Avanti Deshpande[1]
Introduction
The drawbacks and inadequacies of the existing international legal framework to combat environmental crimes have been widely acknowledged and documented. Over the past decade, the chorus for the inclusion of a separate, autonomous crime to tackle severe, long-term environmental damage has been growing consistently. While the renewed and apparently increasing interest in ecocide is indeed exciting for anyone who cares about the climate crisis and our planet, a major divergence of opinion can be seen on the issue of the grounding of ecocide and the matter of rejecting anthropocentrism. This article will provide a brief overview of the background and history of ecocide, and primarily argue the need to adopt an eco-centric approach towards ecocide, moving away from its traditional anthropocentric grounding. ‘Eco-centric’, derived from eco-centrism, can be described, in simple terms, as a philosophy or perspective that places intrinsic value on all living organisms and their natural environment, regardless of their perceived usefulness or importance to human beings. Eco-centrism thus rejects the presently dominant notion of human superiority and differs acutely from anthropocentrism. The author will focus on the need for recognising ecocide as a crime for the environmental harm it causes in relation to the environment itself, rather than solely recognising environmental harm which in turn causes harm to human beings.
- Background to the Crime of ‘Ecocide’
The term ‘ecocide’ is not new, and was first proposed by American biologist Prof. Arthur Galston in 1970 to describe the harm caused by a chemical known as Agent Orange, used by the United States in the toxic herbicidal warfare in the Vietnam War. In the opening speech of the United Nations Stockholm Conference on the Human Environment in 1972, the then Swedish Prime Minister Olof Palme used the term in reference to the same war, and called for an immediate end to the ensuing ecological warfare. Later, in 1973, Prof. Richard Falk provided the first legal recognition and analysis of ecocide, and even went on to propose an International Convention on the Crime of Ecocide.
In November 2020, the Stop Ecocide Foundation, an international charity, announced the setting up of an Independent Expert Panel (‘the Panel’) of twelve legal experts from across various legal jurisdictions such as the UK, USA, France, Senegal, Ecuador, Bangladesh, Sierra Leone, Chile/Spain, Norway, and Samoa to draft a legal definition of the term ‘ecocide’. In June 2021, the Panel released its report which contained a proposal to codify ecocide as an additional, fifth core crime to the four crimes of genocide, crimes against humanity, war crimes, and the crime of aggression that currently exist under Article 5(1) of the Rome Statute.
The Panel proposed the addition of a new article, Article 8 ter, to the Rome Statute, for the inclusion of the term ‘ecocide’ which is defined as:
‘[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’.
The inclusion of ecocide as an autonomous crime has received unprecedented support in recent years, with multiple stakeholders such as states, political leaders and climate activists rallying behind calls to criminalise ecocide – teenage climate activist Greta Thunberg, France, Belgium, Republic of Maldives, Republic of Vanuatu and even the European Union support the criminalisation of ecocide.
The crime of environmental damage (not named ‘ecocide’ at the time) was actually considered in the initial early drafts of the Draft Code of Crimes Against the Peace and Security of Mankind (“Draft Code”), which subsequently morphed into the present Rome Statute, adopted in 1998. The United Nations International Law Commission prepared the Draft Code in 1991. It initially comprised of twelve crimes, including an environmental crime codified under Article 26, namely, “Wilful and Severe Damage to the Environment” (p. 30, para 120; p. 32, para 141). However, this recommendation was never followed up or implemented. It is also pertinent to note that although Article 26 pertained to environmental crimes, it did not name the term “ecocide” at any point.
Conversely, measures to criminalise ecocide in modern times have been gaining momentum steadily. As recently as June 2022, a proposal calling for the criminalisation of ecocide was discussed in the Parliament of Finland. ‘Ecocide’ was also the subject of discussion in Denmark’s Parliament and there was a cross-party demand for national legislation on the issue in Iceland’s Parliament in March 2022.
- Addressing the Anthropocentric Grounding of Ecocide
A major and well-founded criticism directed specifically at the Panel’s draft definition of ecocide is that, while it attempts to ground itself seemingly in an eco-centric approach, the inclusion of ‘unlawful’ in its definition of ecocide indicates a decidedly anthropocentric perspective because it provides an obvious caveat in the sense that ‘lawful’ acts leading to environmental destruction are explicitly excluded from its jurisdiction. As rightly pointed out by other scholars as well, a true eco-centric approach would not limit the actus reus to unlawful acts alone, but to any acts, whether lawful or not, as long as they lead to severe and widespread destruction of the environment. Such an anthropocentric grounding of ‘ecocide’ is inherently paradoxical; it can be argued that it indirectly seeks to justify environmental destruction as long as there is a ‘lawful’ justification. This goes against the calling for the recognition of a crime of ecocide, which surely must recognise all such acts which are causing environmental destruction and not merely prohibit the ones which we supposedly don’t have a good enough reason to commit.
Thus, the Panel’s definition, whether intentionally or unintentionally, allows for the degradation and destruction of the environment so long as it is perceived that there is some benefit accruing to humans at the cost of such destruction. This is clear through the Panel’s definition of the term ‘wanton’ which means “with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated”, which is disturbing because it creates a hierarchy where human benefit is still more important than any environmental harm and calls for action only when such harm is excessive. The metric to define what constitutes ‘excessive’ is not delved into in great detail.
The inclusion of ‘ecocide’ as an international crime needs to be on account of environmental harm per se, and not be merely restricted to environmental harm that has resulted in harm to human beings. The Rome Statute arguably is very evidently anthropocentric in nature, having been enacted with the express purpose of protecting human beings from heinous crimes and atrocities such as genocide and crimes against humanity. However, in order to truly incorporate ecocide as an international crime, it is crucial to move away from such an anthropocentric understanding and adopt an eco-centric approach that recognises the inherent value of the environment and species other than human beings. To effectuate this ‘eco-centric approach’ would mean consciously and deliberately moving away from notions of human superiority over other species. Therefore, any proposal to criminalise ecocide at the international level (or even among domestic legal frameworks in any country) ought not to link environmental destruction to harm or suffering caused to humans but instead recognise it independently as a standalone crime caused to the environment itself.
There is little doubt that granting recognition to ecocide under international criminal law, thereby placing crimes against the environment on equal footing with ‘the most serious crimes of concern to the international community’ as given under the Rome Statute, will help in assigning and ensuring accountability for environmental harm. The need to take seriously ecocide as an international crime is further heightened in light of the latest Intergovernmental Panel on Climate Change (IPCC) Report, which predicts that the average global temperature is likely to rise by more than 1.5°C within the next two decades, an increase in excess of the limit set in the Paris Agreement.
The Rome Statute currently recognises environmental harm in only one place – under War Crimes under Article 8(b), recognising the environmental damage caused during wartime only. Therefore, acknowledging environmental harm and destruction during peacetime by granting recognition to ecocide is arguably not only much needed, but also long overdue.
- Concluding Remarks
While the growing consensus over the introduction of ecocide as a fifth crime under the Rome Statute is encouraging, criminalising the causing of sustained harm to the environment not just when it affects human beings, but for the sake of the harm caused to the environment itself, cannot be disregarded. The anthropocentric approach towards environmental harm cannot be condoned, especially when the object is to seek climate justice, which undoubtedly constitutes interspecies justice. Lastly, whether the definition that is ultimately adopted is the one proposed by the Panel or one drafted separately, indisputably the inclusion of ecocide under international criminal law is necessary to grant recognition to the damage caused to the environment per se, and independent of the harm to human beings that was caused as an effect of environmental damage.
While acknowledging the many hurdles towards the recognition of ecocide under international criminal law, it is also true that implementation of a crime of ecocide would open doors for the prosecution of heads of state. Brazilian President Jair Bolsonaro, for instance, is facing accusations of crimes against humanity concerning an Indigenous tribe in Brazil for the destruction of the Amazon rainforest itself, not just in connection with the harm it has caused to human life. The IPCC’s recent report on rising global temperatures has highlighted the need for urgent action to tackle climate change. Against this background, we must utilise all the tools available at humanity’s disposal, particularly the law. The adoption of ‘ecocide’ as an international crime would thus be a step in the right direction in ensuring that our planet remains inhabitable for all species.
[1] Graduate of ILS Law College, Pune, India.