Keywords

1 Introduction

It is commonplace that the evolution of law usually follows the demands of society. The speed and depth of this evolution will depend on many factors; in some instances, innovative legal constructions emerge from the academic debate and acquire particular importance, receiving a strong impulse and defense from civil society. Ecocide is one of these innovative legal concepts that have emerged from the academic debate at a time of profound ecological crisis and are rapidly taking shape. Ecocide can be defined as “unlawful or wanton acts committed with the knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts”.Footnote 1

Of course, we have yet to determine whether ecocide will ever be incorporated into positive international law. Notwithstanding, in its birth and design, in our opinion, the role of law teaching in universities is of enormous importance in creating an adequate conceptual framework. Additionally, a state of public opinion in all areas of the legal world that is favorable to its inclusion allows it to be a lever for putting pressure on governments, who are ultimately responsible for the decision to incorporate ecocide into international law.

After several millennia of evolution with many advances and significant setbacks, humanity is currently going through a critical period which will define the compatibility of living conditions on the planet. In this vein, even if difficult to accept this reality, we are approaching a threshold where it is simply no longer possible to continue to inhabit it. The reason is that humanity has chosen a development model that is radically incompatible with maintaining the ecological balances that have allowed human civilizations to develop on our planet for millennia. There is no doubt that we are currently undergoing a critical period of an environmental crisis that directly threatens our future.

Scientific reports have consistently predicted the problems caused by the emission of greenhouse gases since the industrial revolution that cause climate change (the most important of which are carbon dioxide and methane). The burning of fossil fuels, mainly coal, oil and gas, is the primary source of emissions of these gases, primarily responsible for climate change involving profound long-term changes in temperatures and weather patterns. Particularly relevant to understanding the situation are the reports of the Intergovernmental Panel on Climate Change which warn that the climate is changing and that this is undoubtedly due to human activity.Footnote 2 Of particular concern is that the sixth report confirms that many of the effects of climate change are already irreversible, and much of the impact predicted for the future is already unavoidable.Footnote 3

There is no doubt that climate change is the main factor of environmental disruption, with global effects caused by man’s hand. The truth is that for some time now, conscious or unconscious, willful or negligent actions have been taking place all over the planet with extraordinarily severe environmental impacts. These actions transcend, in some way, the local or regional territory where they have taken place, affecting the international community due to their seriousness. In an environmental context affected by enormous challenges that highlight the significant vulnerability of our planet with increasingly fragile ecological balances, some aggressions transcend their territorial scope and require international legal responses.

In this context of environmental degradation, there is an increasingly widespread public perception that this type of behavior that seriously damages the environment should not be protected by the generalized impunity that has been the main characteristic to date, or else only receive domestic responses that are manifestly insufficient and limited. More and more voices are denouncing that we are facing a critical moment in the ecological destruction of the planet that requires new global responses. Furthermore, the truth is that these responses should be legal and based on an innovative proposal from international law. In this sense, the concept of ecocide is proposed as a profoundly transformative figure that reflects the evolution of law in its essential role of articulating and defining models of society based on justice.Footnote 4

Ecocide is a neologism that combines the Greek root oikos, meaning house or habitat, with the Latin occidere, which means to kill. In short, the term is equivalent to the expression to kill the house or, in other words, to destroy the habitat.

2 Origin of the Concept and Relationship to Genocide

It seems clear that the term ecocide has been inspired by one of the most transformative legal concepts generated in the twentieth century, genocide. This concept was coined by the Polish jurist Raphael Lemkin in 1944, who had taken refuge in the United States at Duke University Law School and, through this new concept, sought to typify Nazi patterns of behaviour in their destruction policy and annihilation of the Jewish community.Footnote 5 A key aspect of the new concept was coined after some of the most atrocious behavior in recent human history. Given the extraordinary gravity of behavior aimed at the total or partial destruction of a national, ethnic, racial or religious group, the legal response, that is, the mechanisms of prevention and punishment must correspond to the international community as a whole, as it is an international crime that cannot be approached exclusively from a domestic sphere. In short, it is a profound transformation of international law, which is taking on a new role and responsibilities in the face of the severe events of the Second World War, which have profoundly affected the legal conscience of humanity.

Since its first doctrinal appearance (Axis Rule in Occupied Europe, published in November 1944, was the first place where the word “genocide” appeared in printFootnote 6), the concept of genocide has gone through several phases. Lemkin actively supported its use at the Nuremberg Tribunal,Footnote 7 and it ended up crystallizing in the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (Sands, 2017),Footnote 8 becoming one of the crimes over which the International Criminal Court created in 1998 has jurisdiction. The main ad hoc international criminal tribunals, such as those of Rwanda and the former Yugoslavia, have also had jurisdiction over this crime.Footnote 9 Currently, both international jurisprudence and doctrinal debates are shaping and enriching one of the most valuable and transformative legal constructions of recent history, and it has been fully incorporated, not without some controversy, into public and media language, as well as into the political vocabulary.Footnote 10

In short, the figure of ecocide has an essential reference in genocide. On the one hand, the inspiration for the formula for constructing a new word with an ingenious combination of Greek and Latin roots. On the other, in its dimension as a profoundly transformative legal tool that can finally be incorporated into positive law from a doctrinal or academic construction, responding to an important social demand.

In fact, the first attempts to construct the new figure of ecocide were linked to an overall development of genocide in that habitat destruction could be one of the constituent elements of the crime against a people's identity.

The horrors of the Holocaust and the inhumane behavior of the Nazis were the origins of the concept of genocide as real turning points (although genocidal behavior can be found in very ancient stages of human history). Similarly, the need for the concept of ecocide emerges when severe attacks on the environment of a hitherto unknown entity and gravity become known.

3 Towards International Punishment of Serious Environmental Crimes

It seems that the use of a powerful herbicide as a chemical weapon, Agent Orange, in the Vietnam War (1955–1975) by the United States, which in addition to a large number of deaths and injuries, caused the deforestation of large areas of territory, is one of the triggers for the demand to criminalize these behaviors that seriously threaten the environment.Footnote 11 It is commonly accepted that one of the first times the word ecocide appears in an international context was in a speech by Swedish Prime Minister Olaf Palme at the Stockholm Summit in 1972 denouncing the “limits that our environment can tolerate and the dangers of ecocide”, in an indirect allusion to the Vietnam War.Footnote 12 Perhaps the Stockholm Summit, the United Nations Conference on the Human Environment, can be seen as a real turning point in the generation of environmental law and the formation of an international public opinion increasingly aware of the need for environmental protection.

From an academic perspective, based on the environmental destruction in the Indochina war, Professor Richard Falk proposed an International Convention on the Crime of Ecocide in an article published in 1973.Footnote 13

In this context, against the backdrop of the serious environmental attacks in Vietnam, and under the auspices of the United Nations, the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques was approved in 1976. The aims were established in its first article, that is, to prohibit the use for military purposes of “environmental modification techniques which have widespread, long-lasting or severe effects, as a means of causing destruction, damage or injury to another State Party”.Footnote 14 In this way, a certain confluence was generated between the need to preserve the environment and international humanitarian law,Footnote 15 a positive confluence that nevertheless presents all the vulnerabilities of the very defective application of international humanitarian law and the problems derived from the relativity in the international application of treaties with a reduced number of state parties.

A certain number of international instruments have progressively incorporated provisions attempting to require States to provide for penal consequences for conduct that seriously damages the environment. For example, the 1973 Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), the 1987 Montreal Protocol on Substances that Deplete the Ozone Layer, and the 1989 Basel Convention on the Control of Transboundary Movement of Hazardous Waste and their Disposal, which have put in place control systems to prevent environmental damage. Nevertheless, the fact is that to date there is not even an international treaty or instrument to combat environmental crimes that could have transnational consequences.Footnote 16 There are only partial responses and coordination mechanisms promoted by agencies and organizations such as the World Customs Organization (WCO), INTERPOL, and the United Union Office on Drugs and Crime (UNODC), which have yet to achieve minimal objectives.

In this regard, the European Union has been a dynamic player in promoting environmental protection through criminal law. The legislative impetus stems from Directive 2008/99/EC, which has consolidated a certain degree of regulatory harmonization. At present, it is worth highlighting the Commission's initiative within the framework of the European Green Pact that sets new EU environmental criminal offences, including illegal timber trade, illegal ship recycling or illegal abstraction of water. In addition, the proposal clarifies existing definitions of environmental criminal offences, providing for increased legal certainty.Footnote 17

4 Ecocide as an International Crime

There is no doubt however that the ideal framework to approach the criminal treatment of serious environmental violations is international, going beyond national criminal frameworks. In this sense, from the first attempts to try to codify international crimes and set up the International Criminal Court, the opportunity to include ecocide as a crime that this international institution could prosecute was considered. In this sense, the Sub-Commission on Prevention of Discrimination and Protection of Minorities of the United Nations Commission on Human Rights, responsible for the study on the prevention and punishment of the crime of genocide, incorporated the crime of ecocide as an international crime in its first studies.Footnote 18 The concept of ecocide also appears in the Rapporteur Mr Whitaker's report in 1985. He did not incorporate it as an autonomous crime but as an extension of the broader concept of genocide along with cultural genocide, although the report also admits that there are also supporters of the integration of ecocide into the concept of crimes against humanity, instead of genocide.Footnote 19

In his reports on the draft code of crimes against the peace and security of mankind, Mr Doudou Thiam, the Special Rapporteur appointed by the International Law Commission, initially included serious attacks against the human environment as one of the crimes against humanity.Footnote 20 However, as he mentions in his last report, number 13, this crime was criticized by some states, which prevented it from being included as an autonomous crime in the draft convention establishing the International Criminal Court. Finally, in the Rome Statute establishing the International Criminal Court, a stand-alone crime against the environment was not included. The notion of a crime against the environment has indeed been included in war crimes. Article 8 (IV) on War Crimes refers to “Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or 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” on a war context. However, till now, no proceedings or investigations have been initiated based on this article.

In peacetime, there is currently no international provision for an environmental crime which, because of its unique nature or gravity, goes beyond the domestic framework where it has been committed and has serious international consequences.

For this reason, the role of civil society as a driving force behind the need to transform the law is enormously important. In this sense, it is worth highlighting the proposals of British lawyer Polly Higgins, who even presented a proposal to the UN International Law Commission to incorporate ecocide into current international law.Footnote 21 Furthermore, she is also the founder of an NGO (Stop Ecocide International), which is extraordinarily active in promoting this concept.Footnote 22

The International Criminal Court seems to be the most appropriate and coherent framework for the international prosecution of this new crime. If, as we have seen above, its inclusion was not possible at the time of its creation, the circumstances are currently more propitious and favorable due to academic debates and pressure from civil society. In this regard, in 2019, Vanuatu and the Maldives, two archipelagic states directly threatened by the consequences of climate change as they are highly vulnerable to rising sea levels, requested the initiation of a process to amend the Rome Statute in order to include the crime of ecocide.Footnote 23 The amendment of the Statute to incorporate a fifth international crime requires a long and uncertain process, but several countries have joined the debate along with NGOs and various personalities with some international weight (such as Pope FrancisFootnote 24).

In parallel, the crime of ecocide has been incorporated into the domestic legal systems of several States [it is included in the criminal codes of Georgia (1999), Armenia (2003), Ukraine (2001), Belarus (1999), Kazakhstan (1997), Kyrgyzstan (1997), Moldova (2002), Russia (1996), Tajikistan (1998) and Vietnam (1990)]. Additionally, there are currently multiple parliamentary initiatives in this regard in other States as well.

In short, important tasks are still pending in relation to the conceptualization of this new crime, the precision of the circumstances of criminality, complicity, possible negligent commission, civil liability, etc. In this sense, and in view of the difficulties faced by governments when sensitive political issues are involved, civil society is assuming a definitive leadership role mainly shared by NGOs and universities as an appropriate framework for debate, reflection and the launching of proposals and the promotion of political decision-making.

5 Conclusion

In a nutshell, we are in the presence of a profoundly innovative legal figure that has arisen in the context of extremely serious international environmental degradation, which can be an extraordinarily useful tool for preventing and punishing major environmental violations. However, there is still a long way to go before one day ecocide can be included in the ICC Statute as a fifth international crime, although the first steps in the right direction have been taken. In any case, legislative reforms in domestic law criminalizing these serious environmental crimes, which are becoming more and more frequent, is also an interesting and complementary path to the amendment of the Rome Statute.

Finally, in a certain way, civil societies mainly through NGOs and universities, have a key role to play in defining the future of this figure with an enormous potential for transforming the law.