Eoin Jackson – LL.B. – Trinity College Dublin
This article seeks to examine the criminological justifications for the imposition of a new international crime of ecocide. As outlined by the Stop Ecocide Foundation, ecocide seeks to hold state and corporate actors accountable for actions that consciously and deliberately exacerbate existing issues surrounding pollution and climate change.[1] Ecocide would seek to rely on the agency of the actors in question in order to enforce sanctions through the International Criminal Court (ICC). Through an emphasis on agency and an alignment with the traditional individualism associated with criminology, this article will present ecocide as a progressive attempt to elevate green criminology onto a global platform.
Defining Ecocide Using Traditional Definitions of Crime
The introduction of ecocide as an international crime would seek to impute culpability for environmental damage onto a particular individual agent. Given the high threshold for finding a person guilty of ecocide set out by the Stop Ecocide Foundation, this agent is likely to be a head of state, or a prominent director of a large corporation given that these agents are individually responsible for overseeing the world's largest carbon emitters: states and global corporations.
Therefore, ecocide seeks to link the damage caused by climate change and pollution to individual agencies. In particular the suggested definition of the Stop Ecocide Foundation would require that the agent “has knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts”.[2] By adding a mens rea element to the crime, ecocide compounds it's individualistic focus on agency. What is being criminalised is not so much the degradation of the earth through collective polluting activity, but rather an individual's decision to lead this polluting collective. This may have a deterrent effect on individuals who do not wish to have their reputation tarnished by the threat of an ICC prosecution.[3] However, whether this form of individualistic criminalisation will be sufficient to ensure that the collective as whole operates in a more sustainable manner is somewhat questionable.
The difficulties with collective accountability becomes apparent when one examines the relationship between the proposed form of criminalisation and the potential of the state to become a criminal entity.[4] By assigning responsibility to a leading actor e.g the head of state, the state itself is not directly at fault for the damage to the environment that may have occurred throughout its existence. Acts would need to be evidently attributed to the head of state, regardless of whether the act is an ongoing one e.g the continuing use of carbon pollutants or a ‘once off’ incident, such as where a state spills toxic waste into the ocean. This can be linked to criminology's broader struggle to conceptualise the state as a criminal organisation.[5] It is therefore easier to perceive ecocide as an individual crime relying on traditional actus reus and mens rea components, even if this traditionalism sacrifices a significant potential capacity to enforce accountability at a collective level.
Ecocide and the Media - How to Stigmatise a Polluter
One of the primary means through which ecocide seeks to be an effective crime is by acting as a deterrent to future potential polluters. The stigma factor associated with being prosecuted in the ICC would arguably lend itself well to a shift in individuals' behaviour. If a head of state perceives that they may be treated the same as a war criminal through their action or inaction on climate change, he/she may seek to lead his/her country in a manner conducive to creating a more sustainable environment.
In this regard, it is important to note that ecocide is a crime that is likely to draw a high degree of media attention. There has already been significant interest in its creation and potential implementation.[6] When this interest is combined with the media's interest in environmental matters, it becomes clear that the first trialed case of ecocide is likely to experience a high degree of publicity. This in turn would add to the deterrent element to ecocide by creating a fear of an individual being subject to ‘trial by media’.[7]
Where such an individual is the head of a private company, the resulting public relations backlash could see a company at least present themselves as having remodelled their corporate structure in accordance with the desires of climate activists.[8]8 Whether such remodelling will actually be effective would be dependent upon the extent to which media pressure translates into more than just a different marketing strategy. Similarly, while no CEO would look forward to being the first person subject to an ecocide trial, its effectiveness as a deterrent model would be subject to whether the media would maintain interest post the finding of a verdict and in future litigation. In particular, were the first ecocide trial to result in a not-guilty verdict, it is uncertain as to whether the media would pursue future perpetrators with the same vigour and by extension whether ecocide would maintain the same stigma factor.[9] This is due to the fact that, as has occurred with previous novel crimes, a narrative could emerge of ecocide being a paper tiger designed to hamper but not eliminate the perpetuation of global warming by private actors.[10]
By contrast the interaction between the media and a potential ecocide trial could differ where the accused is a head of state. Unlike with a corporate model, there is not necessarily the same consumer-driven motive to adjust the state's interactions with the environment to at least be perceived as more sustainable.[11] In particular, this would likely depend upon whether the media decides to portray the environmental damage as the fault of the leader in question or the fault of the state as a whole. Additionally, generating publicity for an individual state may not have the same attraction to the media as that of a trial of a leader of a transnational corporation. This is due to the fact that the head of state may not ‘pull in’ the same audience as a corporation with global reach and brand recognition. In the context of the suggested use of the ICC as the forum for prosecution, there may be a lack of interest due to the tendency of the ICC to prosecute individuals from developing nations.[12]Systemic Western bias present in international media may lead to an ecocide trial of the leader of a developing state not possessing the same gravitas that they would attach to that of a leader of a developed state.[13] This may in turn water down the effectiveness of and symbolism of ecocide as a whole.
Ecocide and Social Change - Criminalisation and Procedural Reform
In considering whether ecocide would be an effective tool in pursuing environmental change, it is pertinent to consider its impact in the broader context of the nexus between crime and social progress.
The criminalisation of an activity does not necessarily lead to a corresponding positive action that would prevent further incidents of the activity.[14]Instead, it provides a framework through which that activity can be penalised, which would ideally be coupled with social and political movements designed to address systemic issues that may lead to the need for criminalisation in the first place.[15] Thus, in the context of ecocide, environmental damage is not so much being prevented as it is being made a stigmatised and personally dangerous act for an individual through the risk of an ICC prosecution. That does not necessarily equate to the individuals using their authority to enact structural change that would avoid the need for an ecocide crime in the first place. Instead, it lays out a framework through which the relationship between the individual and the environment should avoid straying into detrimental territory. Whether this equates to social progress would be dependent upon social and political changes that could stem from the punishment of high-profile actors for damage to the earth.
The introduction of ecocide as an international crime would serve to extend the boundaries of formal criminal justice.[16] At a procedural level, it would ensure there is at least some theoretical recourse where there is evidence of intentional pollution. This is positive insofar as it provides an avenue through which interested parties can devote resources to ensure there is enforcement of some element of environmental protection. It does not so much change the existing discourse of the climate change response, as narrow it down into a defined parameter of criminalisation. This parameter could then potentially be expanded upon in future by being coupled with greater administrative and civil methods through which state and corporate bodies can be held accountable. Thus, ecocide in itself does not advance social change, but it allows for a formal definition of crime to be perceived through an environmental lens, which is a small step in a positive direction.
Conclusion
In conclusion, ecocide represents an attempt to transpose traditional concepts of criminalisation onto an international platform. The effectiveness of this approach is likely to be subject to the media's portrayal of the first actors prosecuted by the ICC, though even here there may be a struggle to connect this prosecution to the wider need for collective action. In terms of advancing progress on the climate change response, ecocide is unlikely to be any more effective than its current counterparts, such as genocide, in creating a framework for structural reform. In the meantime, it will take a formal amendment to the Rome Statute to allow for its prosecution before an empirical analysis of ecocides’ effects and capacities can move beyond the realm of the hypothetical.
[1] Stop Ecocide Foundation, ‘Independent Expert Panel for the Legal Definition of Ecocide’ (2021). [2] ibid. [3] Polly Higgins, ‘Protecting the planet: A proposal for a law of ecocide’ (2013) Journal of Crime Law and Social Change. [4] Michael Lynch, ‘Green Criminology and State-Corporate Crime: The Ecocide-Genocide Nexus with Examples from Nigeria’ (2021) Journal of Genocide Research. [5] Rob White, 'Ecocide and the Carbon Crimes of the Powerful' (2018) 37 U Tas L Rev 95. [6] Louise Guillot, ‘The global campaign to make environmental destruction an international crime’ (2021) Politico. [7] Chris Geer, ‘Trial by media’: Policing, the 24-7 news mediasphere and the ‘politics of outrage’ (2011) Journal of Theoretical Criminology. [8] Celine Van den Berg, Options For addressing instances of ecological harm under the Rome Statute, the added value of an autonomous international crime of ecocide, and its hurdles’ (2019) University of Tilburg <http://arno.uvt.nl/show.cgi?fid=145800> accessed 24 July 2021. [9] Rob Whyte, Ecocide: Kill the Corporation Before it Kills Us (1st edn, Manchester University Press 2020). [10] ibid. [11] Payal Patel, ‘Expanding Past Genocide, Crimes Against Humanity, and War Crimes: Can an ICC Policy Paper Expand the Court's Mandate Prosecuting Environmental Crimes?’ (2016) Loyola University Chicago International Law Review. [12] Hiroyuki Tosa, ‘Global constitutional order and the deviant other: reflections on the dualistic nature of the ICC process’ (2017) International Relations of the Asia- Pacific. [13] Anju Grover Chaudhary, ‘A comparative content analytical study of negative news in western and third world newspapers’ (2001) Asian Journal of Communication. [14] W.J Stuntz, ‘The Pathological Politics of Criminal Law’ (2001) Michigan Law Review. [15] Adam Crawford, ‘Governing through Anti-Social Behaviour’ (2009) British Journal of Criminology. [16] W.J Stuntz, ‘The Pathological Politics of Criminal Law’ (2001) Michigan Law Review.
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