The definition of ecocide | WilmerHale

The climate crisis, an issue that once took the form of abstract temperature charts and projections, is now a dizzying parade of broken weather records and natural disasters. The time therefore seemed opportune when in June, the editorial group of experts of the Stop Ecocide Foundation (SEF) published his definition of the crime of “ecocide”.

Currently, under the Rome Statute of the International Criminal Court (ICC), there are four crimes, including genocide. SEF is an NGO that advocates changing the statute to add ecocide as a fifth crime. The publication of the proposed definition is an important step towards achieving this goal.

Definition

[U]lawful or unjustified acts committed with the knowledge that there is a substantial probability of serious and widespread or long-term damage to the environment caused by such acts.

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There are two types of acts which constitute gateways to criminal liability under the definition. First, “illegal” acts. Although there is an inconsistency in what constitutes illegality at the national level, this is the simplest route, as the prosecutor can simply report the violation of national law. Under this gateway, agents of an automobile company convicted of emissions fraud in violation of national law, for example, could be guilty of ecocide.

The second gateway is “uninteresting acts”. This could, depending on your background, bring to mind the offense of foolish or furious driving, where it actually means outright recklessness, or the Rome Statute article 8 definition of war crimes, in particular destruction and massive appropriation of goods. Unsurprisingly, ecocide is closer to the latter. He defines wanton as, ‘with reckless disregard of the damage which would be manifestly excessive in relation to the expected social and economic benefits ”.

This footbridge poses a more difficult route. The word “clearly” creates a high bar for the charge. The defendants will argue on their knowledge (or their ignorance) of the damage or the extent of the damage. It will be interesting to see how the court approaches the proportionality test and how, for example, profit margins are measured against habitat loss.

Men

The defendant must have had ‘knowing that there is a substantial probability of serious and widespread or long-term damage to the environment caused by such acts’. The usual mens rea for crimes under the Rome Statute is the awareness of a virtual certainty that the event will occur. Ecocide casts the net wider – the defendant need only know that there was a substantial likelihood of the damage occurring.

“Severe” is defined as “Very serious adverse changes, disturbances or damage to any element of the environment, including serious impacts on human life or on natural, cultural or economic resources‘. This part of the definition should help distinguish ordinary domestic environmental offenses from ecocides.

Not only does the environment cover a range of resources, but it is further defined as covering the biosphere (ecosystems), cryosphere (frozen ice and ground), lithosphere (crust and upper mantle), hydrosphere (seas, oceans). , lakes, etc.) and the atmosphere (gas) and outer space. If a billionaire space explorer commits an act of ecocide en route to Mars, they will be in range.

Finally, the potential damage must be widespread or long term. ‘Large’ means it stretches’beyond a limited geographical area, crosses the borders of a State, or is suffered by an entire ecosystem or a large number of human beings ”. The inclusion of a “large number of human beings” suggests that there will be some overlap with patterns of fact that give rise to collective environmental actions, for example water contamination.

“Long term” is defined as irreversible, or which cannot be corrected by natural recovery “within a reasonable time. ‘ This is more likely to be evaluated in the context of human life than, say, a geological epoch. The dumping of nuclear waste would likely fall within this part of the definition.

Evaluation

International criminal law is an imperfect tool for solving large environmental problems. Problems such as climate degradation require political and economic solutions. The definition of “tort” is an ambitious attempt to apply international criminal law to these broad issues. The ICC will have to balance the environmental damage of an activity against its economic and social benefits – a difficult task.

On the other hand, the effects of the climate crisis bear a striking comparison with the effects of war (massive deaths, destruction, displacement of populations, etc.), the natural domain of the ICC. It is easy to think of cases that would fit perfectly and logically into the definition of ecocide, in particular the “illegal acts” gateway. Environmental crimes often have an international impact, why shouldn’t they be prosecuted internationally?

A 2019 UN report found that to meet the Paris Agreement’s 1.5 ° C global warming limit, the world must reduce carbon emissions by 7.6% each year from 2020 to 2030 Emissions decreased by 5.8% in 2020 and are expected to increase by 4.8%. % in 2021. Meanwhile, the government spokesperson for COP 26 (the 26th United Nations Climate Change Conference) recently wrote: “No one will be forced to give up their gas boiler or their diesel car. overnight, but in 10 to 15 years there will be change. ‘We don’t know what kind of a world we will be living in 10 or 15 years from now, but it could well be a world in which the ICC is prosecuting people for ecocide.

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