This June, a panel of international experts revealed a proposed legal definition for \u201cecocide,\u201d with the hopes that this crime eventually can be included in the Rome Statute and heard by the International Criminal Court.<\/p>\n
Over the past decades, several different definitions of ecocide have been proposed, with different mens rea requirements. For example, advocates like Polly Higgins<\/u><\/a> and Mark<\/u>\u00a0<\/u>Gray<\/u><\/a> proposed \u201cecocide\u201d as a crime of strict liability, regardless of intent \u2013 stating this was necessary to prevent corporations from harming the environment as a part of business. Other models (see here<\/u><\/a>), proposed the crime as requiring direct intent, and limited to acts of ecocide committed during wartime or military actions. Examples of \u201cecocide\u201d can run the gambit from industrial accidents, where no fault applies, to deliberate destruction of the environment. So, what mens rea was finally proposed in June, and what types of \u201cecocide\u201d could be covered in this provision?<\/p>\n This is the ecocide definition the Panel proposed: Article 8, Ecocide<\/p>\n \u201cFor the purpose of this Statute, \u201cecocide\u201d means unlawful or wanton acts committed with knowledge that there is a substantial likelihood<\/em> of severe and either widespread or long-term damage to the environment being caused by those acts.<\/p>\n 2. For the purpose of paragraph 1:<\/p>\n a. \u201cWanton\u201d means with reckless disregard<\/em> for damage which would be clearly excessive in relation to the social and economic benefits anticipated\u2026\u201d<\/p><\/blockquote>\n The proposed ecocide crime includes a mens rea\u00a0intent in two places: the perpetrator acts \u201cwith knowledge that there is a substantial likelihood (\u2026) of damage to the environment being caused by those acts\u201d and that he\/she acts \u201cwantonly,\u201d\u00a0i.e. with \u201creckless disregard\u201d, for the damage. So the perpetrator does not need to specifically intend to harm the environment; it is enough that he acted knowing there is a \u201csubstantial likelihood\u201d of ecocide. This mens rea, \u201cacting with substantial likelihood\u201d of harm, comes closest to the principles of dolus\u00a0eventualis, or recklessness.<\/p>\n In ICC prosecutions, the mens rea\u00a0intent can have three basic forms: \u201cdolus\u00a0directus,\u201d where the perpetrator directly foresees and intends to cause a specific harm (A intends to kill B; aims and shoots B); \u201cdolus\u00a0indirectus,\u201d where the perpetrator foresees additional harms besides their primary goal as a certain consequence of their action, and acts anyway (A intends to kill B; bombs car containing B and C; killing C); and finally \u201cdolus\u00a0eventualis,\u201d where the perpetrator foresees other harm as a possibility or a likely consequence of their action, and acts anyway. (A shoots B while B is driving, endangering C in the passenger seat) (see generally here<\/u><\/a>).<\/p>\n The ecocide article includes a mens rea of \u201cdolus\u00a0eventualis,\u201d where an individual acts knowing there is a \u201csubstantial likelihood\u201d\u00a0of harm to the natural environment. However, this mens rea requirement differs substantially from the rest of the Rome Statute.\u00a0Article 30 lays out the default \u201cmens rea\u201d provision for the Rome Statute;\u00a0this Article states that the perpetrator\u00a0is criminally liable only if he commits the material elements of the crime with \u201cintent and knowledge\u201d (para. 1).\u00a0Both \u201cintent\u201d and \u201cknowledge\u201d are defined in the article. \u201cIntent\u201d means that the person \u201cmeans to engage in the conduct\u201d (para. 2(a)) and either intends to cause a certain consequence or is aware that the consequence \u201cwill occur<\/em>\u201d in the ordinary course of events (para. 2(b)).\u00a0\u201cKnowledge\u201d is further defined as \u201cawareness that a circumstance exists or a consequence will occur<\/em> in the ordinary course of events\u201d (para. 3).<\/p>\n The language of Article 30\u2019s \u201cintent and knowledge\u201d provision covers the mens rea of \u201cdolus\u00a0directus\u201d (\u201cintended to cause a certain consequence\u201d), and \u201cdolus\u00a0indirectus (\u201cacts with awareness that the consequence will occur<\/em>\u201d). However, because it does not include cases where the perpetrator simply acts recklessly, or acts in spite of a likelihood of harm, Article 30 would not cover cases where the perpetrator acted with \u201cdolus\u00a0eventualis.\u201d The proposed law of ecocide could not be included under Article 30\u2019s default mens rea; acting with \u201csubstantial likelihood\u201d of environmental harm would simply not fit under Article 30\u2019s mens rea, which requires either a direct intent to harm or knowledge that the harm will occur in the ordinary course of events.<\/p>\n However, Article 30 allows exceptions; the default mens rea requiring intent and knowledge applies \u201cunless otherwise provided\u201d (para. 1).\u00a0So an article can define a different mens rea (either more or less stringent) than that provided in Article 30. This exception should allow the proposed ecocide law to define a less stringent mens rea than the default Article 30 requirement. So, the ecocide provision itself can include a mens rea of \u201cdolus\u00a0eventualis\u201d, or \u201csubstantial likelihood,\u201d even though that mens rea is less stringent than the general mens rea in Article 30.<\/p>\n However, would having a lowered mens rea requirement make it more difficult for the ecocide provision to pass? How much of an anomaly is this mens rea for the ICC? It is worth comparing the \u201cecocide\u201d mens rea with the other four core crimes listed in the Rome Statute (War crimes, crimes against humanity, genocide, and aggression.) Do any of the other core crimes include a lowered mens rea requirement? In fact, the general crimes of aggression, war crimes, crimes against humanity do follow Article 30\u2019s mens rea requirements, while genocide requires an even more specific intent (to destroy a national, ethnic, racial or religious group, Article 6 Rome Statute).<\/p>\n Article 30\u2019s mens rea requirement applies whenever the crime\u2019s elements itself do not include a mental element (Elements of Crimes<\/u><\/a>, p. 1); so many provisions that simply list a prohibited act (i.e. taking of hostages) would require Article 30\u2019s mens rea of intent and knowledge. The Rome Statute includes a lower mens rea in only two areas, and these provisions have to do with commander responsibility and military wartime actions.<\/p>\n First, a military commander can be held responsible for the actions of the troops under his command, even if he did not intend a certain harm to occur,\u00a0if he should have known the forces were committing a crime and failed to take reasonable steps to prevent or prosecute the crime (Article 28 Rome Statute). The war crime of using child soldiers applies if the commander should have known the soldier was a minor (Elements of Crimes<\/u><\/a>, p. 21). Both of these provisions hold military commanders criminally responsible under a lowered <\/u>mens<\/u> rea standard<\/u><\/a> of \u201cnegligence,\u201d and do not require any intent.<\/p>\n Civilian superiors can also be held criminally responsible for the acts of their subordinates. Article 28 states that a civilian leader is liable where \u201cthe superior either knew, or consciously disregarded information which clearly indicated that the subordinary were committing or about to commit crimes,\u201d the actions were within the responsibility and control of the superior, and the superior failed to take necessary steps to prevent or prosecute the crime (Article 28(b) Rome Statute).<\/p>\n This crime requires a higher mens rea than that of military commanders; not just that the superior \u201cshould have known\u201d (negligence) but that the superior did<\/em> know, or consciously disregarded<\/em> information about the crime. Unlike military commanders, civilian superiors must have a level of intent \u2013\u00a0either knowing or willfully ignoring information (willful blindness). This \u201cwillful blindness\u201d standard means that superiors can be responsible if they were aware of the risk of criminal acts by their subordinates, but\u00a0consciously ignored it. This provision\u2019s intent\u00a0corresponds<\/u><\/a> to a mens rea of \u201cdolus\u00a0eventualis,\u201d intentionally acting in spite of the known risk of harm. The civilian superior provision thus has the closest \u201cmens rea\u201d to the proposed crime of ecocide. Indeed, it seems to be the only place in the Rome Statute where a mens rea of \u201cdolus\u00a0eventualis\u201d is included in the Statute.<\/p>\n However, in the vast majority of provisions, a mens rea of \u201cintent and knowledge\u201d does apply, which would require that the individual acted either intending the harm (dolus\u00a0directus) or knowing the harm will occur in the ordinary course of business (dolus\u00a0indirectus).\u00a0Given this backdrop, the proposed crime of ecocide would be an anomaly, and introduce a very different type of mens rea into the Rome Statute.<\/p>\n The ecocide definition includes another specific mens rea for \u201cwanton\u201d acts; defining wanton as: \u201creckless disregard for damages which would be clearly excessive in relation to the social and economic benefit anticipated.\u201d This again indicates a mens rea of \u201crecklessness,\u201d or \u201cdolus\u00a0eventualis.\u201d It includes a proportionality test and finds that a person acted \u201cwantonly\u201d when the environmental damages are \u201cclearly excessive\u201d to the anticipated benefits.<\/p>\n The Rome Statute includes \u201cwanton\u201d in one other place; in its definition of war crimes, for the destruction or appropriation of property.\u00a0However, this word\u00a0does not allow for a lowered mens rea of \u201crecklessness\u201d or \u201cdolus\u00a0eventualis.\u201d The ICC has held<\/u><\/a> that Article 30\u2019s general mens rea requirement of intent and knowledge applies to this war crime, and a \u201cwanton\u201d act\u00a0requires a \u201cdolus\u00a0directus\u201d intent to destroy property in excess of military necessity.<\/p>\n The Drafting Panel\u00a0states that a number of aspects of the ecocide definition are drawn from an existing Rome Statute provision \u2013 Article 8(b)(iv), the war crime of environmental destruction \u2013\u00a0while it sought to expand the scope to peacetime acts. Article 8(b)(iv)\u00a0incorporates a similar proportionality test; making environmental destruction a war crime when it is \u201cclearly excessive\u201d to the military goals. However, the\u00a0existing war crimes provision contains the general mens rea of intentional action (\u201cIntentionally launching an attack in the knowledge that such attack will cause<\/em>\u2026damage to the natural environment.\u201d)\u00a0(dolus\u00a0directus or indirectus). So, while it is true that the language of the ecocide provision is similar to the existing war crime provision, the mens rea of the ecocide statute would be completely different (dolus\u00a0eventualis) and more expansive.<\/p>\n