Darryl Robinson, Your Guide to Ecocide (Part I), OPINIOJURIS (Jul. 16, 2021)
This blog post responds to critiques, in particular, to Heller’s. Robinson offers an overview of the issues, the available options, and the legitimate criticisms applicable to each option and shows why combining international criminal law (ICL) with international environmental law (IEL) raises fascinating novel challenges that are not initially evident to ICL lawyers. Robinson notes that compared to international human rights law and international humanitarian law, the sources used to define war crimes and crimes against humanity, IEL does not have strict prohibitions on conduct. Rather, IEL requires balancing economic needs and environmental harms, making a list of specific prohibited acts and chapeau elements, as in core international crimes, impractical. Robinson responds to Heller’s critiques by explaining that ecocide is not based on genocide: both contain the root -cide (meaning to kill) to signal the seriousness of the conduct. Robinson also remarks that Article 30, the intent provision of the Rome Statute, is merely a default rule and allows for other mens rea approaches and different approaches have been taken in other provisions, like superior responsibility. One of the key questions Robinson ends on is whether harm must actually materialize, or is it sufficient that the person proceeds despite foresight of harm.