Law Faculty University of Lund Isabelle Hörnfeldt A law on ecocide A way to end mass destruction of the world’s ecosystems? JUCN21 Essay in Legal Science Supervisor: Annika Nilsson Term: Spring 2016 Table of content 1 INTRODUCTION 2 1.1 Background 2 1.2 Objective & research questions 2 1.3 Methodology & material 2 1.4 Delimitations 3 1.5 Disposition 4 2 EXISTING INTERNATIONAL REGULATIONS 5 2.1 No-­harm principle 5 2.2 Polluters pay principle 5 2.3 Norm hierarchy 5 2.4 The Environmental Modification Convention 6 3 EU ENVIRONMENTAL LIABILITY REGULATION 7 4 ECOCIDE 9 4.1 History of the concept 9 4.2 Rome Statute & ICC 11 4.3 Presently proposed legal definition 12 5 ANALYSIS 14 BIBLIOGRAPHY 17 1 Introduction 1.1 Background Massive environmental destruction is classified as a war crime and
prohibited according to the Rome Statue. In times of peace, mass
destruction of the environment is not yet criminalised.
A potential international offence is now being discussed, a crime
which could be called ecocide. Ecocide leads to destruction of natural
resources, a common cause of war. Human made ecocide can therefore be
regarded as a crime against peace. To prevent the 21st century from
becoming a century of resource wars, we need to stop the on-going
depletion of natural resources. Given its potential international impact and
multi-jurisdictional nature, ecocide needs to be regulated at an international
level.1
1.2 Objective & research questions In this essay I will briefly explain the concept of ecocide and its potential
implications for international environmental law. By doing so I hope to
contribute to the discussion on new legal tools to deal with ecosystem
degradation at an international level. I am conducting this research as a
mean to understand the concept of ecocide and to explore if ecocide can be a
way to stop ecosystem destruction. I will analyse some existing regulations
and the proposed ecocide definition from a critical perspective to see if these
tools make it possible to reach a high environmental standard, in a sense that
the environment is fully protected from adverse effects of human activity.
The questions that will be answered in this essay are:
• What is ecocide?
• What is new with ecocide compared to already existing regulations?
• What advantages and disadvantages does a criminalisation of
ecocide have?
1.3 Methodology & material In this essay I have used a traditional legal method. Researching the present
legal regulations, I have used legal doctrine to clarify the meaning of
relevant customary international principles. I have also used some
international conventions and comments on these. As for the EU regulation,
1
Higgins, 2010, Eradicating ecocide: laws and governance to prevent the destruction of our
planet p. 62.
2
I have used doctrine and comments by the commission on the environmental
liability directive2.
With regards to the concept of ecocide I mainly refer to Polly
Higgins and material from the Human Rights Consortium, School of
Advanced Study, at the University of London. Polly Higgins is a UK
Barrister and co-founder of Earth Law Alliance. She is currently the most
influential author on the subject of ecocide and the essay is based mainly on
her proposed definition.
The concept of ecocide is not very developed in legal doctrine or
other legal sources. The Human Rights Consortium at the University of
London has an ongoing research project on ecocide. Within this project a
survey has been made covering the UN discussions on making ecocide an
international crime. The UN has discussed ecocide since the 1970s, but most
of the material has been hard to access due to the short research period. For
that reason, the background for part 4.1 is mainly based on the research
done by the Human Rights Consortium.
1.4 Delimitations This essay focuses on the concept of ecocide and how a criminalisation of
ecocide can contribute to the development of international environmental
law.
The ethical and philosophical bases for legitimizing criminalisation
of offences towards the environment are outside the scope of this essay.
Current discussions on ecocide in relation to the rights of indigenous people
is also outside of the theme.
Because of language barriers, the regulation, implementation and
application of the concept of ecocide in different national legal regimes is
not within the scope of the essay.
This essay is addressed to peer students in an advanced course in
international environmental law. I assume that the reader is oriented in the
first two principles in my 2nd chapter and will not go into a detailed
discussion of these. The general implications of the principles will be
explained simply to facilitate the discussion. The environmental liability
directive (ELD)3 will only be discussed in relation to the concept of ecocide.
I will therefore only give a brief introduction to the directive.
The need for specialized courts and the financing of these will not be
covered. Within the 1949 Geneva Convention Protocol I there are two
provisions prohibiting environmental damage in wartimes. Because of the
scope of the essay, these provisions will not be discussed, since similar
provisions are dealt with in the Rome Statute4.
2
Directive 2004/35/EC of the European Parliament and of the Council of 21 April 2004 on
environmental liability with regard to the prevention and remedying of environmental
damage.
3
Directive 2004/35/EC.
4
UN General Assembly, Rome Statute of the International Criminal Court (last amended
2010), 17 July 1998, ISBN No. 92-9227-227-6.
3
1.5 Disposition First, some current international legal provisions will be presented. This is
followed by a brief presentation of the EU environmental liability directive.
Next, the background of ecocide as a concept is presented. After that
follows the new suggested ecocide regulation. The essay is concluded with
an analysis of the presented material, where the stated questions are
answered.
4
2 Existing international regulations To understand the context in which ecocide might be applied this chapter
presents some relevant legal regulations. The first two principles are
foundational principles within international environmental law. This is
followed by a section on norm hierarchy. The chapter ends with a
presentation of a regulation only applicable in times of war.
2.1 No-­harm principle The no-harm principle was first established in the Trail Smelter Arbitration.
The Tribunal in the case states that no state have the right to use or permit
use of their territory in a manner that could cause harm to another states
territory, property or people.5 In 1949 ICJ confirmed the principle of noharm as a customary principle.6
The no-harm principle was also included in article 21 in the 1972
Stockholm Declaration.7 In the Declaration the principle has been divided
into two parts: state sovereignty, which include the right of states to exploit
the resources within their territory, and the obligation not to cause
environmental damage on other states territory or areas outside of national
jurisdiction. These apply to all activities within the states territory or
control.8
2.2 Polluters pay principle The polluters pay principle is described in principle 16 in the Rio
Declaration9. The main idea is that polluters shall bear the costs of the
pollution they cause, not just to restore the harm they caused but also to take
action to prevent harm. It is an instrument mainly designed to internalise
environmental costs at the level of businesses and individuals. In respect to
states it is more correct to refer to the no-harm and prevention principle.10
2.3 Norm hierarchy The normative hierarchy within international environmental law is managed
by conflict rules existing within general international law. There are three
main features that give rise to different hierarchical effects. The main
5
Trail Smelter Arbitration (United States, Canada), RIAA, vol III, pp. 1905-1982, p. 1965.
The Corfu Channel Case (United Kingdom v. Albania) ICJ Judgment of 9 April 1949, p.
22.
7
(1972) Declaration of the United Nations Conference on the Human Environment.
8
Dupuy, Viñuales, 2015, International environmental law, pp. 56-57.
9
(1992) Rio Declaration on Environment and Development.
10
Dupuy, Viñuales, 2015, op. cit., pp. 71-72.
6
5
prevailing norms are the peremptory norms, jus cogens, which cannot be
derogated from. Presently there are no international environmental law
norms reaching this level.11
The second type are obligations erga omens. They are not
peremptory norms, even though all peremptory norms give rise to
obligations erga omnes.12 Obligations erga omnes are obligations owned to
the international community as a whole. Some scholars argue that these
obligations give rice to action popularis, a general standing for all states to
enforce them.13 Dupuy and Viñuales argue that some environmental
obligations can be considered erga omnes obligations because of their
purpose to protect the global commons.14
The third feature giving rise to hierarchical results is essential
interests, which then requires customary defences. ICJ was the first to
establish environmental protection as a special interest in this sense within
international law in the Gabčíkovo–Nagymaros case.15
2.4 The Environmental Modification Convention The Convention on the prohibition of military or hostile use of
environmental modification techniques (ENMOD Convention) was adopted
by the UN general assembly in 1976.16 The convention is made up by 10
articles whereof article 1 states that all the parties to the convention
undertake not to engage in military or other hostile use of environmental
modification techniques that can result in widespread, long-lasting or17
severe destruction, damage or injury to another party of the convention.
To clarify the meaning of article 1 an understanding was presented
in the negotiation record.18 According to this understanding, “widespread”
shall be understood as an area of several hundred square kilometres. “Longlasting” is to be understood as a period of months or about a season,
whereas “severe” shall be interpreted as involving serious or significant
disruption or harm to human life, natural and economic resources or other
assets.19
11
Dupuy, Viñuales, 2015, op. cit., pp. 45-47.
Dupuy, Viñuales, 2015, op. cit., pp. 45-47.
13
Gould, 2010, The legacy of punishment in international law, pp. 9-10, 65-68.
14
Dupuy, Viñuales, 2015, op. cit., p. 47.
15
Dupuy, Viñuales, 2015, op. cit., pp. 45-48.
16
A/RES/31/72.
17
Put in italics by author.
18
UNODA, Convention on the Prohibition of Military or Any Other Hostile Use of
Environmental Modification Techniques (ENMOD), see URL in bibliography, accessed:
2016-05-20.
19
Conference of the Committee on Disarmament to the United Nations General Assembly
in September 1976 Report of the Conference of the Committee on Disarmament, Volume I,
General Assembly Official records: Thirty-first session, Supplement No. 27 (A/31/27),
New York, United Nations, 1976, p. 91. Accessed: 2016-05-20.
12
6
3 EU environmental liability regulation The Environmental Liability Directive (ELD) is a framework directive
established to enforce environmental liability. The aim of ELD is to ensure
that the financial burden for specific kinds of damage on the environment
are carried by the economic operator causing or having caused harm. ELD is
therefore based on the polluters pay principle to both prevent and remedy
environmental harm.20
ELD is also based on the principle of sustainable development, hence
the prevention and remedy of environmental damage shall be carried out at a
reasonable cost for the society. The principle of proportionality also applies
to ELD; therefore, the directive does not present any obligations beyond
those necessary to reach the environmental objectives stated in the TFEU.21
The directive applies to environmental damage and imminent threat of
such damage caused by professional activities listed in article 3.1 and annex
III. Companies engaged in activities listed in annex III have strict liability
for the damage caused to protected species and their habitat, water and land.
If an occupational activity is not included in the list in annex III,
responsibility can still be applied in case of fault or negligence, however this
responsibility only applies to damage cause to protected species and their
habitat. It is up to the national authority to define the significance of the
damage and which remedial measures that are appropriate. The
professionals are entitled to object if, according to national legislation, they
have followed their authorisation.22
The directive is a fairly complex framework focusing less on direct
liability, and more on obliging polluters to prevent future environmental
damage, remedying certain environmental damage caused and providing
public authorities with means to obtain compensation for preventing and
remedying environmental damage. After ambiguous discussions about
environmental lability in EU, ELD became relatively modest and pragmatic.
Under the directive environmental liability has become a public and
administrative issue, which forces public authorities to ensure that polluters
restore the damages they have caused to the environment. ELD does not
create an all-encompassing liability regime that can be applied to all
circumstances where environmental damage can be detected. Partly because
of the narrow definition of environmental damage in the directive, and for
example private persons are not entitled to any compensation for physical
harm or economic loss suffered.23
20
European Commission, Environmental Liability Directive: A Short Overview, p. 1, see
URL in bibliography, accessed: 2016-05-19.
21
Directive 2004/35/EC, preamble, para 2-3, 8.
22
European Commission, Miljöansvarsdirektivet, pp. 2-4, see URL in bibliography,
accessed: 2016-05-26; Directive 2004/35/EC articles 6-8.
23
Fisher et al., 2013, op. cit., pp. 358-259.
7
Three different kinds of environmental harm are set up under ELD.
The first is damage to protected species and natural habitats,24 this is seen
as “significant adverse effects on reaching or maintaining the favourable
conservation status”25. Water damage, is considered any harm that result in
significant adverse effects on the ecological, chemical or quantitative status
or ecological potential as defined in the WFD. Thirdly, land damage is
defined as contamination of land that generates significant risk to human
health as a result of direct or indirect introduction, in, on or under land, of
substances, preparations, organisms or micro-organisms.26 These harms are
thus linked to the Bird directive27, Habitat directive28, and WFD29.
24
Directive 2004/35/EC, article 2.3.
Conservation status is defined in article 2.4, see also annex I for defining parameters.
26
Directive 2004/35/EC, article 2.1(c).
27
The Council Directive 79/409/EEC of 2 April 1979 on the conservation of wild birds.
28
Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and
of wild fauna and flora.
29
Directive 2000/60/EC of the European Parliament and of the Council of 23 October 2000
establishing a framework for Community action in the field of water policy.
25
8
4 Ecocide 4.1 History of the concept In the beginning of the 1970s, academics and legal scholars discussed a
criminalisation of ecocide and the required elements of such a crime in
international law. At the Conference on War and National Responsibility in
Washington in 1970 professor Arthur W. Galston proposed an international
agreement that would ban ecocide. Despite lack of strict legal definition at
the time, the crucial meaning was clear, ecocide was characterised as massdestruction of ecosystems.30
At the 1972 UN conference on the human environment in
Stockholm Olof Palme use the concept of ecocide referring to the Vietnam
war. He called for international responsiveness towards ecocide which he
exemplified as the great destruction caused by unselective bombing and
large scale use of bulldozers and pesticides.31 Ecocide in Vietnam came to
be a sensitive topic throughout the conference.32
A branch of the International Fellowship of Reconciliation called
Dai Dong sponsored a “Convention on Ecocidal War”, a conference held in
Stockholm. The meeting requested an UN Convention in Ecocidal Warfare
that would define and condemn ecocide as an international war crime.
Among the participants was Professor Richard A. Falk an expert in
international law of war crimes.33 In 1973 Falk drafted an International
Convention on the Crime of Ecocide. In the text Falk stressed that the
Convention on Genocide was inadequate and that a new law addressing
ecological crimes was needed. He suggested that a crime of ecocide could
be used to condemn and punish those responsible for the environmental
warfare in a similar way as the Genocide Convention addressed the crimes
convicted at Nuremberg. Falk stated that the danger of ecosystem collapse
was increasing and that humans both in times of peace and war consciously
and unconsciously caused severe and irreversible damage to the
environment.34
The UN Sub-commission on Prevention of Discrimination and
Protection of Minorities made a study, completed in 1978, for the UN’s
Human Rights Commission where they discussed the effectiveness of the
Genocide Convention. Professor Falk’s draft on the International
Convention on the Crime of Ecocide came to be part of the review process.
30
Gauger, et al., 2013, Ecocide in the missing 5th Crime against peace, pp. 5-6.
Karlsson, Olof Palme and ecocide law, see URL in bibliography, accessed: 16-05-2016;
Gauger, et al., 2013, op. cit., p. 5.
32
Björk, Tord (1996): The emergence of popular participation in world politics: United
Nations Conference on Human Environment 1972, Department of Political Science,
University of Stockholm, pp. 15-16.
33
Björk, Tord (1996): op. cit., p. 20; Gauger, et al., 2013, op. cit., p. 5.
34
Falk, Richard A. (1973): ‘Environmental Warfare and Ecocide – Facts, Appraisal, and
Proposals’. In: Thee, Marek (ed.), Bulletin of Peace Proposals. 1973, Vol. 1.
Universitersförlaget, Oslo, Bergen, Tromsö, pp. 84, 87, 89, 93.
31
9
Despite the recognition of conscious and unconscious environmental
damage in peace and war times, Falk´s proposal focuses on wilful ecocide in
times of war. In the study of the Sub-commission they proposed to add
ecocide to the convention, which many member states supported.35 The
concept of ecocide then surfaced within the Sub-commission again in 1985,
and members spoke in favour for a criminalisation of ecocide. Within the
scope of ecocide nuclear explosions, destruction of the rain forests and
serious pollution was to be included, both wilful actions and criminal
negligence.36 Despite these discussions, in the UN report on its 38th session
in 1985 there were no signs of the Sub-commission´s final decision, and
since then the Sub-commission have not done any further efforts to push
ecocide as a crime.37
From 1984 until 1996 the United Nations International Law
Commission (ILC) considered an inclusion of ecocide as an international
crime in the Code of Crimes Against the Peace and Security of Mankind
(the Code)38, which later became the Rome Statute.39
During the period ILC investigated the possibilities of including a
law regulating extensive environmental damage in the Code. This sparked a
discussion on whether ecocide was a crime of intent or not. In the draft to
the Code, in article 26, it was suggested that individuals who intentionally
causes widespread, long-term and severe damage would be sentenced
thereof. By 1991 the main discussions were on the fact that the final drafting
of article 26 did not address environmental crime by name and if intent
should be included in the provision. Nevertheless the crime in article 26
became reduced to “wilful and severe damage to the environment”.40
Among other states, Australia and Austria argued that ecocide in
peace times often was a crime without intent, and that ecocide often
appeared as a side-effect of industrial activity. Many states in 1993
supported an inclusion of ecocide in the Code both as a crime in peace and
war times, but UK and the US were strongly against it.41 Instead of
removing the provision of intent in the article, ILC removed the entire
article, which was not an unanimous decision within the ILC.42
In 1995 under the 47th session of the ILC a new working group was
established that would evaluate the possibility of covering the issue of
severe environmental damage within the Code. One of the group members,
Tomuschat issued a report proposing that environmental crimes should
either be a separate provision within the Code, an act of crimes against
35
Gauger, et al., 2013, op. cit., p. 8; Higgins et al., 2013, Protecting the planet: A proposal
for a law of ecocide, In: Crime, Law and Social Change, Volume 59, Issue 3, 359.
36
Whitaker Report (1985) United Nations Economic and Social Council Commission on
Human Rights, Sub-Commission on Prevention of Discrimination and Protection of
Minorities, Thirty-eighth session, Item 4 of the provisional agenda, E/CN.4/Sub.2/1985/6,
see URL in bibliography, accessed: 2016-05-23, para. 33.
37
Gauger, et al., 2013, op. cit., p. 8.
38
ILC, Draft Code of Offences against the Peace and Security of Mankind (1954).
39
Gauger, et al., 2013, op. cit., pp. 8-11.
40
Gauger, et al., 2013, op. cit., p 9; Higgins et al., 2013, op. cit., pp. 259-260.
41
A/CN.4/448 and Yearbook of the ILC 1993, Vol. II, Pt. 1. pp. 66, 68, 93, 102, 105;
Ecocide in the missing 5th Crime against peace, pp. 9-10.
42
Higgins et al., 2013, op. cit., pp. 260-261; Gauger, et al., 2013, op. cit., pp. 9-10.
10
humanity or included as a war crime.43 As a compromise the working
groups orally pointed out that it was not necessary to keep the crime against
the environment as a separate provision.44
In 1996, without putting it to a vote, the Chairman of ILC at the
time, Mr Ahmed Mahiou, decided himself to remove ecocide as a separate
crime. Put to a vote was therefore only the suggestion of having a draft
committee review including environmental harm in the context of a war
crime or a crime against humanity. The later proposal would mean that
extensive environmental damage would be a crime both in times of war and
peace. In the context of including it in the Code, it was settled that
environmental damage should only be reviewed as a war crime.45
To have a drafting committee reviewing environmental crimes as a
crime against humanity was narrowly defeated, with nine members voting in
favour, nine against and two abstentions.46 In 1996 article 26 was removed
and ecocide as a concept was removed from all draft documents. Exactly
what happened is not clear in the U.N. documents. The final provision on
environmental damage adopted by the ILC later made it into the Rome
Statute and still remain today.47
Tomuschat, who was a long-term member of the ILC and part of the
working group, said that nuclear arms had a crucial role in the final voting.48
The special Rapporteur of the Code, Mr Thiam of Senegal, commended in
his 13th report that it was because of a few governments´ opposition to the
inclusion of article 26 in 1993 that the voting turned out the way it did.49
4.2 Rome Statute & ICC In 1998 the Rome Statute of International Criminal Court (ICC) was
adopted and then entered into force 1st of July 2002. The treaty establishes
the ICC.50
According to article 5 in the Rome Statute the court has jurisdiction
over four crimes: genocide, crime against humanity, war crimes and crime
of aggression. The ICC is the first permanent international judicial body that
has the capacity to hear individuals for these crimes. ICC review cases
against individuals when national courts are unwilling or unable to do so.51
43
ILC(XLVIII)/DC/CRD.3 - Document on Crimes against the Environment, Prepared by
Mr. Christian Tomuschat, Member of the Commission Draft Code of Crimes against the
Peace and Security of Mankind pp. 16, 21, 25-26; Gauger, et al., 2013, Ecocide in the
missing 5th Crime against peace, pp. 10-11.
44
Tomuschat, 1996, Crimes against the environment. In: Environmental Policy and Law.
1996. Vol. 26, 6, p. 242-243.
45
Gauger, et al., 2013, op. cit., pp. 10-11.
46
Tomuschat, 1996, op. cit., pp. 242-243.
47
Gauger, et al., 2013, op. cit., p. 11; Higgins et al., 2013, op. cit., p. 261.
48
Tomuschat, 1996, op. cit., p. 243.
49
A/CN.4/466, in Yearbook of the ILC 1995, Vol. II, p. 35; Gauger, et al., 2013, op. cit., p.
11.
50
Coalition for the International Criminal Court, Ratification of the Rome Statute, see URL
in bibliography, accessed: 2016-05-16.
51
Coalition for the International Criminal Court, About the Court, see URL in bibliography,
accessed: 2016-05-16.
11
According to the Rome Statue article 8 (2)(b)(iv) an intentional
launch of an attack with the knowledge that it will cause widespread, longterm and52 severe damage to the natural environment, that is clearly
unnecessary in relation to the concrete and direct overall anticipated military
advantage, is a war crime.
4.3 Presently proposed legal definition In April 2010 Polly Higgins submitted a proposed international law of
ecocide to the UN law commission.53 The proposal 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.”54
There are two different kinds of ecocide. One where a consequence, or
potential consequence, a destruction, damage or loss of territory are caused
by a specific identifiable human activity, ascertainable ecocide, and one
caused without such human activity, non-ascertainable ecocide.55
By this definition Higgins created a legal framework for averting,
preventing and prohibiting ecocide. She suggests that natural ecocides will
become a state responsibility based on a legal duty of care. States will be
bound to preclude mass damage and ecosystem failure, for example as a
consequence of climate change. States will also be bound to support other
nations facing ecosystem collapse.56
For the ascertainable ecocides both governments and businesses can
be held accountable. One key here is that it is the policy makers, directors or
others in influential positions that can be held accountable for their
decisions. Therefore, these people will be bound not to take decisions that
causes mass damage, destruction or loss of ecosystems. To establish a
legislation of this kind an amendment to the Rome Statute is required, this
can be done if a State party requests it. A conference would then be needed
to open the process of including ecocide in the Rome Statute.57
For an action to be considered an ecocide it has to have caused
damage, destruction or loss of ecosystems over a certain magnitude and
duration. However, the extent of destruction, damage and/or loss needed for
an ecocide to be considered a crime demands further analysis. Destruction
and loss can easily be discovered by data, whereas establishing the content
of damage in this context is more complex.58
International regulations such as the Rome Statute and ENMOD can
be useful to define damage as a crime of ecocide. For example, the
52
Put in italics by author.
Higgins et al., 2013, op. cit., p. 257.
54
Higgins, 2012, op. cit., p. 3; Higgins, 2010, op. cit., pp. 62-63.
55
Higgins, 2010, op. cit., pp. 62-63.
56
Higgins et al., 2013, op. cit., p. 257.
57
Higgins et al., 2013, op. cit., p. 257.
58
Higgins, 2012, op. cit., p. 4; Higgins, 2010, op. cit., pp. 63-64.
53
12
understanding of “widespread”, “long-lasting”, and “severe” as defined in
the ENMOD convention and the following understanding (see section 2.4)
is a definition that can be transferred into an ecocide regulation.
Higgins, Short and South mean that ecocide shall not be a crime of
intent, but states and companies shall have strict liability for the
consequences of their actions, since ecocide often appear in peace times as
an accident or collateral damage, not out of intent. Ecocide shall be a crime
applicable in both war and peace times. According to the national
regulations existing today none of these regulations sets out ecocide as a
crime of intent.59
If ecocide, both as a war and peace time crime, were to be included
in the Rome Statute, decision-makers in states, organisations and companies
could be held accountable before the ICC if an activity leading to ecocide
were carried out under their control.60
A law of ecocide as proposed today aims at stopping the mass
damage to and destruction of ecosystems at the source and create a strong
preventative regulation. With a regulation establishing strict liability for
people in high positions within countries and companies, with a risk of
prosecution before the ICC, they would get pushed to take decisions for the
benefit of all beings. The same beings that are at risk of suffering from the
consequences that might appear if they can continue with business as
usual.61
59
Higgins et al., 2013, op. cit., p. 262.
Mehta, Merz, Ecocide – a new crime against peace? In: Environmental law review,
2015, Vol. 17 (1) 3-7, p. 3.
61
Higgins et al., 2013, op. cit., p. 262-263.
60
13
5 Analysis Ecocide Even though ecocide has been discussed since the 1970s both
internationally, and later also nationally, there is no international fully
recognized definition of ecocide. Generally, the concept can be understood
as human made or naturally occurring mass destruction of a defined area of
an ecosystem. If the crime needs to be a crime of intent or not is not clear, in
times of war there is today a provision prohibiting intentional mass damage
to the environment. Polly Higgins and many countries during the past 40
years have also urged for an ecocide crime in peacetimes without an element
of intent.
According to new suggestions ecocide prohibits mass damage,
destruction or loss of ecosystems, going back to the provision in the
ENMOD convention where the requirements are not cumulative, like those
in the Rome Statute. The scope of the Rome Statute is therefore limited
even in times of war since damage, destruction and loss are cumulative
requirements.
Loss and destruction of ecosystems can be identified with support of
scientific data. In the case of damage, there is an international definition of
environmental damage in the ENMOD convention that could be used to
inform on the content of damage also in an ecocide crime, if that is to be
included in the Rome Statue.
As previous discussions within ILC, Polly Higgins suggests that
ecocide shall hold decision-makers within states, companies and other
actors accountable for their actions and decisions before the ICC. This is
what an inclusion in the Rome Statute would imply. Since there are no
companies or states as such making decisions, I find it logical to hold people
accountable for these decisions. Higgins suggests that state officials will not
only be hold accountable for human created ecocides, they might also have
a duty of care concerning natural occurring ecocides and therefore they need
to make decisions to prevent for example further climate change.
I see personal liability both as a strength and a weakness. Since it
can be hard to define who made a decision they could be accountable for,
and for how long shall that accountability period remain? Shall people also
be held accountable for decisions made during a time of scientific
uncertainty, if then, to what extent? Accountability for lack of preventive
measures in relation to non-ascertainable ecocide I find even more of a
dilemma.
Ecocide in relation to existing legal regulations I find that a law on ecocide could strengthen the existing no-harm principle
severely. The no-harm principle allows states to use their national resources
as long as no harm is caused to another states´ rights to use their resources,
or harm is being caused to areas outside of state jurisdiction. This seems to
be a pretty comprehensive principle, but it is still a rule only applying to
states and the right holders are only other states. Hence, states can be held
14
accountable for actions carried out by companies within their jurisdiction or
control causing this kind of harm, but there are still entities and not personal
decision-makers who will be held accountable for these actions. I believe
this makes people take more risk prone decisions, which a law on ecocide
might change. Ecocide would probably work a lot as a preventive measure,
rather than actually bringing people before the ICC.
A weakness with ecocide as a crime under the Rome Statue is that
countries can choose not to ratify the Rome Statue. Ecocide is not as widely
recognised and accepted as the no-harm principle and not a customary
international principle, which might make the ecocide regulation weaker.
Compared to the polluters pay principle ecocide aims at preventing
pollution altogether. A regulation of this kind aims at changing the market
and making new environmental friendly inventions and living patterns pay
off more than it does today. This would totally change the dynamics of the
sustainable development idea, since the environment protection would
become the essential interest, which would mean that economic and social
development would only be able to take place within the planets boundaries.
This understanding of sustainable development is something already
growing within the concept of sustainable development, but is not yet fully
implemented in international law.
On a regional level EU has created the environmental liability
directive which is a clear attempt to hold polluters accountable for their
damage. This directive is based on the polluters pay principle and the
principle of sustainable development, which makes it possible to see to the
costs of an action in comparison to the environmental benefit such action
would contribute to. This makes this regulation function in today’s system,
but still allows pollution to take place. The ELD is also foremost an
administrative regulation through which national authorities can force
polluters to prevent future environmental damage, remedy certain
environmental damage and make polluters compensate the authorities for
actions the authorities have been forces to make to remedy environmental
damage.
There is no regulation within ELD making it possible to hold
individual company managers or other individuals accountable for their
decisions. It is a way to make companies prevent and pay for harm. ELD is
definitely a step in the right direction. However, ELD only protects damage
occurring to protected species and habitat, water and land under certain
restrictions and not if the activity is authorised. Even though the directive is
quite comprehensive, compared to an ecocide regulation ecocide goes even
further. An ecocide regulation would probably not just protect more areas
and species, but would also enable accountability to be placed on decisionmaker. Ecocide therefore does not just try to fit in to an already fixed market
based system, but rather tries to change it.
An issue with ecocide compared to ELD is that an ecocide regulation
need to define an accountable person. The burden of evidence will therefore
definitely be harder for the appellant.
Another issue that needs to be clarified is if an ecocide regulation
will prevail any national authorisations or permits. If that were to be the
15
case, will it then still be a CEO in a company or then the public official who
would be held accountable for the decision?
Pros and cons with an ecocide regulation Beyond everything that has already been said I believe that it is necessary to
find a new legal tool to end the damage humans have caused and are causing
to the environment.
I believe that ecocide definitely can be a tool to change the profit
driven market into a market working for the benefit of all beings. To not
make the process of change harder on some more than others an
international regulation is needed. This is also a logical consequence seen to
the transboundary harm environmental damage, destruction and loss creates.
On an international level there has been an apparent support within
the UN for an ecocide regulation. Since the discussions first appeared more
than 40 years ago, and with 10 countries already having national ecocide
regulations, I assume there are quite some support for the proposal, but still
not large enough. Thus with accelerating climate changes, I reckon support
for an ecocide regulation will grow. Possibly states with mass destruction
armours, huge oil and mineral resources, tropical forests and other valuable
resources will oppose a regulation of this kind, but I regard it as just a
matter of time before we need to come to term with the fact that the 21st
century might become a century of resource wars. Before the world need to
bear witness to consequences of such disaster the international community
needs to act.
I find it important to discuss the issue of standing further in this
context. On an international level making ecocide an erga omnes obligation
might seem reasonable on a state level, and maybe ecocide can become the
first environmental jus cogens regulation, just like the crime of for example
genocide. However, when it comes to companies, the issue becomes more
complex, shall states be able to sue a CEO in another state or shall states
only be able to sue national CEOs? Shall NGOs be allowed into the
international arena in terms of standing? I find it a problematic issue since
this would change the whole dynamic of international law.
Ecocide is definitely an interesting concept and there are many
already existing principles within international environmental law that can
be said going in this direction, the no-harm and polluters pay principle are
just two of them. The regional ELD regulation is definitely a step in the
direction of criminalising ecocide, even though liability is not the main
focus within ELD. However, no principle goes as far as to say that we need
to have personal accountability. I mean that changing the market to cherish
life and peace higher than profit is necessary. Despite this I still find some
issues concerning the formation and implementation of ecocide in
international law.
16
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