A growing number of world leaders advocate making ecocide a crime before the International Criminal Court, to serve as a “moral line” for the planet.
This article was published in partnership with Inside Climate News, a nonprofit, independent news outlet that covers climate, energy and the environment. It is part of “The Fifth Crime,” a series on ecocide.
In 1948, after Nazi Germany exterminated millions of Jews and other minorities during World War II, the United Nations adopted a convention establishing a new crime so heinous it demanded collective action. Genocide, the nations declared, was “condemned by the civilized world” and justified intervention in the affairs of sovereign states.
Now, a small but growing number of world leaders including Pope Francis and French President Emmanuel Macron have begun citing an offense they say poses a similar threat to humanity and remains beyond the reach of international criminal law: ecocide, or widespread destruction of the environment.
The pope 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 Roman Catholics.
The Pontiff has also endorsed a campaign by environmental activists and legal scholars to make ecocide the fifth crime before the International Criminal Court in The Hague as a legal deterrent to the kinds of far-reaching environmental damage that are driving mass extinction, ecological collapse and climate change. The monumental step, which faces a long road of global debate, would mean political leaders and corporate executives could face charges and imprisonment for “ecocidal” acts.
To make their case, advocates point to the Amazon, where fires raged out of control in 2019, and where the rainforest may now be so degraded it is spewing more climate-warming gases than it draws in. At the poles, human activity is thawing a frozen Arctic and destabilizing the ice sheets of Greenland and Antarctica.
Across the globe, 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 10 million people from their homes in the last six months. Fossil fuel pollution has killed 9 million people annually in recent years, according to a study in Environmental Research, more than tuberculosis, malaria and AIDS combined.
One in 4 mammals are threatened with extinction. For amphibians, it’s 4 in 10.
Damage to nature has become so extensive and widespread around the world that many environmentalists speak of ecocide to describe numerous environmentally devastated hot spots:
- Chernobyl, the Ukrainian nuclear plant that exploded in 1986 and left the now-deserted area dangerously radioactive;
- The tar sands of northern Canada, where toxic waste pits and strip mines have replaced 400 square miles of boreal forest and boglands;
- The Gulf of Mexico, site of the Deepwater Horizon disaster that killed 11 people, spilled at least 168 million gallons of crude oil into the ocean over 87 days and killed countless marine mammals, sea turtles, fish and migratory birds;
- The Amazon, where rapid deforestation encouraged by Brazilian President Jair Bolsonaro prompted Joe Biden, during his presidential campaign, to propose a $20 billion rescue plan and threaten the Brazilian leader with economic sanctions.
The campaign to criminalize ecocide is now moving from the fringe of advocacy into global diplomacy, pushed by a growing recognition among advocates and many political leaders that climate change and environmental causes are tied inherently to human rights and social justice.
The effort remains a long shot and is at least years from fruition, international and environmental law experts say. Advocates will have to navigate political tensions over whether national governments or the international community have ultimate control over natural resources. And they’ll likely face opposition from countries with high carbon emissions and deep ties to industrial development.
The environmentalists must also figure out how criminal law would address climate change, which has been driven by practices like burning coal and gasoline that are not only legal, but central to the global economy.
The campaign to make ecocide a crime, however, is about more than law. Jojo Mehta, who launched the Stop Ecocide campaign in 2017 with Polly Higgins, a Scottish lawyer who died in 2019, describes it as a moral and practical issue as well.
“We use criminal law to draw moral lines,” Mehta said. “We say something’s not accepted, your murder is not acceptable. And so, simply putting mass damage and destruction of nature below that red line actually makes a huge difference, and it will make a difference to the people that are financing what is going on.”
Scott W. Badenoch Jr., an American environmental lawyer who favors the criminalization of ecocide, used the term to describe the state, and fate, of the Earth.
The fifth crime
The concept of ecocide was born of tragedy. Over a period of 10 years, the United States government sprayed 19 million gallons of powerful herbicides, including Agent Orange, across the countryside in Vietnam, Cambodia and Laos to expose enemy sanctuaries during the Vietnam War.
The dioxin-laced chemicals defoliated verdant jungle and caused cancers, neurological disease and birth defects in people living nearby. While the number of victims is disputed, Vietnamese groups claim there are more than 3 million. In 1970, Yale biologist Arthur Galston invoked the destruction to call on the world to outlaw what he called “ecocide.”
More than 20 years later, the global community came together to form the International Criminal Court, which was formally established in 2002 under a treaty called the Rome Statute to prosecute genocide, crimes against humanity, crimes of aggression and war crimes when its member countries, which currently number 123, fail to do so themselves.
Early drafts of the Rome Statute included the crime of environmental destruction, but it was removed after opposition from the United States, the United Kingdom and the Netherlands, based on various concerns, including that it wasn’t precisely defined. Instead, it was relegated to a wartime offense that has never been enforced.
As a result, international criminal law includes few guardrails to prevent peacetime environmental destruction.
“There’s a big gap and something needs to fill it,” said Badenoch, a visiting attorney at the Environmental Law Institute.
“We currently cannot hold big corporations or big governments accountable for ecocide,” Badenoch added. “So, what do you do? We name and shame — that’s all we’ve got.”
Decades of oil extraction in Nigeria by subsidiaries of Royal Dutch Shell, for example, have contaminated the air, ground and water in parts of the country with benzene and other toxic pollutants, according to the United Nations Environment Program. Civil lawsuits have taken years to wind through European courts, and no laws were strong enough to prevent the damage from happening, though Shell’s Nigerian subsidiary was recently ordered by a Dutch court to compensate Nigerian farmers.
Curtis Smith, a Shell spokesman, pointed to a corporate report that says many of the spills have come as a result of sabotage and theft, and that the company has been working with stakeholders to clean up the pollution identified by the U.N. Environment Program.
The International Criminal Court’s supranational authority would make an ecocide crime particularly powerful, said Kate Mackintosh, executive director of the Promise Institute for Human Rights at the University of California Los Angeles.
An ecocide crime would require International Criminal Court members to enact their own national ecocide laws, and failure to enforce those laws would enable the international court to step in. While political leaders and warlords have been the usual targets of the court, an ecocide crime could place business executives on notice, too.
“That could make a difference in corporate boardroom conversations,” Mackintosh said. Even the threat of being labeled an international criminal, she said, might deter destructive corporate behavior. “I mean, for PR, it doesn’t look good, does it?”
Mackintosh said making ecocide a crime could help in weak states, where corporate polluters are sometimes more powerful than national governments. “The likelihood of any criminal prosecution taking place in that state is pretty low,” she said. “But with an international crime, that’s actually not a bar.”
China, the United States, India and Russia — four of the world’s top polluters — are not members of the International Criminal Court, but if a corporation based in one of those countries were to operate within a member state, as many of them do, their executives could fall under the court’s jurisdiction.
The push to criminalize ecocide remained on the periphery until December 2019, when Vanuatu and the Maldives, two island nations threatened by rising seas and climate change-driven extreme weather, recommended that the court consider amending its statute to “criminalize acts that amount to ecocide.”
“Our legacy and our future are at stake,” Vanuatu’s ambassador to the European Union, John Licht, told the court, stressing a “common bond” that united all the world’s people. “Our lives are intertwined by the environment we live in.”
Willy Missack, who has served as part of Vanuatu’s delegation to the United Nations climate negotiations, said diplomats from other countries expressed shock when “little tiny Vanuatu” — a remote archipelago of more than 80 islands in the South Pacific — said it wanted to take on global powers and the fossil fuel industry through the courts. But the fact that corporations can continue to profit from carbon emissions that are threatening his country’s future, Missack said, makes the legal case clear.
“It is not right,” he said, “and this is where justice comes in.”
After Vanuatu asked the International Criminal Court to consider criminalizing ecocide, Mehta’s Stop Ecocide Foundation independently convened a panel of international legal experts, including Mackintosh of UCLA, to draft a clear definition of ecocide. They plan to publish their definition in June, at which point they hope at least one of the court’s member nations will formally propose that the court adopt ecocide as the fifth international crime against peace. Mehta has said the definition would likely require “willful disregard” of environmental destruction related to practices like widespread logging, drilling, mining and deep-sea trawling.
Richard J. Rogers, a British expert in international criminal law who is a partner at Global Diligence and a member of the drafting panel, said it may be relatively straightforward to criminalize certain acts, like destruction of a forest or waterway.
But climate change poses a greater challenge: Not only is it difficult to connect polluters to specific harms, he said, but there’s also nothing illegal about extracting or burning fossil fuels.
“The situation we’re dealing with is that the carbon system, which has fueled our economies since the Industrial Revolution, has not only been lawful, but it’s been encouraged,” Rogers said.
Another point that the drafters will have to grapple with is whether the crime of ecocide should require prosecutors to prove that humans have been harmed. Mackintosh said that while this “human harm” threshold could prove appealing politically — the court’s existing crimes all largely involve harm to humans — focusing ecocide only on the environment could make it easier for prosecutors to prove, especially when it comes to harms related to climate change, which are often incremental and indirect.
If a nation agrees to introduce the ecocide proposal to the International Criminal Court for consideration, that is when even harder work will begin. Ratification is a multistep process that would require support from either two-thirds or seven-eighths of the court’s members, depending on the type of amendment introduced. (Vanuatu still supports the campaign, but Covid-19 and the country’s “limited resources for international diplomacy” have put its ecocide advocacy on hold, said Dreli Solomon, a spokesman for Vanuatu’s embassy in Brussels.)
While no country has committed to formally proposing that the court adopt ecocide, the campaign is gaining traction, fueled by the youth-led climate movement and radical new groups like Extinction Rebellion.
In December, Belgian Foreign Minister Sophie Wilmès asked International Criminal Court member states to examine the possibility of adopting ecocide as a crime. A member of Belgium’s Parliament has also proposed a bill to criminalize ecocide. And French lawmakers are working on legislation to make ecocide an offense punishable by fines and prison, though Stop Ecocide criticized the bill as “weak.”
At least 10 countries have national ecocide laws already, including Vietnam, which enacted the law in 1990.
Separately, French lawyers in January filed a request on behalf of Amazonian indigenous groups asking the International Criminal Court to investigate Bolsonaro of Brazil for crimes against humanity.
The appeal alleges that deforestation encouraged by Bolsonaro’s government and other policies have forced indigenous people from their homes and even led to murders in the region.
The Brazilian Embassy in Washington said in a statement that “the Bolsonaro administration is taking concrete action to improve the lives of Indigenous peoples and ensure the future of the Amazon.”
The embassy said that over 70 percent of the eligible Indigenous population has received initial Covid-19 vaccinations and that deforestation rates in the Amazon were 21 percent lower from August to January , compared to the same period a year earlier.
Badenoch said that while the hurdles to adopting a new international crime are high, they are not insurmountable.
“These things take a long time and they are complex,” he said. “But they can be done.”
Into the mainstream
While the campaign for an ecocide law could take years — if it is successful at all — advocates say the effort could bear fruit much sooner: The ecocide campaign has thrust the concept into public discussion.
Mehta doesn’t expect the campaign to catch fire in the United States, but after four years of President Donald Trump, she’s heartened by the arrival of John Kerry, Biden’s special climate envoy. “We don’t expect the U.S. to join the ICC any time soon, but that said, the conversation around ecocide itself, we don’t see any reason why it can’t start happening in the U.S.,” she said.
The State Department released a statement saying that the U.S. “regularly engages with other countries” on “the importance of preventing environmental destruction during armed conflict,” but added, “We do not comment on the details of our communications with foreign governments.”
Mehta’s campaign is also part of a wider effort by activists who have been looking to the courts to force more aggressive action on climate change.
As of July 1, 2020, at least 1,550 climate change cases have been filed in 38 countries, according to a U.N. report.
In 2015, a Dutch court ruled in the Urgenda Climate Case that the government had acted negligently by failing to take aggressive enough action to limit its greenhouse gas emissions. The Supreme Court of the Netherlands upheld the ruling in a landmark decision in 2019 and ordered the government to hit specific emissions reductions targets, sparking a series of similar lawsuits in other countries.
In one of those lawsuits, a Paris administrative court held the French government responsible for failing to meet its goals to reduce greenhouse gas emissions. The ruling relied, in part, on France’s nonbinding commitments under the Paris Climate Agreement, taking what had been the soft pledge of politics and turning it into a legally binding commitment.
Mehta has framed an ecocide law as a counterweight to the failings of the Paris Agreement, saying in a recent column she co-wrote in The Guardian that it offers “a way to correct the shortcomings” of the global climate pact. “Whereas Paris lacks sufficient ambition, transparency and accountability, the criminalization of ecocide would be an enforceable deterrent.”
Alex Whiting, a professor at Harvard Law School and former coordinator of prosecutions at the International Criminal Court, said that making ecocide a crime before the court would have tremendous impact, even if only a few cases were actually prosecuted.
“When a crime becomes an international crime, it has a ripple effect,” he said. “The environment is the issue of our time. Being able to do something about that seems important.”
In Vanuatu, though, there is a sense that the pace of climate change is beginning to outrun the country’s ability to adapt. Cyclones that have devastated the islands are expected to intensify as the globe continues to warm.
Missack, the Vanuatu diplomat, said the effects of climate change run much deeper than damage from storms. Most of the country’s residents depend on the crops they grow and the fish they catch, so their lives are intertwined with the environment around them.
Recently, the harvest of yam, a key crop that is already stressed by changes in the climate, was disrupted, throwing it out of alignment with the seasonal and celestial markers and accompanying rituals that normally tell farmers when to reap.
“One day we will talk about the stars, and this is how the ritual goes. But it will never be the same spirit, the same soul of the ritual,” Missack said. “And that loss, none of the money in this world can pay for it.”