A Definition of “Ecocide” Announced
Legal experts have formulated an agreed-upon definition of ecocide that could have international criminal effect.
On June 22, 2021, a panel of international experts released a draft definition of “ecocide,” which they proposed should be included as a new crime at the International Criminal Court.
The definition is as follows:
“[E]cocide” means 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.
There Is Currently No Accepted Definition of Ecocide Under International Law.
Today, there is no commonly accepted definition of ecocide, and its status as a norm in customary international law is unclear. In its landmark advisory opinion related to the legality of the threat or use of nuclear weapons, the International Court of Justice reiterated that determining customary international law is a process of looking at “the actual practice and opinio juris of States.” Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Reports 226, ¶ 64 (Jul. 8). The practice of states with respect to ecocide is certainly mixed, with many states seemingly unable or unwilling to prevent severe and either widespread or long-term damage to the environment in their jurisdictions.
At the same time, it would be surprising if international law did not, implicit in its normative boundaries, include a prohibition on the irreversible destruction of the environment or on the planet as a whole. The crime of aggression, for example, was not an explicitly defined crime until the judgment at Nuremberg, but was nonetheless declared a crime with sufficient weight in international law to support convictions against high-ranking leaders of defeated Axis governments. In rejecting arguments that the crime of aggression was an “ex post facto” crime being applied retroactively, the Nuremberg Tribunal held that “in such circumstances the attacker must know that he is doing wrong, and so far from it being unjust to punish him, it would be unjust if his wrong were allowed to go unpunished.” United States, et al. v. Goering, et al., 6 F.R.D. 69, 107 (Int’l Military Trib. at Nuremberg 1946). The lack of clarity with respect to the normative status of ecocide under international law is thus not a dispositive defense to future lawsuits or prosecutions against persons accused of committing ecocide. To the extent that a person “knows that he is doing wrong,” the definition of ecocide, combined with a growing awareness of the fragility of environmental systems, could produce liability and even international criminal liability to the extent the wrongdoing is pervasive, severe, or wanton to a sufficiently high degree.
Companies Must Weigh the Risks of Ecocide or Being Charged with Ecocide.
Businesses engaged in activities or conduct that could leave irreparable environmental damage should take notice of the proposed definition and assess with counsel the risk of charges of ecocide at a later date. While the definition of ecocide is a proposal for the International Criminal Court only at this time, a working definition potentially permits courts or legislatures in other jurisdictions to adopt it as well. To the extent that opinio juris shifts amongst states, the definition could, in tandem with state behavior, produce a norm under customary international law that could also provide liability independently and irrespective of whether the International Criminal Court ultimately adopts the crime.
Businesses must also consider the “headline risk” of being accused of ecocide under the proposed definition. As the Earth’s climate continues to warm, there is increased focus and attention by civil society, intergovernmental bodies, and governments on the consequences of deforestation, non-sustainable business practices (across and throughout industries), biodiversity loss, and sustained or even multi-generational damage to the environment. Serious allegations of ecocide could prove incredibly costly for any enterprise, particularly in an era where social media campaigns can amplify and distribute local issues throughout the world and keep them on the Internet forever.
Finally, corporate boards should work with ESG counsel to audit current business practices, review risk disclosures, and prepare a long term, multi-jurisdictional ESG strategy.