In this post, I relay several developments from the last month that show the remarkable momentum toward national legislation on “ecocide” – a proposed new crime responding to the gravest environmental wrongdoing. Using those developments as a point of departure, I will make three main points. First, for those doubting whether criminalizing ecocide is a realistic goal, I suggest that the ecocide wave is already underway. Second, while many advocates have focused on adding ecocide to the Rome Statute of the International Criminal Court (ICC), I will point to the advantages of starting with an alternative, “bottom up” route: a wave of national legislation. Third, while many assume that international coordination of national efforts would require a specialized ecocide treaty, I argue that not even a treaty is required in the medium term. Instead, the primary benefits can be secured much more quickly with a simple declaration offering a “Model Law” on ecocide.
A Model Law, with a well-reasoned and widely-supported definition of ecocide, would help overcome many technical and coordination problems that are currently impeding legislative action. This approach avoids current concerns about ICC amendments, as well as the delays of adopting a formal treaty. Another benefit of a Model Law is that it can address other environmental wrongdoing warranting criminalization, such as environmental crimes of criminal negligence or crimes not grave enough to amount to “ecocide.”
Context
For over three years, I have been working on ways to define a crime of “ecocide,” including helping to develop a proposed definition by a Promise Institute for Human Rights (UCLA) Group of Experts. That Group’s research was considered by the International Expert Panel, chaired by Philippe Sands QC and Dior Fall Sow, which produced its much-anticipated proposed definition in 2021. The Expert Panel defined 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.” The Panel definition was greeted with a mixture of praise, criticism, and skepticism, which is understandable given the ambition and complexity of creating this new crime.
As I have discussed elsewhere, the three main ingredients in a potentially-adoptable definition of ecocide are: (1) an impact threshold – a level of threatened harm warranting international concern and/or the stigma of “ecocide;” (2) a fault element – a mens rea requirement narrow enough for a serious crime and yet broad enough to be practicable; and (3) some way to identify “wrongful” conduct – for example, conduct violating principles of sustainable development. In this article, I do not directly discuss the definitional issues. Instead, I address doubts about feasibility and, more importantly, concerns about overburdening the ICC, by outlining one promising, medium-term route to establish the crime: a simple declaration or model law.
The Ecocide Wave Has Already Arrived
Many readers might be skeptical of the ecocide movement, based on the assumption that there is unlikely to be political support for establishing ecocide as a serious crime. However, criminalizing ecocide has recently garnered surprising public and political momentum. The topic has been discussed in parliamentary bodies around the world (some examples are noted by the Stop Ecocide Foundation). Just this month, the EU Parliament’s Committee on Civil Liberties, Justice, and Home Affairs voted in support of including “ecocide” within the new Directive on Protection of the Environment through Criminal Law. (That Directive, initially adopted in 2008, is currently undergoing revisions.) This means that the inclusion of ecocide is now backed by four of the five Committees of EU Parliament. Also in February, the Parliamentary Assembly of the Council of Europe adopted a resolution calling on Member States to update their laws to codify a crime of ecocide (see here and here). Lastly, on February 20, the European Law Institute published its Report on Ecocide, with Model Rules for a directive on the topic.
While these recent examples, drawn from last month alone, happen to involve European institutions, the interest is much broader. There have been intriguing legislative proposals in many countries, including in Brazil, Bolivia, and Mexico. Additional bills seem inevitable. As I discuss below, some lingering ambiguities about the crime have been an impediment to legislative progress. Reducing that ambiguity would facilitate action.
The “Bottom Up” Path to Ecocide
I have found that many academics, government officials, and members of civil society are initially skeptical of the idea of ecocide, but upon further inquiry, their hesitations are not about the crime as such, but specifically about adding ecocide to the jurisdiction of the ICC at the present juncture. I share many of these understandable concerns, including, inter alia, that the ICC is struggling and over-burdened with the crimes already within its remit; that its budget is strained; and that the ICC would have very limited capacity to conduct ecocide cases.
The initiative of focusing on the ICC envisions a “top-down” approach, starting with an ICC amendment, and leading to the adoption of similar national laws. One alternative is a “bottom-up” approach, in which ecocide is first adopted in national laws on a widespread basis. There are benefits to the bottom-up approach. The crimes previously included in the ICC Statute were all generally recognized as customary international law; by contrast, ecocide is admittedly a comparatively new legislative idea. A wave of recognition in national laws would bolster the case for ecocide’s customary law status. In any case, widespread adoption in national law would improve the acceptability and familiarity of such a provision and provide experience with its application.
Of course, both approaches can be pursued in tandem. The ICC Assembly of States Parties, bringing together experts on international criminal law from every region, is a natural forum to discuss international criminal law issues such as the criminalization of ecocide. The ICC is regarded as a “centerpiece” of the international criminal justice system, and so I trust that, once the crime is familiar and widely-adopted, it will rightly be recognized and added as the “fifth international crime.”
Treaty or Model Law?
The main alternative to an ICC amendment is generally thought to be a separate treaty on ecocide. I would point out, however, that even a treaty is not strictly necessary. The long and tortuous path toward a simple convention on crimes against humanity, a treaty laying down some fairly common-sense provisions concerning a well-established crime, demonstrates how slow and difficult the adoption of a multilateral treaty can be.
A much simpler and quicker alternative would be for interested states to develop a Model Law – a declaration or document defining ecocide and stating an intention to adopt it into domestic laws and to diligently investigate and prosecute instances of its occurrence. A Model Law would simply set out a recommended definition and related provisions, while allowing for national variation and experimentation.
At first glance, international lawyers may consider this option inferior to a formal instrument binding in international law. But the problem of codifying ecocide is largely a problem of coordination. We are still not completely certain of the best definition of “ecocide.” The Independent Expert Panel definition is, in my view, an excellent and commendable starting point, but there are some at least plausible concerns about its clarity and consistency with the principle of legality. The ELI proposal is generally consistent with the Panel definition, including a similar impact threshold and fault standard, but with some adjustments that aim to improve on legal certainty. One commendable feature is that the ELI definition of “unlawful” includes authorizations obtained through fraud, corruption, or coercion, which is a significant contingency in environmental cases, and thus it is a clarification that I have encouraged. (I could offer some minor quibbles about the ELI approach; including its definition of “intent” and some circularities in its approach to “unlawfulness, but that is not the aim of this piece.) The project of creating a Model Law can bring together thinkers from different legal traditions and with different expertise, including in criminal law, environmental law, and environmental prosecutions, to help refine the definitional issues.
Thus, a simple document – a declaration or Model Law – with an imprimatur of approval from multiple states, could provide the “focal point” for this coordination problem. From my experience working with various national actors, I know that there is interest in and support for criminalizing ecocide, but also great uncertainty about precisely how to define it. A multilaterally-approved definition would give greater confidence to legislators, so that they may avoid the “first mover” problems of crafting a novel definition on their own. A Model Law would also bring together the different kinds of expertise needed to navigate some of the complex issues, hopefully producing more carefully-deliberated answers than would be produced by interested legislators tackling the thorny issues for the first time on their own.
The crime of ecocide would have the binding force of law, once adopted in national laws of many countries, ideally with extraterritorial jurisdiction. On this approach, ecocide might initially be conceived of as a matter of “transnational” criminal law. As support and recognition builds, the crime could migrate into “international criminal law” in the strict sense, through a treaty, customary law, or an ICC Statute amendment.
Benefits of a Model Law
A major benefit of the proposed approach is that it would be vastly quicker than alternatives. Legislative bodies across many countries are already interested in criminalizing ecocide; a Model Law can resolve the coordination problem and accelerate the ecocide wave.
There are other benefits to a Model Law, as compared to an ICC amendment. Ecocide, if added to the ICC Statute, would be a singular and narrow environmental crime. Given that ICC jurisdiction is focused on the “most serious crimes of concern to the international community as a whole,” the crime of ecocide accordingly would be focused on the most serious conduct committed with the most serious level of fault. By contrast, a Model Law with “ecocide” as its centerpiece could be accompanied by exhortation to states to strengthen other criminal laws to protect the environment. Thus, a Model Law (or declaration) could encourage states to codify and devote investigative resources to crimes less serious than “ecocide,” including environmental wrongdoing with a lower impact threshold or with a lower fault threshold, such as criminal negligence. A Model Law could also address closely-related crimes, such as fraud and misrepresentation in relation to environmental harms or corruption in relation to environmental regulation, insofar as such wrongs are not adequately reflected in the eventual definition of ecocide. After all, ecocide is a deliberately narrow construct (in order to preserve its special stigma); it should be accompanied by strengthened responses to other environmental wrongdoing.
Criminal law is only one sliver of the vast array of social, legal, cultural, and technological adjustments yet to be made if we are to avert a worsening ecological disaster. But a Model Law addressing ecocide and other environmental crimes could help heighten the stigma against grave environmental harms, which have long been miscast as minor regulatory matters and not accorded the condemnation that they deserve.