Founded in 2017, the Stop Ecocide campaign is the first global campaign aiming to “support the establishment of ecocide as an international crime, in order to forbid and prevent further devastation to life on Earth.” To this end, the campaign launched an expert drafting panel on the legal definition of ecocide in late 2020. The panel is co-chaired by international lawyers Philippe Sands QC and Dior Fall Sow. The expert drafting panel is tasked with crafting a definition of ecocide as a potential international crime alongside the internationally recognized crimes of genocide, crimes against humanity, war crimes and the crime of aggression in the Rome Statute and as applied by the International Criminal Court.
In the International Environmental and Resources Law Committee’s new interview series, Top Talks, our committee articles co-vice chairs speak with top legal experts about developments in the world of international environmental and resources law. First up, Professor Philippe Sands.
A: The idea of ecocide has in fact been around for quite a long time. I think it was first evoked by Swedish Prime Minister Olof Palme in 1972 at the Stockholm Conference, and then by a British lawyer, Ben Whitaker, in the mid-1980s. But it was really picked up more recently by another British lawyer, Polly Higgins. I had followed it from a distance but had not become involved. Then, about six months ago, I was contacted by the NGO [nongovernmental organization] Stop Ecocide, would I be interested in contributing to an effort to refine the definition of ecocide in a way that could allow it to be considered for inclusion in the Statute of the International Criminal Court. A working group was established, a dozen members, a broad range of backgrounds and views, which is a good thing. It is a privilege to co-chair the group, with Dior Fall, a superb lawyer from Senegal. We have spent four months trying to elaborate the basics of the concept of ecocide. The idea is to come up with a text which is consistent with the approach taken by the Statute of the International Criminal Court, and which could be slotted in. I’ve started calling it the fifth crime, because, curiously, the four existing international crimes were all in place by the end of 1945, but there have been no new international crimes since then.
A: Well, I think the idea is to put the accent on harm to the environment on a massive and deeply damaging scale, as a criminal act under international law. That crime does not yet exist, although we do have is destruction of the environment as a method and means of warfare. And a 1977 Convention on that. The question that you raise is a really interesting one. Where would the crime of ecocide, reside? Is it part of genocide, refined? Is it part of crimes against humanity, refined? In the end I suspect we may opt a middle way, a separate and freestanding crime which exists, if you like, between genocide and crimes against humanity. It takes the best of both concepts.
One aspect that’s very important for me, and here I am speaking personally, is that the crime of ecocide must not be anthropocentric. In other words, it must not be only about protecting the human. Of course, harm to the human may be one indicator of whether the crime of ecocide takes place, but it cannot be the only one. One of the features of genocide and crimes against humanity is that they are both ultimately concerned with the protection of the human, the group, or the individual. So for that reason, for me, ecocide cannot be either only a part of genocide or only a part of crimes against humanity. I think what we are opting for is a self-standing, new crime. The word ecocide is redolent of the crime of genocide, but, as we all know, genocide has a very high threshold. Embedded in the concept of genocide is an intent to destroy a group in whole or in part. One of the difficulties of the word of genocide, which has a lot of public resonance, is that if you apply that approach to ecocide, frankly you will never be able to establish the intention to destroy the environment in whole or in part on a massive scale, because that’s not what people go about doing. It’s always an unintentional or reckless act rather than an intended act. So, I think the right way to go, and again speaking personally, is to take the name recognition of the concept of genocide as the clothing of the concept, but the meat and the innards must be more in terms of the standard of crimes against humanity.
A: I am not starry-eyed about the possible crime of ecocide. Genocide and crimes against humanity, or murder as a crime, have not stopped genocide or crimes against humanity or murder. I do not expect that ecocide as an international crime would prevent massive, widespread, severe damage to the environment. But I think what the inscription of the crime of ecocide into international law would do, is signal that the international community values and recognizes the need to protect the environment as an end in itself. And I think that—for me—is the single most important reason for doing it. It’s about consciousness raising and consciousness changing. That is a major rationale for doing it. And in the drafting exercise, I must say, I have spent a lot of time going back thinking and trying to imagine how it was to be [Rafael] Lemkin or [Hersch] Lauterpacht, at the point that they came up with their two new concepts, genocide and crimes against humanity, respectively, when there was no such international crime. I don’t think either of them was starry-eyed in imagining you put a few words on a piece of paper and states sign up to it and all of a sudden we start behaving nicely to each other. But they understood that it would begin the practice, the long drawn-out, multi-century practice of changing human consciousness and behaviour over the long term, and that is what my hope is about dealing with it.
A: We’ve taken the approach that we can’t amend the totality of the Rome Statute. Less is more. The idea is to get it into the Statute in some form, over time. To do that you have to accept the givens of the Rome Statute. One of those givens is that it only provides for individuals to incur criminal responsibility under the Statute. That does not exclude the possibility that individuals associated with groups or corporate actors—a director, perhaps even a shareholder, perhaps even a chief executive officer—could be criminally liable for the crime of ecocide. So, I think the Rome Statute itself is broad enough, but corporate actors as such are not part of the Rome Statute configuration and therefore corporations or NGOs, or associations of human beings in whatever form are not as such envisaged by the Rome Statute. I don’t think we can change that; we are stuck with it.
A: I think we need to be really flexible about redress and I don’t think it’s for us to address the matter of redress any more than in forging the definitions of genocide and crimes against humanity. The drafters of those definitions in due course addressed matters of forms of redress, whether it’s reparation or compensation, or kinds of punishments for individual criminals. I think those are two distinct elements. Step one is to see whether it’s possible to come up with the definition of a crime—and that is not, I have to say, such an easy exercise. And it will be for others, and in particular the judges, to deal with the question of consequences of criminality. But we don’t in our exercise engage with that matter. That will be for others to deal with: our remit is limited, simply to draft the definition of a possible crime.
A: There are a number of challenges; let me just focus on two or three.
One is, what is the act. And in particular in looking at the act, there are a number of approaches. One approach might be to list by enumeration those kinds of acts that would be caught; the alternative approach is to look at the consequences on a particular environmental resource. My own view is the latter approach may be more attractive, largely, because I worry that by focusing on particular individual acts you exclude others and implicitly, unless you come up with a massive and lengthy list, which is impractical. And in practical terms, the more you put in a definition the less likely it is that it will find acceptance by states. So, it has to be kept simple, and I think the simplest way is to focus on the consequences.
A second issue in relation to that concerns the nature of the consequences. There is a whole raft of human activity that is harmful to the environment, even deeply harmful. And of course, relatedly, we are all of us on the planet contributors to that harm. So how do you single out the events or the consequences which could be covered by the crime, and how do you then determine the actors who are responsible for that crime? To take one issue: the issue of climate change is extremely complex to put within this framework: you contribute to climate change, I contribute to climate change. Indeed, I am involved in cases which are about maritime delimitation but also open up the possibility of access to resources including oil and gas. Does my role as a lawyer engaged in a maritime delimitation expose me to criminality, because I am opening up the possibility of future exploitation of oil and gas? On the arguments of some the answer to that question is: yes, absolutely. On the arguments of others, no, it’s not; it wouldn’t be. So, I think those issues are really complex and you have to look at the consequences and in particular I think you’ve got to look at the consequences by reference to the economic and social benefits. A sort of balancing exercise to determine whether a particular act could inscribe itself within the crime of genocide.
A third issue is the mens rea (mental element). Is it only intentional acts, or is it recklessness, or is it also negligence?
These are really complicated issues and in addressing these three and other issues, there is also the concern that you’ve got to come up with a definition that is not going to frighten countries. At the end of the day, governments are going to have to negotiate an amendment to the Rome Statute. If you don’t have the support of enough governments, it’s not going to happen. So, you have to come up with a definition that is both limited in scope but catches the most egregious acts without causing too many governments to say, “this is outrageous this covers so many different things that we can’t possibly accept it” and that is tricky, as I think you understand.
A: Absolutely. We have to recognize that there are a number of very significant countries—China, the United States, Russia—that aren’t parties to the Rome Statute and therefore would not be subject to its constraints. Although we are of course now faced with a number of cases, well investigations, in which the consequences felt on the territory of a state party have now been determined by the judges of the International Criminal Court to be capable of investigation. I am thinking of the Israel/Palestine and Bangladesh/Myanmar situation. One of the things about many environmental consequences is that their effects are not limited to being felt within the territorial boundaries of a single state. This poses a very real challenge. You effectively open up the possibility of investigation of the crime of ecocide in respect of an act that originates on the territory of a state that is not a party but is felt on the territory of a state that is a party. What do you do about that? That’s beyond our remit, thankfully. But judges ultimately will need to address the point.
There is also another issue and it’s this: an equity issue. Do you have one rule, one crime that applies equally across the board; or by reference to the legality of an action, or the balancing exercise in terms of its economic and social consequences, do you open the door to the possibility that an act may be a crime of ecocide in one country but not in another? That would be extremely problematic, and would create an incentive to relocate certain activities to other countries. Every act of legislation, or criminalization, has unintended consequence, it might be said.
These are difficult issues. Countries are at very different stages of economic, social, cultural development and the moment you bring in any sort of cost-benefit analysis—as already exists in international criminal law in relation to damage to the environment as a war crime, weighing up the military advantage on the one hand with the environmental costs on the other hand—the possibility exists that the application of the analysis may lead to different results in different parts of the world. If you are to extend that to economic and social consequences on the one hand and environmental costs on the other hand, you do open the door to a real issue. And that is again, concentrating of the mind. You’ll begin to understand that as we go through this exercise, it is not an entirely simple exercise. It all looks very nice and easy to say we want a crime of ecocide, but the practicalities of dealing with it raise interesting, important, and complex issues.
A: Because there is a change in consciousness. Particularly the issue of climate change is concentrating the mind hugely in terms of the need to take stronger and more effective steps, of which the criminal law may be one tool in our armoury. Relatedly, I think that something else that has changed is the current pandemonium, the pandemic. COVID-19 has made us recognize that we are all in this together: the idea of cozy little self-contained entities called countries or nations is a fiction and a construct that does not coincide with all the realities of life. You can vaccinate to your heart’s content in one country but you are not really going to sort the problem out unless you vaccinate across the globe, or you eliminate this virus across the globe. And I think the two factors have converged in a sense to create a sentiment, this may be the moment, at least to reflect on. States may yet be unwilling to take the additional step, but I’ve picked up that there is certainly a lot of support for the possibility of action and I’ve been intrigued by the range of players who seem interested in our work. I would not have expected The Economist, or Time magazine, to run major pieces on it. That tells me that the issue of the protection of the environment has entered the mainstream of consciousness and that the time may be right, at least to take the thinking further.
A: Well, my first hope is that we are able, by the end of June 2021, to come up with an agreed definition that the whole group can sign off on. That would make me very happy. I am a big believer in consensus if possible. And with the range of views, that is a tough challenge, but I’m optimistic that it is possible. And then if we can come up with a definition that resonates, not in the sense that it is adopted and passed tomorrow into an amendment to the Rome Statute (I am not starry-eyed about that), but that it can give rise to a serious debate about the need to do something. Our definition may be the right one, or may it need to be tweaked, or it may need to be ditched and something else come up. So, my main hope is that the exercise concentrates the mind: there is a gap in the legal order at the international level, and that gap needs to be filled. There is a real problem with humankind’s relationship to the natural environment, and although the criminal law is not a panacea and will not sort everything out, it is one instrument available to us that we have to focus attention on our need to do more. I hope the fruits of our labors might give rise to a debate and then, possibly, to some action in the not-too-distant future.
Philippe Sands QC is a barrister at Matrix Chambers, London and Professor of Laws at University College London. He appears as counsel and advocate before many international courts and tribunals and serves on the panel of arbitrators at the International Centre for the Settlement of Investment Disputes (ICSID) and the Court of Arbitration for Sport (CAS). He is the author of sixteen books on international law, including the award-winning East West Street: On the Origins of Genocide and Crimes against Humanity (2016), and the international best-seller The Ratline (2020).
The interview took place on May 20, 2021.
