By Aara Ramesh
With the world slowly beginning its journey back to some semblance of normal, after a trying 18 months, climate change is jostling its way back into the limelight. Debates have recently been spurred by the two-front war America was briefly fighting — the plague of record-high temperatures, wildfires, and droughts sweeping through the western states of the continental U.S., and the deluge of rain on the Atlantic seaboard brought about by Tropical Storm Elsa.
Both these disasters have been viewed by most experts as the result of global warming and climate change. In fact, some scientists have said that the late-June heatwave experienced in the Pacific Northwest, which left hundreds dead, would have been “virtually impossible without the influence of human-caused climate change.”
Amidst this, a movement to criminalize some truly terrible crimes against nature is gaining momentum worldwide as, last month, a global panel of 12 lawyers formally put forth an official definition of “ecocide,” the first step in a larger effort to make it an international crime that is prosecutable.
But what is ecocide and why is it important to officially make it an international crime? In today’s piece, we try to break down this often divisive issue.
What Is Ecocide?
Put simply, ecocide is understood to be any event of mass environmental destruction, with the implication that such acts are detrimental to the welfare of humans as a whole.
The formal definition suggested by the Independent Expert Panel for the Legal Definition of Ecocide took six months to craft, and involved consultations with various experts and stakeholders.
It explains ecocide as “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.”
The term was first used by Arthur Galston, a biologist and bioethicist, in 1970, at the Conference on War and National Responsibility. At the time, he used it to refer to the havoc wreaked by Agent Orange, the toxic herbicide used by the U.S. in the forests of Vietnam. The idea of making ecocide a crime was originally suggested just two years later at a UN conference on the Human Environment, by Olof Palme, the then-Prime Minister of Sweden.
There were some brief debates about including it in the International Criminal Court (ICC), but that idea was summarily dismissed. Since 2017, the Stop Ecocide Foundation, based in the Netherlands, has led the charge to criminalize serious environmental damage under the jurisdiction of the ICC. It was this organization that convened the panel of lawyers to propose a definition.
In addition to the Agent Orange situation, the other top ecocide cases cited by experts include the 1986 explosion in Ukraine of the Chernobyl nuclear plant, which devastated the region and left it radioactive for decades; and the Deepwater Horizon oil spill in the Gulf of Mexico in 2010, which killed 11 people in the 87-day release of around 170 million gallons of crude oil.
The Fifth Crime
To understand why advocates are hoping to work through the ICC, it is imperative to look first at what the that body is and what it does. Established in 2002 through the Rome Statute (its founding treaty) and comprising, today, 123 countries, the ICC was envisioned to be a universal court that could prosecute and punish the worst international crimes, particularly those committed during wartime. At present, the court only looks at four types of crime: war crimes, genocide, crimes against humanity, and crimes of aggression.
Environmental activists hope to make ecocide the fifth crime. But why?
Proponents say that something like environmental destruction cannot be contained to one country, so it does not make sense to treat the issue as one particular to individual nations. Environmental harm affects the climate and weather patterns all across the world, regardless of where it originated from.
In arguing why the acts defined as ecocide can’t just be prosecuted under the “crimes against humanity” category, Tanya Sanerib, the international legal director at the Center for Biological Diversity, said “Crimes against nature are also crimes against people. It’s past time to […] realize that biodiversity loss and climate change are equally vast threats to our collective life — problems that need to be solved together.”
Listing it as the fifth crime also lowers the burden of proof of harm than crimes against humanity. It also accounts for “acts of omission,” that is, not just actively committing a crime, but failing to prevent the crime (for instance, greenhouse gas emissions) from happening in the first place.
Crucially, however, the U.S. is not a signatory to the Rome Statute, meaning it does not consider valid the authority of the ICC. Neither do China nor India. All three are within the top five carbon dioxide emitters today. Thus, opponents of the idea of making ecocide an international crime say that any attempt to do so would ultimately be toothless.
Also of great concern to nations such as India and China is the possibility that such a move could seriously hamper their economic growth and development. They say, in fact, that doing so could benefit nature at the expense of human needs.
As of now, the support for criminalizing ecocide seems to be gaining traction. Its supporters include Pope Francis, wunderkind and youth activist Greta Thunberg, and French President Emmanuel Macron. In addition, countries across the European Union and Scandinavia, as well as Canada, have expressed a willingness to, at the very least, enact ecocide laws in their individual nations.
The movement also, however, has its detractors.
When The Amazon Rainforest Sneezes…
At the beating heart of this issue is the Amazon rainforest, the majority of which falls within the borders of Brazil. For the last several years, alarm and panic has been growing amidst the international community over what is perceived as the lethal and possibly irreversible destruction of the Amazon.
The Amazon ecosystem is among the most important on Earth when it comes to fighting climate change. Though it is not, as is commonly believed, the “lungs” of the planet, it does significantly impact global temperature, carbon dioxide processing, and rainfall patterns.
In July 2019, Brazil’s National Institute for Space Research (INPE) called out the highest rate of deforestation in the region that had been seen up to that point since 2008. The deforestation rate in May this year was up 67% compared to May 2020. Experts say that this action — mainly done to free up land for farming, ranching, and producing timber — is combining dangerously with drought conditions, making some parts of the forest “a tinderbox.” The fires that result release huge amounts of CO2 into the air, exacerbating global warming in the long run.
Of particular concern to observers is the supposed rise in deforestation activities and wildfire eruptions in the Amazon that have been noted since Jair Bolsonaro took over Brazil’s presidency in 2019. Critics say that he has actively worked to encourage deforestation in the Amazon in pursuit of more rapid economic growth. Under this guise, he reduced budgets and staff at federal environmental agencies, to obstruct efforts to thwart illegal logging and ranching in the area.
For these measures, Bolsonaro has already been referred to the ICC for accusations of “crimes against humanity,” by Indigenous leaders and human rights groups, both for ecocide and for allegedly infringing upon the rights of Indigenous Peoples in the Amazon. The court filing also levels allegations of murder, displacing Indigenous Peoples, and persecuting them.
Brazil is a signatory to the ICC, which means that if ecocide were to officially become the fifth crime, Bolsonaro could potentially face serious consequences at the Hague.
For his part, Bolsonaro says that any international efforts to regulate the activities in the Amazon would impinge on Brazil’s sovereignty and that any concern for the environment and planet are only a façade. This is a belief also widespread among the populace in his country, where it is believed that the U.S., UN, and other international powers are conspiring to “take over” the Amazon — a cherished, valuable, and vast territory.
The Path Ahead
The process to officially get ecocide into the Rome Statute is far from easy or simple. It could, in fact, take decades. First, it needs to be proposed to ICC member countries at the annual meeting, where it will need to be approved by a majority. Then, it moves into the amendments and debate stage, as countries work on fine-tuning the law.
At the end of the tunnel is the ratification process and the efforts each country will have to make to create the necessary infrastructure for implementing it. By then, it could theoretically be too late to act, in any meaningful way, against climate change.
But lawyers and activists are by no means confident that their movement will achieve its ultimate goal.
They are, however, banking on the idea that the mere suggestion of criminalizing ecocide may “shift the behavior of some businesses, governments, insurers and financers.” Monitoring how countries are responding to the suggestion also helps identify which governments are truly serious and committed to taking action against climate change.
Putting ecocide on par with crimes like genocide that are traditionally understood to be among the most heinous could also underscore the “gravitas” of the climate crisis, experts say, which could serve as an impetus for the action so crucially needed at this time.
Either way, the race to combat climate change is on. As President Biden says, “We have to act and act fast.”