An effort to turn “ecocide” — the systematic destruction of the environment — into an international crime on par with genocide and crimes against humanity is gaining momentum in the EU.
Buried deep in an obscure European Parliament report is a sentence calling for the EU to explore the idea. The provision was backed by most of the legislature’s political groupings in committee in March, which means it’s likely to be adopted by the full Parliament later this month.
That puts the EU way out in front of most other jurisdictions in an international bid to make ecocide a crime prosecuted by the International Criminal Court (ICC) in The Hague.
“It’s a paradigm shift,” Marie Toussaint, the French Green MEP who inserted the phrase, told POLITICO.
“Revolutions are sometimes silent,” she said. “Ecocide is the most serious of environmental crimes. They’re mainly committed outside our borders by actors who may be European or even French and they go unpunished. That’s the problem.”
French President Emmanuel Macron is one of the few world leaders to openly back the idea, saying last year that heads of government who “deliberately” fail to protect the environment should be “held accountable for their wrongdoings before the International Criminal Court.”
But getting from a mention in a European Parliament report or a political speech to actually hauling people before the ICC is a long and very uncertain process. Advocates have been pushing the idea of ecocide at least since the Vietnam War and the U.S. use of Agent Orange — what’s changed the calculation is growing attention to climate change and biodiversity loss.
But there is resistance.
In the European Parliament, the report is opposed by the European Conservatives and Reformists and the far-right Identity and Democracy over concerns it would undermine cost-effective lawmaking and open the floodgates to environmental litigation.
“We oppose the inclusion of ‘ecocide’ as a criminal offense,” said Gunnar Günter Beck, an MEP from the far-right Alternative for Germany party. “Recognizing crimes against the environment as a violation of human rights and even war crimes is yet another grotesque inflation of the human rights doctrine.”
Business and oil industry lobbies are watching closely, but haven’t intervened.
Climate concerns
Activists are already starting to successfully pursue governments for inadequate climate policies through the courts — something that’s happened in the Netherlands and France. A series of lawsuits have also been filed against companies for contributing to climate change and environmental pollution — although few have been successful.
Climate litigation is important to raise awareness, shame companies and gather evidence, said Jojo Mehta, the head of the Stop Ecocide campaign. “But, what they don’t do is stop the practice … creating a crime would be a far more effective deterrent,” she said, because politicians or executives would have to fear the kind of “criminal responsibility that corporate leaders don’t want to be associated with.”
Campaigners hope that if ecocide is on par with crimes against humanity, it would send a much sterner signal.
“It would have repercussions … knowing there’s a slight possibility [of prosecution] that may discipline actors that otherwise wouldn’t care … It’s the political message,” said Christina Voigt, an expert in international environmental law and professor at the University of Oslo.
While cases of causing environmental damage — from Volkswagen’s Dieselgate scandal to BP’s Deepwater Horizon oil spill — have led to prosecutions, the environment is largely the preserve of national, not international law. Some governments regularly breach the international environmental agreements they’ve signed. Some companies see fines as a cost of doing business, campaigners and lawyers argue.
“There is no international criminal law that can be applied, neatly and directly, to many of the worst assaults on our natural environments — whether degradation of forests, poisoning of rivers, or extinction of animal species,” said Richard J. Rogers, an international human rights lawyer who also worked for the ICC.
That’s why Mehta in November announced the creation of an international panel of top legal experts, including Rogers and Voigt, to come up with a legal definition of ecocide as an international crime that could “sit alongside War Crimes, Genocide and Crimes Against Humanity” by amending the Rome Statute — the ICC’s founding document when it was created in 1998. The announcement came exactly 75 years after the opening of the Nuremberg trials of Nazi leaders in 1945.
The expert group is due to come out with a proposal by June.
It’s not an official initiative, but Mehta hopes it will trigger support among ICC parties to put forward a proposal to amend the Rome Statute as early as next year. That would have to be adopted by a two-thirds majority, something Mehta and other campaigners expect could take years.
“This could take half a generation,” said Patrick Alley, the deputy director of Global Witness, an anti-corruption NGO closely involved in the campaign. But he’s used to spending years trying to bring about change in government legislation. “Fifteen years … in the scheme of things, it sounds like a long time … but it’s not really.”
Defining the offense
It’s fairly easy to grasp events like a pipeline spill or an illegal garbage dump, but how do you hold a person accountable for advancing climate change?
The ICC is reserved for the “worst crimes that shake the conscience of humanity,” said Jan Wouters, founding director of the Institute for International Law and of the Leuven Centre for Global Governance Studies, citing the deforestation of Brazil’s Amazon rainforest under President Jair Bolsonaro as a major driver behind the initiative.
“What level of harm to the environment would constitute a crime, would it be climate change, an oil spill in Ecuador, is it biodiversity loss, destruction of species, is it a nuclear accident?” said Philippe Sands, co-chair of the international experts’ panel tasked with drafting a legal definition of ecocide. “At what point do you cross a line, at what point is the environmental destruction so terrible that it’s of interest to the whole of the international community?”
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The key is finding the appropriate definition. With genocide, the bar has been set “very high in terms of burden of proof for the prosecution,” Wouters said, which is one of the reasons the ICC has had very few convictions.
In the case of ecocide, that means being careful not to “put the bar too high” and crippling possible cases under an onerous burden of proof, said Wouters, who’s not part of the panel himself. But, he added, “you cannot put it too low, otherwise you risk an inflation of crimes against environmental pollution.”
The ICC can also only prosecute physical persons, not companies.
“The biggest challenge I see is how to encompass, how to penalize, how to capture and slow climate change with this law which, obviously, is the most pressing issue … and is the force behind the work,” said Kate Mackintosh, the executive director of the Promise Institute at UCLA and co-chair of the ecocide panel.
“Climate change is so systematic, it’s a challenge to work out how that would translate into individual criminal liability. It’s not impossible … [but] we need to be quite imaginative,” she added. “We’re looking for who’s most responsible.”
Political backlash
It’s not the only looming problem.
Expanding the statute may pile on more work for the international court, which already “is overloaded,” said Mackintosh. The ICC is a court of last resort, meant to be used if there is a failure to prosecute crimes against humanity in national courts. It also lacks enforcement capabilities of its own — it needs national authorities to execute its demands.
The court’s reach has limits. Some of the world’s largest powers — including the U.S., China, Russia, India, Indonesia, Saudi Arabia, Pakistan and Turkey — aren’t members.
The ICC has jurisdiction to prosecute crimes committed by nationals of member countries, but also crimes committed on their territory even if those responsible are citizens of a non-member. That could help empower activists in African nations, for instance, with weak institutions and governance. Companies that are “much more powerful than” the affected state usually make prosecution difficult, Mackintosh said. Ecocide’s recognition at the ICC would be “an important extra tool in the toolbox.”
However, efforts to prosecute a company registered in a non-member country would likely create an enormous political backlash; the Trump administration imposed sanctions against court officials, which were lifted this month by President Joe Biden. But the White House isn’t budging in its refusal to recognize the ICC’s jurisdiction over the U.S.
“Of course, an ICC law won’t capture non-signatories but it is a lot better than, for example, creating a new international forum to tackle ecocide which would take longer and perhaps even fewer signatories,” said Alley.
Other environmental lawyers are less convinced.
“We’re watching this with very careful interest,” said Andrew Raine, head of the U.N. Environment Program’s international environmental law unit. “The issue that we keep on trying to stress, however, is that there are laws on environmental crimes around the world that already move in the direction what ecocide would be,” he said.
“Whilst it’s important to keep pushing the envelope … not losing sight of how we need to implement what’s already on the books is an important message,” he added.
European testing ground
Campaigners hope that if the EU mobilizes, it could help fast-track the process around the world.
Under constant threat from climate change, the two countries pushing the idea on a global stage are the low-lying small island states of Vanuatu and the Maldives, which have now been joined by Belgium.
“If, in addition to Vanuatu and the Maldives, EU countries demand and work toward an amendment to the Rome Statute recognizing ecocide, things will change completely,” Toussaint, the French MEP, said.
Parliamentary initiatives to recognize ecocide as an international crime have popped up in Belgium, Luxembourg, Spain, the Netherlands and Sweden. France is looking to include it in domestic law.
“At this stage, it is Europe that is moving the fastest,” Toussaint said.
But in France, the new ecocide offense would only apply to domestic environmental crimes — not at the international level that campaigners are hoping for. That’s set off a political brawl, with critics arguing the government is mixing up the terms. The proposal for ecocide “has nothing to do with the one we defend at the international level,” Toussaint said.
If adopted, the French law would sentence companies and individuals committing ecocide to up to 10 years in jail and a €4.5 million fine. French industry is already pushing back hard — which could foreshadow future resistance to any ICC effort.
Proposed sanctions are “disproportionate” and the term ecocide “is particularly negative, catastrophic and inappropriate” because it refers to crimes of blood, said Guillaume de Bodard, president of the environment and sustainable development committee of the French Confederation of Small and Medium-sized Enterprises.
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