Definition of ‘Ecocide’ as an International Crime

The Independent Expert Panel for the Legal Definition of Ecocide (IEP) has today issued its report on the international crime of ecocide. Commissioned by the StopEcocide initiative, the report drafts a new definition for potential inclusion in the Rome Statute of the International Criminal Court. This would be the fifth international crime contained in the Rome Statute, alongside the crime of genocide, crimes against humanity, war crimes, and the crime of aggression.

The panel, chaired by Philippe Sands QC and Dior Fall Sow, has defined the crime of ecocide as follows:

Article 8ter: Ecocide
1. For the purpose of this Statute, “ecocide” means 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.

2. For the purpose of paragraph 1:

a. “Wanton” means with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated;

b. “Severe” means damage which involves very serious adverse changes, disruption or harm to any element of the environment, including grave impacts on human life or natural, cultural or economic resources;

c. “Widespread” means damage which extends beyond a limited geographic area, crosses state boundaries, or is suffered by an entire ecosystem or species or a large number of human beings;

d. “Long-term” means damage which is irreversible or which cannot be redressed through natural recovery within a reasonable period of time;

e. “Environment” means the earth, its biosphere, cryosphere, lithosphere, hydrosphere and atmosphere, as well as outer space.

The creation of a definition of ecocide carries clear symbolic importance. At the same time, over on the Opinio Juris blog, Kevin Jon Heller has noted that the definition, despite its terminological proximity to ‘genocide’, has little resemblance to that crime, given that the crime of genocide relates to protected groups and requires specific intent. Instead, he argues, it is much closer in nature and structure to a crime against humanity.

The choice to align the crime of ecocide with that that of genocide has been made, according to panel co-chair Philippe Sands, because of the resonance of the former and raise consciousness for environmental destruction. Discussing the definition on Völkerrechtsblog, he has reasoned that the aim of the report is to generate “a serious debate about the idea. It must be a definition that meets the standards of the current Rome Statute, one that could reasonably be inserted.”

The IEP considered that the element of mens rea under the Rome statute, i.e. the default mens rea contained in Article 30 of that instrument, was too strict to adequately capture environmental harms. It has therefore proposed “a mens rea of recklessness or dolus eventualis, requiring awareness of a substantial likelihood of severe and either widespread or long-term damage.”

The panel’s commentary to the definition, which is available here, also states that “[c]ulpability for the crime of ecocide attaches to the creation of a dangerous situation, rather than to a particular outcome. It is the commission of acts with knowledge of the substantial likelihood that they will cause severe and either widespread or long-term damage that is criminalised. The crime of ecocide is thus formulated as a crime of endangerment rather than of material result.”

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