Ecocide in the Future Through the New EU Environmental Crime Directive

During the first half of 2021, a group of jurists sat together to draft a new legal definition of ecocide. The Independent Expert Panel (Expert Panel), convened by the Stop Ecocide Foundation, the charitable branch of Stop Ecocide International (Stop Ecocide), launched a consensus draft definition and a legal commentary in June 2021. The aim of the organization is to promote ecocide as the fifth crime against peace in the Rome Statute. Sharing the same goal, the late British barrister Polly Higgins, who co-founded Stop Ecocide with the current executive director Jojo Mehta, had already submitted an ecocide proposal in 2010. Higgins envisioned 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 severely diminished.” Whereas, the Expert Panel definition describes 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.”

As opposed to all previous ecocide proposals, the Expert Panel ecocide legal definition is meant to be ‘ecocentric’. That is, it intends to cover and protect nature as a category per se in international law. By centering nature, this approach aligns with the more wide-ranging environmentalist law project seeking to institutionalize nature as a subject rather than an object of law. One of the main ecocentric proposals revolves around rights of nature legal frameworks. In short, by grounding proposals in the culture and active participation of local indigenous groups in law-making efforts, national jurisdictions make natural habitats active holders of rights. In parallel, ecocide is a vast phenomenon that has a considerable impact on the lives of many communities, on many habitats and interests. Conscious of the ramifications of ecocides, the Expert Panel commentary to the definition refers to concepts and categories strictly related to ecocide. These include sustainable development, climate change, indigenous peoples and future generations.

I will not go too much in detail into the technicalities of the definition (for a series of comprehensive analyses of the proposal see for instance here, here, here, here, here, here, and here). The aim of this post is in fact to flag the success of promoting a depoliticised legal definition through a depoliticised approach at national, regional and international levels of jurisdiction. By depoliticisation I mean the removal of the political character of decision-making through which governance strategies seek “to establish some sort of buffer zone between politicians and [a] certain policy field.” It is a sort of a cooling discursive mechanism which allows conceptual policy proposals to climb the ladder of political decision-making and reach the desired goals, endorsement and adoption. This blogpost claims that the transposition of the new  EU Environmental Crime Directive 2024/1203 (ECD) in EU Member States can prompt a wave of ecocide proposals in key national fora. This wave should in turn substantially boost international efforts to enact a crime of ecocide at the International Criminal Court (ICC).

Ecocide: A Legal Project Through the Meshes of Politics

Ecocide is indeed a legal concept that has gone through a troubled history of setbacks, but it pursues a strictly political goal: to gather enough political consensus to introduce a crime of ecocide in the Rome Statute. Shifting from a legal proposal to an actual piece of law requires the support of the political representatives of the targeted institution. At present, the national branches of Stop Ecocide and the international campaign go hand-in-hand in keeping the conversation alive, promoting national and regional ecocide bills, while advocating for the international criminalization of ecocide. Reaching consensus must thus sit on a strategy that successfully channels the message of ecocide proponents while making this message appetible to power-holders. My view is that a legal definition and advocacy are strategically depoliticised to advance ecocide in international political settings.

The Expert Panel proposal has sparked a lively debate in academic circles with supportive and critical assessments of ecocide law, national ecocide bills, EU regional endorsements and international initiatives. Contrary to those who are most critical of the Expert Panel definition (e.g. here, here and here), political contextualization and critical assessment of ecocide does happen when the organization engages with business, finance, academic and indigenous actors. Politicization also takes place in national arenas and academic contributions. The former depict potential cases of ecocide. The latter make the ecocide debate rich and lively.

As part of the most recent and relevant progresses, Vanuatu, Fiji and Samoa requested that the Rome Statute be amended to include ecocide on September 9, 2024. In a joint submission to the ICC, this coalition of island states proposed to amend the Rome Statute to recognize “ecocide alongside with genocide and war crimes.” More than 25 countries which are parties to the ICC are discussing ecocide at the government or parliamentary level. A law passed in Belgium and ecocide bills proposed in Scotland, Spain, Italy, Mexico, Brazil, Argentina and Peru testify to the growing momentum around the criminalization of ecocide. Debate emerges and grows within and outside Europe. Most notably, a clause on ‘crimes comparable to ecocide’ was included in the text of the new ECD.

Depoliticisation has so far been successful in pushing ecocide through the clutches of power and scholarly discussions. Once ecocide enters parliamentary debates, it can then go through a process of repoliticization. Recent publications use the term ‘ecocide’ to refer to national contexts of mass environmental damage in states where ecocide is part of political discussions, i.e. Peru, Argentina, Brazil, and Colombia. As scholars increasingly link ecocide to concrete scenarios, authorities can frame ecocide laws according to national needs. Repoliticizing proposals are already taking shape in some form in places like Peru and the Italian region of Sardinia.

The Ecocide Potential of the EU Environmental Crime Directive 2024/1203

Adopted on 11 April 2024 and in force since 20 May 2024, the new Directive supports the protection of the environment through criminal law by replacing the old 2008 Environmental Crime Directive. The text uses ecocide as a threshold crime clause defined in terms of severity, diffusion and duration. The terms severe, widespread and long-term appear in the Expert Panel definition and in the ECD.

In the relatively recent history of ecocide law, the ECD is a testament to two crucial elements. The first is that a depoliticised proposal has managed to garner the necessary support to advance in national, regional and international political and legal settings. More specifically, it has for the first time made ecocide a reality in EU law. In addition, and here stands the inquiry of this post, the ECD harbors a great potential in two ways. As this section highlights, the ECD can represent the triggering point for ecocide to become an international crime in the Rome Statute. Moreover, it carries the power of repoliticizing ecocide in the national jurisdictions of the EU Member States apart from Denmark and Ireland – both states have opted-out of the ECD.

In a historic step, the preamble of the new ECD contains a paragraph (21) which accounts for the most serious forms of environmental crimes. The preambular paragraph refers to criminal offences that “cause the destruction of, or widespread and substantial damage which is either irreversible or long-lasting.” Acts “leading to such catastrophic results, should constitute qualified criminal offences and, consequently, be punished with more severe penalties than those applicable in the event of other criminal offences defined in this Directive. Those qualified criminal offences can encompass conduct comparable to ‘ecocide’, which is already covered by the law of certain Member States and which is being discussed in international fora.”

Other than this explicit reference to ecocide and the acknowledgement of its increasing popularity, preamble 21 anticipates the occurrence of specific heinous criminal conducts that ecocide laws could cover. Already in this short paragraph, the drafters mention pollution, industrial accidents, forest fires, and damages to ecosystems of considerable size or value, to protected natural sites, or to the quality of air, soil and water. In addition, the ‘non-exhaustive list’ of crimes leaves space for new types of unlawful conduct to be included (preambular paragraph 23). This approach seems to follow up on that of the Expert Panel, which decided to avoid a list of ecocide-like crimes in the ecocide definition and commentary. The intention is the same: to leave the possibility for a potential law on ecocide to address ecocidal conducts that are currently not unlawful in either national or regional jurisdictions.

With respect to the Expert Panel proposal, the Directive expands the mental element to include serious negligence (Art. 3), inciting, aiding and abetting, and attempting to commit a criminal offense (Art. 4). It not only covers damages to nature but also to affected local communities (Art. 28). Most importantly for the purpose of this symposium contribution, the text (1) calls for the introduction of novel procedural rights to allow the public to intervene in the protection of the affected natural habitat, and (2) lists a series of crimes against specific categories. These include energy and ionizing radiations, hazardous substances, mercury, waste, recycling of ships, ship-source discharge of polluting substances, sensitive installations, and radioactive materials.

Calling for openness, transparency and the involvement of the public in defense of damaged habitats at Art. 15, the Directive goes in the direction of a fundamental institutionalization of public environmental stewardship models. What is known as ‘new environmental governance’ advocates the creation of inclusive, participatory and cooperative examples of social, political and legal action to protect the environment. Conciliatory participation of multiple stakeholders can drive positive change in the protection of natural habitats and affected communities: corporate leaders, state agents, local representatives, scientists, academics and activists.

Furthermore, listing specific environmentally harmful criminal conducts gives EU Member States the chance to situate ecocide and make it operative against specific case scenarios. Adopting ecocide as part of the Directive can finally repoliticize ecocide. In this way, it is the Union and its Members which hold the trigger to politicize and inform the debate around ecocide and redress national ecocide-level crimes. Once EU Member States internalize the ECD categories of environmental crimes, country-specific cases linked to the listed crimes reaching the threshold of ‘qualified criminal offence’ can be defined as ecocide.

After ecocide laws are in place, political constituencies can use the concept of ecocide to describe and shed a light on politically sensitive scenarios of severe environmental destruction. Citing Italian examples, media outlets and public figures are already leading the way in that direction, using the term ‘ecocide’ in relation to specific contexts, e.g. Alpi Apuane, Terra dei Fuochi, ILVA, Riceci, or in Puglia. New procedural comprehensive models of active governance can then support the adoption of ecocide laws, their implementation, enforcement and monitoring.

Conclusion

This contribution has identified depoliticisation as the strategic tool through which the Expert Panel ecocide legal definition and its promoters have so far managed to gather broad popular and political support. In addition, it pointed to the ECD as the most successful present achievement of the ecocide law campaign. The high number of states involved could reflect a potentially high number of ecocide laws adopted. If ambitiously implemented in EU Member States, the ECD can even create more support for the adoption of a crime of ecocide in national jurisdictions and in international law. Once adopted in multiple jurisdictions worldwide, ecocide can be repoliticized according to national cases of severe environmental destruction, thus representing a precious tool of political action and justice. Now it remains to be seen how and to what extent states will endorse, implement and repoliticize the Expert Panel ecocide legal definition in the near future. The coming years will be able to show if ecocide law can be the game changer that Polly Higgins envisioned through a moral, legal, and political redefinition of international environmental protection.