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.
Could a lawyer exhaling CO2 at 40,000ppm be committing a crime?
Joe P: Please let it be so!
No offence taken! 😉
I would be interested to know how anyone is supposed to damage outer space. Even damaging the lithosphere seems a little far-fetched.
I can’t see how any quantity of carbon dioxide emitted could qualify as “ecocide,” even in the fever dream of an alarmist. Here’s hoping, anyway.
We have good estimates of very large percentages of carbon dioxide in the atmosphere during long periods of the Palaeozoic, many many times greater than in a an alarmist worst nightmare. Another part of science ignored or deliberately forgotten. Ecocide: destruction by neglect of human knowledge more like.
How very odd. I post the above, only to find minutes later on a different thread that it was a CO2 concentration curve in a Wikipedia article that set JIT on the path to scepticism. But the curve has now been removed from today’s version of the article. So it is not neglect of knowledge, but it’s deliberate suppression.
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“‘A powerful solution’: activists push to make ecocide an international crime
Movement aims to make the mass damage and destruction of ecosystems a prosecutable, international crime against peace”
Quite a telling comment, I think.
I concluded my article on Ecocide as follows:
Well, perhaps I was a COP or two out. Today in the Guardian:
“Make ecocide an international crime and other legal ideas to help save the planet”
It would be intriguing to see the King of Saudi Arabia arraigned on a charge of ecocide. I almost feel inclined to urge the faithful to “bring it on”
Mark – his post lead in is worth a quote –
“The world has reached an acute point in the “highway to climate hell”. Talks at Cop27 barely achieved anything, despite the fact that almost one-third of Pakistan’s territory was submerged during unprecedented flooding; record heat over the summer killed nearly 25,000 in Europe; and almost 200,000 people in a major US city have not had clean water for months.”
I can almost picture him typing away as the climate disaster network AI feeds him the latest facts.
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dfhunter, and note the repeat of the significant untruth that almost one-third of Pakistan’s territory was submerged. I’d also like evidence for the “nearly 25,000” allegedly killed by record heat in Europe. Nor is an explanation offered for the “almost” 200,000 people in a major US city (which one) without clean water and the supposed link with climate change.
‘…almost 200,000 people in a major US city have not had clean water for months.’
Mark, Donziger was talking about Jackson, Mississippi. The Grauniad said the problem was caused by racism, not climate change.
(You’d think the Graun would have gone for racism *and* climate change. At its best, it would also have added colonialism, transphobia and the patriarchy for good luck.)
That article also said that ‘more than 150,000 people’ were affected. Is that the same as ‘almost 200,000 people’? Not usually.
Most of those people got their clean water back after five days and the city’s ‘boil your water’ advice was withdrawn for everyone after another ten days. There have been problems since (mostly caused by leaks) and it looks like some people are still being told to boil their water but the numbers are probably in the hundreds and none of those people will have been continuously without clean water since the crisis started at the end of August.
Jackson’s water system does seem to be in a right old mess, though. I’ll give him that.
(I’m glad he has finally been released from house arrest. Whatever his shenanigans during the Chevron/Ecuador kerfuffles, that did seem a bit weird.)
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Vinny, thanks for the extra insight. It would appear that this could be one for John’s game of Climate Only Connect – it doesn’t matter how many other possible explanations might exist for a problem, in Guardian World, climate change always has to be there somewhere.
I checked out Wikipedia, too, and although it also mentions the flooding (en passant), climate change doesn’t seem to be an issue so far as they are concerned (other than one, seemingly obligatory, throwaway line near the end of the article):
“Jackson, Mississippi, water crisis”
But so far as the Guardian is concerned, it seems it was climate change wot dun it.
An update on the “nearly 25,000” apparently killed by record heat in Europe over the last summer. Turns out it’s “over 20,000” according to the Guardian itself (although add the numbers up in today’s article and they do look more like 25,000 than 20,000 – it’s all very odd):
“Over 20,000 died in western Europe’s summer heatwaves, figures show
This year’s temperatures would have been virtually impossible without climate crisis, scientists say”
Except that the deaths in question most certainly can’t be definitively attributed to the heat, and are a guesstimate:
I know it’s difficult to do anything other than make estimates, but this is pretty shoddy stuff. How many of those who died had “due to heat” written on their death certificates? How many were extremely old and/or ill, and would have died within a few days in any case? I don’t wish to downplay the seriousness of the matter in question, but whatever happened to science and facts? And the article completely ignores the fact that a warming planet is leading to a bigger reduction in deaths from cold than any putative increase in deaths from heat.
“We must call out the ecocide on our doorstep
Peggy Seeger on a campaign to save four acres of biodiverse meadows in Oxford”
I have quite a lot of sympathy with the sentiments expressed in the penultimate paragraph especially. It seems to me that they can very reasonably be applied to many wind and solar farms.