The Fifth International Crime: Reflections on the Definition of “Ecocide”
"In this reflection article, I seek to engage with the debate on the IEP’s definition of “ecocide” by exploring in more detail two specific aspects of that definition that have caused concern among legal experts. First, the proposed Article 8ter has attracted criticism for incorporating an anthropocentric element. Specifically, the second paragraph of the proposed Article 8ter allows for consideration of the “social and economic benefits anticipated” from a particular environmentally harmful activity in assessing whether that activity amounts to an ecocide. I explore the rationale for incorporating the anthropocentric element in the definition of ecocide and its implications for the environmental justice project. I conclude that the cost–benefit test obstructs the symbolic value of criminalizing the crime of ecocide at the ICC in the first place, namely, to communicate the idea that the wellbeing of nature and that of humans are inherently interlinked. Instead, the juxtaposition of environmental harm versus socio-economic benefits conveys the wrong message to the international public – that the problems of the environment and the problems of human communities can be separated and that humans may, in some cases, legitimately benefit from the severe and widespread or long-term degradation of the environment.
Second, I discuss the mental element of liability for ecocide incorporated in the proposed Article 8ter. The first paragraph of that text requires evidence of the accused’s “knowledge that there is a substantial likelihood” that their actions would cause severe and either widespread or long-term environmental harm. However, in the commentary to the text, the IEP suggests that their understanding of the mental element of liability for ecocide is closer to “recklessness or dolus eventualis” with respect to the ensuing environmental harm. Legal experts quickly pointed out the conceptual ambiguity of the mental element of ecocide and noted that all three terms (knowledge, recklessness, and dolus eventualis) in fact pose very different requirements. Based on an analysis of the term “knowledge” as codified in the Rome Statute and interpreted in ICC jurisprudence, I concur with the latter position. Specifically, in the ICC context “knowledge” constitutes a higher standard than either recklessness or dolus eventualis, which would cause significant interpretative difficulties to the judges if Article 8ter is adopted in this manner. I suggest that these difficulties could be avoided if the term “knowledge” is removed and explicitly substituted with the words “awareness of a substantial likelihood,” which are used in the IEP’s commentary. Even though that mental element is lower than the default Rome Statute standard codified in Article 30, this approach could be justified by view of the complexities of ecocide, where environmental harm is often anticipated but not necessarily intended or known with certainty.
Overall, I argue that if the two problematic elements of the definition of ecocide – the cost–benefit test and the term “knowledge” – are overcome, this would elucidate the important innovations that the IEP work has brought with respect to disentangling the complexities of environmental harm. The cost–benefit test and the term “knowledge” are, at present, unfortunately casting a shadow over what is otherwise a significant improvement over existing provisions for addressing environmental harm in international criminal law and international humanitarian law.
This article is structured as follows: section two provides context to the analysis by reviewing several related existing provisions addressing environmental harm in international law, section three analyses the anthropocentric element of the proposed definition of “ecocide,” section four explores the problems with using the term “knowledge” in the definition, section five concludes."
