IN international law, piracy was the first international crime with pirates considered to be enemies of humanity and commanding universal jurisdiction. In short, it is an offense against the law of nations. As an international crime, piracy is now further defined in the 1982 United Nations Convention on the Law of the Sea (Article 101). In 1948, piracy was followed by a new international crime, genocide, an offshoot of the Nuremberg Trials of Nazis responsible for the mass extermination of Jews. At present, it is an offense triable by the International Criminal Court (ICC), created by the Rome Statute (2002).
Now comes ecocide for international consideration as an international crime.
No legal definition has yet been agreed upon about ecocide, Colloquially, ecocide refers to the devastation and destruction of the environment to the detriment of life. Broadly defined, it means the deliberate destruction of nature and global ecosystems by human activity. The most obvious example is climate breakdown and the damage it has already done and will cause in the future.
Ecocide was first floated during the 1970s when, over a period of 10 years, 19 million gallons of powerful herbicides, including Agent Orange, were sprayed across the countryside in Vietnam, Cambodia and Laos for the purpose of defoliation to eliminate cover for enemy fighters in jungle areas. After the war, the chemicals sprayed were found to have caused cancers, neurological diseases and birth defects in people living nearby, in addition to defoliation of verdant jungles as well as decimation of species of wildlife. Indeed, environmental destruction often occurs during armed conflict as in the 1991 Gulf War when Iraqi forces set alight the oil fields as they were retreating from Kuwait. It took years to rehabilitate the extensive ecological damage wrought on the country’s ecosystems.
Other actual examples of extensive and widespread damage to nature around the world are: 1) the Chernobyl nuclear plant explosion in Ukraine (1986) which left a deserted dangerously radioactive area that used to be an active community; 2) the Deepwater Horizon disaster in the Gulf of Mexico that spilled at least 168 million gallons of crude oil into the ocean and killed countless marine mammals, sea turtles, fish and migratory birds; 3) the tar sands of Northern Canada where toxic waste pits and strip mines have replaced 400 square miles of boreal forests and boglands; and 4) the rapid deforestation in the Amazon reportedly encouraged by President Jair Bolsonaro to give way to agriculture and industrial projects.
In the course of time, other examples of acts that should be criminalized as constituting the killing of nature or the environment were cited by environmental defenders/lawyers. Among those are: willful disregard of environmental destruction related to practices like widespread logging, drilling and mining and deep-sea trawling; experiments including testing of nuclear weapons; manmade environmental phenomena such as the greenhouse effect and transboundary water pollution; and diminishing biological diversity.
Fossil fuel pollution
Across the globe, damage to the biosphere and the atmosphere is known to be a byproduct of pollution and greenhouse gases, e.g., burning coal and gasoline that are not only legal but central to the global economy. Indeed, climate change is disrupting the reliable seasonal rhythms that have sustained human life for millennia while hurricanes, floods and other climate driven disasters have forced more than 16 million people from their homes in the last six months. Fossil fuel pollution has killed 9 million people annually, more than tuberculosis, malaria and AIDS combined. One in four mammals are threatened with extinction.
Fortunately, the campaign to criminalize ecocide has gained momentum among academicians, policy makers, climate advocates and the global civil society. For one, the European Union Parliament’s committee on environment called on the committee and member states to raise awareness and promote solutions on the protection of environmental rights and the recognition of ecocide in international law. The French citizens’ assembly, a group of people randomly selected to guide the country’s climate policy in accord with the Paris Agreement on reduction of greenhouse gas emissions for health benefits, voted to make ecocide a crime.
National ecocide laws
So far, 10 countries have national ecocide laws. Vietnam, which leads ecocide advocates among developing countries, enacted its law in 1990, followed by Kazakhstan and Moldova. French lawmakers are working on legislation to make ecocide an offense punishable by fines and imprisonment. Vanuatu and Maldives, aware that cyclones which devastated their islands for years are expected to intensify as the globe continues to warm, have campaigned for quite some time to make ecocide an international crime.
The Vatican’s Pope Francis describes ecocide as the “massive contamination of air, land and water or any action capable of producing an ecological disaster” and has proposed making it a sin for Catholics. Be it known that the world’s religions, major or otherwise, are very protective of natural resources and the environment.
Actually, four international crimes could be brought before the ICC. These are genocide, war crimes, crimes of aggression and crimes against humanity. Of the four, some legal minds point out that while ecocide could be accommodated under war crimes, the Rome Statute, which created the ICC, requires an international attack that causes “independent, long term and severe damage to the environment,” which would be clearly excessive. Even if environmental destruction was relegated to a wartime offense, it has never been enforced.
Corporate and state responsibility is also excluded under the Rome Statute. Meaning, corporations and states that cause water and air pollution or participate in illegal deforestation and cause oil spills during peacetime cannot be prosecuted for their environmental damage. Clearly, ICC crimes do not place any legal restrictions on harms that occur during times of peace.
The ICCs Rome Statute further defines crimes against humanity as “acts committed as part of a widespread systematic attack directed against any civilian population.” For many, the definition is too narrow to include ecocide as triable by the ICC.
By the end of 2020, while the world was focused on the coronavirus pandemic, a panel of international law experts met to draw up a legal definition of ecocide for international acceptance. After all, with no let-up in environmental catastrophes everywhere around the world, ecocide will prove that in the long term, it is infinitely more harmful to human civilization than the coronavirus.
In that regard, would ecocide defined as “acts or omission committed during peacetime or war by governments or by any corporate or other entity and the senior responsible persons thereat which cause widespread or long term ecological, climate or cultural loss or damage to or destruction of ecosystems and territories that severely diminishes the inhabitants’ peaceful enjoyment of these ecosystems and territories,” suffice or be acceptable so as to clearly identify liability for ecocide? Significantly, the definition means political leaders and corporate executives could face charges and imprisonment for “ecocidal” acts.
The proposed definition would also enrich international environmental law and perhaps hasten the 30-year-old proposal to create an International Environmental Court and expand the right to a healthy environment to include a right to freedom from ecocide which substantially threatens life itself. This will strengthen response to global challenges of the 21st century, i.e., environmental crimes related to increasing biodiversity loss and accelerating climate breakdowns threatening peace, security, health and well-being of the world.
After all, international law has been used to protect the rights of investors overseas. It is time for binding legal rules to protect the planet itself and all living entities in it and humanity’s future. But first, ecocide should be officially seen as an international crime and recognized and granted the full weight of international law.