The following article was published in the November 2024 issue of the International Review of Contemporary Law, the journal of the IADL, focusing on climate and social justice.
No Climate Justice Without Enforceable Law: Criminalising Ecocide
by Anna Maddrick
Abstract
In this paper, it is argued that in affirming our inherent interdependencies with the natural world and our collective duties to it, criminal law can play a pivotal role. As the ultimate sanction, it is important to highlight that criminal law should only have a restricted field of application: we must extend our vision beyond theories of punishment to understand criminal law’s fundamental role in facilitating coordination around collective social values deemed essential. Reconciling environmental law with criminal law in the context of the current environmental crisis raises complex new issues. However, there are strong reasons to supplement our existing legal frameworks with a criminal law backstop of ecocide law. Ecocide law is consistently emerging as a robust legal solution to more effective climate and environmental governance across a variety of disciplines, contexts and stakeholders. It is consequently argued that with the promise of value and enforcement, the international inclusion of ecocide law in the Rome Statute of the International Criminal Court could better ensure climate justice.
Introduction
The implications of the existence of justice in a civilised society are that some kind of rule of law and judicial enforceability exists. This understanding is now extending to climate justice, and there is an evolving conversation over whether “ecocide” should be included as the fifth crime against peace in the Rome Statute of the International Criminal Court to ensure more exacting environmental and climate justice.
The contemporary process of International Criminal Law law-making is to identify those prohibitions that are the most serious and established violations of legal norms of the highest order,[1] and that are addressable to individuals and definable with the clarity required for criminal law.[2] An ecocide law therefore points to a moral commitment to our relationship to the living world but must also be specified and circumscribed. As the ultimate sanction, it can and should only have a restricted field of application: rather its role is to facilitate coordination around collective social values deemed essential. Consequently,
“we need to incorporate this systemic dimension into environmental criminal law; this dimension, which does not yet exist, relates to an intergenerational responsibility, with the protection of present and future generations, and therefore spatio-temporal criteria that simple offences or sector offences do not contain.” [3]
Presently, international environmental law is notoriously scattered, piecemeal and ill-enforced, based on an outdated and anthropocentric legal framework that sees the environment’s elements largely as exploitable resources and not entities worthy of protection in their own right. While the interaction between environmental and criminal law remains “curiously under-explored”[4] with differing approaches: the latter preferring soft law instruments, flexibility and a preventive approach and the former favouring hard law with well-established legal definitions and punishment, strong grounds exist to supplement existing international environmental law with a criminal law backstop, in the form of ecocide law. It is argued in this paper that ecocide law holds a potential dual advantage in this context: both injecting an ecocentric approach to law, thus mainstreaming a stringent value around environmental protection with consequent benefits across all sectors; as well as ensuring enforcement of the principles and procedures which underlie the existing international environmental law framework.
Section One: Environmental Regulation
Climate change is widely considered the greatest “collective action” problem of history, and as the world’s most vulnerable populations suffer from sharply rising temperatures, global decision-makers are under increasing pressure to act. However, it is well recognised that governing climate and environmental regulation is legally, socially, politically and economically complex, involving a novel interrelation of country borders, disciplines, institutions and citizens – to name a few. In being a problem of “collective action”, it is necessarily implied that the present crises are issues affecting us all in equal measure, necessitating cooperation as a matter of principle. It is therefore essential to propose governance frameworks that can reflect this reality and complexity, offering effective action at a variety of levels. With the increasing urgency of this task, and law’s role as the guarantor of society according to the social contract theory, it is essential we find means to effectively enforce the law.
At present, there is an impressive body of environmental laws around the world, yet a tangible frustration in multiple jurisdictions with enforcement.[5] It is well argued that such issues are largely derivative from a ‘legal ghost’: the absence of a taboo around the severe destruction of nature. Unlike human rights, the environment doesn’t have foundational legal pieces reflecting the severity of damage committed to it. This simple fact has far-reaching implications. Most pertinently, this assumption ensures a perpetuation of the view that capital and capitalism have the solution to the climate and environmental crises, rejecting the idea that the systemic causes of the climate crisis lie within the historical and current patterns of global capitalist production, consumption, finance and organisation of social life. Central to the logic of imperial domination has been the tendency towards ecocide, that is, the destruction of conditions that sustain life such as ecosystems and the commons, influencing destruction of actual human and non- human life forms. Thus, the assumption of endless accumulation central to the existence of capitalism has been legitimised by a relatively unimpeded supremacy over nature, ensuring that since capitalism’s inception, nature has been a source of accumulation for capital.
Countries adamantly reassert their right to exploit their own natural resources, and this is reflected in many international agreements governing environmental resources.[6] While such measures are necessary to meet other important social and economic goals such as the right to development, an imbalance results from the fact that most declarations and legal texts converge in that they do not see the environment as an entity unto itself, but only in terms of its qualities that are useful to humankind. Consequently, the protection afforded by law is indirect, incomplete and insufficient to halt the well-advanced process of destruction.[7]
These difficulties have had a significant impact on how traditional methods of creating international law operate in the environmental context. Such impact lies at the roots of three important features of international environmental law: (i) the prevalence of treaties as a source of international environmental law, (ii) the frequent use of instruments of soft law and (iii) the increasing development of a ‘droit dérivé’ or administrative law of the environment in the form of decisions established by multilateral environmental agreements (MEAs).[8] Consequently, states remain the primary recipients of the majority of international environmental law (IEL) agreements,[9] and while the responsibility of states for transboundary environmental damage has been consistently recognised in the international jurisprudence,[10] some of the deficiencies in giving effect to international environmental obligations directly relate to this. For example, the fact that multilateral or bilateral environmental treaties are directed to states means they necessarily rely on each state’s compliance and enforcement measures. Another significant limitation in the enforcement of rights and obligations under MEAs is that they do not generally allow individual complaints to be brought by private parties who suffered environmental damage or by NGOs to an international organisation, as some human rights treaties do.[11] Hence opportunities for non-state actors to enforce international environmental law are much more limited.[12] Moreover, despite some exceptions, international environmental agreements do not in general foresee the possibility of on-site visits by members of an international organisation in order to oversee the implementation and compliance with international environmental commitments.[13]
Significant global challenges are connected to, and exacerbated by environmental crime, affecting development, peace, security and human rights. Increasingly, illegal logging and wildlife trafficking are driven by organised groups who exploit natural resources and destroy habitats and community livelihoods, compromising the economy and further endangering threatened species and ecosystems.[14] “With this combination of huge profits, low risk of detection and ineffective penalties, environmental crime is extremely lucrative”.[15] However, perceived as victimless and low priority, such crimes often fail to prompt the required response from governments and the enforcement of the community when, in reality, the impacts affect all of society.[16] Environmental crime is thus a complex and dynamic criminal problem that needs effective legislation to identify and curb these specific activities. It has been said that the CITES,[17] the defining the defining legal treaty for wildlife crime – is ineffective in this light[18] – a trade treaty that does not have an effective compliance mechanism, let alone powers of criminal prosecution. CITES itself, like all international agreements, is not always properly implemented by its signatory countries, whose compliance and enforcement efforts have been inconsistent.[19]
Analysis from the Global Initiative Against Transnational Organized Crime[20] indicates that all contributing factors to climate change identified by The Intergovernmental Science-Policy Platform on Biodiversity and Ecosystem Services (IPBES). have direct and indirect relevance to criminal networks and transnational criminal flows. It is asserted that issues in response to this phenomena largely arise from the fact that there is no universally accepted definition of environmental crime, and the substance of discussions tends to centre around crimes seen as global problems, such as those that damage ecosystems or species that are seen as part of the global environmental heritage.[21] They note that, in practice, the boundaries of what is considered a global problem are contested and contestable, and these debates reflect the fragmented and often inadequate international legal framing of these issues.[22] Moreover, unlike international humanitarian law (IHL) and international human rights law (IHRL), IEL does not have the same concrete and absolute prohibitions on conduct in the same manner. Even the supposedly firmest IEL prohibitions, such as ozone-depleting emissions, are moderated in different ways, such as to help developing countries meet their basic needs.[23] While flexibility is inherent in environmental law, to balance environmental protection against other competing objectives such as the right to development, the result is that environmental offences, crimes or harms[24] are couched in elements typical to civil regulation. Such an approach therefore sees environmental crime as a regulatory crime, which sees prohibition on the grounds of social expediency rather than immoral nature.[25] As Pereira highlights, there is generally no moral stigma attached to regulatory offences.[26]
In the EU, as well as other Western jurisdictions such as the United States,[27] the emergence of environmental criminal law and thus the notion of environmental crime, is directly linked to the appearance of environmental law itself and embodies the same regulatory flavour as international environmental law. Environmental crimes and environmental criminal law were initially by-products of environmental regulation as legislators predominantly depended upon criminal law for the enforcement of newly established standards of environmental protection.[28] This instrumental use of criminal law for environmental law enforcement resulted in a piecemeal approach in the definition and legislative placement of specific environmental offences, consequently resulting in the lack of cohesive enforcement.[29]
Therefore, the structure of most environmental laws is such that serious harm to the environment cannot be punished as long as it is covered by government regulation or by a permit. This could equally apply to environmental harm that formally could be qualified as ecocide. Given the state-corporate nexus it is even likely that also serious environmental harm could take place under the umbrella of regulation or a government permit. To the extent that corporations follow the conditions of regulation or a permit, in most jurisdictions (including in the ECD) environmental criminal liability would be excluded, no matter how serious the harm to the environment would be.[30] Such is the well-known administrative dependence of environmental criminal law. [31]
The repercussions of environmental crimes and harms are transboundary and trans-generational, and thus the challenge for legal reform is inter-spatial, at a global level and inter-temporal all at once, for current and future generations.[32] Therefore, in environmental regulation, it is essential to pose measures that can both reflect and remain adaptive to our currently reality, and the first challenge for effective environmental law is to invigorate a view that shifts from its existing anthropocentrism to an ecocentric view based on an understanding of ecological systems and a gearing towards a common global objective: the continued viability of the planet, the balance of the biosphere and the survival of humanity.[33] Regardless of one’s take on specific climate regulation measures, it is beyond doubt that protecting planetary boundaries is essential to sustaining humankind and the environment.[34] Given the scale of the crises, it is essential to pose comprehensive and inclusive offences that can adequately deter and punish the worst forms of environmental harm. Such offences must be able to reflect both the complexity and severity of environmental harm, as well as be potentially applicable in a variety of interconnecting contexts.
Section Two: Ecocide Law
Ecocide, etymologically derived from the Greek prefix “oikos”, meaning house, and the Latin suffix “cide” for caedere, i.e. to kill, is the act of destroying our collective home, understood as Planet Earth. At the root of the growing movement for the international criminalisation of ecocide is the imperative to protect the earth/biosphere for the common good of humanity, requiring legal interventions to be taken in order to stop and avert the dangers for present and future generations posed by destructive human activity.[35] The key element that elevates ecocide from a delict into a crime is the element of waste – environmental damage on such a scale of destruction as to constitute one of the gravest areas of concern[36] for the international community. The argument here is advanced according to the idea of ecocide as a fifth and standalone crime in the Rome Statute. There exists a significant limitation in classifying environmental offences as crimes against humanity or genocide, in that the latter crimes require a specific result, but they would not permit the prosecution for conduct which is potentially harmful to the environment or human health, which may be problematic in light of the centrality of the precautionary principle in international environmental law.[37] The main limitation is that the prohibited acts of ecocide would have to amount to serious crimes against persons, committed through environmental means.[38]
The most authoritative definition of ecocide defines the crime, adapted from existing international law,[39] 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 caused by those acts.”[40]
Ecocide is not a new concept in law – domestic or international. As a preliminary point, it is noted that ecocide is already typified as a war crime under Article 8 (2)(b)(iv) of the Rome Statute, which provides for the crime of “intentionally launching an attack in the knowledge that such attack will cause…widespread, long- term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.” It almost became a crime in peace time too, being included in early drafts of the Rome Statute, although later rejected. The crime has been promoted at various high-level conferences such as the UN Stockholm Conference on the Human Environment in 1972,[41] been subject to various juridical formulations, such as Professor Richard Anderson Falk’s draft Convention, published by the competent UN Sub-Commission on the prevention and punishment of genocide,[42] and has been debated amongst the International Law Commission regarding the “Draft Code of Crimes Against the Peace and Security of Mankind”.[43] And yet, since the ICC’s inception, no defendant has ever been charged under the existing subsection for damaging the environment,[44] and thus, in effect, there is no international criminal law punishing environmental destruction.
However, there is increasing support for this to change, with the increasing momentum gained by the ecocide law movement. In the ASP of December 2019, Vanuatu suggested that all Member States should seriously consider the adoption of ecocide as the fifth crime against peace in the Rome Statute. Since then, the topic of ecocide law has been gaining traction worldwide, with discussion now on public record at parliamentary and/or government level in at least 35 countries[45] via motions, resolutions, parliamentary questions, petitions, white papers or full proposals of law: Australia, Austria, Bangladesh, Belgium, Bolivia, Brazil, Canada, Chile, Cyprus, Denmark, Fiji, Finland, France, Iceland, Ireland, Italy, Kenya, Luxembourg, the Maldives, Mexico, the Netherlands, New Zealand, Niue, Panama, Portugal, Samoa, Solomon Islands, Spain, Sweden, Tonga, Türkiye, Tuvalu, the UK, Ukraine and Vanuatu. The Inter-Parliamentary Union[46] has supported recognition of ecocide, as has EU parliament (in a number of resolutions[47]), the Council of Europe[48], and the Organisation for Security and Co-operation in Europe[49]; the European Law Institute has provided a related EU-specific definition.[50] Ecocide law is also seeing support amongst different sectors, such as faith groups,[51] youth groups[52] and business/investment networks[53]. Clear legal standards can be of benefit in all sectors, and making this crime is therefore increasingly attractive to a diverse number of stakeholders.
There have been many different legal and economic theories attempting to explain the need for criminal enforcement of environmental law. For example, the failure of civil administrative law to adequately deter violations;[54] the significance to the international community in terms of moral outrage by describing a course of conduct as a crime; and
by economic analysis of the crime – in the sense that an effectively enforced criminal statute raises the cost of certain types of conduct and therefore encourages compliance with laws and regulations that would largely otherwise be ignored.[55] Given that the criminal law offers the potentially strongest deterrent against eco-criminals, it greater ensures the effectiveness of enforcement.[56]
Moreover, it has been noted that environmental problems are (1) complex, involving complex dense networks of physical, biological and social causation; (2) technical: understanding often demands a high degree of scientific and/or social sophistication, and (3) surrounded by uncertainty: we do not know enough (and in many cases it may be impossible in principle) to predict outcomes reliably.[57] Consequently, the present sectorial division of environmental offences is not reflective of the complexity of interrelationships. Due to substantive, procedural and regulatory fragmentation, the bulk of environmental interactions are hidden, while by nature, regulation of these issues necessitates a global and interdisciplinary approach. The continuing far-reaching implications of the environmental and climate crisis further affirm this. It is therefore essential to propose comprehensive and inclusive legal measures that can apply to a variety of actors and environmental contexts. To ensure all aspects of the environment, including its interlinkages and interconnections, are included (a previously identified absence in much of existing regulation), the ecocide definition defines the environment on the basis of earth-system science, based on the five main spheres of the earth.12 The qualitative nature of the definition ensures that any actions, whether committed intentionally or through gross negligence, of a kind that directly or indirectly expose the environment in its various components to an immediate risk of substantial degeneration, endangering the safety of the planet and the survival of humankind, are caught by the scope of the crime.
The contemporary process of ICL law-making is to identify those prohibitions that are the most serious and established violations of legal norms of the highest order,[58] and that are addressable to individuals and definable with the clarity required for criminal law. ICL is still innovative: its novelty is that it elevates those prohibitions from civil state responsibility (or from domestic crime) to punishable individual crimes of the highest order.[59] An ecocide law therefore points to the moral affirmation of our relationship with the common heritage of living beings. It must, however, be specified and circumscribed. As the ultimate sanction, it can and should only have a restricted field of application: its role, as earlier stated, is to facilitate coordination around collective social values deemed essential.
In addition to the constraining requirements on a given case for ICC suitability, notably the gravity assessment,[60] the complementarity principle,[61] and the interests of justice,[62] the place of criminal law in tackling the climate and ecological crises is a key question. More and more stakeholders see the merit of a legal parameter and criminal law is the guarantor of social values deemed essential to the collective. An intentionally open concept, it follows changes in society, encompassing the social needs of the time and reflecting new challenges. The latter include the inescapable emergence of the issue of the environment and the narrative we sustain globally around it. To this effect, terminology and the associated narrative is central to the ecocide debate – most prominently in the 2021 definition. The expressive function of a label is a legitimate consideration; as an important function of criminal law is ‘message’.[63]
The goal of enforcement must be optimal compliance,[64] where deterrence aims to strike the right balance between the utility/benefit of the unlawful activity, and the cost of preventing it. If expected sanctions rise with the harm caused by the offence, then it will in principle encourage individuals to commit less harmful rather than more harmful acts,[65] thus affirming a pre-emptive approach. Criminalising environmentally destructive action at source therefore has the potential to reduce such harmful acts, thereby leaving greater finances and resources for repairing existing environmental damage and imposing a legal duty of care for industries to redirect their attention to cleaner technologies and practices.[66] Not only would the autonomous nature of an ecocide crime mean that an individual could be punished even if operating under a regulation or permit if the damage caused were disproportionately severe, but it would demand exacting sanctions for non-compliance. Ecocide thus represents an important tool to call on an autonomous obligation of industry to respect environmental principles and not to hide behind compliance with a regulation or be subject to merely civil sanctions.[67] By placing responsibility on individuals, not legal entities, the cycle of destruction is targeted at origin: instead of “polluter pays” (if caught), the new governing principle becomes “the polluter does not pollute”.
The harmonisation of international environmental crimes under the ICC Statute in itself could be a welcome development, in particular if a culture of accountability is created, and domestic courts play their part in prosecution of international crimes as the drafters of the ICC Statute intended. The fact that criminals are able to exploit the differences in legislation and legal enforcement techniques in different states to their benefit (“forum shopping”) is a main driver for the harmonisation of both substantive and procedural criminal law.[68] Moreover, the appearance and development of mass, global crimes today require a response by criminal law on the same scale, i.e. a systemic approach in the protection that criminal law can offer. Signatories to the Rome Statute are expected to enact laws at the national level, so enacting an Ecocide amendment would at least create political pressure for domestic instantiation[69] and potentially promote a ripple effect of new environmental protection across states.
Moreover, the symbolic value of an amendment to the Rome Statute would be significant. Legal history denotes a traditional reliance on criminal law by a sovereign state as a primary and effective way to solve numerous social, political and economic problems.[70] As stated by the International Military Tribunal, “crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of international law be enforced”.[71] And as stated in the ICTY’s First Annual Report, international criminal tribunals are fundamental in “promoting reconciliation and restoring true peace”,[72] and prohibiting conduct under international criminal law indicates that the international community considers such conduct to be sufficiently serious to justify the elevation of proceedings to the international level.[73]
Conclusion
Despite resounding multi-disciplinary support, ecocide law is still novel and undoubtedly should not be immune to potential improvements. But extensive legal analysis foreshadows the leap we are trying to make in resolving these crises. We may say therefore that in achieving more effective climate justice, it is at least conceivable the jurisdiction of the ICC could be extended to account for environmental problem. Perhaps functions of the ICC would have to alter, or there would need to be a greater focus on practices such as restorative justice and the use of experts, especially when considering the scientific complexities of environmental cases. This is a conversation that necessarily needs to happen across countries. But ecocide is proving credible to large numbers of people and catalysing this conversation. Therefore, the moral foundation necessary for the Court’s jurisdiction is cross-society and cross-global. A simultaneous internationalisation and nationalisation of ecocide law according to the principle of complementarity is both reflective of the seriousness with which we need to take the climate and ecological crises, and respectful of the, quite literally, grassroots approach that will enable this to happen.
As Andrew Ashworth highlights, criminal law’s boundaries are “historically contingent” – depending not on the product of principled inquiry or consistent application of a given set of criteria, but the fortune of successive governments, campaigns in the media and the activities of various pressure groups.[74] The principle of effectiveness requires the use of criminal law only if it is the most efficient and cost-effective means of enforcing the law.[75] However, if the wrongdoing is serious or harmful enough, then there may be at least an important symbolic – even moral – reason for declaring particular conduct criminal, bearing in mind the significant role the declaratory function of criminal law plays in reassuring members of society and deterring others.[76]
The climate and environmental crises are such that they do, and will continue to, constitute perilous threats to the peace and security of all life, everywhere, for present and future generations. It has been argued it is time governance mechanisms appreciate and reflect this. In affirming our inherent interdependencies with the natural world and our collective duties to it, international criminal law can occupy an integral role. Ecocide may thus be conceived as the missing crime against peace and as a foundational condition for climate justice.
Anna Maddrick is legal counsel of StopEcocide
[1]See e.g., Draft Code of Crimes against the Peace and Security of Mankind, in ILC Yearbook, Vol II, Part 2, UN Doc. A/46/10 (hereafter, ‘ILC Draft Code (1991)’), p.85.
[2]Draft Statute for an International Criminal Court, with Commentaries, ILC Yearbook, Vol. II, Part Two, 1994, p. 38–41; Draft Code of Crimes against the Peace and Security of Mankind with Commentaries, ILC Yearbook, Vol II, Part 2, UN Doc A/ CN.4/SER.A/1996/Add.l, pp.43–56.
[3]M-P Camproux Duffrène, V. Jaworski, ‘Legal Paradigm Shifts for a New Environmental Law’ (2021), pp. 33-34.
[4]F. Mégret, ‘Three Dangers for the International Criminal Court: A Critical Look at a Consensual Project’, Finnish Yearbook of International Law, Vol. 12 (2002).
[5]See UN Environment Programme, ‘Environmental Rule of Law’, First Global Report, United Nations Environment Programme, Nairobi (2019) (online), available at: https://www.unep.org/resources/assessment/environmental-rule-law-first-global-report for a comprehensive overview of inadequacies in global enforcement of environmental laws and regulations, thus undermining the environmental rule of law. Interestingly for the present discussion, the report also details poor governmental coordination, lack of access to information, corruption and stifled civil engagement as other responsible elements.
[6]E.g. United Nations Convention on the Law of the Sea 1833 U.N.T.S.397 (1982), Articles 2 and 193, Convention on Biological Diversity 1760 UNTS 79, 31 ILM 818 (1992), Article 3.
[7]P. Higgins, D. Short, N. South, ‘Protecting the planet: A proposal for a law of ecocide’, Crime, Law and Social Change (2013), available at: https://www.researchgate.net/publication/257552825_Protecting_the_planet_A_proposal_for_a_law_of_ecocide/link/00b49528343be83932000000/download
[8]W.F. Lafferty, J. Meadowcroft, ‘Democracy and the environment: congruence and conflict – preliminary reflections’ in: Lafferty, W.M., Meadowcroft, J. (eds.), ‘Democracy and the Environment, Problems and Prospects’, Edward Elgar, Cheltenham/Brookfield, (1996), p.33.
[9]E.g. the US- China Glasgow Declaration on Enhancing Climate Action in the 2020s, media note, available at: https://www.state.gov/u-s-china-joint-glasgow-declaration-on-enhancing-climate- action-in-the-2020s/
[10]See e.g., Gabcikovo-Nagymoros (Hungary v Slovakia) ICJ Reports (1997); Pulp Mills in River Uruguay case, ICJ Reports (2010); and Responsibilities and obligations of States sponsoring persons and entities with respect to activities in the Area (2011) (Request for Advisory Opinion submitted to the Seabed Disputes Chamber, case no. 17, International Tribunal on the Law of the Sea). As regards the development of the notion of state responsibility for transboundary damage more generally, see e.g., Corfu Channel case (Merits) United Kingdom of Great Britain and Northern Ireland, Judgment of 9 April 1949 (ICJ Reports, 1949); and Lake Lanoux Arbitration, (Spain v France) (1957).
[11]See e.g., the International Covenant on Civil and Political Rights (ICCPR) 999 U.N.T.S 171 (1966). The Human Rights Committee can receive submissions of non-state actors alleging violations of the ICCPR.
[12]Yet it should be noted that state parties to the Aarhus Convention (1998) need to provide access to justice to individuals and NGOs for enforcement of environmental rights. See Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters, 2161 U.N.T.S 447; 38 ILM 517 (1999), Article 9.
[13]One example is the Montreal Protocol (1522 UNTS 3, 26 ILM 1541, 1550 (1987)) which allows for on-site inspections “with the consent of the party involved” to undertake information gathering. See Decision IV/5, Report of the Fourth Meeting of the Parties to the Montreal Protocol on Substances that Deplete the Ozone Lawyer, UN Doc. UNEP/Oz. I. Pro. 4/15, 1992.
[14]Environmental Investigation Agency, ‘Environmental Crime: A threat to our future’ (2008), p.2.
[15]Ibid.
[16]Ibid, p.1.
[17]Convention on International Trade in Endangered Species of Wild Fauna and Flora, 27 U.S.T. 1087 (1973).
[18]D.W.S. Challender, S.R. Harrop, D.C. MacMillan, ‘Towards informed and multi-faceted wildlife trade intervention’, Global Ecology and Conservation, Vol. 3, (2015), available at: https://doi.org/10.1016/j.gecco.2014.11.010.
[19]D.W.S. Challender, D.C.MacMillan, ‘Poaching is more than an enforcement problem’, Conservation Letters, Vol. 7, No. 5, (2014), available at: https://doi.org/10.1111/conl.12082.
[20]S. Haysome, M. Shaw, ‘An analytic review of past responses to environmental crime and programming recommendations’ (2022).
[21]Ibid.
[22]Ibid.
[23]Montreal Protocol (1522 U.N.T.S. 3, 26 ILM 1541, 1550 (1987), e.g., Article 5.
[24]For an overview, see: A. Nurse, ‘Green criminology: shining a critical lens on environmental harm’, Palgrave Communications, Vol. 3, No. 10 (2017), available at: https://www.nature.com/articles/s41599-017-0007-2
[25]R. Pereira, ‘The Role of the Criminal Law for the Protection of the Environment’, in R. Environmental Criminal Liability and Enforcement in European and International Law’ (2015), p.46.
[26]Ibid, p.59.
[27]D. M Uhlmann, ‘Environmental Crime Comes of Age: The Evolution of Criminal Enforcement in the Environmental Regulatory Scheme’, Utah Law Review, No. 4 (2009).
[28]M. Faure, ‘The Development of Environmental Criminal Law in the EU and its Member States’, Review of European, Comparative & International Environmental Law, Vol. 26, No.2 (2017); M Faure, ‘The Evolution of Environmental Crime Law in Europe: A Comparative Analysis’ in A Farmer, M Faure and GM Vagliasindi (eds), ‘Environmental Crime in Europe’, Hart, (2017), p. 267.
[29]Scottish Sentencing Council, Literature Review of Sentencing of Environmental and Wildlife Crimes (2019), available at: 20201216-environmental-and-wildlife-crimes-lit-review.pdf (scottishsentencingcouncil.org.uk) p.4.
[30]M. Faure, ‘Tackling Environmental Crimes under EU Law: The Liability of Companies in the Context of Corporate Mergers and Acquisitions’, European Parliament, Policy Department for Citizens’ Rights and Constitutional Affairs (2021), available at: https://www.europarl.europa.eu/RegData/etudes/STUD/2021/693182/IPOL_STU(2021)693182_EN.pdf , pp. 97-98.
[31]Ibid.
[32]M-P Camproux Duffrène, V. Jaworski, ‘Legal Paradigm Shifts for a New Environmental Law’ (2021), pp. 29-30.
[33]M-P. Camproux Duffrène, V. Jaworski, ‘Legal Paradigm Shifts for a New Environmental Law’, (2021), pp. 24-25.
[34]Recent estimates suggest we have passed six of nine earth planetary boundaries. See:
[35]Rome Statute 1998, Preamble. See also: Article II, Section 16, of the Constitution of the Philippines (1987), which guarantees present and future generations “a balanced and healthful ecology” based on the “concepts of intergenerational responsibility and intergenerational justice”.
[36]A. Greene, ‘The Campaign to Make Ecocide an International Crime: Quixotic Quest or Moral Imperative?’ Fordham Environmental Law Review, Vol. 30, No. 3 (2019), p.28.
[37]Principle 15 of the Rio Declaration (UN Doc. A/CONF.151/26 (vol. I), 31 ILM 874 (1992)) states that “in order to protect the environment, the precautionary approach shall be widely applied by states according to their capability. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation”. See also Article 3 (3) of the Climate Change Convention (United Nations Framework Convention on Climate Change, Treaty Doc No. 102-38, 1771 U.N.T.S. 107 (1992) which recognises the right of the parties to take “precautionary measures to anticipate, prevent or minimise the causes of climate change and mitigation of its adverse effects”.
[38]This is clear from the reading of e.g., Article 7 (1) (k) of the Rome Statute (Rome Statute of the International Criminal Court ISBN No. 92-9227-227-6 (1998)) (crimes against humanity, “other inhumane acts of a similar character intentionally causing great suffering, or serious injury to body or to mental or physical health”).
[39]United Nations Convention on the Prohibition of Military or any Hostile Use of Environmental Modification Techniques (‘ENMOD Convention’), 1108 UNTS 151 (1976), Geneva Convention Additional Protocol I Relative to the Protection of Victims of International Armed Conflicts 6 U.S.T. 3316, 75 U.N.T.S. 135 (1949), Articles 35 and 55.
[40]Stop Ecocide International, ‘Legal Definition of Ecocide’ (2021).
[41]Statement by Prime Minister Olof Palme in the Plenary Meeting (UN Conference on the Environment, Stockholm (1972).) He stated that ‘[t]he air we breathe is not the property of any one nation – we share it. The big oceans are not divided by national frontiers – they are our common property …. In the field of human environment there is no individual future, neither for humans nor for nations. Our future is common. We must share it together. We must shape it together. … The immense destruction brought about by indiscriminate bombing, by large scale use of bulldozers and pesticides is an outrage sometimes described as ecocide, which requires urgent international attention. It is shocking that only preliminary discussions of this matter have been possible so far in the United Nations and at the conferences of the International Committee of the Red Cross, where it has been taken up by my country and others. We fear that the active use of these methods is coupled by a passive resistance to discuss them’.
[42]N. Ruhashyankiko,‘Study of the Question of the Prevention and Punishment of the Crime of Genocide’ (31st Session of the Sub-Commission on Prevention of Discrimination and Protection of Minorities, UN Doc E/CN.4/Sub.2/416 (1978).
[43]C. Bassiouni, ‘The History of the Draft Code of Crimes Against the Peace and Security of Mankind’, Israel Law Review, Vol. 27, No. 1-2 (1993).
[44]A. Greene, The Campaign to Make Ecocide an International Crime: Quixotic Quest or Moral Imperative?’ (2019), p.30.
[45]https://www.stopecocide.earth/leading-states
[46]https://www.stopecocide.earth/press-releases-summary/-led-by-belgium-parliamentarians-worldwide-support-ecocide-law
[47]https://docs.google.com/document/d/1Fqs-4Jz28F6y0VKFLduDiShoj0QfP4XamDtHAqgreNU/edit
[48]Parliamentary Assembly, ‘The Council of Europe should take the lead on preventing environmental damage during armed conflict’, (2023), (online), available at: https://pace.coe.int/en/news/8959/the-council-of-europe-should-take-the-lead-on-preventing-environmental-damage-during-armed-conflict
[49]https://www.stopecocide.earth/breaking-news-2023/worlds-largest-intergovernmental-security-organisation-calls-for-international-ecocide-law
[50]https://www.europeanlawinstitute.eu/projects-publications/current-projects/current-projects/ecocide/
[51]https://www.faithforecocidelaw.earth
[52]https://www.stopecocide.earth/youth
[53]See the ICGN Statement of Shared Climate Change Responsibilities to the UN Climate Change Conference of the Parties 27 (2022), available at: 5.+ICGN+Statement+of+Shared+Climate+Change+ResponsibilitiesCOP27,+November+2022_0.p df (squarespace.com) , where p.4 promotes an international ecocide law for governments and standard-setters
[54]T. Schofield, ‘The Environment as an Ideological Weapon: A Proposal to Criminalise Environmental Terrorism’, Boston College Environmental Affairs Law Review, Vol. 26 (1999), p. 642.
[55]B.S. Cho, ‘Emergence of an International Environmental Criminal Law?’, UCLA Journal of Environmental Law and Policy, Vol. 19, No.1 (2000), p.13.
[56]R. Pereira, ‘The Internationalisation of Environmental Criminal Law: Rationales, Basis and Prospects’, in R. Perira, ‘Environmental Criminal Liability and Enforcement in European and International Law’ (2015), p.97.
[57]W.F. Lafferty, J. Meadowcroft, ‘Democracy and the environment: congruence and conflict – preliminary reflections’ in: Lafferty, W.M., Meadowcroft, J. (eds.), ‘Democracy and the Environment, Problems and Prospects’, Edward Elgar, Cheltenham/Brookfield, (1996), p.4.
[58]See e.g., Draft Code of Crimes against the Peace and Security of Mankind, in ILC Yearbook, Vol II, Part 2, UN Doc. A/46/10 (hereafter, ‘ILC Draft Code (1991)’), p.85.
[59]Draft Statute for an International Criminal Court, with Commentaries, ILC Yearbook, Vol. II, Part Two, 1994, p. 38–41; Draft Code of Crimes against the Peace and Security of Mankind with Commentaries, ILC Yearbook, Vol II, Part 2, UN Doc A/ CN.4/SER.A/1996/Add.l, pp.43–56.
[60]On gravity, see e.g., M. M. Deguzman, ‘How Serious are International Crimes? The Gravity Problem in International Criminal Law’, Columbia Journal of Transnational Law, Vol. 51, No.18 (2012); M. M Deguzman, ‘Gravity and the Legitimacy of the International Criminal Court’, Fordham International Law Journal, Vol. 32, No. 5 (2008).
[61]Rome Statute, Preamble, paragraph 10 and Article 17(1)(a)-(c).
[62]Rome Statute, Article 53(1)(c).
[63]C. Stahn, ‘Justice as Message: Expressivist Foundations of International Criminal Justice’, Oxford University Press (2020).
[64]R. Pereira, ‘The Role of the Criminal Law for the Protection of the Environment’, in R.Pereira, ‘Environmental Criminal Liability and Enforcement in European and International Law’ (2015), p.66.
[65]Ibid.
[66]P. Higgins, D. Short, N. South, ‘Protecting the Planet: A Proposal for a Law of Ecocide’ (2013).
[67]M. G. Faure, ‘Tackling Environmental Crimes under EU Law: The Liability of Companies in the Context of Corporate Mergers and Acquisitions’, European Parliament, Policy Department for Citizens’ Rights and Constitutional Affairs (2021), available at: https://www.europarl.europa.eu/RegData/etudes/STUD/2021/693182/IPOL_STU(2021)693182_EN.pdf, p.98.
[68]See A. Weyembergh, ‘Approximation of Criminal Laws, the Constitutional Treaty and the Hague Programme’, Common Market Law Review, Vol.42 (2005), p. 1579.
[69]Article 88 of the Rome Statute provides that national laws shall be enacted to ensure there are procedures that are available under their national law for all forms of cooperation specified in the Statute.
[70]A.N. Vercher, ‘The Use of Criminal Law for the Protection of the Environment in Europe: Council of Europe Resolution’, Northwestern Journal of International Law & Business, Vol. 77, No. 28 (1990).
[71]Trial of the Major War Criminals, before the International Military Tribunal, vol. I, Nürnberg 1947, p. 223, via ‘Principles of International Law recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, with commentaries’, International Law Commission (1950), available at: Principles of International Law recognized in the Charter of the Nürnberg Tribunal and in the Judgment of the Tribunal, with commentaries, https://legal.un.org/ilc/texts/instruments/english/commentaries/7_1_1950.pdf1950 , p.374.
[72]First Annual Report of the International Criminal Tribunal for the former Yugoslavia, UN Doc. A/49/342-S/1994/1007 (1994), para 16.
[73]M. Gillett, ‘Prosecuting Environmental Harm before the International Criminal Court’, Studies on International Courts and Tribunals, Cambridge, Cambridge University Press (2022), p.234.
[74]A. Ashworth, ‘Is the Criminal Law a Lost Cause?’ Law Quarterly Review (2000), p.226.
[75]J. Bentham ‘Introduction to the Principles of Morals and Legislation’ (1789), ch 13.
[76]R. Pereira, ‘The Role of the Criminal Law for the Protection of the Environment’ (2015), pp. 70-71.
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