The Definition Of Ecocide (August 2021)

• Published date: 11 August 2021
• Subject Matter: Environment, Litigation, Mediation & Arbitration, Criminal Law, Environmental Law, Class Actions, Climate Change, Crime
• Law Firm: WilmerHale
• Author: Josef Rybacki

The climate crisis, a problem that once took the form of abstract temperature charts and projections, is now a dizzying parade of broken meteorological records and natural disasters. It therefore seemed like apt timing when, in June, the Stop Ecocide Foundation's (SEF) expert drafting panel released its definition of the crime of 'ecocide'.

Currently under the Rome Statute of the International Criminal Court (ICC), there are four crimes, including genocide. SEF is an NGO that advocates amending the statute to add ecocide as a fifth crime. The publication of the proposed definition is an important step towards achieving that goal.

Definition

[U]nlawful 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.

Actus Reus

There are two types of act that form gateways to criminal liability under the definition. Firstly, 'unlawful' acts. Although there will be inconsistency in what constitutes illegality at a domestic level, this is the more straightforward route, as the prosecutor can simply point to the domestic law breach. Under this gateway, officers of a car company convicted of an emissions fraud in violation of national law, for instance, could be guilty of ecocide.

The second gateway is 'wanton acts'. This might, depending on your background, evoke the offence of wanton or furious driving, where it effectively means straight recklessness, or the Rome Statute's Article 8 definition of war crimes, specifically extensive destruction and appropriation of property. Unsurprisingly, ecocide tacks more closely to the latter. It defines wanton as, 'with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated'.

This gateway poses a more difficult route. The word 'clearly' creates a high bar for the prosecution. Defendants will argue about their knowledge (or ignorance) of the damage or scale of the damage. It will be interesting to see how the court approaches the proportionality test and how, for instance, profit margins are measured against habitat loss.

Mens Rea

The defendant must have had 'knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts'. The usual mens rea for crimes under the Rome Statute is awareness of a near certainty that the event will occur. Ecocide casts the net more...