Experts must confront challenging aspects of defining ecocide
This series of guest blog posts is intended as a dedicated space for the many movements/campaigns around the globe confronting ecosystem destruction to share their stories, narratives and perspectives.
This guest blog was written by Professor Darryl Robinson, an Associate Professor at Queen’s University Canada’s Faculty of Law, where he specialises in international criminal justice. The article was first published in EJIL Talk!, the blog of the European Journal of International Law.
Following a proposal by Vanuatu, the crime of ecocide was discussed on the margins of the 2024 ICC Assembly of States Parties. Subsequent deliberations could be informative for the many national systems considering adopting such a crime.
In this post, I discuss the failure in a lot of the discourse to acknowledge the most challenging issues in defining ecocide. This post is an appeal to interested participants to engage with uncomfortable but central conundrums that must be addressed in a sound definition.
The ecocide definition proposed by the International Expert Panel did not propose to criminalize all high-impact activity; it proposed an element to distinguish the most irresponsible conduct. I will call such an element a ‘wrongfulness requirement’, and I will discuss the Panel’s formula below.
The 2021 Independent Expert Panel definition of ecocide is displayed at a side event to the 2023 Arctic Circle Assembly.
The Panel members have given reasons in their commentary and in subsequent presentations as to why the definition does not prohibit all severe environmental harm outright. I have also surveyed such arguments. Those reasons – which I will briefly outline in a moment – include: the logistics of human survival and well-being; avoiding extensive over-criminalization; and promoting environmentally sounder outcomes.
Reactions to the Panel’s definition include support for the proposal, skepticism about a new international crime, and objections to specific details. This post is about one particularly common reaction, which is understandable but arguably unhelpfully superficial. Namely, many commentators express indignation at the Panel’s suggestion that some high-impact activities might be justified or might not warrant criminalization; they assert that all severe harm should be criminalized outright (see examples here, here, here, here, here, here, here, here at p. 75, or here at p. 20). As a result, many such observers condemn the Panel and its definition as short-sighted, anthropocentric, unambitious, uncritical, or failing to grasp that environmental harm also threatens humans (see eg here). However, this seemingly attractive and simple position overlooks important factual and principled constraints. I will underscore the most challenging conundrums, in the hopes of prompting new ideas about a workable definition.
To explain the conundrums, I am in an unenviable position of first having to explain why some environmental impact is unavoidable if humans are to survive. Even more uncomfortably, I have to show why at least some high-impact projects should not lead to criminal prosecutions. Why am I advancing explanations that will be so easily misrepresented as ‘pro-pollution’, when my interest is in improving environmental protection? I am outlining these constraints so that we can have a science-based, fact-based conversation about how to improve things.
To recap the definitional details, the Panel proposal refers to ‘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’. The proposed formula for a wrongfulness requirement is that the acts must be either ‘unlawful or wanton’; the latter term means ‘with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated’. In this post, I neither defend nor critique that particular formulation or possible alternatives. Sound concerns about each formulation have been raised, such as variability, uncertainty, and the problem of inappropriate permits. Personally, I currently am pondering the alternative of referring to a serious breach of a duty of environmental care. But my aim here is simply to outline the arguments in principle for some such wrongfulness element.
In this post, I briefly list some concerns about an ‘impact-only’ definition of ecocide (i.e. one with no wrongfulness requirement); these include mass societal disruption, over-criminalization, and environmental sub-optimality. I have no personal stake or agenda in the concerns being ‘right’. Indeed, it would be wonderful if the concerns prove to be wrong. But given the weightiness of these concerns, those who reject a wrongfulness requirement should explain why these concerns will not arise, or why they should not give us pause.
Human Suffering and Well-Being
When commentators casually propose criminalizing all high-impact activities (i.e. those with ‘severe’ impacts), they appear to assume that such activities are rare and peripheral and thus easily outlawed. It is likely that most people underestimate the extent to which their lives as they currently know them rely on high-impact activities. This includes transportation, food production, energy production, construction and so on. Of course, all of these activities need to be radically rethought. But even with the best strategies, operations that sustain hundreds of millions of people can have startlingly high impacts.
For those who are surprised by this, I have elsewhere outlined some constraints of science, demographics, and logistics: your survival entails some footprint; we have a huge human population which strains carrying capacity; and sometimes collective activity, serving hundreds of millions of people, is efficient. In other words, if we must tolerate a certain footprint for an individual to meet a particular need (eg food), then an activity providing that need for hundreds of millions of people might have a very large footprint.
A common response is to insist that those darned corporations are just going to have to learn to provide those goods and services without pollution. This sentiment is understandable, but it ignores fundamental principles of physics. Regardless of what societal, technological, and cultural shifts we make, there will remain these core constraints of physics, demographics and logistics. Food and goods and energy cannot be produced from nothing. The entropy principle means that harms can never be zero, and on a large enough scale of operations will reach a very high threshold.
If an “impact only” definition were actually adopted and enforced, the resulting disruption and suffering seems to be far greater than appears to be contemplated by the proponents who so lightly suggest it. Perhaps proponents will show that these harms will not ensue or that we should not care about them. But these potential harms are, at minimum, a significant concern that warrants discussion.
When I point out our current reliance on high-impact activities, it is not because I am indifferent to the harms or wish them to continue unabated. I do it so that we can have a grounded conversation that recognizes the constraints of our predicament and hence the more nuanced moral stakes. Of course, many of the large and small harms done today are unnecessary and irresponsible. We urgently need to overhaul processes, reduce harms, and reduce demand (see next section). But if some high-impact activities may be justified in our current predicament, then an ecocide provision needs to deal with that.
Another common response is to suggest setting the impact threshold so high that it only covers indefensible activities. Alas, this does not seem to be a viable approach, because some of the activities that one is likely to consider necessary involve some very serious harms. If the bar were set high enough to exclude those, the crime would cover almost nothing. The root problem is that the ‘impact only’ approach is an oversimplistic way to draw the line. Suppose that Company A emits 16 million tonnes of CO2 for trivial benefits or that could be easily reduced. Company B emits more (18 million tonnes), but does so as the least harmful way to meet an essential need of hundreds of millions of people and taking all measures to minimize harm. On the ‘impact-only’ lens, Company B is worse. But actually Company A is worse. The ‘wrongness’ is not just about impact, it is also about irresponsibility.
Role of Criminal Law
Professor Robinson (far left) discusses the ecocide definition at a side event to the 23rd Assembly of States Parties, December 2024. Credit: Patricia Willocq photography.
One possible response to the foregoing concern about extensive disruption and harm is to stand by a sweeping definition, on the grounds that ambitious social transformations are needed. I agree that ambitious transformations are needed.
However, the disagreement here is not about whether we need to transform society. The disagreement is about whether criminal law is the appropriate tool for those more subtle and far-reaching systemic reforms.
Should activities that are currently justified under a correct application of existing environmental principles be criminalized under the crime of ecocide? It is erroneous to argue that, if such projects are not included in the crime of ecocide, then the problem will continue unabated. The crime of ecocide is not the only tool; there are other crimes, other laws, and other mechanisms of change. To improve on projects justified under correct application of current principles will involve many subtle and systematic reforms that are better addressed by tools other than criminal law. Perhaps an “environmental Martens clause” could underscore that harms not falling within the definition of ecocide must still be addressed. But the stigma of ecocide should arguably be reserved for the clearly irresponsible violations.
To ameliorate activities that are currently justified under environmental principles will require thousands of far-reaching reforms – social, cultural, political, legal, and technological. It will involve complex discussions and negotiations about distributive justice and allocating transition costs. The idea of using criminal courts and punishment to compel all of these complex, systemic changes is a dystopian overuse of criminal law. Criminal law punishment is not the way out of consumerist cultures or toward decarbonizing infrastructures. Criminal law is a singularly inappropriate tool for those types of reforms.
A much more plausible argument is that ecocide should be unlinked from environmental principles because environmental law has so often been too permissive (see eg here). Indeed, it may seem attractive to use criminal law to make an end-run around the problematic aspects of environmental law. However, the better response to the problems of environmental law is to fix the problems of environmental law. To employ criminal law in a manner more ambitious than other legal domains would raise profound principled concerns. It inverts the “regulatory pyramid”, in which criminal law is rightly supposed to be the narrowest field. It violates the principle that criminal law is meant to be the ultima ratio (last resort).
These concerns grow even stronger when we recall that ecocide is meant to be a narrow crime with high stigma. They grow even stronger still if ecocide is an international crime. For reasons of principle and efficiency, international criminal law is much narrower than domestic criminal law, focusing on the most egregious violations of widely-recognized norms.
There may be responses to these questions, but the principled concerns about the scope of criminal law and punishment deserve proper attention. Declining to use criminal law to ‘leapfrog’ over environmental law does not necessarily mean a lack of vision or ambition; it may reflect principled limitations on the invocation of the criminal sanction.
Environmentally Worse Outcomes
I will end with the most surprising concern about an ‘impact-only’ ecocide definition: that it could in some cases produce environmentally worse outcomes. This is counter-intuitive, since those proposing it aim to provide better protection by simply prohibiting all high-impact activity.
However, sometimes a coordinated high-impact activity with mass distributed benefits may be less environmentally harmful than the alternatives. In other words, if we prohibit a collective activity, so that millions of people act independently to fulfil that need, the aggregate impact can actually be worse. I can only outline the considerations here, but I expect to provide a more empirical examination in the near future.
As an example, the operators of major metropolitan waste management systems cause an array of serious harms, even with best practices. They become responsible for harms millions of times greater than any individual would cause. But if we did not have this coordinated service, then the alternative – tens of millions of individuals disposing waste on their own – would be dramatically worse. I am not currently opining as to whether metropolitan waste reaches the threshold of ‘severe’; I am simply illustrating how collective action can cause harms that are very serious and yet still less than the available alternatives.
Some activities in support of a green transition such as solar farms may involve significant harms when scaled up. Credit: Andreas Gücklhorn/ Unsplash
Some activities essential to the green transition may still entail major negative effects when scaled up to replace more harmful alternatives. Zero-carbon electricity, electric cars, and solar panels are all still subject to the laws of physics, and thus they involve problematic harms. For some activities, when scaled up, those harms may grow quite severe. And yet these activities can be less harmful than the alternatives.
The concern with the ‘impact only’ approach is that it is too crude. It focuses only on the size of the impact, and thus it creates an absolute ban at a certain scale of operations, without looking at important questions of environmental stewardship, like whether the collectivized activity is less harmful than alternatives. By contrast, a definition with a ‘wrongfulness’ element, linking in some way to principles of environmental stewardship, engages with important salient questions: does the activity serves a pressing need; do the long-term benefits outweigh the long-term harms; is it the least harmful alternative; and are all feasible measures taken to minimize harm. Such an approach is consistent with the goal and message of ecocide, which should be to instill a stronger culture of environmental stewardship.
Conclusion
Many of the current objections to a ‘wrongfulness requirement’ may be due to the specific formulations offered so far. It is possible that better formulations will mitigate those concerns. But some wrongfulness requirement is likely needed. The foregoing are only three arguments against an ‘impact-only’ definition and in favour of a wrongfulness requirement. There are other concerns, including legality, legitimacy, and over-deterrence.
In the literature, commentators often understandably envision that the divide is between those who want to be ambitious in protecting the environment versus those who don’t, with the Panel portrayed in the latter category (see eg here, here, here). However, for the reasons outlined above, I do not think that is the main divide. One major divide is whether or not one engages with the environmental science and logistics of our current predicament. The other major divide is whether or not one considers criminal law an appropriate tool to dictate the more complex systemic reforms. I suggest that there is a modest but important expressive role for a crime of ecocide working in synergy with other reform efforts, including myriad improvements in laws, practices, and public attitudes.
I have sought to outline the main arguments and concerns, in the hopes of advancing the debate. It is deeply uncomfortable to acknowledge that human survival entails environmental impacts, and this unfortunate fact certainly muddies the simplest prescriptions. But these complexities should not be avoided; the discussion will benefit from having many sharp minds ponder the challenges and how to address them.