Ecocide

The term ‘ecocide’ refers to the ‘devastation and destruction of the environment to the detriment of life’, but no legal definition between States has yet been agreed. This project will promote the discussion towards the criminalisation of ecocide.

For an overview of past and upcoming meetings of this project, please click here.

Kindly contact the ELI Secretariat if you have any questions concerning this project.

Quick Facts

Project Type: Model law
Procedure: Regular
Conditionally Adopted: CD 2021/9
Project Period: 2021
2022

Background

The idea of ecocide was first proposed in the 1970s during the Vietnam War by biology professor Arthur W Galston, when he was protesting against the US military using the herbicide and defoliant chemical Agent Orange to destroy the foliage cover and crops of enemy troops. Since then, many civil society organisations and lawyers have supported the criminalisation of ecocide in international law.

In putting a proposal to the UN Law Commission designed to amend the Rome Statute of the International Criminal Court (ICC) to include ‘ecocide’ as a fifth crime against peace, the late Polly Higgins defined ecocide as ‘the extensive damage to, destruction of 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 or will be severely diminished’.

The latest development is that Philippe Sands QC and Dior Fall Sow are co-chairing an Independent Expert Panel for the Legal Definition of Ecocide as a potential international crime.

At present ecocide is only considered a war crime under Article 8(2)(b)(iv) of the Rome Statute. However, no charges have ever been filed, possibly on account of the very high threshold of injury required under the article – there must be an intentional attack that causes ‘widespread, long-term and severe damage to the environment which would be clearly excessive.’ Corporate and State criminal responsibility is also excluded under the Rome Statute. Thus, corporations and States which cause water and air pollution or participate in illegal deforestation and cause oil spills, which would constitute a crime in times of war, in peacetime, cannot be prosecuted for their environmental damage.

The 2018 UN Report ‘Gaps in international environmental law and environment-related instruments: towards a Global Pact for the Environment’ (UN SG Report A/73/419) found the existing environmental law regime to be fragmented, piecemeal, unclear and reactive. With no single overarching legal framework or institution and largely voluntary and non-binding obligations, international environmental law cannot be used to prosecute ecocide. Although at least two environmental treaties – the Convention on International Trade in Endangered Species of Wild Fauna and Flora and the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal – require States to create domestic criminal laws on specific subjects, they are ‘episodic and limited in scope’, only applying within State boundaries, and do not extend to ecocide more generally.

The lack of national legislation goes hand-in-hand with a lack of harmonisation of the criteria for identifying the crime of ecocide. This is true both internationally and at the EU level. 

Aim

The project aims to enable the ELI as a promoter of law reform to participate in the debate on the definition of ecocide as a crime against humanity and offer constructive analysis and criticism of the proposal which will emerge from Sands and Sow’s expert drafting panel and define the aspects characterising the crime of ecocide and the conditions for prosecution in the European framework.

In this way, this ELI study will make it possible to identify the elements of the crime of ecocide that may constitute the legal basis for the adoption of EU legislation. At the same time, the project will help raise awareness and muster support in Europe for bringing the crime of ecocide within the Rome Statute.

The project will also support the current political and legal actions aimed at imposing an EU-wide and trans-boundary duty of care in order to prevent the risk of and/or actual extensive damage to or destruction of or loss of ecosystem(s) by prohibiting any natural or legal person from committing or aiding and abetting ecocide, through the imposition of criminal sanctions.

Outcome

The project aims to: (i) contribute towards making ecocide an international crime, (ii) draw up a model law for the European Union criminalising ecocide, and (iii) draw up a model law for the European Union providing for civil remedies in tort for ecocide and the implications for private international law.

The intention is to proceed in stages. Given that what will emerge from the deliberations of the Sands group will consist in all likelihood only of the actus reus of the crime of ecocide, the Project Team will concentrate in the first place on that element of the crime. In a second stage, the necessary mens rea will be considered.

Thirdly, it will be considered whether it is necessary to specify who may be prosecuted. The present thinking is that, in view of the notorious difficulties associated with corporate criminal liability, it is best to use neutral language thereby leaving it to each Member State to determine what approach to take in the light of the constraints imposed by its legal system.

Fourthly, the Project Team will consider the possibility of creating offences of conspiring to commit and funding ecocide. Fifthly, it will consider the question of civil remedies and questions of private international law and conflicts of law.

Project Reporters

  • Robert Bray
  • Fausto Pocar

Project Team Members

  • Ivano Alogna
  • Yang Chao
  • Mark Clough
  • Laura Guercio
  • Svitlana Mazepa
  • Camila Perruso
  • Ilaria Pretelli
  • Alfredo Rizzo
  • Albert Ruda Gonzales
  • Athina Sachoulidou
  • Antonio Del Sole
  • Daan van Uhm
  • Femke Wijdekop

Advisory Committee Members

  • Francesco Avolio (Assessor)

  • Nikolaos Chatzinikolaou (Assessor)
  • Athina Giannakoula (Assessor)
  • André Klip (Assessor)
  • William McKechnie (Assessor)
  • Adán Nieto Martín
  • David Ormerod
  • Bertrand Perrin
  • Arndt Sinn