Should Ecocide be an International Crime?

That is the provocative question posed in a recent piece by Gwynne Dyer.  As published in the New Zealand Herald, Mr. Dyer directly equates today’s environmental destruction with government sponsored mass killings of the previous century:

There was no law against genocide in the early 1940s; it became an internationally recognised crime only after the worst genocide of modern history had actually happened. Similarly, there is no law against “ecocide” now. That will only come when the damage to the environment has become so extreme that large numbers of people are dying from it even in rich countries.  They are already dying from the effects of environmental destruction in poor countries, but that makes no difference because they are powerless.

Reflecting on the failure to commit states to firm agreements at Rio+20, Dyer continues:

We now have a 20-year history of defeats on this agenda, and there is a lot of defeatism around. Politicians are always reluctant to be linked to lost causes, and the struggles against poverty and environmental destruction now seem to fall into that category. Thus we sleepwalk towards terrible disasters – but that doesn’t absolve our leaders of responsibility. We didn’t hire them to follow; we hired them to lead.   At the recent World Congress on Justice, Law and Governance for Environmental Sustainability, a group of “radical” lawyers proposed that “ecocide” should be made a crime. They were only radical in the sense that a group of lawyers agitating for a law against genocide would have been seen as radical in 1935. One day, after many great tragedies have occurred, there will be a law against ecocide. But almost all the real culprits will be gone by then.

That group of radical lawyers Dyer talks about is organized mainly by the group Eradicating Ecocide.  That group is actively trying to change the war crimes provisions of the Rome Statute to include Ecocide along with genocide.  This would be defined as:

For the purpose of international law, I propose the following definition for ecocide:  the extensive destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished.

If this is still too broad of a definition, they explain later with reference to direct cases:

The Rome Statute sets out an extended definition of damage to the environment, specifically as a consequence of War Crimes, which provides useful assistance. Article 8(2)(b)(iv) criminalises:

“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.”

Change one word here: “widespread long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall community advantage anticipated”, and incidents of ecocide such as the BP Gulf oil spill can begin to be properly assessed.

The point of it then is that ecocide would involve the destruction of the natural environment, and the ability for communities in the area to enjoy peaceful existence, by any actor.  BP, a private corporation that has not declared any formal war activities in the Gulf of Mexico, is being charged/equated with a war crime.

I think this pressure may have some very powerful points and demonstrations, but I think there may be a few criticisms that need to be more fully worked out:

First, if we change the definition of war crimes beyond attempted military maneuvers, as it is currently articulated, does the idea of war crimes lose its coherence. Yes, genocide and other war crimes were defined after World War II, but it hasn’t been until 2012 (with the first ICC guilty verdict) that the concept was finally worked out entirely.  If we remove military aspects from the crime, doesn’t that extend war crimes out beyond its utility and possibly muddle a concept still being formed?  I would feel a lot more comfortable if they wanted to create a separate Ecocide Convention, but to work it into the Rome Statute seems quite problematic.

Second, though related, is that the current war crimes institutions are in a precarious space. It took years for the International Criminal Court to get its first conviction, and we haven’t seen the ICC show efficiency or ability to prosecute those ‘hard’ cases yet.  Although the effort to get ecocide added in is certainly just starting, it seems like any attempt to piggyback on the ICC would be bad for all involved.  Clarity, support, and clear cases is what has been pursued there so far to build up good will and capacity.

Third, where does it stop?  The definition is highly problematic and the example of BP oil spill is even more problematic for me.  Let’s take a hypothetical:  Bad chemical.  There is a chemical widely used around the world.  It is known to impact some natural cycle.  A storm occurs that can be clearly linked to this disruption of the natural cycle.  Currently at the best we have the polluter pays principle (although application is rough), which says that if such clear harm can be shown, the polluter should pay and not the victims.  But, according to the organization, this would be a clear instance of ecocide, especially when the definition includes “whether by human agency or by other causes.”  Who is guilty of ecocide?  The governments that don’t regulate the chemical?  The individual parliamentarians who block regulations?  The companies that make the chemical?  The stores that sell it?  The people who use it?   Ecocide definitions would find problematic culprits at best and usually quite murky chains of guilt.  Once again, the problem isn’t in the idea, but in the articulation: Rome statute seems wrong, a new convention where these issues can be hammered out seems a better alternative.

Fourth, I think making ecocide a formal international crime, in any forum, may actually set us back in terms of effective international environmental efforts.  We need progress, that is clear.  But could you see leaders agreeing to more robust ocean provisions if failure to meet any commitments made you not simply a bad leader but an international criminal?  I sure don’t.  It is a huge struggle to get people to commit today, as we saw at Rio+20.  I am very skeptical of whether raising the stakes on commitments is a good approach at all.  Ecocide as an international crime may have great intentions but we may see significant roll-back of environmental commitments and further gridlock if that happens.

I don’t have a firm position on this issue and might change it very rapidly; however, the lesson of Rio+20 does not seem to me to be that we need to criminalize environmental destruction.  Rather, we need to foster the ability for negotiators to make breakthroughs and design systems to increase commitments.  Ecocide is a provocative concept certainly worthy of further attention and critical thinking, but I would be very wary of the concept in the current international environmental milieu.

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