Genocide, war crimes, aggression, ecocide, crimes against humanity – which is the odd one out? The right answer is ecocide – destroying, polluting or damaging the natural living world on a large scale is not among the crimes that can be prosecuted at the International Criminal Court in The Hague.
So ecocide, which literally means to “kill one’s home”, can take place constantly in much of the world at the moment and no one is held responsible.
Deforestation, oil spills, air contamination – the corporations behind episodes of severe environmental harm like this may sometimes be sued, and occasionally fined, but they can simply budget for this. No one gets arrested, so there is no real disincentive.
A growing global network of lawyers, diplomats and activists are campaigning to rectify this and have ecocide join this exclusive club of ‘crimes against peace’ that the International Criminal Court can punish in order to make the perpetrators liable to prosecution.
“We call ecocide the missing crime,” Sue Miller, the Head of Global Networks for the Stop Ecocide campaign, told IPS.
“Right now, corporations are causing serious environmental damage in pursuit of profits. Mostly they get away with it.
“If they are called to account, they may end up paying a fine, some civil damages or even possibly a bribe to make the problem go away.
“Whatever the penalty, it is monetary and can sit on the company’s balance sheet as a business expense.”
One of the key virtues of criminalizing ecocide is that it would give a means of redress for the peoples of the Global South who are the biggest victims of it.
“At the moment, it is predominantly corporations based in the Global North that are causing environmental damage in the Global South, where the rule of law is often not as strong,” said Miller.
“An International law of ecocide will not only strengthen national laws, but will also provide a court of last resort for those affected by ecocide who cannot obtain justice in their own countries.”
But, above all, it would also create a deterrent to trashing the environment that currently does not exist.
Miller believes that this would be a game-changer when it comes to business practices.
“A new crime of ecocide would place personal criminal liability on the key decision makers – the controlling minds – in most cases the company directors,” she said.
“As such, an ecocide law will reach into the boardrooms where the decisions are made and act as a brake on the projects which cause the worst environmental harms.
“Faced with prosecution and possible imprisonment, company directors are likely to be far more circumspect about the projects they approve.
“Funding and insurance for potentially ecocidal projects will dry up and funds, effort and talent will be diverted into healthier, more sustainable practices.
“Whilst it will enable justice to be pursued if damage is done, more importantly, an ecocide law has the power to stop the damage happening in the first place”.
Rather than being hostile to the law, Miller argues that many CEOs actually want legislation that would forbid them from making profit at the expense of the natural world.
“There is no business on a dead planet and many businesses are coming to that realisation now,” she said.
“They are also realising that there are advantages to working with, rather than against, nature.
“These include: unlocking innovation; stimulating investment in new, regenerative business models; levelling the playing field for sustainable enterprise; stabilising operational and reputational risk; and providing a steer towards more sustainable business practices.”
These are among the reasons that make Miller confident the drive to have ecocide criminalized will ultimately be successful, despite the power of lobbies who opposite it.
The campaign has won the backing of figures including United Nations Secretary General Antonio Guterres, Pope Francis, Greta Thunberg and Paul McCartney.
In June 2021 an independent expert panel presented its formal definition of the proposed crime of ecocide as “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.”
When discussions were taking place for the creation of the International Criminal Court at the end of the 1990s and in the early 2000s, ecocide was one of the crimes which was going to be included alongside genocide, crimes against humanity and war crimes – aggression, the use of armed force by a State against the sovereignty, integrity or independence of another State, did not come under its jurisdiction until 2018.
In the end, ecocide was dropped during a closed doors meeting for reasons that remain unclear.
The world today would likely be a better place if it had been in there from the start.
“If it had been in place, so many events since might not only have been punished but might not have happened at all,” Miller said.
“Had ecocide law been in place it is unlikely, for example, that (former Brazilian president) Jair Bolsonaro would have been so keen to encourage destruction of the Amazon in Brazil.
“It is unlikely that corporations would now be prospecting for deep sea mining sites.
“So much of the damage we are now seeing could have been avoided.”
Paul Virgo is an Inter Press Service (IPS) correspondent based in Rome, Italy
