Ecocide is increasingly being written into law, with reparations given to local communities, land and rivers
So severe was the blight of dead trees and withering crops after the US blasted Vietnam with Agent Orange in 1972 that the former Prime Minister of Sweden, Olof Palme, believed the Nixon Administration was culpable of ‘ecocide’. Five million acres of forests 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 gathering pace.
At 2021’s COP26 in Glasgow, the world’s first global citizen’s assembly put forth its view that international courts should recognise ecocide. 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.
However, any amendment to the Rome Statute 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 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 government propose the Rome Statute amendment. France wrote ecocide into national law back in August 2021, enforcing up to 10 years imprisonment for offences which ‘cause serious and lasting damage to health, flora and fauna or the quality of the air, soil or water’. The European Union has encouraged its Member States to promote ecocide’s official listing as a domestic crime, and to campaign for its recognition within international courts.
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According to Philippe Sands, a lawyer who appeared on a panel that published a draft definition of the term to the UN in June 2021, the shared environment has for too long been missing from the international criminal courts’ mandate. ‘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 bounds 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 they were at risk of criminal indictment under international and domestic law, so it would have a preventative effect.’
Similarly, proponents believe ecocide could help avoid corporate and political immunity from environmental crimes and ensure that individuals such as CEOs or political figures are held accountable.
Realists, as even Sands describes himself, point to some limitations. Firstly, ecocide will likely be subject to the same frustrations that stymie efforts to stop other international crimes from occurring. While genocide has been an international crime for 75 years following the Nuremberg trials in 1945, many argue that acts falling under its definition still take place: against the Rohingya of Myanmar and against the Uyghurs of China, for example. Second, if ecocide is adopted by the ICC, notable absences to the Rome Statute, including China, America, and Russia, could limit the law’s penetration.
Nonetheless, even if ecocide is not preventative, its recognition as an international crime would imbue the ICC with the ability to award or order reparations to its victims. This is not 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 the land.
So, too, could the move 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.
