Kevin Jon Heller, Skeptical Thoughts on the Proposed Crime of “Ecocide” (That Isn’t), OPINIOJURIS (Jun. 23, 2021)

This article critiques the Independent Expert Panel’s definition of ecocide, arguing that it bears little resemblance to genocide, has a difficult mens rea standard, and remains anthropocentric. First, Heller argues that ecocide is based on genocide but has little resemblance to genocide in terms of legal structure and more resembles crimes against humanity. Second, Heller explains that the mens rea of ecocide is substantially lower than the Article 30 default mens rea in the Rome Statute, which requires a virtual certainty that prohibited consequence will occur. Heller also claims that the inclusion of “wanton” adds another layer to the mens rea requirement: “so it is not enough for a perpetrator to ‘know’ that his or her acts will cause ‘severe and either widespread or long-term damage to the environment.’ He or she must also be aware that the damage will be ‘clearly excessive in relation to the social and economic benefits anticipated.’” Third, Heller contends that damage to the environment should not be balanced against human benefit. To alleviate these issues, Heller proposes that following alternative definition: “For the purpose of this Statute, “ecocide” means acts committed with awareness that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts, where a reasonable person would know that the expected environmental damage would be clearly excessive in relation to the social and economic benefits anticipated.”

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