Defining Ecocide

The initiative StopEcocide aims to amend the Rome Statute of the International Criminal Court (ICC) by incorporating a fifth international crime: ‘Ecocide‘.  To that end, it recently commissioned an independent expert drafting panel to draft a legal definition of ‘ecocide‘. While the draft’s publication is scheduled for the end of June, we had the opportunity to speak with one of the panel’s co-chairs, Philippe Sands, beforehand. This interview forms the first post for the forthcoming symposium ‘Defining Ecocide’ that will discuss and critically reflect the suggested definition shortly after its publication.

Thank you very much for taking the time, we know you must be on a busy schedule these days. To start off, what was the initial idea in putting together this expert panel?  While we know that you can‘t „share“ the definition with us at this stage: what made you work on it?

First, thanks a lot and I commend you on your initiative, it‘s wonderful to have the great interest and support. And of course I can‘t disclose anything, because I don‘t know what the definition will be. I had no role in the recent period on ecocide, I was aware that it had been invoked in 1972 by Olof Palme in Stockholm, by Ben Whitaker in 1985 in a report for the Minority Rights Group and that there had been various other initiatives. And then the work of Polly Higgins, which has really taken this forward. And so, I had not been involved, was neither for nor against, observing, interested, and then I was contacted out of the blue by Polly Higgins‘ colleague, Jojo Mehta, who  asked whether I might be willing to chair it. I think the reason they asked me was a background in the environment – it’s what I started in in the late 1980s – and then more recently I had been writing about the origins of genocide and crimes against humanity. It seemed a neat fit. And also, although I‘m a progressive person, I‘m also a rather pragmatic person, grounded in the real world of courts and tribunals, with a sense of what‘s possible and not. I‘m an incrementalist. I think they wanted someone who‘s generally supportive, but a realo, rather than a fundi.  

And it was interesting: once I accepted, there was a piece in the Guardian newspaper and my kids who are in their 20s and tend to ignore much that I do, rather wisely, got in touch and said „Well, that‘s great what you are doing“. I think this – and your interest – touches on the fact that this is a subject of great generational interest. I suppose it is, for me, the equivalent of that moment in 1945 where a small group of people had the idea that somehow the law might be harnessed to do good, and came up with the legal concepts of ‘crimes against humanity’ (Lauterpacht) and ‘genocide’ (Lemkin). I wrote about this in my book East West Street.  People like me should be contributing to this development.  

So that was why I accepted – and I‘m very glad that I accepted. It‘s been intellectually challenging: there had been no new international crimes since 1945. It‘s really interesting; I‘ve been calling it the ‘Fifth Crime’, but it‘s different from the four previous ones, because it‘s not anthropocentric. And I‘m really clear: I don‘t know what will emerge finding the definition, but it‘s very important for me, personally, that it not be focused on the protection of the human. I draw inspiration from the best law review article I ever read, by Christopher Stone, called „Should Trees Have Standing?“, published in 1972 in the Southern California Law Review, which posits the idea of nature having rights of its own. And that‘s really important to me.   

Our group is a representative, which I think is a good thing, with members having a spectrum of views. The hope, of course, is for a consensus. I have a very fine co-chair, Dior Fall Sow from Senegal. I was keen that there must be a female co-chair, and a non-white person. It‘s a necessarily diverse group, which I welcome.

You have wide experience before International Court and Tribunals  and you just called yourself a “realist”, what are your expectations regarding the actual impact that this definition can really have?

If we come up with a definition that doesn‘t have a reasonable prospect of being considered by governments as a possible basis for inclusion in the Rome Statute, I consider we would have failed. My target is not that it be in the Statute, but that there be a serious debate about the idea. It must be a definition that meets the standards of the current Rome Statute, one that could reasonably be inserted. This is a challenge, because States will not want to open the door to a sort of floodgates of cases. How are you going to deal with this? Do you address the subject by reference to certain types of activities? Or by reference to certain types of consequences? I am inclined toward consequences, because I worry that once you start listing certain things, by excluding others you imply that they are okay. That‘s a  significant issue.

And then a second issue is: what consequences? At what point does harm to the environment attract international interest and attention? At what point does it cross a line at which the national legal order is considered to be insufficient? Do the consequences have to be global in effect, or transboundary? Can it be an effect within one country? That is a really complicated issue. We have a couple of models to answer such questions, like the Environmental Modification Convention. International law is deeply conservative, and you would have to ground it on something that has come before, or it’s likely to be dead on arrival. That‘s the remarkable thing about 1945 actually. Lauterpacht proposed ‘crimes against humanity’ by drawing on the work of others. But Lemkin, rather extraordinarily, constructed the idea of ‘genocide’ almost out of the blue. That’s very rare, but 1944/45 was a rare moment.

A third issue concerns the mental element. The problem here is that the “Stop Ecocide!” folks have done their market research and it is consistent entirely with my own perceptions. The grand publique is less interested in ‘crimes against humanity’ and war crimes, but the moment you mention genocide, everyone pays attention. It seems to be the same with ecocide. An ‘environmental crime against humanity’ has limited resonance, it seems, whereas ‘ecocide’, people think ‘yes, that’s good!’ But one problem with ‘ecocide’ is that it inscribes itself in the genocide route, which sets an impossibly high threshold: Who intends to destroy the environment in whole or in part?

How exactly does ’ecocide’ compare to these existing crimes, genocide and crimes against humanity? What are the structural similarities or disparities?

My view is well known, that I am troubled by the pre-eminence given to the concept of genocide, because a consequence of that has been to diminish the horror of crimes against humanities or war crimes: “Oh, if it’s only a crime against humanity or war crime, then it’s alright.” It’s only genocide that attracts public interest and attention with its emphasis on the group and its reinforcement of group identity, which I think is problematic.

For this project one has to, I think, take more of a crimes against humanity standard, which would include not only intentional acts, but acts which recklessly or perhaps even in gross negligence have significant adverse effects for the environment. Ultimately, I suspect, we’ll come up with a definition in which it will be for prosecutors and judges to determine the details of where it goes. And therein lays the difficulty. States will want a degree of precision, but a degree of precision is precisely what may also turn them against the project. That’s the challenge, a question of balance: the definition has to be tight enough to exclude much, but flexible enough to accommodate a range of ecological horrors.

In terms of the standards to be applied, for me (and I speak personally, here) it may mean a cross between the standards of crimes against humanity and genocide, a melding of the two. Maybe that’s a reflection of my own desire to have those two concepts somehow be melded into a single overarching concept, which of course is not about to happen. But I think maybe ecocide could take the “clothing” of genocide, so it has the strength of the term, but the innards are more along the lines of a ‘crime against humanity’. That may be the way to go.

In terms of the logistical drafting of the issue within the Rome Statute, do you insert it into crimes against humanity or genocide? I think probably not, more likely a stand-alone. Why? Because if you put it under the rubric of genocide or crimes against humanity, you immediately make it anthropocentric, you make it about the protection of the human being. I think it has to be a concept that embraces the idea that the environment as an end in itself, and not an objective to be assured exclusively as a means of assuring the well-being of human beings. For me that’s important.

In view of this, do you think that the toolkit of international criminal law is capable of dealing with this shift away from the protection of humans towards the protection of the environment as an end in itself?

I do think it is capable – whether it wishes to proceed is another matter. For example, at the ICC we see the beginnings of consciousness about cultural objects, which was Lemkin‘s original conception of genocide: his essential idea was primarily about maintaining the diversity of cultures, until that was stripped out of the Genocide Convention.

But one of the things that no one ever thinks about and writes about – certainly when I was a student and also when I started teaching – is that everyone rushes to say „Yes, it would be great to have international criminal tribunals, to have crimes against humanity, to have a concept of genocide“. But no one thought through what the consequences were going to be. They just thought „Oh, this is a good thing“. And that was well-intentioned, but I have at the forefront of my mind this passage in East West Street, to a letter that Lemkin received from one of his friends, Raphael Kohr, a political scientist who was a refugee living in Wales. He wrote to Lemkin when he first came up with the concept of genocide in November 1944 and said, I paraphrase: „My dear friend, I‘m not going to publish this, but privately I want you to know that I oppose your concept of genocide, because what you are doing is inscribing people on a path which, even if it does not necessarily lead there, could lead there, and that is the biological approach to the protection of human beings, which is what Hitlerism was all about.” (This is Kohr‘s language). And I think Kohr is right: what Lemkin has unwittingly done, with his brilliant concept of genocide, is to reinforce and enhance the notion of group identity. Lauterpacht worried that genocide would replace the tyranny of the state with the tyranny of the group. That seems to be what we are experiencing right now. And it‘s part of a direction in which the law comes to reflect.

So, one must beware the unintended consequences of our well-intentioned action, as happened after 1945. I sense that on ecocide there is a will to shift things away from a human-centred approach. Whether it happens in practise depends on political will in our new age of nationalism. I don‘t think that ultimately there’ll be so much of an appetite for it amongst some governments, but history never ceases to surprise! I have long believed that the only way in which environmental consciousness through the law will change is in the face of actual disaster. Most likely there is a direct connection between the growing fear of climate change and biodiversity loss, and the Covid-19 pandemic, which reminds us how fragile we are – and how connected we are. These matters give legs to the concept of ecocide: something is happening that is making people fearful, and they are looking for ways to channel that fear into something protective and productive. So, I wouldn‘t want to sound too optimistic that it will happen, but something is happening to our consciousness, to the sense of our relationship to the natural world.

What added value does international criminal law offer to the protection that we already have within the international environmental law regime?

I think the specific added value is the fear of criminal investigation or prosecution. The criminal law “concentrates the mind”. It is really interesting, I had to do an opinion some years ago on smoking and the tobacco industry and the jurisdiction of the ICC. It was interesting how company directors, once you put the focus on individuals rather than on companies or states, all of a sudden think ‘wow wow wow, this could be me!’ It make you think about what you are doing. It is one thing if a community could be indicted for something, it’s quite another thing when you yourself are at risk of criminal investigation.

The risk of criminal liability can concentrate the mind of the decision-maker, and that’s the group of people that you really want to go for. If for example one of the consequences that is addressed is the impact of actions on the climate system, should the ICC then be rounding up people who don’t recycle, or use too much water, or fly too much, or whatever? Well perhaps, but this is hardly going to address the underlying issue. Each of us contributes to climate change. So, the purpose is to create an incentive for people to think about protecting the environment as an end in itself by using the threat of criminal punishment. So that goes to the decision-makers, who are thinking of authorising an activity which may have unintended consequences for the environment. Or a company, or an individual. But it has also to be about raising consciousness, which is symbolically important.

At this time, international criminal law has nothing really much to say about the protection of the environment. And domestic criminal law has started to address that, really, in the 1990s maybe, or the 1980s in some places, like Germany. But international criminal law doesn’t yet do that, except perhaps in the rarest of situations. So I think international criminal law can add to the toolkit by raising consciousness, by causing certain individual to have their minds concentrated by fear, and by creating incentives to do better for the environment.

So, for me, the purpose of the criminal law is to contribute to a change in human behaviour, and part of that is a simple consciousness-raising exercise. I have been surprised at how much interest there has been in the subject of ecocide. Time magazine? The Economist? Who would have imagined that? So I feel that the moment may be right, the zeitgeist may be coming into being, you just feel that. But it is primarily about consciousness. I’m not starry-eyed about law. I don’t for a single moment believe that once you have a definition of ecocide, or the crime in the ICC Statute, that all of a sudden human behaviour will magically change. We know that that’s not how things are. The convention on genocide did not eliminate the genocidal instinct.

Did the aim of raising consciousness also influence your decision to consult the public in the drafting process? How do the public submissions materialize in your work?

Actually, I was keen on that, I feel it’s very important to hear from others than the usual suspects. That just comes from life experience: Ten years ago, I sat on a British Government Commission on the future of human rights in Britain, and we did a public consultation. I was fascinated by the ideas that came in, some really interesting and surprising things. Firstly, you get an overall feel for what’s out there, general lines, which is interesting. And then you always get some totally unexpected ideas. It’s why we have equal opportunities in terms of jobs. The old days of just tapping someone on the shoulder, saying I’d like you to be a judge or president or things like that, that’s gone. And part of the reason that it’s going to go is that it enriches the decision-making process. Greater transparency, greater involvement from a wide range of stakeholders. 

We got hundreds of responses, it was interesting. We’ve gone through them all and we’ve arranged them and organized them, a huge amount of material. The other effect it has is that everyone who participates has an interest in the outcome and that creates a sort of network of stakeholders, which is a good thing. So I think it’s a sort of win-win type of thing. We are paying attention to it. There are the usual suspects of course who contribute, but there are also the unusual suspects, people who write in and who sense stuff and they have good ideas. There were plenty of good ideas, it was impressive. Everyone was supportive of something happening, of the need to fill a big gap.  It was quite a lot of work for some people to go through it and I think when we come out with our report, we must refer back to some of the ideas that were in there. It’s time-consuming, but it’s important.

So I think it enriches our process and it strengthens the prospects for the outcome, if people like it, because there is a community out there that’s waiting to see what we come up with. It is an elite group, I suppose, who were asked to do these things, but it’s a way of saying we are open. And we are open, very open.

That is also our aim with this forthcoming symposium: to make this very open and transparent process as broadly accessible as possible, not only to academics, but the interested public alike. Also, to the generation or generations that will be affected.

Absolutely! This is exactly why I responded positively to your interest, because we are all in this together. We can agree or disagree on the outcome, also within the group there will be disagreements. But essentially we want the same thing and we are all struggling to find a way to do it. We will report in June. One of the joys of being an English barrister is that if a timetable is set, generally it is met. Period. We finish our work, it will be for others then to run with it, if the will is there, if the ideas we come up with are of sufficient interest, intelligence and attractiveness.