So severe was the blight of dead trees and crops after the USA blasted Vietnam with Agent Orange (a defoliant) during the Vietnam War of the early 1970s that the former prime minister of Sweden, Olof Palme, believed that the Nixon administration was culpable of ‘ecocide’. Two million hectares of forest were defoliated, yet no clear legal mechanism existed through which to challenge the act. Fast forward 50 years and a movement to enshrine the crime of ‘ecocide’ in international law is finally gathering pace.
At 2021’s COP26 in Glasgow, the world’s first global citizen’s assembly put forth its view that ecocide should be recognised by international courts. If that were to happen, it would join genocide, crimes against humanity, war crimes and crimes of aggression on the list of the world’s most serious crimes – enforceable under the 1998 Rome Statute of the International Criminal Court (ICC) of The Hague.
Any amendment to the Rome Statute, however, must first be proposed by one of the countries that actually signed it. It then needs to be approved by two-thirds of at least 92 of the others. There are countries that might be willing to lead the charge. In December 2021, a strong majority in a Belgian court voted to recognise ecocide as an international crime, demanding that the Belgian France wrote ecocide into national law back in August 2021, with up to ten years’ imprisonment for offences that ‘cause serious and lasting damage to health, flora and fauna or the quality of the air, soil or water’. The EU has encouraged its member states to promote ecocide as a domestic crime and to campaign for its recognition within international courts.
According to Philippe Sands, a lawyer who appeared on a panel that proposed a definition of ecocide to the UN in June 2021, the shared environment has for too long been missing from international law. ‘All crimes punishable by the ICC focus on the protection of the human being. There’s a gap,’ he says. Sands takes inspiration from two legal figures who conceptualised the legal parameters of genocide and crimes against humanity: Hersch Lauterpacht and Raphael Lemkin. ‘They were motivated to create a legal setting in which, for the first time, those who engaged in these appalling acts would know that they were at risk of criminal indictment under international and domestic law, so it would have a preventative effect.’ In a similar way, proponents of enshrining ecocide into law believe that it could help hold corporations, government, CEOs and political figures accountable for any environmental destruction under their watch.
‘Realists’, as even Sands describes himself, point to some limitations. First, defining international crimes doesn’t necessarily stop them happening. Genocide has been an international crime for 75 years, following the Nuremberg trials in 1945, but many argue that acts falling under its definition still take place: against the Rohingya of Myanmar and the Uyghurs of China, for example. Second, if ecocide is adopted by the ICC, notable absences from the Rome Statute, including China, the USA and Russia, could limit the law’s reach.
Nonetheless, even if ecocide isn’t completely preventative, its recognition as an international crime would give the ICC the ability to award or order reparations to its victims. Th is isn’t without precedent. In 2012, the Inter-American Court of Human Rights decreed that reforestation programmes be awarded to the Kichwa Indigenous community of Ecuador, whose livelihoods were damaged by an oil company’s illegal exploration of its land. Th e move would also have an important symbolic effect. ‘I have worked with the Yazidi community in northern Iraq and Syria, focusing on the crime of genocide,’ says Sands. ‘Why genocide? Because in seeking to prevent the destruction of groups, genocide as a crime recognises the right of a community to exist. You’ve got the exact same thing here with ecocide; the international law would recognise the natural environment itself as a thing worth looking after.’