Crime of ecocide could transform fight against climate change

Picture the scene. Jair Bolsonaro, president of Brazil, is led to the dock in a sombre courtroom in The Hague where he is told his policies on the Amazon have been so destructive he is guilty of the crime of ecocide.

Within months, Darren Woods, chief executive of oil company ExxonMobil, is facing the same charge in the same courtroom, this time for drilling for more fossil fuels he knew would hasten environmental devastation.

If this sounds outlandish, it’s because at the moment it is. Ecocide, or mass destruction of the environment in peacetime, does not exist in international criminal law. 

Yet the idea inched a fraction closer to reality this week, when a panel of lawyers from around the world, co-chaired by international law expert, Philippe Sands, unveiled a legal definition of the crime. It describes ecocide as “unlawful or wanton acts” committed in the knowledge that there is a high chance they could cause “severe and either widespread or long-term damage to the environment”.

If adopted, it would put severe environmental ruin on a par with war crimes and open a path to putting chief executives and presidents on the stand. And even if that never happens, campaigners are banking on the mere legal existence of ecocide to change the behaviour of large corporations, along with their financiers and insurers.

Jojo Mehta, chair of the Stop Ecocide Foundation NGO that organised the legal panel, says the German industrial group Siemens offers an example of how the crime could drive greener business decisions. When climate activists attacked Siemens for supplying equipment for a contentious Australian coal mine venture in 2019, its then chief executive, Joe Kaeser, said he shared their environmental concerns but could not ignore a fiduciary responsibility.

Mehta believes the crime of ecocide could raise enough legal doubts to reverse such decisions. More broadly, she thinks the measure could force a wider corporate rethink about environmentally harmful actions, by making projects so risky they become “unlicensable and uninsurable”.

Her foundation’s efforts come amid the unexpected success of a growing number of environmental legal cases. Last month alone, a Dutch court ordered Royal Dutch Shell to cut its carbon emissions faster and Germany said it would revise its emission reduction targets after the country’s highest court ruled existing climate laws imposed too great a burden on the young. In the Netherlands, the government unveiled a package of climate measures last year to comply with another court ruling that found existing laws were inadequate.

But an international crime of ecocide would break even greater legal ground. Including it in the Rome Statute, the treaty that governs the work of the International Criminal Court, would add a new crime to international law. Campaigners hope it will become the “fifth international crime”, alongside genocide, crimes against humanity, war crimes and the crime of aggression. There would be one big difference: those four crimes all focus on harm to humans. Ecocide would cover damage to the planet.

The need for such protection is undeniable. Six years after the Paris climate accord was agreed, warming carbon emissions remain relentless. Despite countless government pledges to end filthy air, toxic rivers, overfished seas and swaths of razed wilderness, the UN says 1m of an estimated 8m species of plants and animals are threatened with extinction. Humans have become such a force of nature that scientists speak of a new geological era, the Anthropocene.

Against this backdrop, Emmanuel Macron, France’s president, has voiced support for enshrining ecocide in international law and pushed to make the crime an offence in France. Pope Francis has said the international community should recognise ecocide as “a fifth category of crimes against peace”. 

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But criminalising mass environmental destruction globally will not happen quickly. Legal scholars say it would be astonishing if the many steps needed to amend the Rome Statute could be finalised within five years. Bringing a case to the International Criminal Court also takes time.

A further complication: not all countries are parties to the Rome Statute, including the US. Ecocide advocates say this may not matter, since actions authorised in a non-member country that affect a member nation would still fall under the ICC’s jurisdiction. That is an important distinction when it comes to mass environmental harm.

Ultimately, the effort to make ecocide an international crime might itself be what counts most. The law on its own has limits, says Sands. “Having argued cases about genocide and crimes against humanity, I am not starry-eyed about the law. You don’t suddenly pass a law and all of a sudden everyone starts being nice to each other and stops mass killing.”

The ecocide legal campaign, he says, is contributing to something that is already happening. “It’s about a change of consciousness, that’s what it’s really about.”

pilita.clark@ft.com