Every European lawyer is familiar with the term “genocide”, introduced in 1944 by Raphael Lemkin, a Polish lawyer of Jewish descent. The term was coined based on his earlier concepts of “barbarity” and “vandalism”, in reaction to the impunity of Ottoman perpetrators of the 1915-1917 Armenian genocide, and subsequently used to describe the atrocities committed under the Nazi occupation. Far less lawyers are aware of the concept of “ecocide”.
The former term refers to acts committed to destroy particular (national, ethnic, racial, religious) groups of people by killing or severely harming their members or inflicting their conditions of life (among other acts), whereas the latter means substantial damaging or destroying of ecosystems, or harming the health and well-being of a species (e.g. by military operations, catastrophes, and illegal disposal of toxic waste but also air pollution, oil spills, soil erosion, illegal markets of medicines or plundering of natural resources – such as post-Cold-War pillage of minerals, metals or timber). From these two simplified definitions, it seems clear that both terms can partially overlap when ecocide concerns human species, or when genocide aims at destroying the natural habitat of a group of people. For instance, destroying an indigenous peoples’ territory could seriously undermine its culture, identity and way of life, eventually leading to its partial or total extinction. The Cambridge Dictionary included the word “ecocide” only in 2018, defining it as “the destruction of the natural environment of an area, or very great damage to it”.
Several factors contributed to the concept of ecocide not being as widely known by European lawyers as the concept of genocide is. Aside from it being developed much later, and on another continent, the concept of ecocide largely remained outside the realm of criminal and international criminal law. The two disciplines focus more on actions targeting people directly, omitting or downplaying those targeting the environment. Ecocide remains more abstract, not attached – in popular perception – to concrete, universally recognised events, victims and perpetrators. More importantly, ecocide is not yet as regulated as genocide is, both on national and international level.
One can assume that growing awareness of climate change and human contribution to global warming, greenhouse emissions, thinning ozone layer and sea-level rise, as well as the need for urgent political decisions and legal solutions, will push the legislative processes ahead. But what is the state of play regarding the regulation (prevention) of ecocide today, in the 3rd decade of the 21st century, over 50 years after the introduction of the term, and where is Eastern Europe in it?
Firstly, ecocide has not yet been recognised as an internationally punishable crime – equal to war crimes, genocide, crimes against humanity and the crime of aggression - by the United Nations. Critics argue that adding ecocide to the other four existing core crimes would trivialize or diminish their gravity. On the national level, however, some provisions already exist, and not only in Vietnam (where Agent Orange was used by the U.S. army), but surprisingly – in Eastern European countries such as Belarus, Georgia, Moldova, Russia and Ukraine, accompanied by other post-Soviet republics (Armenia, Kazakhstan, Kyrgyzstan, Tajikistan and Uzbekistan), who adopted anti-ecocide legislation in the late 1990s and early 2000s.
One can assume that such legislation in the post-Soviet space – extremely devastated by the highly intrusive economy of the USSR (just to mention the Aral Sea man-made environmental disaster or the Chernobyl nuclear disaster) – was very anticipated and necessary. However, these countries, known for their corruption and lack of transparency and accountability rather than for being rule of law champions, lack efficient legal mechanisms to enforce those provisions. They become futile when oligarchs (e.g. oil company CEOs) or people in power (e.g. corrupt officials) should be held accountable. And indeed, there are few reports of successful prosecutions in these countries.
Therefore, international measures are necessary – especially because environmental issues are of transnational character and natural disasters know no borders – to improve the situation in these Eastern European countries, but also to mobilise other states and corporations on all continents to set an example and advance their environmental agenda and minimise the risk of ecocide. Additionally, in countries with democratic deficits – like those mentioned – complementary measures are required to improve the functioning of justice system: separation of powers, independent prosecutors and independent judiciary.
First attempts were made soon after Yale Prof. Arthur W. Galston proposed banning ecocide. In 1973, a draft Ecocide Convention prepared by experts such as Richard A. Falk and Robert Jay Lifton was submitted to the UN, igniting discussions whether the element of intent was necessary or irrelevant for ecocide to be considered an internationally punishable crime. The draft Ecocide Convention focused on ecocide as a war-crime committed with intent, failing to set out peacetime provisions. In 1976, the UN drafted the Convention on the Prohibition of Military or any other Hostile use of Environmental Modification Techniques, but – again - it only applied to wartime. In 1978, several countries including some European – Austria, Poland, Romania and the Holy See – advocated before the International Law Commission for labelling ecocide as a crime, which found its reflection in ILC Yearbook’s Draft Articles on State Responsibility and International Crime, prohibiting “massive pollution of the atmosphere or of the seas”. Also in 1978, Nicodème Ruhashyankiko, the Special Rapporteur of the Sub-Commission on Prevention of Discrimination and Protection of Minorities prepared a study for the UN’s Human Rights Commission, proposing the addition of ecocide and reintroduction of cultural genocide to the Genocide Convention. In 1985, the UNHCR think-tank Sub-Commission on the Promotion and Protection of Human Rights discussed extending the definition of genocide to include ethnocide and ecocide. In 1986, the debate re-opened in the ILC whether ecocide was a crime of intent, and in 1987 the ILC discussed including ecocide into the list of international crimes, reflecting the need to preserve the environment. Art. 26 of the ILC’s 1991 Draft Code of Crimes Against the Peace and Security of Mankind mentioned the crime of wilful damage to the environment, but some countries opposed either the whole concept (e.g. the UK) or the condition of intent (e.g. Austria and Belgium), arguing that ecocide during peace-time is often a crime without intent as it occurs as a by-product of industrial or other activities. Many other countries, including some Eastern European states like Belarus, Bulgaria and Poland, were in favour of the proposal.
Nevertheless, the concept of ecocide was dropped (“left aside”) by the ILC in 1996 – instead of removing reference to the element of intent, the ILC removed (without voting and allegedly under pressure of such Western powers as the United States, the UK and the Netherlands, afraid of becoming criminally liable for peacetime testing of weapons of mass destruction) - the whole art. 26. It was when Vietnam and post-Soviet states mentioned earlier decided to continue their effort and implement the Draft Code into their national penal codes (none of them set out the test of intent and the language of their provisions closely followed the ILC draft art. 26). The Working Group established for the 48th session of the ILC issued a report suggesting one of the following: retaining environmental crimes as a distinct and separate provision; including environmental crimes as an act of crimes against humanity; or including them as a war crime. None of these recommendations were followed. In 1998, the final Draft Code (that was on the ILC’s agenda from 1949 to 1957 and from 1982 to 1996) served as an inspiration for the Rome Statute – the founding document of the International Criminal Court. Although ecocide wasn’t regulated as a separate crime, it was mentioned in Art. 8(2)(b)(iv) as part of a war crime. According to this provision, it is a crime to “internationally launch an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated”.
Critics argue, however, that this provision is very difficult to use in practice. Firstly, there is no definition of “widespread, long-term and severe” requirement, so it’s a subjective element. It’s also a cumulative standard, almost impossible to meet. Secondly, the balance between environmental damage and anticipated military advantage is also subjective. Thirdly, it would be difficult to prove that the perpetrator intended to damage the environment, and that it was not collateral damage. Fourthly, the provision only applies to international armed conflicts, while most “ecocides” happen during peacetime (e.g. through industrial activities). The Rome Statute entered into force on 1 July 2002 and from the Eastern European states mentioned earlier, only Moldova became a party (while from post-Soviet republics – only Tajikistan).
In 2010, British lawyer and environmentalist Polly Higgins proposed the ILC to amend the Rome Statute and include the crime of ecocide defined as “the extensive damage to, destruction of or loss of ecosystems of a given territory, whether by human agency or by any other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished” – committed by individuals, corporations or states – to the list of crimes against peace persecuted by the ICC. The issue was debated on a number of occasions the following year, e.g. at the World Congress on Justice Governance and Law for Environmental Sustainability 2012 and at the international conference Environmental Crime: Current and Emerging Threats held under UN auspices in 2012. In 2019, during the 18th session of the Assembly of State Parties to the Rome Statute of the ICC, Vanuatu and the Maldives called for adding a crime of ecocide to the ICC Statute. In May 2021, the members of the European Parliament presented several recommendations in order to improve the Environmental Liability Directive and the Environmental Crime Directive, e.g. looking into how ecocide can be recognised under EU law and diplomacy, extending the mandate of the European Public Prosecutor’s Office, and recognising ecocide as an international crime under the Rome Statue.
Finally, most recently, in June 2021 the Stop Ecocide Foundation submitted the following formal definition of ecocide, prepared by the Independent Expert Panel, to the ICC: “Ecocide means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts”. Critics argue, however, that the definition tries to balance environmental harm with socio-economic benefits, as if human welfare was separate from environmental welfare. Moreover, critics argue that adding a 5th crime to the Rome Statute is unrealistic for many reasons (e.g. the biggest polluters are not even parties to the Rome Statute, the ICC is composed of judges specialised in criminal law and human rights law, not environmental law, etc.) and there are other alternatives to counter transnational environmental crimes, e.g. creating an International Environmental Court or prosecuting these crimes in domestic courts pursuant to national laws (like in the case of the Basel Convention against Hazardous Waste).
It seems that all the recent initiatives, both private and institutional, originate from the Western world – the U.S. or Western Europe. The reason Eastern European voices are lacking is unclear and might stem from having different priorities or different interests. Nonetheless, ecocide is not an abstract phenomenon in Eastern Europe – several situations are considered to be serious threats, real or potential ecocides, e.g. Rosia Montana (the gold mining project in Romania), the Ajka alumina sludge spill (2010 in Hungary), Buhovo uranium mine in Bulgaria, ski tourism development (deforestation) in the Nature Park Stara planina (Serbia), uranium mine reopening in Pecs (Hungary), Paks Nuclear plant expansion (Hungary), Krsko Nuclear Power Plant (Slovenia), Sostanj – TES 6 (coal power plant in Slovenia) and BNK Petroleum Fracking in Poland. It is of great importance to encourage Eastern European states (by leadership and example) to play a more active role in the process of preventing ecocide, rather than just wait until the ecocide law is adopted by the majority of other states and becomes binding. Lacking Eastern European voice may be a signal of future obstruction and opposition to implementing any new environmental restrictions (e.g. amending the Rome Statute, creating the international duty of care for states, corporations and individuals to protect the Earth and its inhabitants – human or non-human: animals, fish, birds, insects, plant species, other living organisms) seen as an external imposition of Western ideas on “sovereign” states against their will and ignoring their economic, social and security realities (just like it is with coal mining and gas emissions restrictions) or their traditions (like in the case of animal rights activists fighting for animal personhood and advocating against fur farming and “animal ecocide”).
Additional effort will be needed to convince Eastern European states not only to adapt their existing legislation to potential new regulations of ecocide, but also to improve their rule of law, accountability, transparency and law enforcement mechanisms, because there is no “ecocentric rule of law” or “rule of ecological law” without the rule of law in general. Vice versa, securing higher standards of environmental protection helps promote the rule of law, because governments become directly accountable for their failure to protect the environment. On the other hand, Western states and global powers must also show more commitment to this issue because decades of discussions in various international bodies so far did not create an image of sincere concern about the environment. Some promising political steps have recently been taken by Belgium, Sweden and France. Still, the last time someone was internationally charged of crimes against the environment was in 1947 and the case concerned Polish forests. Polish lawyers, operating within the framework of the UN War Crimes Commission - the first body to investigate Nazi war crimes, even before Nuremberg - prepared a case against nine Nazi officers who, acting on Göring's orders, were destroying Polish forest resources (a war crime under art. 55 of the 1907 Hague Convention, case no. 1307/7150). Göring, being Great Hunter of the Reich, planned to transform the Białowieża Primeval Forest into a kind of Nazi Jurassic park, where the Nazi elite would hunt big game, including extinct species. Poland’s long standing tradition of contributing to development of international law and protection of the environment is worth evoking when encouraging the Polish government and other Eastern European governments to implement systemic legal measures to prevent and punish ecocide. In the words of Richard Falk: “we can no longer afford the occurrence of deliberate choices by representatives of leading governments that should be foreseen as producing grave harm to the human interest in humane societies and a sustainable future for the species”. We need to make ecocide a crime which is internationally and effectively punishable. There is a significant momentum behind the need to create greater accountability for environmental destruction, regardless of different approaches to the concept of “ecocide” (either anthropocentric or eco-centric), and it should continue – with a growing awareness of climate change – to attract considerable support in Eastern Europe. Ideally, Eastern European states could present to the world “another Lemkin”, capable of offering a creative and innovative way to criminalize ecocide. If the Rome Statute amendment were to fail, perhaps the solution would be to design a whole new mechanism combining international criminal law and international environmental law, with an International Environmental Court in its centre.