While charging executives of companies with homicide, and making them liable for environmental disasters, as have been recently done in Brazil and Italy, are steps in the right direction, the case for making ‘ecocide’ an international crime is now stronger than ever before, writes BIANCA CASSANDRO
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ACCORDING to Tim Edwards, managing trustee of the Bhopal Medical Appeal in Brighton, England, “Union Carbide gassing of Bhopal was first a criminal justice issue.” On December 3, 1984, crime no. 1104/84 was registered suo motu by Police Station House Officer S. Singh Thakur and the same day, five junior officers of Union Carbide India Limited [UCIL] were jailed for 12 days, before being released on bail. Nobody else was arrested for the worst industrial disaster ever.
Warren Anderson, Union Carbide Corporation’s [UCC] Chief Executive Officer at the time of the tragedy, considered responsible for the disaster and the contamination of soil, was declared an absconder in 1992.
In 1996, the Supreme Court ruled that UCC’s and UCIL’s managers, indicted for Bhopal tragedy, could not be tried for culpable homicide, but only for negligence.
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(Interestingly, a similar shifting from culpable homicide to negligence was seen in the Thor Guernica case in South Africe. In 1992, British multinational Thor was criminally charged in England for culpable homicide and violation of the Machinery and Occupational Safety Act in South Africa. Thor pleaded guilty before the English court to lesser charge of negligence and was fined accordingly.)
On June 7, 2010, a Bhopal court sentenced seven UCIL’s managers, including former UCIL chairman Keshub Mahindra, to only two years in jail: all of them were granted immediate bail and remain at liberty”. Considering the enormity of the disaster, the verdict is indeed the final output of a particularly shameful denial of justice, as underlined, among many others, by legal scholar Upendra Baxi, who advocated “life imprisonment or capital punishment for the criminally negligent actors of UCIL”, and Edwards, according to whom “[i]t is no exaggeration to say that when the three decade patterns of legal apathy and misconduct is examined in totality, the complete failure to achieve justice for the crimes committed against the citizens of Bhopal looks like the deliberate consequence of an elaborate conspiracy to obstruct the course of justice. A conspiracy involving private and state actors that includes the governments of two major democracies: the world’s largest and the world’s most powerful”.
Higgins’ proposal contained the following definition of ecocide: “Extensive loss, damage to or destruction of ecosystems of a given territory, such that the peaceful enjoyment by the inhabitants has been or will be severely diminished.” To be noted is the term “inhabitants” that includes all living creatures, underscoring a shifting from an anthropocentric legal view to a view that sets nature at the center of the protection.
Confronted with the impunity granted to UCC/UCIL, the very different attitude recently expressed by Brazilian and Italian public prosecutors, who charged with homicide, respectively, twelve top managers of both VALE and TÜR SÜD companies, and the owner of Eternit, in the Brumadinho and Eternit bis cases, is of great significance.
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Legal development of the offence of ecocide
Top managers of corporations and, more generally, decision-makers might be charged with the crime of ecocide, if the relevant proposal for its introduction as an international crime, to be added to the ones provided for in the Rome Statute, is eventually approved.
The term ‘ecocide’ (from Greek oikos and Latin caedere, meaning the killing of your own house) is credited to have been used for the first time by U.S. biologist Arthur Galston, at the 1970 Conference on War and National Responsibility, in Washington D.C. Later, Swedish Prime Minister Olof Palme, in his opening speech at the United Nations [UN] Stockholm Conference in 1972, referred to events occurring in the Vietnam War as ‘ecocide’.
Introducing the crime of ecocide at international level is a long strived target. In 1973, in an article published in the Belgian Review of International Law, American professor of international law Richard Falk proposed a draft Convention on the crime of Ecocide as “man has consciously or unconsciously inflicted irreparable damage to the environment in time of war and peace”. In 1978, the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities proposed adding Ecocide to the Genocide Convention. In 1985, the official Whitaker Report recommended the inclusion of Ecocide, into the definition of genocide, as “the adverse alterations, often irreparable, to the environment … whether deliberately or with criminal negligence”, in the draft Code of Offences against the Peace and Security of Mankind, considered the precursor of the 1998 Rome Statute.
The International Law Commission included, in the 1991 version of the Draft Code, Article 26, providing that “[a]n individual, who willfully causes or orders the causing of widespread long term and severe damage to the natural environment, shall, on conviction thereon, be sentenced”. In 1995, however, Article 26 was withdrawn from the draft code, with a unilateral decision by the chairman of the commission, deemed to be probably under pressure of a few States and the nuclear lobby.
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In 2010, Polly Higgins, a visionary environmental activist from Scotland, submitted a proposal to the UN Law Commission to reinstate in the Rome Statute the missing crime of ecocide. Her proposal contained the following definition of ecocide: “Extensive loss, damage to or destruction of ecosystems of a given territory, such that the peaceful enjoyment by the inhabitants has been or will be severely diminished.” To be noted is the term “inhabitants” that includes all living creatures, underscoring a shifting from an anthropocentric legal view to a view that sets nature at the center of the protection.
In 2017, Higgins co-founded with British environmentalist Jojo Mehta the ‘Stop Ecocide Foundation International’, which “promotes and facilitates steps towards making ecocide a crime at the International Criminal Court (ICC) in order to prevent devastation of nature and so protect the future of life on Earth.”
Consistently with its target, in November 2020 Stop Ecocide Foundation commissioned to an international panel of lawyers and judges, a study regarding a legal definition of ecocide, as a crime to be added to the list of major offences in the Rome Statute. The outcome of the study was released in June last year.
Actually, however, environmental disasters are not caused intentionally or deliberately by multinationals’ decision-makers or by national governments.
Though the definition has been the object of criticism (see, for instance, here, here, and here, where it is pointed, among other things, that this initiative has been considered unrealistic, while the definition “replete with flaws” and the commentary “remarkably wanting”), it might nevertheless be a first step to reaching the target.
According to the Stop Ecocide Foundation’s panel report, ecocide means “unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage being caused by those acts to the environment: earth, its biosphere, cryosphere, lithosphere, hydrosphere, atmosphere, as well as the outer space”.
“Severe damage” involves very serious adverse changes, disruption to any element of the environment, including grave impact on human life or natural cultural or economic resources: it could be either widespread (that is, extended beyond a limited geographic area or suffered by an entire ecosystem or species, or a large number of human beings) or long term (that is, irreversible or which cannot be redressed through natural recovery, within a reasonable period of time).
The term ‘wanton’ “means with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated.”
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This last part of the definition, which refers to a cost-benefit approach (criticism on this point can be seen Error! Hyperlink reference not valid. and here), undermines the radical change that the introduction of the crime of ecocide represents, that is the first international crime which is not anthropocentric, but just focused on the protection of nature and ecosystems.
In this connection, it is interesting to note that the ecocide definition, in penal codes which contain provisions on this crime, focuses only on “[m]assive destruction of the animal or plant kingdoms, contamination of the atmosphere or water resources, and also commission of other actions capable of causing an ecological catastrophe” (Article 358, Russian Penal Code). Similar are the other codes’ definitions (in Kazakhstan, the Kyrgyz Republic, Tajikistan, Georgia, Belarus, Ukraine, Moldova and Armenia), among which only two refer to “intentional” (Belarus) or “deliberate” (Moldova) mass destruction.
Actually, however, environmental disasters are not caused intentionally or deliberately by multinationals’ decision-makers or by national governments. Therefore, the wording of the provisions of Belarus and Moldova’s codes may have the effect of limiting, if not excluding, the liability of corporations’ top managers’ and Governments’ officials’, unless the terms “intentional” or “deliberate” are constructed as “knowledge” as, for instance, the knowledge of asbestos as a cause of lethal diseases in the Eternit bis case.
The aforementioned penal codes provide for imprisonment, for a minimum term, ranging from eight to fifteen years to a maximum, ranging from fifteen to twenty years. Article 409(2) of the Georgian Code provide for more severe punishment for the “same acts committed during armed conflicts”, that is, “by imprisonment for a term of fourteen to twenty years or with life imprisonment”.
It would be interesting to finding out what pushed Russia and others former Soviet countries towards introducing the crime of ecocide in their penal laws, and moreover, what has been the development of the relevant case law in these countries been like.
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Current efforts, and challenges that lie ahead
At the European Union level, a project is underway, due by September this year, carried out by the European Law Institute, with the following objectives: a) contribute towards making ecocide an international crime; b) draw up a model law for European Union criminalizing ecocide; c) draw up a model law for European Union providing for civil remedies in tort for ecocide and the implications for private international law.
The practical result will be very limited, if not poor, as U.S.A., China and India (and corporations based in those countries) will not be affected, being as they are outside the Rome Statute. Therefore more effective and speedy solutions should be devised and implemented.
Besides, in May 2021, the European Parliament adopted two reports, one submitted by the Legal Affairs Committee and the other by the Foreign Affairs Committee. The first report, “On the Liability of Companies for environmental damages”, urged the European Commission to “study the relevance of ecocide to European Union Law and European Union Diplomacy”; the second, “On the effects of Climate Change on Human Rights and the Role of Environmental Defenders on this matter” resolved to encourage “the European Union and its Member States to take a bold initiative to pave the way within the International Criminal Court (ICC)”.
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The introduction of the crime of ecocide at international level might be a powerful tool to protect our planet, the countries of the South of the World, seriously affected by corporations’ high risk activities, and the “inhabitants” of small countries (such as islands in the Pacific or Indian Ocean, strongly supported by Higgins) whose survival is already in a critical situation because of climate change. Also significant is the proposal regarding the introduction of civil remedies in tort, which, of course, should provide for absolute liability.
The main point is that, whatever legal instrument is chosen for the introduction of the international ecocide crime, it should enter into force very quickly! Amending the Rome Statute is in itself a difficult exercise; it has been estimated that amending the Rome Statute in order to including the proposed crime of ecocide would take “somewhere between five and fifty years”. Also, the amendment will most probably not apply retroactively and – according to Article 121(5) of the Statute – it will enter into force only for those States Parties, which have accepted the amendment.
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However, even if eventually a positive output will be achieved, the practical result will be very limited, if not poor, as U.S.A., China and India (and corporations based in those countries) will not be affected, being as they are outside the Rome Statute.
Therefore, more effective and speedy solutions should be devised and implemented, possibly not conditioned by industrial lobbies but as a result of the planetary force of civil society and all the brave, bright, visionary, young-minded, active and determined people, fighting for a better world!
Meanwhile, welcomed are the initiatives of public prosecutors such as the Brazilian and the Italian ones, mentioned above, and a desirable, consistent follow-up by the relevant courts.
(Professor Bianca Cassandro is a professor of international law from Italy. The views expressed are personal.)
