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‘An International Crime of Ecocide: New Perspectives’
Promise Institute Symposium 2023

As momentum gathers around a new international crime of ecocide, this online symposium brings together a broad range of contributors to consider questions like – whose world views should shape the crime, what difference would it make to deforestation in Brazil or bauxite mining in Jamaica, and how might it best be brought into law?

Editors:
Kate Mackintosh, Damien Short, Darryl Robinson & Shirleen Chin.
With critical assistance from Veronika Bagi.

Paulo Busse and Richard J Rogers, Ecocide: A new legal tool to defend the Amazon.

From its establishment as a Portuguese colony in the 16th Century to the country’s present political incarnation, Brazil has long been associated with the illegal dispossession of land, the rabid exploitation of natural resources, and the destruction of the Amazon rainforest. On the one hand this is surprising: Brazil has perhaps the most detailed set of forest protection laws in the world, and indigenous peoples have considerable rights under the 1988 Constitution. But there is a vast gulf between the recognition of rights and their enforcement. While Brazil’s legal system recognizes environmental crimes, insidious forces ensure that laws that are inconvenient for exploitation are undermined or unenforced.

The excessive exploitation has been facilitated through the ‘capture’ and manipulation of certain government institutions by powerful corporate actors and large-scale landowners. Rather than protecting the natural environment, key policy makers (including Ruralistas at the highest levels of government) weaken environmental law enforcement, thereby encouraging the (so-called) ‘Rainforest Mafias’ who drive land invasions and deforestation. The resulting environmental harm is stark – land-grabbing is prolific, deforestation is rampant, and environmental defenders are attacked and murdered at a sickening rate. Now the Amazon itself is under threat. Competing claims for Brazil’s rural land have defined and dominated the Brazilian political, legal, economic, and cultural landscape for centuries. This paper will examine the forces at play in Brazil and how their behaviour might be influenced by a new international law of ecocide.

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Kate Mackintosh, Olivia Swaak-Goldman, Grant Dawson and Gaspard van der Woude, Wildlife Crime: Testing the Waters for Ecocide.

Wildlife crime – broadly understood as killing and/or trafficking in endangered species – is out of control. In 2017, Hong Kong authorities made what was then the world’s largest ivory seizure, of around 7.2 tonnes. Two years later, in 2019, this record was exceeded three times in the space of three months, with the largest seizure reaching 9.1 tonnes. It can be estimated that over 900 elephants were killed for this last seizure alone. Many of the targeted species are expected to become extinct in the wild in the coming years: the Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services has warned that one million species are facing extinction in the next decades. The loss of a species disrupts the delicate balance of the entire ecosystem, and the threat to the stability of ecosystems has never been this pressing. As the world is negotiating the post-2020 global biodiversity framework, with one of the key objectives of protecting 30% of land and sea areas, matters pertaining to the effective protection of these areas and the species they host will only become more relevant.

Proponents of a new international crime of ecocide argue that the destruction of our shared environment presents a threat a least on the scale of the existing international crimes, and should therefore be included in their number. It is widely acknowledged that this threat results from the three interlinked factors of climate change, pollution, and biodiversity loss. The current system for the preservation of biodiversity and endangered species through the prevention of wildlife crime is failing. Lack of resources and jurisdictional constraints often leave domestic law enforcement agencies unable to deal with the transnational criminal networks responsible. In this paper we explore whether the concept of ecocide as an international crime could offer the breakthrough required for wildlife crime to be effectively addressed internationally.  

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Tameka Samuels-Jones, Unearthed: Bauxite Mining in Jamaica as Ecocide.

Jamaica is internationally renowned for its vibrant tourism industry and potent Blue Mountain coffee. However, less well known is a primary Jamaican export that has become one of the mainstays of the island’s economy – bauxite, the raw material from which aluminum is produced. Bauxite may not be as well-known as Jamaica’s tourism or coffee, but it is more widely consumed globally. Bauxite is a rock which is mined out of the land and further refined into aluminum using caustic soda and lime. Aluminum is then used for siding and windows in houses, to make electrical appliances, pots and pans, kitchen foil, and more. As a highlight of aluminum’s strategic importance – 80 percent of an airplane’s weight is accounted for by the metal.  

In spite of aluminum’s importance, the means by which this important mineral is obtained – mining, is fraught with problems and contradictions. Bauxite mining is an extractive industry which causes significant environmental harm. Mining operations entail sacrifice by residents and communities – especially those whose territories have been converted into mining concessions – as well as sacrificing the environment. Upstream to downstream, the bauxite mining industry evicts residents and communities from their land, pollutes water and air, destroys ecologies and demolishes crop areas. The lifecycle of mining leaves behind degraded territories and deadly pit sites, beginning prior to exploration and lasting long after the operation ends. These harms can never fully be accounted for, its victims are poorly remediated and the corporate perpetrators are usually unscathed. Behind the mosaic imagery of development through bauxite mining promoted by the Jamaican government (GOJ) are real, rural communities under siege by mining companies which have been granted licenses by state institutions complicit in this ecocide.  

Using the Stop Ecocide Foundation’s Independent Expert panel’s human rights approach to ecocide, this paper explores the accountability gaps that may be filled through an international crime of ecocide. By using the environmental injustices caused by bauxite extraction in Jamaica as a case study, the paper explores the severe, long-term harms which meet the conditions of an environmental crime, and which should meet the conditions of an international crime of ecocide perpetrated by multinational corporations.  

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Juan José Guzmán, Valeria Napoli, Michelle Reyes Milk, Alison Smith and Camilla Taddei, Ecocide Law: A Call for Ecocentrism and Inclusion of All Relevant Voices Within Codification Efforts.

The past few years have seen significant progress in the discussions surrounding the codification of an international crime of ecocide. One concrete evidence of this is the definition put forward in June 2022 by the Independent Expert Panel for the Legal Definition of Ecocide, which provided an important starting point for the codification efforts ahead.

The panel’s proposed definition has given way to important input and constructive criticism from a wide range of actors- including civil society and academia. We believe, indeed, that the most appropriate forum for the prosecution of ecocide is the International Criminal Court, for a number of reasons. This must be an effort which drives us to work together towards a definition that can be included within the Rome Statute.

In this paper, we will address the need for states parties to adopt an ecocentric approach when reflecting on the elements of this crime. Like no other international crime, ecocide warrants an ecocentric approach away from the traditional anthropocentric approach that has guided the codification of other crimes. This translates into a crime that is committed beyond direct human harm, that constitutes serious environmental damage. This requires a shift in perceptions, a new understanding in humanity’s relationship with nature; a new paradigm in the interrelation between nature and human livelihood.

This approach also entails the need to bring all relevant voices into the table. We therefore not only underline the need to consult with indigenous communities, the custodians of the land, as well as other key stakeholders during discussions geared at codification of this crime. We argue that international law provides an important basis for the obligation to ensure this participation, on the basis of the right to be consulted. Lastly, we also argue that through incorporating the perceptions and experiences of these key stakeholders, we can envision a true development of international law.

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Jonathan Liljeblad, Intersections of Ecocide, Indigenous Struggle, & Pro-Democracy Conflict: Implications of Post-Coup Myanmar for Ecocide Discourses.

The paper argues that Myanmar’s current political conflict reflects an intersection of ecocide, indigenous struggle, and pro-democracy conflict. The paper observes that in the wake of the February 2021 Myanmar military coup, pro-democracy unrest encompassed a resumption of the military’s historical conflicts against various indigenous minorities along with the military’s escalation of natural resource extraction. The paper asserts that the military’s actions against indigenous peoples and the environment are related, in that Myanmar’s natural resources are predominately located within indigenous territories and the military has historically engaged extractive industries to consume those natural resources. As a result, the environment exists as a tension point between indigenous aspirations for self-determination and military operations for domination, making environmental destruction an integral component of Myanmar’s current political crisis. The paper frames Myanmar as a demonstration of how ecocide, indigenous peoples, and pro-democracy struggles can be associated together, and draws implications for the manifestation of such an association in conflict zones elsewhere. 

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Citlali Rovirosa-Madrazo, Eurocentrism and Anthropocentrism in International Law? Obstacles for the criminalisation of ecocide at the ICC.

There are inescapable problems within the West’s approach to state sovereignty and, hence, international law whose inherent Eurocentric and anthropocentric elements must be addressed as we enter a new phase in the Ecocide Law (EL) debate. Deconstructing the epistemological foundations of western thought and jurisprudence, and their distinctively anthropocentric and Eurocentric approach to nature and indigenous peoples (IP), is one of the aims of this paper. I will examine how some of the former came to be, and I will explore their repercussions for IP and the impact on nature more generally. I will then go on to make the case that robust protection of indigenous peoples – particularly their rights to self-determination, collective land ownership and territories– is crucial for the effective criminalisation of ecocide and to further advance Earth jurisprudence. This paper considers some of the anthropological differences between the western and indigenous jurisprudence/cosmovision and goes on to argue that the existing international body of law pertaining to the protection of indigenous peoples is no longer sufficient to tackle today’s bioclimate challenges. Each instrument devised within the auspices of the UN in recent decades/years geared towards the safeguarding of the rights of the indigenous nations could become meaningless if an international legal framework to criminalise ecocide is not established. Advancing national constitutional reforms towards protecting the rights to self-determination of the indigenous peoples, and the rights of nature, is essential for the international criminalization of ecocide, and vice versa, the latter is sine quan nem for the former to be enforced.    

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Gita Parihar, Reviving India’s River Goddesses: Ecocide, the Right to Healthy Environment & Rights of Nature.

As an environmental lawyer, I am often asked whether the current legal framework is fit to address the scale and severity of the multiple planetary-scale crises we face. After years of bringing cases at the UK domestic level and advocacy at multilateral environmental negotiations, I can only reply that existing laws are often too weak and/or poorly enforced for the task. If the existing legal framework does not sufficiently value the well-being of humans, our fellow species and the planet, what needs to change? Three emerging legal doctrines: an international human right to a healthy environment; the international crime of Ecocide; and giving legal rights to nature, may be part of the answer. Between them, they could play a crucial role in orienting legal systems to truly address the monumental environmental and existential challenges of our time. After providing a brief introduction to each and discussing their interplay, I go on to examine their (actual and potential) application to the ongoing pollution of the Ganges and Yamuna rivers in India and consider what difference a crime of Ecocide might make to the position. This article is not intended as an exhaustive or definitive presentation of the matters discussed; the hope instead is to introduce avenues for further and future exploration. 

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Luke Johnson, The 2022 Callao Oil Spill: utilising national law in conjunction with the international criminalisation of Ecocide – an alternative solution to the mens rea and culpability dilemma.

This paper studies the 2022 Callao Oil Spill in order to highlight the main issues associated with the mens rea of ecocide. Described as the largest ecological disaster in Peruvian history, the spill was caused by a rupture in an underwater pipeline the day after a volcanic eruption in Tonga. However, important questions surface relating to whether it would be feasible and fair to hold Respol (the oil company) accountable under international criminal law (ICL), despite an apparent lack in mens rea. This paper ultimately suggests that national law be utilised in conjunction with the International Criminal Court (ICC) by separating ecocide into three distinct crimes of varying levels of culpability: First-Degree Ecocide will be criminalised within the ICC and will relate to environmental destruction committed with intent. Second degree ecocide will prosecute acts committed with recklessness and will be criminalised under either international or national criminal law. Finally, Third-Degree Ecocide will be incorporated into national law and will prosecute acts committed with criminal negligence such as the Callao Oil Spill. This model will uphold the severity of ICL being reserved for the most heinous crimes making it favourable politically, whilst a wider scope of conduct will be punishable under national law, therefore maintaining the deterrent effect of the crime. 

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Lisa Oldring and Darryl Robinson, Does Human Rights Due Diligence Offer the Key to Prosecuting Ecocide?

This paper explores the potential for international human rights law and practice, and particularly the duty of “due diligence”, to inform the interpretation of ecocide.  The concept may help clarify the standard of conduct expected of private actors and the requisite level of fault.  Incorporating the concept may improve the predictability, legal legitimacy, and acceptability of the proposed new crime, and contribute to corporate accountability for human rights and environmental harms.

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Daniel Bertram, How to Forge an International Crime.

The idea of assigning international criminal liability to severe environmental transgressions has made a spectacular comeback in recent years. The overall case for and legal parameters of the crime of ecocide are the subject of heated debates. Considerably less attention has been paid to ways in which ecocide’s criminalization could unravel in practice. What does it take for a prohibitionary norm to gain international legal recognition? In this essay, I draw on legal and empirical literature on the international criminalization process to illustrate the paths that ecocide may take (or could have taken). Such processual knowledge, I argue, is critical to understanding what it may mean for ecocide to become an international crime in the first place.  

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Djalma Alvarez Brochado Neto, The search for the codification of ecocide in the internal and external legal systems: is there a unity of understanding of the crime?

Is there a confluence of understanding on what ecocide means for the different countries that have taken on the task of defining it? The current study examines the existing ecocide laws in the world, since 1990, and the most recent bills. The analysis takes into account​:​ ecocentrist and anthropocentrist views in laws and bills; the wording of the norm; and the range given to the mens rea and the actus reus​​​​. We can make two main observations: first, international debates – especially the ILC draft Code – have a strong influence on national approaches, and second, many of the definitions are rather vague and incomplete. Today, there are a few laws and bills that address the crime more fully, better respecting the principles of criminal law. It is concluded that there is still no uniformity in the understanding of what ecocide is, but there is an increase in the definitions of the crime, evidencing the advance in the understanding of ecocide in recent years. 

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Shirleen Chin, Lessons Learned from the Adoption of the Crime of Aggression: Ecocide to Charter its own Path.

This paper will attempt to answer the question “How will the crime of ecocide be introduced effectively into the Rome Statute?” The crime of aggression was the latest and fourth crime to come under the jurisdiction of the International Criminal Code in the Rome Statute. However, the processes it took to get there are not as one expects, particularly if one is not familiar with the history of the crime of aggression and the procedure for the amendment of the Rome Statute. There were peculiarities and hurdles to overcome in amending the Statute to introduce the crime of aggression. Reflecting on these underpinnings and lessons learned thereof, the crime of ecocide may have to charter its own course. Most important to take into account are the strategy and advocacy for political support at each level of the amendment process; it could be the make-or-break factor in ensuring that the campaign to criminalise ecocide at the international level is effective in achieving what it originally sets out to do.  

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Krishnee A Appadoo, The link between ecocide and environmental justice: a study of SIDS and Latin American countries.

As the impacts of environmental degradation and climate change are becoming increasingly visible, it is undeniable that global South countries, especially Small Island Developing States (SIDS) and Least Developed Countries (LDCs) are bearing most of the brunt of the environmental crisis. As stewards of the environment, we have the responsibility to protect our natural world from anthropogenic climate change, the rapid extinction of species, annihilation of habitats, and ecological collapse. However, despite the existence of a wide range of international agreements which are meant to safeguard the natural environment, it is disappointing to note that our planet is reeling from an ecological malaise. It therefore becomes fundamental to make those responsible for destroying our Earth legally accountable for their actions. This can be achieved through the leverage of international criminal law. Weisberg (1970) was the first one to coin the term “ecocide” and he defined it as “the wilful destruction of the environment”. From being applied to describe the massive environmental destruction caused by the US during the Vietnam War, to the Russian attacks on Ukrainian nuclear facilities, as well as oil extraction in Canada and mining in Venezuela, the term ecocide is gaining traction as a potential tool to not only persecute those who wreak havoc against our planet, but also to deter the commission of environmental harm. The purpose of this research will be to study the link between the potential crime of ecocide and environmental justice. To achieve this, the study will focus on how the proposed amendment to the Rome Statute of the International Criminal Court (ICC) could be used to effectively prosecute those responsible for deliberate environmental degradation in the global South. For the purposes of this study, the author will focus on the impact of the introduction of the crime of ecocide vis-à-vis SIDS and Latin American countries.  

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Rachel Killean, Reparation in the Aftermath of Ecocide.

Calls for a new international crime of ecocide have gained significant momentum over the last few years. In 2021, the Stop Ecocide Foundation’s Independent Expert Panel’s release of a new proposed definition galvanised international statements of support for ecocide to be introduced as the fifth ‘crime against peace’ at the International Criminal Court (ICC). Proponents of such a move have called attention to the deterrent effects and other benefits of individual criminal accountability for environmental harm, including the symbolic value of framing ecocide as one of the ‘most serious crimes of concern’ to the international community. However, relatively little attention has been given to another potential benefit of including the crime in the ICC’s mandate: the possibility of environmentally reparative measures. It is notable in this regard that the ICC has the ability to award reparations to victims of a convicted person’s crimes, while the Court’s Trust Fund for Victims (TFV) has the further ability to provide victims with assistance prior to any judgment being rendered.  

This paper explores what these reparative possibilities offer in the context of ecocide. It begins by outlining the ICC’s reparation and assistance mandates. In doing so, it highlights the current limits of the Court’s reparation framework as a means of redressing ecocide, specifically how the definition of ‘victimhood’ serves to prevent reparations that prioritise the harm perpetrated against the environment itself. Nonetheless, the paper argues that reparations and assistance delivered to natural and legal persons can provide environmentally reparative benefits. Drawing on the Court’s prior practice and the practice of other institutions that have awarded reparations for environmental destruction, this paper identifies three principles that might inform future reparation awards: interconnected harm and repair; do no harm and eco-sensitivity; and dignity, non-discrimination, and non-stigmatisation. It also considers the types of reparative modalities that might be appropriate in the aftermath of ecocide, focusing on restitution; compensation; rehabilitation; symbolic measures; and transformative reparations. 

The paper acknowledges the practical challenges the ICC has faced, and their likely impacts on the Court’s ability to deliver environmental reparative justice. As such, it is clear that the ICC cannot offer any kind of silver bullet solution to the harms of ecocide. Nevertheless, the Court’s ability to award measures of repair offers opportunities to look beyond retribution and deterrence, to consider the needs of communities and ecosystems after ecocide has occurred.  

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To hear the symposium authors discuss their ideas, listen to the accompanying Promise Insitute podcast series:

Special thanks to the Stop Ecocide Foundation for helping bring the authors together to workshop the papers.