Another email from the Law Society Gazette popped up in my computer’s inbox this week, and it drew my attention to an online article in the Gazette which discusses the fact that a legal definition of ecocide has now been drafted. The article was written by Josef Rybacki, a lawyer working in the UK office of a US law firm, and I thank him for drawing my attention to this interesting development, and for much of the detail that follows.
The Stop Ecocide Foundationi (registered as a charity in the Netherlands) was set up in 2017 by the late Polly Higgins, a UK barrister who sadly passed away in 2019, and her colleague, Jojo Mehta, the current Chief Executive. As its websiteii says, the Foundation:
promotes and facilitates steps towards making ecocide a crime at the International Criminal Court (ICC) in order to prevent devastation of nature and so protect the future of life on Earth.
To that end, it has campaigned with a view to achieving an amendment to the Rome Statute of the ICC so as to make ecocide an international crime. As part of its campaign, late in 2020 it convened an Independent Expert Panel of twelve lawyers with expertise in criminal, environmental and climate law to draft a definition of the proposed crime. The Panel has now concluded its work, a draft has been produced, and the email from the Law Society Gazette has alerted me to it.
Judging by the opening to the paper introducing the proposed definition, it seems clear that climate change is uppermost in the minds of those seeking to introduce the new crime:
It is widely recognised that humanity stands at a crossroads. The scientific evidence points to the conclusion that the emission of greenhouse gases and the destruction of ecosystems at current rates will have catastrophic consequences for our common environment.
However, that statement leaves open the possibility that the crime may be committed (i.e. ecosystems may be destroyed) other than as a result of the emission of greenhouse gases, and indeed the proposed definition is drafted in such a way that it could definitely catch other environmentally damaging activities. I briefly harboured hopes that environmentally damaging wind farms might fall within the definition, but no such luck, as will become clear below.
1. For the purpose of this Statute, “ecocide” means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.
2. For the purpose of paragraph 1:
a. “Wanton” means with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated;
b. “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;
c. “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;
d. “Long-term” means damage which is irreversible or which cannot be redressed through natural recovery within a reasonable period of time;
e. “Environment” means the earth, its biosphere, cryosphere, lithosphere, hydrosphere and atmosphere, as well as outer space.
In terms of the activities that might form the basis of the crime, the definition provides two potential routes to liability – “unlawful acts” (presumably straightforward if a breach of a national law has occurred) or “wanton acts”. The definition of wanton acts does provide a high threshold, involving an activity with reckless disregard for damage which would clearly be excessive.
So much for the activity in question (what we lawyers still, I think, call the actus reus). Establishing that the activity in question satisfies the definition is not of itself enough. Mens rea, or guilty mind, also needs to be established. Knowledge that there is a substantial likelihood of severe damage to the environment, which can be either widespread or long-term would suffice. I understand that the usual mens rea for crimes under the Rome Statute (under Article 30) is awareness of a near certainty that the event will occur. Thus the proposed definition of ecocide casts the net more widely:
Given the high thresholds for the consequences within the definition of ecocide, the Panel assessed that the Article 30 default mens rea for such consequences was too narrow and would not capture conduct with a high likelihood of resulting in severe and either widespread or long-term damage to the environment.
The definition of severe is set at a high and substantial level, and should avoid routine environmental infringements at a local or even national level from being caught up in the definition.
In addition the damage must be widespread or long-term. Although I suspect that the proposed crime is aimed at those considered responsible for climate change (and if it is embraced by the ICC, I have no doubt it will be used by activists for that purpose), it could extend to other environmental devastation. If the proposed law was adopted, and if the nuclear explosion at Chernobyl were to happen again, it is easy to see that it might have the potential to fall within the definition.
What happens next?
Well, as its website says, the Stop Ecocide Foundation is already “reaching out to Governments”, no doubt as part of a concerted lobbying campaign to gain international momentum from influential state players, with a view to the law being adopted and the new crime of ecocide becoming a legal reality such that prosecutions for it may take place before the ICC. I have heard nothing to this effect among the welter of IPCC-related news articles recently, but I wouldn’t be surprised if a lot of ecocide lobbying occurs at COP 26. The people involved with this campaign are serious and heavyweight players. If, as seems to me to be likely, COP 26 fails to achieve much in the way of commitments to reduce greenhouse gas emissions on the part of those countries who are the biggest emitters (most notably China), then I suspect that the adoption of a new crime of ecocide may be the answer to those who will want to declare that COP 26 is a success with major achievements under its belt. Watch this space.