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PARIS – Climate change, oil spills, deforestation. Injury to the natural world by states and corporations threatens entire ecosystems and endangers the environment that supports life itself.
But are they crimes?
Many think so and the idea of criminalizing “ecocide” is beginning to gain ground.
“People are starting to realize that if we don’t take climate change and threats to biodiversity seriously, then we will have nothing for ourselves, nothing for our children and grandchildren,” said Rob White, professor of criminology at the Australian University of Tasmania.
Deliberate environmental destruction in war has a long history and it was a conflict – the US intervention in Vietnam – that shaped the concept of ecocide.
During its operations in the country in the 1960s and 1970s, the US military dumped tens of millions of liters of toxic herbicides, including Agent Orange, on Vietnamese forests and crops.
Impacts on health and the environment continue to this day, as do campaigns to recognize environmental destruction as a specific atrocity.
Under its description of war crimes, the Rome statute, which formed the basis of the 2002 International Criminal Court, describes “widespread, long-lasting and severe damage to the natural environment that would be clearly excessive” in relation to military objectives.
But activists want ecocide to be a crime in peacetime too.
In the past year, his campaign has gained new momentum, with the support of Swedish activist Greta Thunberg, French President Emmanuel Macron and Pope Francis.
In late 2019, Francis said that “an elementary sense of justice” demands that conduct, often by corporations, not go unpunished.
He highlighted actions “that can be considered as ‘ecocide’: massive contamination of the air, land and water resources, the massive destruction of flora and fauna, and any action capable of producing an ecological disaster or destroying an ecosystem.”
‘Like genocide’
One obstacle is that there is currently no internationally agreed characterization of ecocide.
“We use a kind of working definition of massive damage and destruction of an ecosystem, serious damage to nature that is widespread, severe or systematic, and that is committed to knowing the risks,” said Jojo Mehta, president of the Foundation. Stop Ecocide.
The group has recently created a panel of international lawyers and judges to draft a definition and hopes that ecocide will be added to the crimes prosecuted by the ICC, along with genocide, crimes against humanity and war crimes.
The Maldives and Vanuatu raised the issue at the ICC general assembly in December 2019.
“The idea can no longer be ignored by the leaders,” Dreli Solomon, a Vanuatu diplomat in Brussels, told AFP, welcoming a “growing social movement” on the issue.
He said this was in the context of the “woefully inadequate” global response to climate change and the consequent suffering of his fellow cyclone-hit citizens.
But questions remain.
Should an ecocide crime refer only to harm caused knowingly? There is currently no consensus. How great must the damage be to qualify as ecocide?
Activists say it should be “on a large scale,” like massive deforestation in the Amazon, global climate change, oil spills, industrial fishing, oil extraction and mining, or air pollution.
If ecocide were delimited, activists say it would be necessary to broaden the parameters of the ICC, allowing the court to prosecute companies and states rather than just individuals.
“The ecocide is not intended to punish the little one,” Mehta told AFP.
“As with genocide, the infantrymen are not punished, those who gave the command are punished.”
Shame and share price
Some worry that the ICC itself is too narrow, weakened by the absence of large states like the United States. But this does not discourage activists.
“The fact that the institution does not function well does not prevent it from tackling an issue of vital importance,” said lawyer and activist Valerie Cabanes.
“Just because an issue is complicated doesn’t mean we should give up,” she said, adding that abolition of slavery and women’s voting rights were also seen as a challenge at the time.
A crime of ecocide could act to demonstrate the seriousness of ecological damage “in a way that is intended to embarrass governments” or pressure them to stop harmful activities, White said.
It wouldn’t be to see “particular bad guys on a pier,” Mehta said, but to change practice.
She said existing civil laws covering negligence or corporate injury could be ignored by firms with large legal budgets, but criminal law is “a deterrent on a different level,” and executives are more personally liable.
“If you’re a genocidal maniac, you won’t care what people think of you,” he said.
“If you are the CEO of a corporation that commits ecocide, it matters a lot to you because your reputation depends on it, and therefore your stock price and the success of your company depend on it.” – AFP
