Foreign Policy Blogs

"Ecocide" and the I.C.C.: The Future of Environmentalism or the Criminalization of Civilization?

A campaign has launched to get the U.N. to adopt a new crime, ‘ecocide’, into the Rome Statute as the fifth crime under its jurisdiction in addition to genocide, war crimes, crimes against humanity and aggression. The campaign is being run by a British U.N. activist, Polly Higgins that had a minor recent success with her campaign for a Universal Declaration of Planetary Rights (adopted by Bolivia). This newly proposed crime of ‘ecocide’ would make individuals liable to international criminal prosecution at the International Criminal Court for grave environmental destruction in an unprecedented way:

“Ecocide is the extensive destruction, damage to 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.”

Whether you support or oppose this type of legislation makes it either absurd or an interesting idea. As industrially engineered environmental destruction is at a species high, environmental protection under international law is at an historical apex. The flourishing of the W.T.O. and international environmental treaties such as Kyoto have provided humanity’s largest check on industrial environmental destruction at the international level. And recent advances in international humanitarian and criminal laws have offered the first glimpses of environmental protection within conflict situations irrespective of human interests. But this proposal is quite radical, leading one to envision anything from it being a future step in an increasingly environmentally conscious world with Utopian prospects, to essentially the criminalization of industry and possibly basic human existence on Earth.

Evolutionarily speaking international humanitarian and international criminal law has moved from an extremely anthropocentric view of the environment to an increasingly ecocentric one. Foundational humanitarian treaties such as Hague IV (1907) and the Geneva Conventions of 1949 afforded environmental protections only for situations where environmental destruction was specifically targeted at its immediate human utilization. The Geneva Protocol I of 1977 outlawed military actions intended to cause widespread and long-term environmental damage. Article 8(2)(b)(iv) of the Rome Statute brings this concept into the definition of war crimes:

“[i]ntentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or 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.”

Thus making such widespread and long term environmental damage subject to criminal prosecution before the International Criminal Court when an undetermined proportionality threshold is met in a situation of international conflict.

Taking environmental damage out of the realm of conflict would mean that individuals instructing corporate policies could be prosecuted alongside war criminals for similar crimes for causing similar environmental damage only in different contexts and without the burden of intent. The group behind the campaign envisions such a law triggering a dramatic restructuring of industry. From The Guardian:

“If you put in a crime that’s absolute you can’t spend years arguing: you take a soil sample and if it tests as positive it’s bang to rights.”

Under an ecocide law, which would be more potent because prosecutions would be against individuals such as directors rather than the companies, traditional energy companies could have to become largely clean energy companies, much extractive mining would have to be scaled back or stopped, chemicals which contaminate soil and water and kill wildlife would have to be abandoned and large-scale deforestation would not be possible. “I’m only just beginning to get to terms with how enormous that change will be,” admits Higgins.”

But the definition set out by Higgins is troublingly vague and in addition to criminalizing the easily demonized mining and oil industries it could just as well be construed as outlawing anything from the construction of new cities and roads to the development of new farm land or even the construction of wind farms. What I perceive as the intention behind the idea is nice – holding modern day robber barons accountable – I am afraid that the result could too easily lead to the criminalization of human progress.

 

Author

Brandon Henander

Brandon lives in Chicago and works as a Project Coordinator for Illinois Legal Aid Online. He has a LL.M. in International Law and International Relations from Flinders University in Adelaide. Brandon has worked as a lobbyist for Amnesty International Australia and as an intern for U.S. Congressman Dave Loebsack. He also holds a B.A. in Political Science, Philosophy and Psychology from the University of Iowa. His interests include American and Asian politics, human rights, war crimes and the International Criminal Court.