Dr. Luigi Daniele, Senior Lecturer, NLS (https://www.ntu.ac.uk/staff-profiles/law/luigi-daniele2
The codification of ecocide as the fifth international crime in the Rome Statute (RS) of the International Criminal Court (ICC) has prompted a great deal of academic debate since the Expert Panel conveyed by Stop Ecocide International (SEI) announced the conclusions of its works and the launch of their proposed definition (I had the pleasure of co-translating in Italian official definition and commentary, in collaboration with Dani Spizzichino).[1]
Ecocide etymologically derives from οἶκος, Ancient Greek word for ‘household’, transposed in the prefix ‘eco’, and ‘cide’, from the Latin verb caedere, meaning ‘to cut down’ or ‘to kill’. The word, coined[2] in 1970 by biologist Arthur Galston,[3] emerged in response to a law of armed conflict issue: the use of means and methods of warfare with devastating consequences for the natural environment.[4] At the time, the major concern was the massive use of a powerful herbicide containing dioxin known as Agent Orange by the United States in Vietnam,[5] the costs of which are still being borne by children today.[6]
Despite the consolidation of customary IHL prohibitions against environmental warfare in the subsequent years,[7] a tragic example of the ongoing need for environmental protection in war was provided by the recent destruction of the Nova Kakhovka Dam in Ukraine on the 6th of June,[8] adding to the long list of probable war crimes committed in this conflict. Scholars have analyzed the international humanitarian law (IHL) implications of this attack.[9] The consequences for the lives and livelihood of thousands civilian in Ukraine, as well as for the natural environment, have been far reaching and devastating.
When it comes to applying international criminal law (ICL) to IHL violations focusing on environmental protection, the only article in the RS mentioning the environment is the controversial war crime offence of disproportionate attacks, enshrined in Art.8(2)(b)(iv). This crime punishes perpetrators
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 (emphases added).
Hansen, noting this offence has never been prosecuted since the coming into force of the RS, has discussed potential charges for disproportionate attacks being brought by the ICC Office of the Prosecutor (OTP) in relation to the Kakhovka Dam attack. Hansen argues that such charges would be viable only if no issues arose regarding the attribution of the attack , as was the case for the Nord Stream pipeline explosion.[10] Should the Dam’s destruction ultimately be found to be attributable to Ukraine (which appears unlikely) it might then not qualify as a military ‘attack’ under IHL, – and would consequently be excluded from scrutiny as a war crime.[11] More importantly, in relation to environmental crimes, by whoever committed, Hansen correctly noted in his reflection that “[t]o date, no charges have been brought under Article 8(2)(b)(iv), despite the stated commitment of the ICC Prosecutor to give ‘particular consideration’ to prosecuting crimes that are associated with ‘the destruction of the environment,’ and despite the fact that various serious environmental crimes have in the past been brought to the attention of the Prosecutor [see e.g. Al Haq,[12] and Global Diligence[13]]. Criticism has been mounting in recent years around the Prosecutor failing to give effect to these commitments […].”[14]
The lack of any ICC charges in respect of attacks disproportionately harming the environment, and also numerous and recurring attacks disproportionately killing civilians in the last twenty years,[15] reveals a range of issues with the present framework. Furthermore, these failings are only partially attributable to prosecutorial shortcomings. The deficiencies with the formulation of this war crime offence are multifaceted and a crucial reason for the difficulties in its practical application.
The mens rea thresholds of Art. 8(2)(b)(iv) are extremely problematic. The offence punishes perpetrators who intentionally launch an attack with knowledge that the attack will cause “clearly excessive” incidental civilian or environmental harm, in comparison to the overall concrete and direct military advantage anticipated.
The subjective standpoint of perpetrators of these attacks is particularly difficult to prove. Art.8(2)(b)(iv) RS requires in fact that perpetrators formulate a prognostic evaluation of the damage that will follow the attack. Even if defendants foresaw highly likely disproportionate environmental damage as consequence of their action, this would not suffice, as ICC judges have so far interpreted the Statute as allowing to attribution to perpetrators only when consequences that in their prognostic evaluation were ‘virtually certain’.[16] Furthermore, the perpetrators must have evaluated the extent of the virtually certain incidental civilian or environmental harm as “clearly excessive”, in comparison to the military advantage anticipated. The elements of Art. 8(2)(b)(iv) require that the perpetrator formulates this value judgement, stating “[t]he perpetrator knew that the attack would cause incidental death or injury [...] or damage to the natural environment and that such death, injury or damage would be of such an extent as to be clearly excessive in relation to the concrete and direct overall military advantage anticipated.”[17]
This requirement generates interpretative problems: who judges this proportionality assessment? And what happens when attackers erroneously adjudge the (excessive) civilian or environmental harms which they have caused to be proportionate? The problem here is that perpetrators must not only be personally aware of the factual circumstances determining the disproportionality of the harms, but also be conscious that the entity of the harm was clearly excessive (in their own view).
In some sense, the liability of perpetrators would be made dependent on proving they were convinced of the clearly excessive nature of the harm, paradoxically rendering them judges in their own cause.[18] My own view of this issue, as a forthcoming work will argue in detail, is that this ill-defined[19] war crime offence constitutes a prime example of big military powers’ hegemonic and imperialist influence on the drafting of international legal instruments, with the risk (and sometimes out-and-out will) of reducing them to symbolic gestures with little effectiveness. In the case of this crime, the offence has the serious consequence of decisively reducing the chances of prosecution and punishment for disproportionate attacks, undeniably weakening the scope for prevention of civilian victimization and environmental destruction in wartime worldwide. This ineffectiveness seems to loudly demand reform proposals. The lack of a single prosecution or charge for this crime in twenty years since the Court’s creation is a fact which speaks for itself.
The experts of the Panel conveyed by the SEI, however, evidently did not shared this negative assessment of the offence and its formulation. In fact, they have selected precisely this offence as one of the key templates for their proposed definition of the crime of ecocide.
The codification of ecocide as international crime is urgently required. First, the offence under Art. 8 RS is exclusively concerned with armed conflicts and is therefore of no help in cases of massive environmental destruction committed during peacetime. Furthermore, once excluded article 8 RS, any attempt to charge environmental destruction committed during peacetime as part of a crime against humanity (art. 7 RS), would be limited by the structural anthropocentrism of this category of crimes, requiring a widespread or systematic attack directed against a civilian population, rendering it irrelevant in cases of environmental devastation for profit or other motivation, where this took place without any attack directed against human beings.
Consequently, the SEI, together with many global non-governmental actors, is commendably developing numerous strategies to secure the approval of an amendment to add the ecocide crime to the RS.
The problem is that the experts have identified Art. 8(2)(b)(iv) RS as model for a crucial element of the new crime of ecocide, which they propose to define as follows:
“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.[20]
As they add in their commentary:
A number of aspects of the proposed definition are drawn from the existing provision of the Rome Statute concerning damage to the natural environment: Article 8(2)(b)(iv).4 These include:
[…] (ii) a proportionality test (‘clearly excessive in relation to the concrete and direct overall military advantage anticipated’).
In relation to the meaning of “wanton” acts, the experts affirm:
“Wanton” means with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated. [21]
As Dr. Heather Alberro and I previously argued,[22] this part of the definition is particularly problematic, because it admits severe and long-term environmental destruction to be lawful under the RS provided that the damage is not “clearly excessive” in relation to the anticipated benefits for humans, thus reinforcing the anthropocentrism that the definition itself was hoped to overcome.
Most of all, these benefits, according to the SEI experts, are not limited to those of “social” character but also include separately mentioned “economic benefits” (these could at least have been considered included in the social benefits), thus potentially opening this ‘proportionate ecocide’ balancing test to the intrusion of private profits.
Concerningly, the re-proposition of the same test ex. Art.8(2)(b)(iv) for the “wanton acts” reproduces the risks analyzed in relation to disproportionate attacks. Powerful forces interested in opposing accountability could sponsor interpretations requiring perpetrators themselves, rather than the Court, to judge the egregious environmental harm caused by their actions as clearly excessive in comparison to their own economic gains (which would be disingenuous considering how corporate greed has predated and plagued, and continues to predate and plague ecosystems and the planet).[23]
It is thus particularly important that diplomats, scholars, civil society actors, and the public at large are made aware of the dangers in this formulation, in order to counter them. The discussion toward the amendment procedure of the RS, and the procedure itself, could be crucial occasions to demand a better and more stringent ecocide definition, averting the same failures experienced by international criminal justice in relation to disproportionate attacks in these two decades.
[1] See Definizione Legale di Ecocidio, L. Daniele – D. Spizzichino (tr.), June 2021, Stop Ecocidio Italia, at https://www.stopecocidio.it/definizione-legale-di-ecocidio . [2] A. Galston, ‘…and a Plea to Ban Ecocide’, New York Times, 26 February 1970, at https://www.nytimes.com/1970/02/26/archives/and-a-plea-to-ban-ecocide.html . [3] See ‘In memoriam: Arthur Galston, plant biologist, fought use of Agent Orange’, YaleNews, 18 July 2008, at https://news.yale.edu/2008/07/18/memoriam-arthur-galston-plant-biologist-fought-use-agent-orange . [4] R. Falk, ‘Environmental Warfare and Ecocide — Facts, Appraisal, and Proposals’, 9(1) Revue Belge de Droit International [RBDI/Belg. Rev. Int’l L.] (1973), annex I at 21–24 (A Proposed International Convention on the Crime of Ecocide) [5] See Exposure to Agent Orange, a Case of ‘Ecocide’, Environmental Justice Atlas, 16 January 2017, at https://ejatlas.org/conflict/exposure-to-agent-orange . [6] ‘The Victims of Agent Orange the US Has Never Acknowledged’, New York Times – Magazine, athttps://www.nytimes.com/2021/03/16/magazine/laos-agent-orange-vietnam-war.html . [7] See J.M. Henckaerts - L. Doswald-Beck, Customary International Humanitarian Law. Volume I: Rules, CUP 2005, Rules n. 44 and Rule n. 45, online at Customary International Humanitarian Law Database, ICRC, at https://ihl-databases.icrc.org/en/customary-ihl/v1 . [8] Footage shows dam near Ukraine city of Kherson breached, Guardian News, 6 June 2023, at https://www.youtube.com/watch?v=cALesMyx4UA . [9] See M. Milanović, ‘The Destruction of the Nova Kakhovka Dam and International Humanitarian Law: Some Preliminary Thoughts’, EJIL:Talk!, 6 June 2023, at https://www.ejiltalk.org/the-destruction-of-the-nova-kakhovka-dam-and-international-humanitarian-law-some-preliminary-thoughts/, T. Dannenbaum, ‘What International Humanitarian Law Says About the Nova Kakhovka Dam, Lawfare, 12 June 2023, at https://www.lawfaremedia.org/article/the-destruction-of-the-nova-kakhovka-dam-and-the-heightened-protections-of-additional-protocol-i , and A. Gurmendi, ‘Tracking State Reactions to the Destruction of the Kakhovka Dam’, OpinioJuris, 20 June 2023, at http://opiniojuris.org/2023/06/20/tracking-state-reactions-to-the-destruction-of-the-kakhovka-dam/ . [10] T. O. Hansen, ‘Could the Nova Kakhovka Dam Destruction Become the ICC’s First Environmental Crimes Case?’, Just Security, 9 June 2023, at https://www.justsecurity.org/86862/could-the-nova-kakhovka-dam-destruction-become-the-iccs-first-environmental-crimes-case/ [11] M. Schmitt, ‘Attacking Dams – Part II: The 1977 Additional Protocols, Articles of War, 2 February 2022, at https://lieber.westpoint.edu/attacking-dams-part-ii-1977-additional-protocols/ [12] ‘Palestinian Human Rights Organisations Submit File to ICC Prosecutor: Investigate and Prosecute Pillage, Appropriation and Destruction of Palestinian Natural Resources’, Al Haq, 26 October 2018, at https://www.alhaq.org/advocacy/6144.html [13] ‘Cambodia: Land Grabbing ICC Case’, Global Diligence, 30 April 2020, https://www.globaldiligence.com/projects-and-news/2020/cambodia-land-grabbing-icc-case [14] T. O. Hansen, ibid. [15] See e.g. the estimates about civilians killed in Iraq in 2003 at ‘Number of documented civilian deaths in the Iraq war from 2003 to May 2023’, Statista, 8 June 2023, https://www.statista.com/statistics/269729/documented-civilian-deaths-in-iraq-war-since-2003/ [16] The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Trial Chamber II, Judgement, ICC-01/04-01/07, 7 March 2014, paragraphs 775 to 777. [17] Elements of Crimes, Art. 8(2)(b)(iv), at https://www.icc-cpi.int/sites/default/files/ElementsOfCrimesEng.pdf , p. 19. [18] See M. Bothe, ‘War Crimes’, in Cassese, Gaeta, Jones (eds.), The Rome Statute of the International Criminal Court: A commentary. Vol. 1., Oxford University Press, 2002, at 401; see also J. D. Reynolds, ‘Collateral Damage on the 21st Century Battlefield: Enemy Exploitation of the Law of Armed Conflict, and the Struggle for a Moral High Ground, 56 A.F. L. Rev. 1 (2005), at 71. [19] K. J. Heller – J. C. Lawrence, ‘The Limits of Article 8(2)(b)(iv) of the Rome Statute, the First Ecocentric Environmental War Crime’, 20 Georgetown International Environmental Law Review, 2007. [20] Independent Expert Panel for the Legal Definition of Ecocide, Commentary and Core Text, at https://www.stopecocide.earth/legal-definition . [21] Ibid. [22] H. Alberro - L. Daniele, at https://theconversation.com/ecocide-why-establishing-a-new-international-crime-would-be-a-step-towards-interspecies-justice-162059 [23] See D. Whyte, Ecocide: Kill the Corporation Before it Kills US, Manchester University Press, 2020, and N. Lakhani, The Guardian, ‘Fossil Fuel Firms Owe Climate Reparations of $209bn a Year, Says Study’, The Guardian, 19 May 2023, at https://www.theguardian.com/environment/2023/may/19/fossil-fuel-firms-owe-climate-reparations-of-209bn-a-year-says-study .
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