Criminalising wilful environmental damage is harder than it sounds
While many countries are mulling incorporating ecocide into their respective legal frameworks, debate continues on how it can be criminalised, identifying the burden of proof, and – especially in India – how it will sit with other laws that keep the door
exico’s ‘Maya train’ project has acquired a contradictory reputation. Some describe it as a “Pharaonic project”, with a route spanning 1,525 km, connecting tourists in the Caribbean with historic Maya sites and costing $20 billion to build. It has also been described as a “megaproject of death” because it imperils the Yucatán peninsula and its rich wilderness, ancient cave systems, and Indigenous communities. The Tribunal for the Rights of Nature in August said the project caused “crimes of ecocide and ethnocide”.
Ecocide, derived from Greek and Latin, translates to “killing one’s home” or “environment”. Such ‘killing’ could include port expansion projects that destroy fragile marine life and local livelihoods; deforestation; illegal sandmining; and polluting rivers with untreated sewage. Mexico is one of several countries mulling ecocide legislation. There is also a push to elevate ecocide to the ranks of an international crime, warranting similar legal scrutiny as genocide.
MWhat is ecocide?
The biologist Arthur Galston in 1970 is credited with first linking environmental destruction with genocide, which is recognised as an international crime, when referring to the U.S. military’s use of Agent Orange in the Vietnam War. Two years later, Sweden Prime Minister Olof Palme used the term in a speech at the U.N. British lawyer Polly Higgins became the linchpin when in 2010 she urged the International Criminal Court (ICC) to recognise ecocide as an international crime.
Today, the Rome Statute of the ICC deals with four atrocities: genocide, crimes against humanity, war crimes, and the crime of aggression. The provision on war crimes is the only statute that can hold a perpetrator responsible for environmental damage, but only if it is intentional and in wartime.
Ms. Higgins proposed that the Statute should be amended to treat crimes against nature on par with crimes against people. She described ecocide thus: “Extensive loss, damage to or destruction of ecosystems … such that the peaceful enjoyment by the inhabitants has been or will be severely diminished.”
Here, “inhabitants” applies to all living creatures.
There is no accepted legal definition of ecocide, but a panel of lawyers in June 2021 for the Stop Ecocide Foundation prepared a 165word articulation. Ecocide, they proposed, constitutes the “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or longterm damage to the environment being caused by those acts.”
Why should ecocide be a crime?
Ecocide is a crime in 11 countries, with 27 others considering laws to criminalise environmental damage that is wilfully caused and harms humans, animals, and plants. The European Parliament voted unanimously this year to enshrine ecocide in law. Most national definitions penalise “mass destruction of flora and fauna”, “poisoning the atmosphere or water resources” or “deliberate actions capable of causing an ecological disaster.” The ICC and Ukraine’s public prosecutor are also investigating Russia’s role in the collapse of the Nova Kakhovka dam, which unleashed a flood that drowned 40 regions, and released oils and toxic fluids into the Black Sea.
On one level, ecocide laws are legal instruments to plug a loophole in environmental protection. “None of the existing international criminal laws protect the environment as an end in itself, and that’s what the crime of ecocide does,” Philippe Sands, a professor of international law at University College London and cochair of the panel that drafted the definition, said in 2021.
The movement also responds to harsh climate realities. Over a third of the earth’s animal and plant species could be extinct by 2050. Unprecedented heat waves have broken records worldwide. Changing rainfall schemes have disrupted flood and drought patterns. The Intergovernmental Panel on Climate Change reiterated in March 2023 that global climate action remains “insufficient”.
In this milieu, an amendment to the Rome Statute could prompt countries around the world to draft their own laws, and individual countries that have incorporated ecocide in their laws could in turn build pressure on the ICC.
Nabeela Siddiqui, an expert in environmental constitutionalism, told The Hindu that the purpose of ecocide laws is to define the “significant harm” of environmental damage, together with accountability and liability. Deforestation of the Amazon, deepsea trawling or even the catastrophic 1984 Bhopal gas disaster could have been avoided with ecocide laws in place, according to Stop Ecocide International.
These laws could also hold individuals at the helms of corporations accountable. “That something is morally questionable usually doesn’t hinder investment. Laws provide boundaries and sanctions for investment, as no company or organisation – such as the World Bank – would want to invest in something potentially criminal,” two scholars wrote in a 2021 article.
Ecocide laws could also double up as calls for justice for low and middleincome countries disproportionately affected by climate change. Small nationstates like Vanuatu and Barbuda are already lobbying the ICC to declare crimes against the environment to be violations of international law.
Limitations to defining ecocide
There are also many arguments against criminalising ecocide. Some experts have called the 2021 definition ambiguous and as setting a very low threshold to implicating an entity. Words like “longterm” or “widespread damage” are abstract and leave room for misinterpretation, Prof. Siddiqui said. The definition describes “wanton” as damage that is “clearly excessive in relation to the social and economic benefits anticipated.” But this, she continued, constructs a developmentversusenvironment narrative – one that others have argued could mean that it is ‘okay’ to destroy the environment as long as it benefits humans.
The threshold to prove ‘ecocide’ may also be too high. Countries like Belarus and Moldova specify “intentional” or “deliberate” destruction, but “environmental disasters are not caused intentionally or deliberately,” Bianca Cassandro, an international law professor, argued in an article. “This wording … may have the effect of limiting, if not excluding, the liability of corporations’ top managers’ and Governments’ officials’.”
The ICC also has limited legal powers as well as an uneven track record of converting prosecutions into convictions. Specifically, the court’s power is limited to “natural persons,” so without any significant changes, the ICC will not be unable to hold corporate entities criminally liable.
Moreover, Prof. Siddiqui asked, “even if you’re able to define ecocide, how will you define the idea of jurisdiction?” Experts have noted that most ‘crimes’ are transnational in nature: corporations have private or Stateowned corporations in other countries (which are not members of the Rome Statute) that are responsible for polluting activities. For example, CocaCola was accused of poisoning land in South India with waste sludge and pushing thousands of farmers out of work by draining the water that fed their wells.
What has been India’s stance?
Some Indian judgments have affirmed the legal personhood of nature by recognising rivers as legal entities with the right to maintain their spirit, identity, and integrity.
More importantly, some others have used the term ‘ecocide’ in passing but the concept hasn’t fully materialised in law. In Chandra CFS and Terminal Operators Pvt. Ltd. v. The Commissioner of Customs and Ors (2015), the Madras High Court noted: “the prohibitory activities of ecocide has been continuing unbridledly by certain section of people by removing the valuable and precious timbers”.
In an ongoing case, T.N. Godavarman Thirumulpad vs Union Of India & Ors, the Supreme Court called attention to an “anthropogenic bias” and argued that “environmental justice could be achieved only if we drift away from the principle of anthropocentric to ecocentric” – echoing an argument advanced by many activists, that criminalising ecocide could replace the anthropocentric legal view with a value for nature as a thing unto itself.
India’s legislative framework visàvis environmental and ecological governance includes the Environmental (Protection) Act 1986, the Wildlife (Protection) Act 1972, and the Compensatory Afforestation Fund Act (CAMPA) 2016, as well as separate Rules to prevent air and water pollution. According to Prof. Siddiqui, these separate laws have to be consolidated into a unified code and institutions have to be streamlined so that debates like the one about ecocide and rights of nature find “their proper way through legal channels”.
Notably, the National Green Tribunal, India’s apex environmental statutory body, does not have the jurisdiction to hear matters related to the Wildlife (Protection) Act 1972, the Indian Forest Act 1927, and other Stateenacted laws.
As a result, mining of sand on the banks of the Chambal river or the Himachal floods would qualify as being environmental crimes under the current articulation but, Prof. Siddiqui said, “how would one go about addressing this, considering the institutions in the way?”
Indian laws are themselves in a state of conflict: the Parliament passed the controversial Forest Conservation (Amendment) Bill 2023 and Biodiversity (Amendment) Bill 2023, which experts have said will dilute current legal protections and will lead to the loss of 2025% of forest area in the country and the attendant biodiversity and ecosystem issues.
She noted that one critical challenge is to tackle problems of liability and compensation – an example of the “friction between committing to environmental protection and actual action.” For example, survivors of the Bhopal gas disaster are still fighting for compensation. The disaster’s aftermath has been characterised by an intergenerational impact on health and widespread contamination of soil and groundwater.
Several independent investigations have also alleged that funds earmarked for CAMPA have been misused and/or diverted for other purposes. But despite the National Green Tribunal having slapped fines worth Rs 28,180 crore on seven States, there is little clarity on the total fines collected and the way they were used, according to a 2022 report by Down to Earth.
“Even before ecocide laws come up internationally, India needs to first bring its [environmental] laws in tune with the idea of ecocide,” Prof. Siddiqui said.
Ecocide is a crime in 11 countries, with 27 others considering laws to criminalise environmental damage that is wilfully caused and harms humans, animals, and plants.
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