By Carolina Flores
A decade ago, environmental activist Polly Higgins proposed to the United Nations’ International Law Commission to amend the International Criminal Court (ICC) Rome Statute to incorporate the crime of ecocide as the fifth “crime against peace.” The criminalization of ecosystems’ destruction seeks to deter the unlawful destruction of the environment in the future. This objective becomes increasingly important as we witness phenomena such as bushfires, the destruction of the Amazon or the recent heat wave in Canada. When it comes to the environment, the projections are not positive. The UNEP Emissions Gap Report 2020 concluded that in the absence of a green recovery from the COVID-19 pandemic, where the re-boost of economic activity considers also sustainability, it is expected that the world’s temperature will increase by 3º Celsius in this century.
Amid growing support, questions about how to criminalize ecocide remain
Today, support for the criminalization of ecocide continues to grow. Just this month, a Panel of experts summoned under the Stop Ecocide campaign released a draft definition for the crime of ecocide. Previously, the United Nations’ Special Rapporteur on the issue of human rights obligations relating to the enjoyment of a safe, clean, healthy and sustainable environment has recognized the preservation of our environment as a necessary condition for the full enjoyment of our human rights. Furthermore, well-known public figures from Greta Thunberg to Pope Francis and Paul McCartney have backed the idea to criminalize ecocide too. They understand how urgent it is to act now to stop nature’s annihilation, since humans are part of a system.
The criminalization of ecocide, however, is not an easy task. There are different ongoing discussions on what the appropriate fora to investigate and prosecute these situations would be; whether this crime should fall under the ICC’s jurisdiction or whether it should fall under a new International Environmental Tribunal’s jurisdiction; and what the different legal elements that would form part of this crime would be. On this last point, some of the key issues relate to: (i) whether this definition should focus on the harm suffered by human beings due to environmental destruction, or whether it should focus on the environmental destruction itself; (ii) whether the crime of ecocide should be investigated and prosecuted in connection with other criminal activities (such as corruption); and (iii) whether ecocide should be a crime of strict liability, meaning that responsibility would attach if damage was done regardless of whether this was the intended result, or if instead it should require proof of intent – a much higher standard of proof that could significantly limit who could be held accountable. Finally, there is a threshold question of the nature or breadth of destruction necessary to qualify as ecocide: Would it be defined as massive destruction of determined ecosystems? Or should it be defined in relation to global phenomena such as climate change?
The Panel of experts convened by the Stop Ecocide Foundation has sought to answer a range of these questions. They propose to include ecocide in the Rome Statute, as a new Article 8 ter, and to define ecocide as “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.” A second paragraph defines the core elements of this definition. At the domestic level, some countries, such as France, are already moving toward punishing ecocide as a crime. Under the initiative of the “Convention Citoyenne pour le Climat,” a group of citizens chosen to propose climate policies, the National Assembly is preparing a draft law on the issue. Moreover, countries such as Vanuatu, the Maldives and Belgium have advocated to include this crime in the Rome Statute.
Green energy: An exception to the rule?
As these important elements of the crime are debated, this article wants to call attention to the particular case of some massive green energy projects and their potential categorization (or not) under the crime of ecocide.
Energy contributes to 60% of the greenhouse gas emissions. Since the Paris Agreement, States have engaged in the transition from fossil fuels to renewable energy production, such as solar, wind, hydroelectric or nuclear, with the objective of restraining global temperature increases. This global effort is necessary to secure a sustainable future.
Notwithstanding these efforts, the transition to green energy also has some negative side effects. The construction of a dam for hydroelectric power or the use of vast areas for the production of wind and solar energy sometimes require the sacrifice of vast natural areas and pose a serious long-term disruption to nearby ecosystems, reducing biodiversity, contributing to climate change, and reducing water quality and availability. Similar risks can result from wind and solar energy projects.
For instance, mega-dams such as Belo Monte and the Grand Ethiopian Renaissance Dam cover hundreds of square kilometres, affecting several countries. Mayan communities in Mexico have been displaced due to the construction of a solar park, which has meant the deforestation and destruction of the surrounding wild areas. In the Amazon, hydroelectric projects are flooding lands, displacing indigenous people and threatening the local biodiversity. Indigenous communities in the Philippines are dealing with a similar situation.
As a consequence, green energy projects may severely diminish the right to a healthy environment and the enjoyment of other human rights by the communities living by the proximities of the affected territories, including indigenous peoples. The latter may have their rights particularly affected, as depriving them of their ancestral lands necessarily means disturbing social, cultural, religious and spiritual values and practices that are intimately connected to nature. Furthermore, these communities are being deprived of the natural resources, such as fish and freshwater, on which they depend to feed their families.
Encouraging truly “green” energy, not “greenwashing”
Green energy projects like the above have been labelled as ecocide. And while they may diminish greenhouse emissions in order to stop climate change, and consequently protect the environment and human lives, if developed inappropriately, they may destroy precisely that which many seek to protect.
The criminalization of ecocide could indeed be a helpful tool to deter the implementation of green energy projects with these characteristics in the future. However, an imprecise definition risks producing the undesirable result of stopping or hindering the transition to green energy around the world. As efforts to define the crime of ecocide continue, special care must be taken to ensure that green energy projects that have negative consequences for the environment and communities’ human rights are not able to “greenwash” their crimes to escape accountability for environmental damages they inflict. If done correctly, the criminalization of ecocide should support the world’s transition to truly green energy as necessary to comply with the Paris Agreement and to guarantee humankind’s future.
About the Author
Carolina Flores is a Chilean Lawyer and Advanced LL.M in Public International Law (Leiden University) with a postgraduate Diploma in International Studies (University of Chile). She is an early-career scholar at the Faculty of Law of the University of Chile, where she teaches international law. She has focused her research on the field of international environmental law and Antarctica. Outside academia, Ms Flores has experience as a practitioner and legal researcher at the national and international levels, working at law firms, non-governmental and international organizations.