An international team of lawyers co-chaired by Philippe Sands QC and Dior Fall Sow has presented the outcome of its work announced in November last year to develop a legal definition of ecocide. This is a crucial step towards adding ecocide to the list of other major offences recognised by the international criminal court (ICC), including crimes against humanity, war crimes and genocide.
Making large-scale destruction of nature and its associated loss of biodiversity an international crime means that individuals, not legal entities, can be personally held accountable and prosecuted if found guilty. This implies that responsibility for damage cannot be dealt with by budgeting for potential fines. Corporations very rarely intend to cause mass damage and destruction; rather, it is a consequence of their activities. The proposed definition of ecocide describes the crime as one of recklessness; the perpetrator acted in the knowledge that there was “substantial likelihood” of serious harm arising from their conduct, but they acted anyway.
The environmental imperative to recognise ecocide as a criminal offence has been strongly articulated many times. Swedish prime minister Olof Palme used the term at the UN Stockholm conference, the first international conference on environmental issues, in 1972. The urgency in tackling environmental degradation today is acute. The latest Living Planet Report led by WWF shows that population sizes of mammals, birds, fish, amphibians and reptiles have dropped by 68% on average globally, and as much as 94% for Latin America. Similarly, the latest State of the World’s Plants and Fungi report led by Royal Botanic Gardens, Kew, shows that 39% of all plant species – about 140,000 – face extinction in the coming decades, with the degradation of natural ecosystems the primary cause. As recently shown by the first UN environment programme synthesis report and the first joint IPCC/IPBES report, biodiversity loss and the climate emergency pose severe threats to humanity. Unlawful environmental damage caused by international companies in low-income, biodiverse countries further risks accentuating systemic injustice and global inequalities. Protecting nature is necessary to address biodiversity loss and the climate crisis simultaneously.
Despite all the scientific warnings, we are witnessing many systematic, even if non-intentional, ecocides around the world – from the overfishing of the North Sea to the tar sands of Canada and oil extraction in the Niger Delta. The destruction of the Amazon rainforest provides a compelling example of ecocide, with effects on a global as well as a local scale. In 2020 alone, more than 1.8m hectares (4.6m acres) were affected by manmade forest fires, with vast implications for the region’s biodiversity and livelihoods. Some models predict that forest loss could reach a critical tipping point this year, with ecosystem collapse in 49 years. With an ecocide law in place, people in the position of highest responsibility for activities leading to deforestation of the Amazon would run the risk of prosecution by the ICC. Other players – including senior executives at the companies driving deforestation, insurance companies, and funding agencies – would also risk legal sanctions.
Recognising large-scale environmental destruction as an international crime would bring two corollary effects. First, laws provide clear, long-term guidelines for financial decision-making and international aid. That something is morally questionable usually doesn’t hinder investment. Laws provide boundaries and sanctions for investment, as no company or organisation – such as the World Bank – would want to invest in something potentially criminal. Second, laws can lead to a shift in social norms. Criminalising ecocide at the highest level would bring public, corporate and governmental understanding that the protection of the biosphere – the thin and fragile layer of life that supports our societies – must be a top priority for all nations.