The Trouble with ‘Ecocide’

Authors: Marie Chabrier-Gay and Louise Tabary

What is ecocide?

If you look for a clear legal definition, nothing.

If you look for a more simple one: the massive and irreversible destruction of an ecosystem.

Now the logical question is: why is it not a legal offence right now? And should it be one?

As things stand, profit matters more than life on this planet. At least in terms of regulations. Climate laws leave huge amounts of blindspots, and they are strongly human-centred. We already have trouble protecting our own health—imagine having to protect biodiversity as well. And what about ecological damage that does not directly affect human beings? For instance, how do we prevent biodiversity loss? This article will not try to demonstrate the obvious—that we need biodiversity. We would rather understand why ecosystems are not already under the protection of the law.

For starters, let us review a bit of environmental law history. Ecocide famously first emerged during the Vietnam war, with the use of Agent Orange and ‘herbicidal warfare’. It was notably denounced by the Swedish Prime Minister at the 1972 Stockholm conference. However, ecocide was never made into the prohibition of deliberate environmental destruction. And while literature has recognised some instances of ecocide since then—such as the war against the Marsh Arabs—ecocide has never been written into law at an international level. Neither has it been refined. Its recent momentum in popular and political discourse provides an insight of this: experts now struggle to agree on the very definition of the crime. First because biodiversity is a broad term. The world in itself is pretty straight forward, biodiversity is all the diversity of animals, insects, plants, microorganisms… that are alive.

According to the UN Environment Program, climate change is only one factor responsible for the extinction of biodiversity. The other four major factors are all related to human action: change in the use of land and sea, introduction of alien species, pollution, and direct exploitation of resources. A crime of ecocide would not prevent biodiversity loss on its own, but it would allow a regulation of some factors impacting on it such as the exploitation of resources and pollution when done in a harmful way. So why is there no crime of ecocide? It would be ideal, would it not? But such legislation would in fact raise many issues.

First, there is the question of jurisdiction: should ecocide be made into a domestic or an international crime?

On the one hand, an international definition of the notion and its statement in international law would enable its standardisation, not to mention meaningful jurisprudence. Citizens whose complaints are not heard in front of national jurisdictions could refer to international treaties as superior norms for law; as long as their state is party to an ecocide treaty. Besides, ecology needs to be framed as a global issue; what better means, then, than international regulation?

But now, think about the efficiency of the rest of international law. It is at best ignored, and at worst openly transgressed. Plus, by the time a definition is agreed upon, rhinoceroses would probably have the time to disappear twice over. Therefore, if our goal is efficiency, we might turn to national law.

Such regulations on biodiversity nevertheless have one considerable, scary enemy: money. Looking at facts, orangutans are really annoying because they live in a forest that takes the place of what could be dozens of very lucrative palm oil plantations, and coral are pretty but very harmful for fishing nets. We bet there might even be some negative connotations to some of the living beings we just cited. To put it bluntly: why would you bother with biodiversity, when you have economic issues to address?

Second, what should concretely be made a crime of ecocide?

The best definition we have might be that of the Stop Ecocide Foundation, which reads as follows: ‘unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and widespread or long-term damage to the environment being caused by those acts’.

What is the limit of such a definition? First, is it only for states? Or for firms, too? More precisely, what kind of actions are to be taken into account? Is ecocide the direct action of ending dozens of non-human lives, with the intent of doing so? Is there a need for intent? Or simply knowledge? Recklessness? Would liability only be triggered by direct perpetration? And then, what about my local firm that used dozens of pesticides on crops, killing hundreds of insects and birds? This is a list of non-exhaustive questions that must be answered before even thinking of passing a law about it at any level.

Lastly, let us talk about the most important question. The one of liability. Let us take a concrete example: that of a gold mine project in French Guiana. Said project, which was to be implemented in a remote part of the Amazon rainforest, was supposed to be an opportunity for the local population to grow their economy. However, they were torn between job opportunities and the protection of the forest. Such a project would have had consequences on the health of locals and on the lives of hundreds of species by contaminating the rivers nearby, and spurred the destruction of vital natural habitat. This would have led to a massive disturbance of the ecosystem, leading eventually to an important loss of biodiversity.

But who is responsible for ‘ecocide’? Is it the firm that directed the crime? Is it the states that ordered it? Or the people actually digging a giant hole in the middle of one of the most fragile and important ecosystems of the planet? If the last option could be questionable, the first two have to be thoroughly studied.

The conclusion of this article is the one of any legal debate: the lawyerly ‘it depends’. The notion of ecocide is a great tool for the media to use. It is striking, frightening even — it puts words on an overall very vague concept. But it lacks concrete ground. Ecocide could be put into regulations but what parameters should we take into account to make an efficient, fair and proportional regulation? All the questions in this article have not been answered (if that were the case, SPE would already be at the parliament lobbying for a law on the matter to be passed within three days). And while nobody agrees on who is responsible for what action, there are ecosystems dying everywhere around the world. As a consequence, those questions must be urgently studied, answered, and debated; so that, at last, we preserve the planet that preserves us.