Ecocide
Ailén Agostina Rubio Arrieta
The concept of ecocide stems from the intersection of biology and international humanitarian law. It was initially proposed by the biologist and professor Arthur Galston in 1970 during the “Conference on War Crimes and the American Conscience” in Washington (Zieler, 2011). His original framework sought to categorize the massive defoliation tactics executed by U.S. armed forces during the Vietnam War—particularly in Operation Ranch Hand—where the use of highly toxic herbicides resulted in the irreversible degradation of approximately one-fifth of Vietnam’s forest heritage (Zieler, 2011). This conceptual milestone gained diplomatic recognition in 1972 when the Swedish Prime Minister Olof Palme incorporated it into the multilateral debate at the United Nations Conference on the Human Environment in Stockholm (Palme, 1972).
Since its introduction to the epistemic community, the doctrinal construction of ecocide has undergone a significant evolution. Richard Falk, a pioneer in its legal formalization, proposed an international Convention which, influenced by the Vietnam precedent, focused on the proscription of weapons of mass destruction and chemical agents capable of causing large-scale environmental destruction or damage in the context of warfare, jus in bello, (Falk, 1973). However, the contemporary doctrine has transcended the military sphere to encompass peacetime. Scholars such as Ludwik Teclaff and Mark Gray postulated the need to include in the statutory definition those activities that cause damage to or destroy ecosystems on a large-scale during times of peace (Teclaff, 1994). Under this premise, the responsibility would fall upon both, States and individuals or organizations, thereby allowing for the prosecution of environmental catastrophes of historic magnitude, such as the Exxon Valdez oil spill or the Chernobyl nuclear disaster (Gray, 1996).
This debate moved beyond the doctrinal field and was articulated being within the institutional framework of the United Nations, prompting a normative review within its human rights bodies. In a 1978 study for the UN Commission on Human Rights, the Sub-Commission on Prevention of Discrimination and Protection of Minorities proposed the inclusion of ecocide and “cultural genocide” in the list of prohibited acts under the 1948 Genocide Convention (Ruhashyankiko, 1978). Following these recommendations, the UN Special Rapporteur on Genocide, Benjamin Whitaker, suggested a definition of “ecocide” for integration into the Convention. He defined it as “harmful and often irreversible alterations to the environment,” citing examples such as “nuclear explosions, chemical weapons, serious pollution and acid rain, or the destruction of tropical forests” provided they threatened “the existence of entire populations, whether deliberately or through culpable negligence” (Whitaker, 1985, p. 17).
Despite these efforts to link environmental destruction with the annihilation of human groups, the proposal to include the crime of ecocide in the Genocide Convention was not adopted.
Subsequent attempts are found in the work of the International Law Commission (ILC) regarding the Draft Code of Crimes against the Peace and Security of Mankind. Although the term “ecocide” was not formally adopted, the concept of environmental crime was established as a fundamental normative antecedent. In 1986, the Special Rapporteur initially proposed including environmental damage within the category of crimes against humanity, defining it as “any serious and intentional harm caused to an asset of vital interest to mankind, such as the human environment” (Thiam, 1986, p. 89). However, after years of debate and in response to observations from Member States, the Commission approved a version in 1991 that separated this provision from the corpus of crimes against humanity, to regulate it independently. Under the article 26, it was codified as an autonomous crime titled “willful and severe damage to the environment”, extending its application to both armed conflict and peacetime (International Law Commission, 1991). In this regard, Christian Tomuschat (a member of the ILC at the time) noted that the terminological shift from “human environment” to “environment” did not imply a transition from an anthropocentric perspective to a purely ecocentric one. The primary objective of the norm remained the preservation of the peace and security of human beings, recognizing that environmental integrity is an indispensable condition for the protection of humanity (Tomuschat, 1996).
Although this draft was never formally adopted, it served as the technical foundation for the formulation of the Rome Statute of the International Criminal Court. However, the Statute does not incorporate the Commission’s extensive work on an independent environmental crime. Instead, ecological damage remained limited to the scope of war crimes under Article 8, paragraph 2, (b)(iv), which sanctions intentional attacks “in the knowledge that such attack will cause […] widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”.
Following the entry into force of the Rome Statute in 2002, discussions regarding the international criminalization of environmental damage entered a period of relative stagnation. This landscape changed significantly in 2010 through the work of British lawyer Polly Higgins, who, alongside academics like Damien Short and Nigel South, reactivated the debate with the publication of the article Protecting the Planet: A Proposal for a Law of Ecocide. Higgins formally presented a proposal to the UN International Law Commission to amend the Rome Statute to include ecocide as the “fifth crime.” Her definition stated:
“Ecocide is the extensive damage to, destruction of or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished” (Higgins et al., 2013, p. 257).
This proposal was disruptive for three reasons: first, it introduced the concept of “peaceful enjoyment” by the inhabitants as the protected legal interest; second, ecocide would encompass not only human actions but also “other causes,” which—according to the wording—would include natural phenomena; and third, it did not strictly require “intent” (mens rea).
Following this initial approach, two other fundamental initiatives have been articulated, seeking to elevate ecocide to the fifth crime of the Rome Statute and ensure its transposition into national laws.
The second proposal for a definition comes from the Independent Expert Panel for the Legal Definition of Ecocide. Stop Ecocide International is a global NGO founded in 2017 by Polly Higgins and the activist Jojo Mehta, its primary goal being the amendment of the Rome Statute. This panel defines ecocide 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” (Stop Ecocide Foundation, 2021, p. 4).
The legal configuration of ecocide would thus rest upon a threshold of exceptionality defined by four criteria: wantonness, severity, widespread scope, and durability of the damage. An act is considered “wanton” if it is reckless, disregarding a damage that is clearly excessive in relation to the anticipated social or economic benefits. Severity is determined by the significant alteration to environmental elements or human life. “Widespread” damage requires it to transcends state borders or affect entire ecosystems or species, while “long-term” damage is understood as an irreversible impact or one that cannot be naturally regenerated within a reasonable timeframe.
The final relevant proposal arises from the working group led by Professor Laurent Neyret. This initiative is the richest in detail and goes beyond the mere inclusion of ecocide as a fifth crime, as it develops both a convention against environmental criminality and a specific international convention on ecocide. The latter defines ecocide as “Intentional acts committed in the context of a widespread and systematic action that have an adverse impact on the security of the planet” (Neyret, 2017, p. 28).
The proposal provides five well-defined conducts, including the emission of pollutants, waste management, the exploitation of dangerous activities and substances (such as nuclear and radioactive materials), and the exploitation of wild flora and fauna. Finally, it includes a residual clause for similar acts that may negatively affect the security of the planet. Security is deemed affected when one of the following occurs:
“a) widespread, long-term and severe degradation of the quality of the air or atmosphere, soil, or water, of fauna and flora or their ecological functions; or b) death, permanent disabilities or other serious incurable diseases to a population, or the permanent deprivation of their lands, territories or resources” (Neyret, 2017, p. 28).
For these actions to be punishable, they must be committed intentionally and with knowledge of their systematic and widespread nature. The proposal considers acts intentional when “the author knew or should have known that there was a high probability that such acts could negatively affect the security of the planet” (Neyret, 2017, p. 29).
These proposals attempt to protect interests that, while interrelated, are legally distinct. The first one, purely anthropocentric in nature, centres protection on “peaceful enjoyment,” subordinating environmental damage to its impact on human welfare. In contrast, the Expert Panel’s definition adopts a strictly ecocentric stance, for the environment is protected as an autonomous and intrinsic value. Finally, the reference to “planetary security” articulates a mixed and systemic vision. This last proposal is perhaps the most aligned with the principles of criminal law—specifically the principles of legality, harm and proportionality. The working group’s proposal defines the prohibited conducts (emissions, waste, dangerous substances) more clearly and links them to specific outcomes (long-term, severe degradation, or human impact). Furthermore, it elevates planetary security to a supra-individual legal interest that refers not only to human survival but to the possibilities of life as a whole.
Today, 14 countries have incorporated ecocide into their legislation (Vietnam, Uzbekistan, France, Russia, Kazakhstan, Kyrgyzstan, Georgia, Belarus, Ukraine, Moldova, Armenia, Tajikistan, Chile, and Belgium). However, it is yet to be included in the Rome Statute, primarily due to two fundamental criticisms against it. First, the lack of precision regarding the criminal conduct conflicts with the principles of specificity and legality, making it difficult to clearly determine the prohibited act. Second, there is an obstacle of ratione personae: the Statute is limited to natural persons, excluding legal entities (corporations), which are the primary entities responsible for large-scale environmental damage. This exclusion is justified by a traditional view of sovereignty and the principle of complementarity, given that many States do not yet recognize the criminal liability of corporations, which would create gaps in accountability and jurisdictional conflicts (Arenal Lora, 2022).
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