David Krott, LL.M., PhD candidate at the Vrije Universiteit Brussels.

Introduction

Massive pollution of a river in the fragile ecosystem of the arctic, destruction of whole ecosystems through methods of industrial exploitation or the international trade of poached animals or animal products bear the potential to be called an international environmental crime. Might they even be called ecocide? The term “ecocide” has made its way into mainstream legal development. On 22 June 2021, an international expert panel has unveiled a draft definition of ecocide to serve as a basis for an amendment to the Rome Statute of the International Criminal Court (ICC).[1] If adopted by ICC member states, ecocide would become the fifth crime under the jurisdiction of the Court.

There is presently no consensus on a definition in the international community of states. Therefore, ecocide remains unclear in its detailed meaning on the international level. In the same way the term “international environmental crime” seems fairly logical at first glance, but lacks a clear and internationally agreed-upon definition. Both of those terms share a connection, but one can wonder where the link between ecocide and international environmental crime exactly lies? Is ecocide interchangeable with international environmental crimes or do both refer to different conducts? Why should some environmental and criminal relevant conducts be called “ecocide” and some not? This issue is of particular relevance due to the current debate regarding the recognition of ecocide as an international crime in the Rome Statute. Therefore, this text discusses the nexus between ecocide and international environmental crimes.

International environmental crimes – a “second class crime”

Environmental criminality in general is a relatively new form of crime, both in the national legislation and at the international level. This special form of crime towards the environment tends to be on the periphery of criminal legal discourse. Crimes with a direct human connection (e.g. homicide) or with a financial aspect (e.g. fraud) receive more attention. In short, “environmental crime” occurs when individuals, corporate entities or states deliberately neglect environmental laws and regulations for profit.[2] Adding a transboundary element qualifies them as “international environmental crimes”.[3] This description is by no means specific enough to launch a criminal investigation and it fails to outline the relevance of environmental harm in the sphere of criminal conducts. Thus, an internationally agreed-upon definition of “international environmental crime” is absent. This failure of implementing a precise definition leads to a colourless phrase with no robust legal meaning.

The term “international environmental crime” is particularly found as a collective term for potentially criminal acts that harm the environment. It encompasses, for example, poaching and the illegal trade of flora and fauna, the unregulated disposal of hazardous waste, and the illegal exploitation of natural resources. A more concrete example is the poaching of rhino horn in Africa. It involves, inter alia, the killing of the rhinos, the smuggling of the horn to the markets of demand (mostly in Asia) and the forging of documents. In this way, the actual “environmental crime” (i.e. harming the rhinos) is accompanied by several other crimes, such as forging official documents, bribery and smuggling. These criminal activities are often connected to criminal syndicates with ties to other areas of criminality. This interweaving of environmental harm within criminal networks makes it particularly difficult to focus on the environmental aspects. Not seldom the environmental harm itself is left aside in these investigations.

The concept of international environmental crimes offers two different approaches: an anthropogenic approach and an eco-centric approach.[4] While the anthropogenic approach focuses on humanity or elements that directly affect human survival and well-being, the eco-centric (also referred to as “bio-centric”) approach concentrates on the natural environment, without making a distinct link to humanity.[5] In order to establish a true international environmental crime, an anthropogenic approach would be misleading. The notion of environmental crime should focus on the well-being of nature. Therefore, an eco-centric approach is recommended.

In contrast to this recommendation, the anthropogenic view is dominating so far. This dominant view combined with the general disregard of global environmental harm in the sphere of transnational crimes leads to the “second class crime” rating. In the sphere of environmental criminality, these form the fundament, while ecocide can be rated as “first class crime” in this regard.[6] Nevertheless, it has to be kept in mind that due to the higher number of committed potential “second class international environmental crimes” their impact might even be more harmful than the few ones classified as “ecocides”. This is why these criminal conducts should not be forgotten in the shade of ecocide.

The most heinous crime on nature: “ecocide”

Ecocide shall stand for the most heinous crimes on the natural environment. Polly Higgins suggests defining ecocide as a fifth crime under article 5 of the Rome Statute as follows: “the extensive damage to, destruction of or loss of ecosystems(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 or will be severely diminished”. The suggestion to establish ecocide as a fifth crime under the Rome Statute is not entirely new. After being discussed at the founding conference of the International Criminal Court (ICC) in Rome, an environmental crime provision disappeared in the last and final draft. In the following years, scholars and even state governments have repeatedly advocated in favour of a crime of ecocide to protect the natural environment from human-invoked harm.[7]

The term “ecocide” is reserved for the most destructive acts towards nature. The superlative is underlined by the usage of the words “extensive damage”, “destruction” and “severely diminished” within Higgins’ definition. These words create the threshold that has to be reached to distinguish a “second class” international environmental crime, as described above, from ecocide. They require a close look, as they form the border between an international environmental crime and ecocide. Within their meaning, there is a wide margin of interpretation and therefore an unambiguous description is needed. It is for example debatable whether the results of the Norilsk oil spill in 2019 reached the threshold of extensive damage. Would this oil spill qualify as ecocide, as an international environmental crime or neither one of them?

The complexity of this threshold discussion involves the risk that a potential ecocide provision within the Rome Statute might only be a “tiger without teeth”. This development can be observed with article 8(2)(b)(iv) of the Rome Statute. Although the primary intention of this norm is to regulate war, not to protect the environment, it is the only environmental link within the Rome Statute so far. This article speaks of “widespread, long-term and severe damage to the natural environment”, which is comparable to the premise of the aforementioned Higgins ecocide definition. Article 8(2)(b)(iv) of the Rome Statute furthermore requires knowledge as part of the mens rea element. Thus, the threshold to convict an individual based on article 8(2)(b)(iv) of the Rome Statute is fairly high and it has never been invoked yet. This fate needs to be avoided with the development of the crime of ecocide.

Looking forward

Even though it is debated, the ICC currently does not have a distinct legal mandate under the Rome Statute to look into international environmental harmful conducts. The 2016 Policy Paper issued by the Office of the Prosecutor of the ICC is not enough in this regard. Within this paper the Office of the Prosecutor indicates that it will give particular consideration to crimes under the Rome Statute relating to “the destruction of the environment, the exploitation of natural resources or the illegal dispossesion of land.”[8] A clear legal annex point for environmental crimes is missing within the Rome Statute. Nevertheless, the pressure to codify the connection between the environment and criminal conducts in an international agreement is growing. Thus, it remains difficult to determine where to draw the line between lawful and unlawful conduct harming the environment as well as international environmental crimes and ecocide. There are numerous activities that are legal according to the law, but (potentially) harm the environment in a serious way.[9] The decision what constitutes a crime in this area is a balancing act.

The nexus between ecocide and international environmental crimes lies in their nature as potential criminal conducts harming the environment. Ecocide forms the top of the pyramid in the area of environmentally harmful conducts. In contrast, international environmental crimes are used to describe “lower class” environmental harm, that does not reach the threshold of fully-grown ecocide. However, a clear delineation is still missing. The newly recommended definition by the aforementioned expert panel takes an ecocentric approach,[10] which is a refreshing turn and a contrast to the so far prevailing anthropogenic perspective. Thus, this ecocide definition has the potential to establish a benchmark for international environmental harm and could help to define “international environmental crimes” too.

[1] The Panel recommends to include the following “Article 8ter – Ecocide” in the Rome Statue: 1. For the purpose of this Statute, “ecocide” means 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. 2. For the purpose of paragraph 1: a. “Wanton” means with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated; b. “Severe” means 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; c. “Widespread” means damage which extends beyond a limited geographic area, crosses state boundaries, or is suffered by an entire ecosystem or species or a large number of human beings; d. “Long-term” means damage which is irreversible or which cannot be redressed through natural recovery within a reasonable period of time; e. “Environment” means the earth, its biosphere, cryosphere, lithosphere, hydrosphere and atmosphere, as well as outer space.

(see: https://aninternationallawblog.files.wordpress.com/2021/06/1c5ca-sefoundationcommentaryandcoretextrev6.pdf).

[2] Duncan Brack, ‘Combatting International Environmental Crime’ [2002] Global Environmental Change 143.

[3] Ibid.

[4] Bruce Zagaris, ‘International Environmental Crimes’ in Bruce Zagaris (ed), International White Collar Crime (Cambridge University Press 2015) 262.

[5] Ibid.

[6] Within the classification scheme suggested by Neyret, third level conducts even completely fall out of the scope of criminal law, they are dealt with by administratve law and sanctions (see L. Neyret, Des écocrimes à l’écocide. Le droit pénal au secours de l’environnement, Bruylant, Paris, 2015).

[7] E.g. Polly Higgins, Eradicating ecocide: Laws and governance to prevent the destruction of our planet (2nd edition, Shepheard-Walwyn (Publishers) Ltd 2015); Lynn Berat, ‘Defending the right to a healthy environment: toward a crime of genocide in international law’ [1993] Boston University International Law Journal 327.

[8] Office of the Prosecutor of the International Criminal Court, ‘Policy Paper on Case Selection and Priorisation’ (15 September 2016) 14.

[9] E.g. the legal extraction of resources, legal mining operations, or the legal release of greenhouse gases.

[10] See above at 1; The recommended article 8ter of the Rome Statute does not contain any expressive link to humanity. This ecocentric interpretation does therefore not focus on human harm, but concentrates on the natural environment as the primary victim of potentially criminal acts.