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Move to toughen up ‘ecocide’ legislation continues to gain traction

Pollution on Maracaibo Lake following an oil spill in  Venezuela, last year. Campaigners want the International Criminal Court to include ecocide in the crimes it prosecutes (Photo: Luis Bravo/AFP via Getty Images)
Pollution on Maracaibo Lake following an oil spill in Venezuela, last year. Campaigners want the International Criminal Court to include ecocide in the crimes it prosecutes (Photo: Luis Bravo/AFP via Getty Images)

Criminalising environmental offences won’t necessarily lead to more convictions – but campaigners hope it could drive a change in corporate behaviour

Environmental crimes are estimated to be rising by 5–7 per cent annually and can range from prohibited trade in wildlife to illegal mining, fishing, logging and oil spills, among others. In response, governments around the world are imposing harsher penalties for environmental degradation and pollution, including drawing up ‘ecocide’ bills.

Spurred in part by a greater use of criminal law in climate debates, the movement to formalise ecocide as a crime has been gaining momentum. A dozen countries have had this type of criminal offence on their rulebooks for decades – however, criminal prosecution is still extremely rare.

In February, Belgium became the latest country to incorporate ecocide into its criminal code, ahead of the EU’s adoption of the revised environmental crimes directive at the end of March.

While the EU legislation falls short of specifically mentioning the term “ecocide”, it has been applauded by campaign groups for expanding the number of criminal offences, introducing harsher fines and the possibility of prison sentences. Member states have two years to implement the directive.

In the UK, several proposals have been put forward to legislate on ecocide. In November 2023, member of the Scottish parliament Monica Lennon launched a consultation to gather feedback on introducing the standalone crime of ecocide, while in Westminster two separate bills have been proposed in the House of Lords that incorporate the crime of ecocide.

The first of these centres on ecocide alone, while the second, the Commercial Organisations and Public Authorities Duty (Human Rights and Environment) Bill, also incorporates environmental and human rights due diligence, in an echo of the “duty to prevent” model embedded in the EU Corporate Sustainability Due Diligence Directive.

Legal experts suggest that bills that have not been proposed by government are unlikely to succeed but they could stimulate debate. Copad sponsor Baroness Young of Hornsey told Sustainable Views that the bill aimed to ensure a future government could not ignore the issues of ecocide and due diligence.

ICC involvement

Another example of the reawakened interest in ecocide legislation is the new policy initiative by the International Criminal Court in the Hague centred on environmental crimes. The initiative looks, among other things, at “best practices for investigating and prosecuting crimes that can be committed by means of or that result in environmental damage”.

The ICC is governed by the Rome Statute and prosecutes four core crimes: genocide, crimes against humanity, war crimes, and the crime of aggression.

The ICC is being urged by proponents to incorporate an international crime of ecocide in the Rome Statute. They argue that the current framework only provides for limited environmental protections during wartime, primarily through deliberate and systematic harm to humans and protected property, such as religious buildings or Unesco heritage sites.

Introducing a standalone crime of ecocide would criminalise the most serious cases of environmental destruction during peacetime as well as conflict, they say.

This would not be the first time efforts have been made in this direction. Sue Miller, head of global networks at campaign group Stop Ecocide International, notes that a former draft of the Rome Statute included a clause that addressed severe, widespread and long-term harm to the environment, but was not taken forward in the final version of 1998.

However, even if a new standalone crime of ecocide were accepted, it would only have a limited impact since states such as Russia and the US have never ratified the Rome Statute and do not recognise the ICC’s remit.

Prohibitions to date

Researchers estimate that more than a dozen countries around the world have enacted domestic legislation criminalising ecocide, with Vietnam being the first. In 1990, Vietnam added the crime to its penal code, specifying that it applies in times of peace and war.

Vietnam likely became a pioneer following the harmful impacts on its population and environment of US herbicides, including the notorious Agent Orange, which was used widely in the Vietnam war, says Catherine Savard, a human rights lawyer affiliated with the University of Oxford.

However, most of the countries that have existing and longstanding ecocide prohibitions are located in former Soviet republics. Armenia, Belarus, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Tajikistan, Russia, Ukraine and Uzbekistan all have prohibitions in their domestic criminal codes, enacted between the second half of the 1990s and the early 2000s

“The legacy of Soviet industrial practices, which often prioritised economic development over environmental concerns, may have prompted these countries to enact stricter regulations to prevent further environmental harm,” says Savard, who specialises in the development of ecocide prohibitions in international law.

She adds that all these countries can mete out custodial sentences for ecocide, but the duration varies. For example, Russia imposes sentences of up to 20 years’ imprisonment, while for others such as Ukraine it is up to 15 years.

Nonetheless, there are some similarities in the ecocide provisions in the former Soviet republics. Nataliia Hendel, an expert in international humanitarian law based in Ukraine, explains a “model criminal code” was adopted by the Commonwealth of Independent States (an association of former Soviet states) in order to harmonise and facilitate the reform of criminal legislation in the post-Soviet era.

The development of environmental legal awareness in the post-Soviet era, the consequences of the Chernobyl disaster in 1986, the draft of the Rome Statute, and the example set by Vietnam all contributed to the inclusion of ecocide in the model criminal code of the CIS that would serve as a standard for new post-Soviet nations, Hendel tells Sustainable Views from Odesa.

No convictions

Despite ecocide being referenced in criminal law for decades in some countries, researchers say that to date no individual or company has been convicted for the crime in any jurisdiction.

When it comes to the former Soviet republics, Hendel argues that the poor wording and legal imperfections of the CIS ecocide definition were transferred into countries’ domestic legislation, resulting in uncertainty on how prosecutors should apply separate categories (such as “mass destruction” or “environmental catastrophe”) without a clear description of their scope.

Another hurdle for prosecutors relates to the ambiguity around the intentionality of the crimes committed. Savard says in some countries, such as Moldova and Belgium, ecocide must have been committed deliberately in order for it to be prosecuted, whereas other countries do not specify intentionality.

Experts agree that the lack of a universal definition of ecocide has been an added difficulty in bringing cases to court. However, this issue appears to be in the process of being resolved. In 2021 an independent expert panel convened by the Stop Ecocide Foundation defined ecocide as “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 caused by those acts”.

Miller at Stop Ecocide International believes this definition has been a catalyst to gather momentum to add ecocide as a fifth crime at the ICC.

While criminal convictions for ecocide have yet to occur, cases are still coming to court. France is hearing a case concerning the chemical pollution of a residential area in Grézieu-La-Varenne, near Lyon, which used to host an industrial laundry site, under the country’s climate and resilience law, which references ecocide. And, most notably, since Ukraine was invaded in 2022, it has filed several cases against Russian officials pinpointing Russian attacks that have caused widespread environmental damage.

Future outlook

While ecocide legislation has not yet led to prosecutions, Savard argues the threat of prosecution is likely to foster more environmentally protective corporate practices in general. Other legal experts agree that the prospect of being held personally liable for pollution or nature destruction may act as a useful deterrent on individuals in corporations.

Once EU member states will have transposed the environmental crimes directive into national law, Europe will have a vaster framework to prosecute environmental crimes, even if these crimes do not technically fall under the umbrella term of ecocide.

The EU directive will apply only to offences committed within its borders, but member states will be allowed to extend their jurisdiction to offences that have been committed outside their territory if certain criteria are met, such as the offender being a resident of that country. Similarly, intentional offences that cause death can be punished with a maximum prison sentence of 10 years, but the law allows member states to impose a tougher penalty if desired.

In reality, though, given that existing ecocide provisions remain largely untested in court, meaningful convictions seem a distant reality. Stop Ecocide International chief executive and co-founder Jojo Mehta previously told Sustainable Views that the power of ecocide bills lies largely in being a preventative, rather than a punitive, measure.

“It will be the threat of prosecution that will result in economy-wide behaviour change,” she says. Ecocide legislation also has the potential to “turbocharge” green innovation and redirect finance and investment away from the most harmful practices and towards those that prioritise sustainable practices, she adds.

A service from the Financial Times