This article was published in partnership with Inside climate news, an independent, non-profit media that covers climate, energy and the environment. It is part of “The Fifth Crime”, a series on ecocide.
A panel of 12 lawyers from around the world has come up with a legal definition of a new crime that lawyers want to see internationally banned: ecocide, or widespread destruction of the environment.
The unveiling of the definition on Tuesday is the first major step in a global campaign to prevent environmental disasters such as the Deepwater Horizon oil spill, deforestation of the Amazon rainforest and, more broadly, climate change.
The Netherlands-based Stop Ecocide Foundation, along with a coalition of environmentalists, lawyers and human rights defenders, have been pushing since 2017 to make ecocide a crime prosecuted by the International Criminal Court. The Court is currently prosecuting only four offenses: genocide, crimes against humanity, crimes of aggression and war crimes.
If the campaign to criminalize ecocide is successful, the international court would be able to hold accountable those primarily responsible for major ecological damage, including business and government leaders.
The definition released Tuesday, the result of months of work by a team of a dozen lawyers, describes ecocide as “unlawful or indiscriminate acts committed in the knowledge that there is a substantial probability of serious and widespread damage or harm. long term to the environment caused by these acts.
If this definition is adopted as the fifth crime before the International Court, it would indicate that mass destruction of the environment is one of the most morally reprehensible crimes in the world, defenders said.
“None of the existing international criminal laws protect the environment as an end in itself, and that is what the crime of ecocide does”, Philippe Sands, professor of international law at University College London and co-chair of the panel who drafted the definition, said Tuesday at an online press conference.
The International Criminal Court did not comment on the panel’s efforts.
There is still a long way to go before the definition of ecocide can be adopted by the court. One of the court’s 123 member countries is expected to submit the definition to the United Nations Secretary-General, triggering a formal, multi-step process that could lead to an amendment to the Rome Statute, which sets the rules of the court.
But legal scholars say the panel’s work could still have effects at the International Criminal Court and beyond, whether ecocide is officially considered an international crime.
“This is a critical exercise because environmental damage is increasing dramatically,” said David J. Scheffer, former United States Goodwill Ambassador for War Crimes Issues who led the United States delegation that negotiated the founding treaty. of the International Criminal Court. “Ecocide, by its very existence, will accentuate the issue of the environment. “
The four existing crimes of the International Criminal Court focus on damage to humans, not the planet. Lawyers who started working late last year to develop a definition of ecocide have largely had to start from scratch.
They wanted it to be strict enough to make sense, but they also wanted it to be appealing enough to win the support of most of the world’s nations, which are historically reluctant to cede their sovereignty to international institutions.
“A perfect definition is of no use if states ignore it or worse, become hostile to business and delay the effort,” said Nancy Combs, international criminal law expert and professor at William and Mary Law School. “If the panel’s calculations are wrong, everything could fail. “
The definition aims to be less of a hammer and more of a safeguard for governments and businesses that are most responsible for ecological damage.
“We hope this approach results in something potentially effective,” Sands said, but not “so widespread in its effects that states run away and throw up their arms in horror.”
The definition also had to be broad enough to accommodate all kinds of environmental damage and keep pace with the development of science, but specific enough to warn potential wrongdoers of what is considered criminal behavior.
The six-month effort required an unprecedented collaborative effort between international criminal lawyers and environmental lawyers, two professions that so far have rarely intersected.
The 165-word definition resembles the court’s other four crimes in some ways, including putting in place high thresholds, such as “widespread” and “serious” harm.
But the potential new crime differs on one major point: harming human beings is not a prerequisite for ecocide. This change would be a major development for international criminal law, which focuses primarily on human injuries, said Richard Rogers, a British lawyer and one of the panelists.
The definition is also notable for what it does not include. The panel chose not to incorporate a list of examples of ecocides for fear that something would inevitably be left out, perhaps signaling that the excluded act might not qualify, the lawyers said.
This choice also had a political dimension. The panel did not want countries to feel targeted by examples. “We felt it was best to keep that door closed,” Sands said.
Sands believes the definition would cover actions that contribute to climate change, although the details are not yet clear. It may be whether the actions are also illegal, under other national or international laws, he said.
Now that the panel has delivered its definition, the diplomatic work of Stop Ecocide will shift into high gear to mobilize political support.
Support, or lack thereof, will serve as an indicator of how seriously governments are tackling climate change, pollution and biodiversity loss.
Lawmakers from close allies of the United States such as France, Belgium, Finland, Spain, Canada, Luxembourg and the European Union have expressed support for making ecocide a crime. The main emitters of greenhouse gases like the United States, China, India and Russia are not members of the court but could weigh on diplomatic negotiations.
If any of the Court’s member countries formally propose a crime of ecocide, triggering the start of the amendment process, then at the Court’s next annual meeting in December, the countries will hold a vote on whether to ‘accept the proposal. Then countries would debate the definition of the crime, a process that could take years, if not decades.
In the meantime, Jojo Mehta, co-founder of the Stop Ecocide Foundation, expects the prospect of crime to change the behavior of some businesses, governments, insurers and financiers.
And lawmakers around the world have already expressed interest in enacting their own national ecocide laws, using the panel definition as a starting point.
“Even if some states only revise their domestic law, it would be a success,” said Christina Voigt, Norway-based international law professor and one of the panelists.
Importantly, the new definition stimulates debate over whether mass environmental damage should be illegal.
“We expect that the attention of the whole world will increase dramatically as a result of the emergence of this definition,” said Mehta, “and that public interest and demand for this very concrete legal solution will steadily increase. “.