Because ecocide must be considered an international crime.
At the Nuremberg trials, which began on November 20, 1945, the allied forces prosecuted leading Nazi leaders for the atrocities committed during the Holocaust and World War II.
They were accused of what Winston Churchill had called “a crime without a name” just four years earlier: genocide, the deliberate destruction of a group of people. The term was later formally adopted by the United Nations, along with a signed convention to prevent it from happening again.
Half a century after the genocide it became punishable by the International Criminal Court (ICC) along with crimes against humanity, war crimes and the crime of aggression committed by one state against another state. Today there is a movement that is fighting to add another to these four: the destruction of ecosystems and the environment, that is, ecocide.
A turning point in relations on the planet
In November 2020, some lawyers expert in international law set to work to formally define the crime of ecocide. The group is led by Philippe Sands, a lawyer who worked in the trials discussed before the CPI and the European Court of Justice and author of the book The road to the east on the Nazi trials, and by Dior Fall Sow, former United Nations international prosecutor. ; a draft definition should be released in June.
The hope is that at that point it can be proposed and eventually adopted as an amendment to the Rome Statute, which regulates the work of the CPI. In this way, ecocide would be subject to all the failures and limitations that plague attempts to stop other international crimes. But it could also be a turning point in the way of understanding the relationship between human beings and nature.
Ecocide should be based on the idea that environmental protection must be understood as an end in itself
The idea that environmental damage can be contained by resorting to international law is not new. Some scholars have relied on the fact that the United Nations Convention on Genocide prohibits “deliberately subjecting” the attacked group to “living conditions intended to cause its physical destruction” and this could in their view include the devastation of the ecosystems on which that group bases its survival.
In 1972, at the United Nations Environment Conference in Stockholm, Olof Palme, then Swedish Prime Minister, accused the US government of ecocide for its use during the Vietnam War of Agent Orange, a defoliant consisting of two different herbicide and dioxin-containing, used to defoliate forests and wilt crops that has made large areas of the country barren. The first drafts of the Rome Statute included the crime of “serious environmental damage”, which, however, was ultimately adopted only as a provision, included among war crimes, which prohibits “environmental modification techniques”, such as the agent orange, which have “widespread, lasting or severe effects”.
Subsequently, the campaign to include ecocide in international crimes was mainly carried out by Polly Higgins, a lawyer and activist who died in 2019. In 2010, Higgins had insisted with the UN International Law Commission that ecocide – defined as “The large-scale destruction, damage or loss of one or more ecosystems of a given territory” – was considered a crime against peace. Despite the refusal, the CPI later agreed to investigate cases of environmental destruction such as “crimes against humanity” that had a sufficiently severe impact on the population of a given area (a similar lawsuit was filed at the beginning of the year against the Hague tribunal by indigenous leaders against Brazilian president Jair Bolsonaro for deforestation of the Amazon; the CPI is evaluating the case).
Higgins also founded the NGO Stop Ecocide, which after her death continued to campaign for an anti-ecocide law and convened the working group that is drafting a definition.
An adequate level of protection
All the crimes examined by the ICC focus on the protection of human beings. Most attempts to include environmental damage under international criminal law have also been anthropocentric, since they have linked the condition of ecosystems to the benefits that the people who live there derive from them in terms of livelihood and food production. Sands, on the other hand, is convinced that ecocide should be based on the idea that the protection of the environment must be understood as an end in itself. That is, it should have its own autonomous basis and be considered a crime of a different type instead of being inserted into definitions of other crimes. While not speaking on behalf of the group, whose decisions will have to be made collectively, Sands hopes others will feel the same way too. “I have the feeling that there is a broad consensus that the old anthropocentric assumptions must be put aside in order to really do justice and guarantee the environment an adequate level of protection,” she says.
Any amendment to the Rome Statute must be proposed by one of the signatory countries and subsequently approved by at least two thirds of the others. Vanuatu and the Maldives, both archipelagos severely threatened by climate change, have expressed interest in proposing such an amendment. France and Belgium have promised diplomatic support. Sands is convinced that the growing environmental awareness around the world and the pressure exerted on politicians by public opinion will induce other countries to do the same. However, the required consensus is difficult to achieve.
If the CPI eventually adopted the notion of ecocide, what would it change? International criminal law functions mostly as an emergency measure, which is imperfect moreover. While countries often change their national laws to accommodate global agreements, in many cases governments simply cancel unwanted provisions. Saudi Arabia, for example, ratified the United Nations Convention on the Elimination of “All Forms of Discrimination Against Women” in 2001, but refused to accept laws that contradict Sharia law. Some states just don’t sign. Neither China nor the United States have ratified the Rome Statute.
Decades of treaties condemning genocides and UN clauses requiring countries to intervene to stop them have not stopped the massacres from continuing. And this is also true in cases where the United Nations has applied this definition to a particular crime. Let’s think about the fate of the Rohingya in Burma. However, according to supporters of this campaign, naming an international crime helps set the standard for what can be considered acceptable.
The cases brought before the international tribunal also provide lasting evidence of the violations and take away the illusion of impunity from those who commit them. Prior to the Nuremberg trials, Sands notes, countries were “entirely free to treat their citizens as they saw fit. If they wanted to kill half of their population, they could do it, ”he says. “And this changed instantly”.
This article was published in the British weekly The Economist, Translated by Giusy Muzzopappa