Analysing the Conclusions of the Independent Expert Panel for the Legal Definition of Ecocide – The Pragmatic Approach to International Environmental Crime

by Eoin Jackson

Eoin Jackson is an incoming Final Year Law student in Trinity College Dublin. In this article he explores the legitimacy and effectiveness of Ecocide as a new means of enhancing international environmental accountability

Introduction

On the 22nd June 2021, an expert legal panel convened by the Stop Ecocide Foundation released the results of their investigation into the drafting of a potential international crime of ecocide.[1] First proposed in the 1970’s, and more recently championed by prominent barrister Polly Higgins,[2] ecocide has been promoted by international leaders as a means of holding individuals to account for the continued destruction of the environment.[3] However, there have been conflicts over what would comprise an appropriate definition of ecocide, particularly in light of the potential difficulties with enforcing this crime via the International Criminal Court (ICC). This article seeks to analyse the recommendations of the panel, with a particular focus being placed on the practical enforcement of the proposed definition and the legal difficulties associated with such enforcement.

Defining Ecocide – What’s in a Name?

The definition of ecocide proposed by the panel describes it as ‘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’.[4] In analysing this definition, the article will be divided into an analysis of the actus reus and mens rea.

Actus Reus

The actus reus proposed by the panel attempts to balance the need for environmental accountability with concerns surrounding the political feasibility of enacting an extreme definition. The definition of ‘unlawful or wanton acts’ differs from the original suggestion of Higgins that it be defined as ‘extensive damage to, destruction or loss of ecosystems of a given territory whether by human agency or other causes’.[5]  It is noticeable that the definition of the panel excludes the reference to ‘other causes’. This means that external forces, such as earthquakes and tsunamis, exacerbated by climate change would not be sufficient to justify an imposition of criminal liability. There is consequently a more individualised approach to actus reus, that reflects the more traditional style of defining international crimes taken by the ICC. This is undoubtedly more feasible to establish than the maximalist approach taken by Higgins.[6] States are far more likely to accept an amendment to the Rome Statute that relies more on an individual committing acts, than a definition that would encompass accountability for natural forces worsened by failures in climate leadership. However, this may come at a price to the practical effectiveness of ecocide. No legal duty of care would be imposed upon nations to take greater actions to prevent climate change.[7] Instead the impetus would be on individuals to avoid acts or omissions that knowingly cause severe damage to the environment. Thus, while less ambiguous than the definition proposed by Higgins, the panel has sacrificed some structural elements to the potential actus reus of ecocide. It could be considered that this may not necessarily be the best approach to tackling the need for  collective action on climate change.

The use of ‘wanton’ within the proposed definition of ecocide is interesting, due to  the argument of the panel that it would ‘introduce a proportionality test into the definition which reflects environmental law principles’.[8] While this may have some effectiveness, in the context of polluting activities with social benefits, it is somewhat unclear as to how such proportionality would operate in the broader scheme of prosecuting an individual. The absence of guidance as to examples of ecocide, and in particular the lack of discussion around climate change within the definition adds to this ambiguity. Thus, while the use of wanton is in line with typical international practice,[9] it may require full clarification in terms of  the requisite proportionality elements to be regarded as effective at a practical level.

Mens Rea

The standard of intent proposed by the panel is one of recklessness. This once again differs from the proposal of Higgins that the mens rea of ecocide be one of strict liability.[10]  The panel justified this on the grounds that it was sufficiently ‘onerous to ensure that only those persons with significant culpability for grave damage to the environment will be held responsible’.[11] From a practical perspective this may be perhaps the most appropriate approach to the imposition of mens rea. A standard of strict liability could have led to damaging but otherwise socially necessary activities leading to individual prosecutions, as well as result in widespread backlash from member states fearing a disproportionate allocation of responsibility.[12] By contrast,  the retention of some defence to ecocide through the knowledge requirements of recklessness balances these concerns with a more internationally accepted standard.

That is not to say the inclusion of recklessness is without criticism. Of the countries with nationally recognised crimes of ecocide, none include any form of knowledge requirement.[13] This suggests a deviation from established norms. However, it is argued that this can be linked to the difficulties with transposing ecocide within the current international framework. Further, given the relatively high threshold in terms of actus reus outlined in the analysis above, the additional difficulties of establishing that these acts were committed recklessly may render prosecution incredibly difficult in light of the evidence of intent that would need to be established. This may not be justified considering the urgent need for climate action and structural change that would arguably be bolstered by the inclusion of a readily enforceable intentional crime of ecocide with relatively lax mens rea requirements. Thus, it is submitted that the panel has sacrificed some of the potential deterrent effects of ecocide in favour of a more pragmatic approach that is more likely to align with current international standards.

Implementing Ecocide: Reconciling ICC Enforcement with Political Reality

In defining ecocide, the panel also sought to establish how such a crime could be incorporated into the existing ICC framework.  In this regard they proposed amending Article 8 of the Rome Statute to include the aforementioned definition above.[14] Minor amendments to Article 5 were also suggested as well as a new preambular paragraph within the Rome Statute linking concerns over environmental harm with damage to human and natural ecosystems.[15]  While there is nothing inherently problematic with these suggestions, the panel does fail to address the question of how such amendments could be achieved or what the enforcement of ecocide by the ICC, rather than a newly established international environment court, might look like.

The Politics of Ecocide: The Failure to Address Pre-Existing Fault Lines

It is unclear how political capital could be generated to amend the Rome Statute in the manner proposed by the panel. While there has been support from some nations such as France, many leading polluters including the US and China are not signatories of the Rome Statute nor is the panel’s progressive definition likely to lead to concessions on this.[16] The ICC had been criticised for adopting a neo-colonialist approach to prosecutions, with defendants largely being individuals from non-western nations.[17] Were ecocide to be implemented, it could lead to a controversial Westernisation of environmental accountability. This would see leaders in developing nations being held to account for attempting to replicate free market policies seen in the West, while those primarily responsible for the creation of the pollutant market escape liability. This would be largely due to their political affiliation.[18] Not only would this exacerbate environmental inequity, it would arguably lead any definition of ecocide to be viewed as a neoliberal paper tiger.[19] The difference in the destruction caused by a Kenyan oil baron and their US counterpart is negligible. Yet, for political purposes, the ICC is far more likely to target the former when considering the allocation of their resources. The panel’s failure to acknowledge these existing inequalities, or address the practicalities of enforcing ecocide makes it difficult to appetite the otherwise pragmatic approach taken to defining the crime.

An International Court of Environmental Justice? – The Unspoken Frontier

On the other hand, the establishment of an International Court of Environmental Justice would allow for a more appropriate forum for cases of pollution than the Westernised ICC. This would likely require some form of environmental convention, perhaps modifying the suggestion put forward by some commentators that a similar convention be held on ecocide. An International Court of Environmental Justice could be granted jurisdiction over corporations as well as individuals. This would serve to better challenge the system that allows transnational corporations to mitigate the damage to their enterprise by having the focus of liability be on a single member of management.[20] Additionally, the expertise of the judicial panel would be of greater benefit than the broader focus of the ICC.[21] This would ensure causative links could be established in a more efficient manner.

It could be argued that, from a political perspective, an International Court of this scale is unfeasible to establish. It is submitted that it is no more unrealistic than the creation of ecocide under the ICC model in light of the similar justifications – the need for accountability and urgent movement for environmental reform. Additionally a number of national countries have created ‘green courts’ which could serve as models for the recognition of such a court at an international level.[22] Thus, the momentum required is no more than that that has been channelled into the ecocide movement.

An International Court of Environmental Justice would also be better equipped to provide an appropriate remedy strictly beyond the boundaries of the ICC.[23] These could include injunctions or similar remedies designed to halt the activities causing the damage to the environment in the first place. The result would be a recognition of liability and an appropriate measure designed to advance the structural change necessary to prevent future acts of destruction. While the panel was not necessarily obliged to consider the merits of such a Court in great detail, the decision to operate within the confines of the ICC shows a lack of initiative that is surprising in light of the progressive definition provided as a whole.

Conclusion

In conclusion, the definition provided by the panel represents a significant step forward for the ecocide movement. The attempt to balance the concerns of various stakeholders is, as a whole successful, though there are significant concerns surrounding whether the mens rea element would elevate the probability of a successful prosecution to an impossible standard. These concerns are exacerbated by the failure to consider whether the ICC is the most appropriate forum for ecocide, or how the definition provided could readily be enforced at the international level. However, it is clear that the panel provides a useful foundation for ecocide that can be built upon by future lawyers, with there being significant potential for its symbolic and practical use as a mechanism of environmental accountability.


[1] Stop Ecocide Foundation, ‘Independent Expert Panel for the Legal Definition of Ecocide’ (2021).

[2] Polly Higgins, ‘Protecting the planet: A proposal for a law of ecocide’ (2013)  Journal of Crime Law and Social Change.

[3] Louise Guillot, ‘The global campaign to make environmental destruction an international crime’ Politico (2021).

[4] Stop Ecocide Foundation, ‘Independent Expert Panel for the Legal Definition of Ecocide’ (2021).

[5] Polly Higgins, ‘Protecting the planet: A proposal for a law of ecocide’, (2013)  Journal of Crime Law and Social Change.

[6] Celine Van den Berg, Options For addressing instances of ecological harm under the Rome Statute, the added value of an autonomous international crime of ecocide, and its hurdles’, University of Tilburg <http://arno.uvt.nl/show.cgi?fid=145800 > accessed 24 June 2021.

[7] Polly Higgins, ‘Protecting the planet: A proposal for a law of ecocide,’ (2013) Journal of Crime Law and Social Change.

[8] Stop Ecocide Foundation, ‘Independent Expert Panel for the Legal Definition of Ecocide’ (2021).

[9] ibid.

[10] Polly Higgins, ‘Protecting the planet: A proposal for a law of ecocide’ (2013)  Journal of Crime Law and Social Change.

[11]  Stop Ecocide Foundation, ‘Independent Expert Panel for the Legal Definition of Ecocide’ (2021).

[12] Mark Grey, ‘The International Crime of Ecocide’ (1996) California Western International Law Journal.

[13]  Polly Higgins, ‘Protecting the planet: A proposal for a law of ecocide’ (2013)  Journal of Crime Law and Social Change.

[14]  Stop Ecocide Foundation, ‘Independent Expert Panel for the Legal Definition of Ecocide’ (2021).

[15] ibid.

[16] John Thomas, ‘JAS Round Table on Amitav Ghosh, The Great Derangement: Climate Change and the Unthinkable’ (2016) The Journal of Asian Studies.

[17] Hiroyuki Tosa, ‘Global constitutional order and the deviant other: reflections on the dualistic nature of the ICC process’ (2017) International Relations of the Asia- Pacific.

[18] Rob White, ‘Ecocide and the Carbon Crimes of the Powerful’ (2018) 37 University of Tasmania Law Review 95.

[19] Payal Patel, Expanding Past Genocide, Crimes Against Humanity, and War Crimes:  Can an ICC Policy Paper Expand the Court’s Mandate Prosecuting Environmental Crimes? (2016) Loyola University Chicago International Law Review.

[20] Rob Whyte, ‘Ecocide: Kill the Corporation Before it Kills Us’ 2020 (1st edn Manchester University Press).

[21] Payal Patel, Expanding Past Genocide, Crimes Against Humanity, and War Crimes:  Can an ICC Policy Paper Expand the Court’s Mandate Prosecuting Environmental Crimes? (2016) Loyola University Chicago International Law Review.

[22] United Nations Development Program, ‘Environmental Justice, Comparative Experiences in Legal Empowerment’ (2014).

[23]Stephen Hockman, The Case For an International Court For The Environment (2011) ICE Coalition <https://theucdlawreview.files.wordpress.com/2021/07/0f11e-thecaseforanice.pdf> accessed 25 May 2021.


%d bloggers like this: