Astha Bhattacharya[i]

INTRODUCTION

Massive contamination of a river in the arctic’s precarious ecology, devastation of ecological systems by industrial exploitation techniques, or international trade in poached animals or animal products, all of them have the potential to be classified as international environmental crimes. However, is it possible that they could be classified as ecocide? The phrase “ecocide” has recently moved to the forefront of legal discourse. On June 22, 2021, an international advisory committee published a draft definition of ecocide that will pave the way for an amendment to the International Criminal Court’s Rome Statute (ICC). Ecocide can become the Court’s fifth crime if it were to be sanctioned by ICC member nations.

In the international society of nations, there is currently no agreement on a definition. As a result, the literal definition of ecocide on a global scale remains ambiguous. Similarly, the term “international environmental crime” appears rational at first look but lacks any real and commonly recognized connotation. Both concepts have a correlation, but it is important to explore where the linkage between ecocide and international environmental crime precisely resides. Is ecocide synonymous with international environmental crimes, or do the two terms relate to distinct behaviours? Why should only a certain category of environmental and criminally significant acts be referred to as “ecocide”? Due to the present discussion over whether or not ecocide should be acknowledged as an international crime under the Rome Statute, the whole subject is of primary interest. As a result, this article discusses the relation between ecocide and international environmental crimes.

INTERNATIONAL ENVIRONMENTAL CRIMES AND THEIR DEPICTION AS “SECOND HAND CRIMES”

Environmental criminology is a comparatively recent category of crime, both in terms of national and international legislation. This particular type of environmental crime appears to be on the outskirts of a criminal law debates. Crimes with a strong human interaction (for example, homicide) or a monetary aspect (for example, fraud) receives more recognition as compared to environmental criminality due to the latter still being in the borderline of discussion related to criminal legal discourse. In a nutshell, “environmental crime” happens when people, corporations, or governments disregard environmental legislation and standards for financial gain. They become “international environmental crimes” when they have a transboundary component. This explanation is far from explicit to warrant a criminal probe, and it neglects to mention the importance of environmental harm in the context. As a result, there is no internationally acceptable concept of “international environmental crime     “. Because a definite interpretation was not implemented, the result is a monochrome phrase with no legal weight.

The term “international environmental crime” is often used to refer to a category of possible illegal behaviour that pollutes the environment. Poaching and the unlawful trade in flora and fauna, as well as the unrestricted dumping of hazardous waste and the unlawful exploitation of natural resources, are all definite examples. The poaching of rhinoceros horn in Africa is a much stronger example as it entails the slaughter of rhinos, the trafficking of rhinoceros horn to demanding marketplaces (primarily in Asia), and the falsification of documentation, among other things. In this way, the genuine “environmental crime” (harming rhinos) is complemented by a slew of additional crimes, including forgery, bribery, and smuggling. These criminal operations are frequently associated with criminal gangs with linkages to other criminal conducts. The intertwining of environmental degradation inside criminal networks makes focusing on environmental issues incredibly challenging. Environmental degradation is frequently overlooked in such inquiries.

There are two main approaches to international environmental crimes: an anthropogenic approach and an eco-centric approach. While the anthropogenic method focuses on mankind or aspects that have a direct impact on human existence and well-being, the eco     centric (also known as “bio-centric”) analysis concentrates on the natural surroundings without creating a strong connection to the mankind. An anthropogenic approach would be deceptive in establishing a solid case regarding international environmental crime. The concept of environmental violence should be oriented on the goodwill of the ecosystem. As a result, an eco-centric perspective is advised.

Despite this suggestion, the anthropogenic viewpoint has so far triumphed. In the realm of international crimes, this dominating viewpoint, paired with a total disdain for widespread environmental effects, results in a “second class crime” classification. These are the foundations of environmental criminality, with ecocide being classified as a “first-class crime” in this aspect. However, it must be remembered that, due to the increased list of possible “second class international environmental crimes” been perpetrated, their influence may be far more devastating than the few classed as “ecocides.” This is why, under the shadow of ecocide, these illegal acts must not be ignored.

ECOCIDE AND THEIR ATROCIOUS IMPACT ON THE ENVIRONMENT

The term “ecocide” will be used to describe the most horrific atrocities committed against the natural environment. Polly Higgins proposes the following definition of ecocide as a fifth crime under article 5 of the Rome Statute: “the extensive damage to, destruction of, or loss of ecosystems(s) of a given territory, whether by human agency or by other causes, to the extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished”. The idea of adding ecocide to the Rome Statute as a fifth crime is not  entirely      foreign. After being addressed at the International Criminal Court’s (ICC) founding meeting in Rome, an environmental crime clause was removed from the final document. Researchers and even state governments have regularly called for an ecocide crime to safeguard the ecological landscape from human-caused harm in the years thereafter.

The term “ecocide” is used to describe the most heinous atrocities against the natural world. The use of the words “extensive harm,” “destruction,” and “severely decreased” in Higgins’ description underlines the superlative. These terms set the bar for distinguishing ecocide from a “second-class” international environmental crime, such as the one mentioned above. They deserve special attention because they blur the line between international environmental crime and ecocide. There is a lot of ambiguity within their context, thus a comprehensive presentation is required. It is controversial, for example, whether the consequences of the Norilsk Oil Spill in 2019 exceeded the threshold of significant harm inciting substantial and extensive harm to the environment? Would this oil leak constitute an ecocide, as an international environmental crime, or none of the above?

The likelihood that a prospective ecocide clause in the Rome Statute will just be a “tiger sans fangs” exacerbates the problem of this threshold topic. The Rome Statute’s article 8(2)(b)(iv) illustrates this evolution. Although the primary goal of this criterion is to govern war rather than to safeguard the environment, it is the Rome Statute’s single environmental connection thus far. This article relates with “widespread, long-term, and catastrophic damage to the natural environment,” which is similar to the Higgins ecocide definition’s assumption. Knowledge is also required as part of the mens rea criterion under Article 8(2)(b)(iv) of the Rome Statute. As a result, the bar for convicting someone under article 8(2)(b)(iv) of the Rome Statute is relatively high, and it has never been used. With the emergence of the crime of ecocide, this fate must be averted.

THE ROAD AHEAD

Despite the fact that it is being contested, the ICC appears to currently lack      specific legal requirements under the Rome Statute to prosecute international environmental crimes. In this sense, the Office of the Prosecutor of the International Criminal Court’s 2016 Policy Paper is insufficient. The Office of the Prosecutor states in this report that doing so will give special attention to offences under the Rome Statute including “environmental devastation, natural resource exploitation, or illegal land dispossession.” The Rome Statute needs a comprehensive juridical annex point for environmental crimes. Nonetheless, there is a rising momentum to codify the link between the environmental and criminal behaviour in an international accord. As a result, determining where to make a distinction between lawful and unlawful environmental damage, as well as international environmental crimes and ecocide, remains challenging. There are a plethora of ways that are lawful under the law but (possibly) damage the environment substantially.  In this case, assessing what constitutes a crime is a delicately balancing act.

The essence of ecocide and international environmental crimes as possible criminal acts affecting the environment binds them together. In terms of environmentally destructive behaviours, ecocide is at the top of the hierarchy. International environmental crimes, on the other hand, are used to define “lower class” environmental destruction that does not rise to the level of full-fledged ecocide. However, there is still a lack of transparency. The aforesaid expert panel’s newly suggested definition takes an eco-centric viewpoint, which is a welcome change from the previously dominant anthropogenic viewpoint. As a result, this ecocide concept has the opportunity to reveal a standard for international environmental harm while also assisting in the defining of “international environmental crimes.”


[i] Astha Bhattacharya, a second year law student at National Law University, Odisha