Kevin Jon Heller, Ecocide and Anthropocentric Cost-Benefit Analysis, OPINIOJURIS (Jun. 26, 2021)
In this article, Heller elaborates on his previous critique of anthropocentric cost-benefit analysis in the definition of ecocide. Heller engages with Christina Voigt, from the Independent Expert Panel, who pointed out that the wantonness cost-benefit analysis applies only to lawful acts that involve a substantial likelihood of causing either widespread or long-term severe environmental damage. Voigt sees the only alternative as criminalizing unlawful acts only, while Heller considers that the definition should criminalize “any act that the perpetrator knew involved a substantial likelihood of causing either widespread or long-term severe environmental damage, regardless of whether that act was lawful or unlawful.” Further, Heller points out that the cost-benefit analysis (in theory) would be used often, since the lack of explicit prohibitions in domestic environmental law mean that most acts are lawful. Voigt worries that getting rid of this balancing would mean that any sort of development, like the building of schools, would fall under the definition of ecocide. Responding to this concern, Heller notes that the ecocide only criminalizes severe and either widespread or long-term damage to the environment which is unlikely to occur from these development projects. Heller clarifies that he is not necessarily opposed to creating an international crime that prohibits lawful acts whose expected environmental harm exceeds or clearly exceeds their anthropocentric value — essentially a peacetime equivalent to Art. 8(2)(b)(iv), but any such crime should be considered a crime against humanity, thus emphasizing its anthropocentric nature.