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The crime of ‘ecocide’ now has a definition—but what will it mean for polluters?

June 23, 2021, 1:32 PM UTC

The gravest large-scale crimes in the world include genocide, crimes of aggression—invasions, military occupations, and so on—war crimes, and crimes against humanity. These can all be prosecuted at the International Criminal Court. But what about crimes against the environment?

That’s a question that came a lot closer to an answer on Tuesday when a team of top lawyers published a definition of “ecocide” that they hope will get traction among the countries that support the International Criminal Court (ICC).

If their definition, formulated after half a year of deliberations, does become the fifth international crime, it could have big implications for major polluters: Corporate bosses may find themselves being dragged before the ICC tribunal in the Dutch city of The Hague.

“This is a historic moment,” said Jojo Mehta, the cofounder and chair of the Stop Ecocide Foundation, a Dutch-registered NGO that has spearheaded the push for ecocide prosecutions. “This expert panel came together in direct response to a growing political appetite for real answers to the climate and ecological crisis. The moment is right—the world is waking up to the danger we are facing if we continue along our current trajectory.”

“Acceptable to states”

Here’s the core definition of ecocide that the legal experts came up with: “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.”

They specify “wanton” as meaning “reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated,” and “severe” as meaning “damage which involves very serious adverse changes, disruption or harm to any element of the environment, including grave impacts on human life or natural, cultural or economic resources.”

There’s already a degree of compromise in the phrasing. For example, it doesn’t explicitly mention climate change. Philippe Sands, a high-profile British-French international law professor who cochaired the panel, told The Guardian this was intended to make the definition more palatable to countries and corporations, by catching only “the most egregious acts” such as major oil spills and Amazon deforestation.

“The…definition is well pitched between what needs to be done concretely to protect ecosystems and what will be acceptable to states,” said Mehta. “It’s concise, it’s based on strong legal precedents, and it will mesh well with existing laws. Governments will take it seriously, and it offers a workable legal tool corresponding to a real and pressing need in the world.”

France, Canada, and the European Parliament’s environment committee have all tentatively backed the idea of ecocide being recognized in international law, an idea that was first proposed in 1972 by then Swedish Prime Minister Olof Palme. Belgium explicitly called for the move in December, and Spain, Finland, Vanuatu, and the Maldives also support it.

The goal now is to get the new definition inserted into the Rome Statute, which underpins the ICC’s work. Dior Fall Sow, a former United Nations prosecutor and the panel’s other cochair, described the looming legwork as “a difficult but exhilarating adventure.”

“It is urgent”

As part of that adventure, a member state of the ICC will need to formally propose that change, then a majority of member states would need to approve it. The process of debating and finalizing the definition would likely take several years.

As for what would happen once the ICC increases the list of international crimes to five, that’s a mixed bag.

The court, which has largely spent its 19-year history focusing on African dictators and warlords, is supported by 123 countries. But there are some big names missing: The U.S. and Russia were signatories but pulled out, and countries such as China and India never signed up in the first place. So it would be extremely difficult to prosecute ecocide in those countries under the Rome Statute.

Nonetheless, ecocide’s addition to the statute would still provide the first legal framework for dealing with it at an international level. And even if it doesn’t get that far, the lawyers who came up with the definition hope countries will adopt it in their own law.

“I hope that the states will adopt this definition as their own,” said Rodrigo Lledó, a Chilean-Spanish panelist. “It is urgent. Destroying the environment in a massive and irresponsible way must cease to be internationally legal.”

Indeed, on Wednesday AFP reported on a leaked UN draft that warns of impending ecosystem collapse, deadly heatwaves, and spreading disease.

“The worst is yet to come, affecting our children’s and grandchildren’s lives much more than our own,” the draft report, due for release next year, reportedly stated.

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