The Definition Of 'Ecocide'

Publication Date03 February 2021
SubjectEnvironment, Government, Public Sector, Criminal Law, Environmental Law, Clean Air / Pollution, Corporate Crime, Crime, Indigenous Peoples
Law FirmWilmerHale
AuthorJosef Rybacki

In 2016, Professor Philippe Sands QC published East West Street, which recounts the development of the concepts of genocide and crimes against humanity and their application in the Nuremberg Trials. In November 2020, 75 years after those trials, the Stop Ecocide Foundation (SEF) convened a panel of lawyers, co-chaired by former International Criminal Court (ICC) judge Florence Mumba and Professor Sands, to draft a legal definition of 'ecocide' that could form the basis for a new international crime.1 The definition is due to be published early this year.

The concept of ecocide first gained significant worldwide attention in 1972, when Swedish prime minister, Olof Palme, addressing the UN Stockholm Conference on the Human Environment, called for an international crime of ecocide, primarily in response to US use of chemical weapons in the Vietnam War. However, when the Rome Statute was ratified in 1998, creating the ICC, environmental crimes were not included. 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'.2

As the negative effects of global warming have intensified, so too has political momentum in favour of criminalising ecosystem destruction. In 2019, island-states Vanuatu and the Maldives urged the ICC's Assembly of States Parties to recognise the crime of ecocide.3 This call was echoed by Swedish parliamentarians, who asked SEF to draft a definition of ecocide.4

According to SEF, ecocide relates to "harm to nature which is widespread, severe or systematic", including ocean damage, deforestation, land and water contamination, and air pollution. The term therefore encompasses a wide range of different activities, but must be drafted with enough specificity to ensure the definition has 'sufficient certainty', the importance of which is summarised in R v Rimmington:

No one should be punished under a law unless it is sufficiently clear and certain to enable him to know what conduct is forbidden before he does it; and no one should be punished for any act which was not clearly and ascertainably punishable when the act was done.5

A significant challenge will be setting a sufficiently precise threshold to distinguish the actus reus of ecocide from ordinary environmental offences. To take an extreme example, could the threshold be determined by...

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