pressuring governments to comply with legal limits.

One of the reasons for this is citizens increasingly becoming aware of and exercising their human rights to a clean environment. Judges are also more aware of the critical role they play in climate and environmental adjudication, with increased capacities in this space.

State of T.N. v. Hind Stone[18]

  1. Rivers, forests, minerals and such other resources constitute a nation’s natural wealth. These resources are not to be frittered away and exhausted by any one generation. Every generation owes a duty to all succeeding generations to develop and conserve the natural resources of the nation in the best possible way. It is in the interest of mankind. It is in the interest of the nation.[19]

T.N. GodavarmanThirumulpad v. Union of India[20]

  1. … As was observed by this Court in M.C. Mehta v. Kamal Nath[21] our legal system based on English common law includes the public trust doctrine as part of its jurisprudence. The State is the trustee of all natural resources which are by nature meant for public use and enjoyment. The public at large is the beneficiary of the seashore, running waters, air, forests and ecologically fragile lands. The State as a trustee is under a legal duty to protect the natural resources. These resources meant for public use cannot be converted into private ownership.

 Jitendra Singh v. Ministry of Environment[22]

  1. … Water bodies, specifically, are an important source of fishery and much needed potable water. Many areas of this country perennially face a water crisis and access to drinking water is woefully inadequate for most Indians. Allowing such invaluable community resources to be taken over by a few is hence grossly illegal.

Aim behind introduction of ecocide

 The aim of the draft[23] is to include ecocide as crime along with already existing four specific types of criminal acts:  genocide, war crimes, crimes against humanity and crimes of aggression.

The environment will surely have the catastrophic consequences due the emission of greenhouse gases and the destruction of ecosystems at current rates on the planet and the environment as the conclusion drawn by the scientific evidences.

“Thus with political, diplomatic and economic initiatives, international law has a role to play in transforming our relationship with the natural world, shifting that relationship from one of harm to one of harmony.”

Currently, crimes that harm the environment are only internationally criminal during times of armed conflict. Article 35(3) of Additional Protocol I[24] maintains that “destruction of the natural environment may not be used as a weapon”. To include the intentional crimes which affect and damage the environment adversely are also required to be included.[25]

Advantages

 The inclusion of ecocide as fifth international crime holds great significance as it carries along with it various related advantages. Firstly, environment will gain its lost importance which has been sidelined by the greedy human kind which is exploiting it continuously to explore more and more economic advantages. Secondly, member countries may get inspired and bring change in their national criminal laws which will boost the strictness of the crime and protection of the environment. Thirdly, it will help the environment law crimes that fall outside national laws and cannot be included in already existing four international law crimes.[26]

Conclusion

 The need of the present technically developed society which is continuously craving for economic benefits is to make environment degradation a crime and doer a criminal. The continuing exploitation of the environment has to be stopped otherwise end of the planet is near as daily news reports states the fires in big forests, melting of glacier, Covid-19 as some reports state it as a bio weapon. Thus, the proposal and the draft is required to be accepted by the international authorities and every country should try to be its signatory.


* 4th year student, National Law University of Study and Research in Law, Ranchi.

[1]Ministry of Environment Affairs, “Stockholm+50”, (The Government Offices of Sweden, 2022), available at<https://www.government.se/government-policy/stockholm50/>, visited on 30-6-2021.

[2] United Nations, United Nations  Conference  on the  Human Environment,  5-16  June , 1972,  Stockholm,  Environment  and Sustainable Development, available at<https://www.un.org/en/conferences/environment/stockholm197>, visited on 30-6-2021.

[3]IEA (2021), Net Zero by 2050, Paris, available at<https://www.iea.org/reports/net-zero-by-2050>, visited on 30-6-2021.

[4] The Intergovernmental Panel on Climate Change (IPCC), Special Report on Global Warming of 1.5°C, <https://www.ipcc.ch/sr15/>, visited on 30-6-2021.

[5]Ecocide Law, History, available at<https://ecocidelaw.com/history/>, visited on 30-6-2021.

[6]The Royal Botanic Gardens, Kew,State of the World’s Plants and Fungi,(2020) <https://www.kew.org/science/state-of-the-worlds-plants-and-fungi>,visited on 30-6-2021.

[7]The Royal Botanic Gardens, Kew, State of the World’s Plants and Fungi, (2020) https://www.kew.org/science/state-of-the-worlds-plants-and-fungi, visited on 30-6-2021.

[8]Eimear Nic Lughadha, et al., Extinction Risk and Threats to Plants and Fungi, 29-9-2020, available at <https://doi.org/10.1002/ppp3.10146>, visited on 30-6-2021.

[9] United Nations Environment Programme, Making Peace with Nature, Report, 18-2-2021, available at <https://www.unep.org/resources/making-peace-nature>,visited on 30-6-2021.

[10]IPBES, Launch of IPBES-IPCC Co-Sponsored Workshop Report on Biodiversity and Climate Change, 10-6-2021, available at<https://www.ipbes.net/events/launch-ipbes-ipcc-co-sponsored-workshop-report-biodiversity-and-climate-change>,  visited on 30-6-2021.

[11]Alexandre Antonelli and Pella Thiel, Ecocide Must be Listed alongside Genocide as an International Crime, <https://www.theguardian.com/environment/commentisfree/2021/jun/22/ecocide-must-be-listed-alongside-genocide-as-an-international-aoe>, visited on 30-6-2021.

[12]A Law for Ecocide, 26-6-2021, available at<https://www.indialegallive.com/column-news/a-law-for-ecocide/>, visited on 30-6-2021.

[13]Sujit  Bhar, A Law for Ecocide, 26-6-2021, available at<https://www.indialegallive.com/column-news/a-law-for-ecocide/>,visited on 30-6-2021.

[14]John Vidal and Owen Bowcott, ICC Widens Remit to Include Environmental Destruction Cases, The Guardian, 15-9-2016, available at<https://www.theguardian.com/global/2016/sep/15/hague-court-widens-remit-to-include-environmental-destruction-cases>, visited on 30-6-2021.

[15]Siddique, Haroon,  Legal Experts Worldwide Draw up “Historic” Definition of Ecocide,  The Guardian, 22-6-2016, available at <https://www.theguardian.com/environment/2021/jun/22/legal-experts-worldwide-draw-up-historic-definition-of-ecocide>,visited on 30-6-2021.

[16]Stop Ecocide Foundation, Independent Expert Panel for the Legal Definition of Ecocide Commentary and Core Text, June 2021, available at <https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d7479cf8e7e5461534dd07/1624721314430/SE+Foundation+Commentary+and+core+text+revised+%281%29.pdf>, visited on 30-6-2021.

[17] Stop Ecocide Foundation, Independent Expert Panel for the Legal Definition of Ecocide Commentary and CoreText, June 2021, available at <https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d7479cf8e7e5461534dd07/1624721314430/SE+Foundation+Commentary+and+core+text+revised+%281%29.pdf>, visited on 30-6-2021.

[18] State of T.N. v. Hind Stone, (1981) 2 SCC 205, 212.

[19](1981) 2 SCC 205, 212.

[20](2002) 10 SCC 606, 638.

[21](1997) 1 SCC 388.

[22]2019 SCC OnLine SC  1510. 

[23]Haroon Siddique,  Legal Experts Worldwide Draw up “Historic” Definition of ecocide, The Guardian, 22-6-2021, available at<https://www.theguardian.com/environment/2021/jun/22/legal-experts-worldwide-draw-up-historic-definition-of-ecocide>,visited on 30-6-2021.

[24]International Committee of the Red Cross, Protocol Additional to the Geneva Conventions of 12-8-1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8-6-1977, available at

<https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Article.xsp?action=openDocument&documentId=0DF4B935977689E8C12563CD0051DAE4>,visited on 30-6-2021.

[25]Racheal Tillman, Coalition of Lawyers Push for “Ecocide” to be an International Crime, Spectrum News 1, 24-6-2021,  available at<https://spectrumlocalnews.com/nys/central-ny/news/2021/06/24/ecocide-international-criminal-court-proposal-lawyer>,visited on 30-6-2021.

[26]Mélissa Godin, Lawyers are Working to Put “Ecocide” on Par with War Crimes. Could an International Law Hold Major Polluters to Account? 19-2-2021, available at<https://time.com/5940759/ecocide-law-environment-destruction-icc/>,visited on30-6-2021.

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