Ecocide Public Consultation Results Summary Sheet

February 2021

Overview:

On 17 November 2020, the Stop Ecocide Foundation announced the launch of the Independent Expert Panel for the Legal Definition of Ecocide (“Panel”), following a request by Swedish parliamentarians for a legally robust definition of “ecocide”. The objective of the Panel is to develop a definition of ecocide that can be proposed, by a State, as an amendment to the Rome Statute of the International Criminal Court (“ICC”). Through a public consultation, the Panel sought the views of interested state parties, individuals, groups, organizations, corporations, institutions and others on several questions related to the definition.  The following summarizes the responses received.

Survey:

The survey was made available online from February 1- 28, 2021. It was comprised of seven questions, which were asked in English:

1. What inspiration should a definition of ecocide take from the definitions of existing international crimes?
2. What is the place, if any, of human or cultural harm in the definition of the crime?
3. What particular acts (actus reus) might the crime include?
4. Are there mental elements (mens rea) which might be specifically relevant to a crime of ecocide?
5. What threshold of harm (size, impact, duration) might be appropriate for a crime of ecocide?
6. Are there specific natural systems which merit special consideration in the drafting process?
7. Any other comment?

A total of 402 individuals participated in the survey. A total of 410 responses were received on the Google Spreadsheet, but 8 responses were omitted as being duplicates logged as system error. Responses were requested in English, though participants offered responses in English, French, Portuguese, and Spanish. Approximately 108 of the 402 participants could be categorized as “Working or Studying in the Legal Sector”. Approximately 52 of the 402 participants were directly engaged in the environmental sector, whether professionally or otherwise.

Question 1: What inspiration should a definition of ecocide take from the definitions of existing international crimes?

The majority of responses to question one indicated that the crime of ecocide should be written similarly to the crimes of genocide and/or crimes against humanity. A smaller, but still significant number believed that ecocide should borrow from aggression and/or war crimes, particularly Article 8(2)(b)(iv). However, respondents from neither group specified which specific elements from the four existing Rome Statute crimes should be used in the crime of ecocide, only that we should generally look to them for reference. Similarly, a few individuals suggested that we borrow text from existing human rights law, however, they did not specify which human rights laws they were referring to.

Several respondents did offer more specific suggestions on exact language to include. Regarding the name of the crime itself, many suggested calling it “crimes against the environment” or “crimes against nature” instead of “ecocide”. Additionally, several respondents specifically requested the use of terms like “widespread or systematic”, “widespread, long-term and severe”. Finally, many suggested that the crime of ecocide should move away from the anthropocentric focus of current crimes and that ecocide should focus directly on harm to the environment.

Question 2: What is the place, if any, of human or cultural harm in the definition of the crime?

*Drafting note: The responses indicated that there was some confusion between “harm by humans and cultures” vs. “harm to humans and cultures”. The latter was the intent of the question.

There was some disagreement amongst responders, but the major takeaway from this question was that the focus of ‘ecocide’ should be ecocentric, not anthropocentric. However, many suggested that human or cultural harm could still play a subsidiary role, while not being a main requirement of the act. For example, respondents suggested human harm could be used as an aggravating factor, evidence of ecocide, an underlying act of ecocide, or as part of the gravity threshold. On the opposite side, some individuals thought that indigenous communities and native peoples should be given special attention.

Question 3: What particular acts (actus reus) might the crime include?

Responses varied widely for this question. Participants thought affirmative actions, as well as omissions should both be included. And there was repeated emphasis on corporate liability, as well as punishment for financing/ authorizing ecocide. The varied responses can be grouped in several broad categories which sum up which ‘actus reus’ were suggested most frequently: destruction of habitat; pollution; irresponsible agriculture; irresponsible waste disposal; failure to prevent environmental destruction; vicarious acts (such as providing financial assistance or supervisory approval); climate change; technology (including planned obsolescence of technology, and manufacturing chemicals detrimental to ecological health); appropriation of indigenous lands; and overfishing.

Question 4: Are there mental elements (mens rea) which might be specifically relevant to a crime of ecocide?

A large portion of respondents answered the question affirmatively but did not offer any explanation on what they thought might be specifically relevant. Many more felt that there should be a lower mens rea threshold for ecocide than current ICC crimes: 57 respondents suggested recklessness; 46 suggested negligence; 41 proposed knowledge and 18 were in favour of strict liability. Additionally, many felt that corporate greed/selfishness/profiteering should be incorporated, or alternatively, command responsibility should be focused on.

Question 5: What threshold of harm (size, impact, duration) might be appropriate for a crime of ecocide?

Respondents offered many suggestions for the harm threshold, some of which had conflicting or vastly differing answers. A number of answers, mostly from lawyers and those familiar with the field, suggested to have a threshold that included widespread, long-lasting, or severe harm, following the examples of Article 8(2)(b)(iv) of the Rome Statute (on environmental damage as a war crime) and the travaux preparatoires of the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques. However, among these there were several proposals for what these terms should mean. For example, for the definition of “widespread” or “extensive”, some suggested a minimum zone of harm of one hundred sq km, while others felt several hundred sq km was necessary. Similarly, for the criterion of “long-lasting” or “long-term” damage, some proposed a definition of a couple months, and others thought it more appropriate to define it as lasting one or more seasons. Defining “severe” or serious” was a bit more straightforward, as the respondents generally agreed as long as there was “serious disruption, degradation or harm”, or more specifically, “serious or significant disruption or harm to human life, natural and economic or other assets” then it would constitute as “severe”. Some felt it was important that these factors be alternatives, not cumulative, such that harm did not need to be widespread, long-lasting, and severe to reach the threshold. Many participants were concerned with ensuring that irreparable harm be captured by the crime of ecocide.

Question 6: Are there specific natural systems which merit special consideration in the drafting process?

Respondents offered a variety of specific systems that they felt warranted special consideration for the drafting process. The majority of suggestions involved specific types of water or forest systems, and usually offered additional commentary that the reason these systems should be given special consideration is because of their cruciality for supporting life on Earth, or because of their ability to capture and store carbon. On the contrary, many respondents believed that all systems mattered equally, and that one should not be given special priority over others. The top 15 recurring systems mentioned by respondents are detailed below.

Top 15 Specific Recurring Systems:

1. Rainforests (59)	6. All Air (40)	11. The Poles (21)
2. Oceans (58)	7. Systems Critical for Human/ Animal Life (36)	12. Ancient Ecosystems (21)
3. Forests (56)	8. Coral Reefs (32)	13. Biodiverse- Rich Areas (20)
4. All Water Systems (47)	9. Rivers/ Riverbeds (28)	14. Endangered Species (20)
5. All Matter Equally (46)	10. The Amazon (23)	15. Climate Systems (20)

Question 7: Any other comment?

Lastly, the survey allowed respondents to offer additional comments or feedback. In this section, many respondents chose to reiterate the need for including corporate responsibility, including indigenous voices in the decision-making process, and including corruption/ cover-ups of environmental harm in the definition of the crime itself. Furthermore, several respondents suggested that the winnings from convictions should finance environmental restoration efforts and pointed to the need for  supplementary measures, such as education and advocacy. Lastly, several respondents stated that killing environmental defenders should also be encompassed by this crime.