CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Thursday, December 7, 2023

Bra & Pocar on ELI Report on Ecocide

Robert Bray and Fausto Pocar (European Law Institute and European Law Institute) have posted ELI Report on Ecocide. Model Rules for an EU Directive and a Council Decision on SSRN. Here is the abstract:
Background: The word ecocide has a clear and intuitive meaning in English, French and many other languages. What is less clear is its characterisation as a legal concept.

Three different characterisations already exist in public international law, which may be suitable for defining the concept of ecocide. First, Article 8(2)(b)(iv) of the Rome Statute and Article 35(3) of the first Additional Protocol to the Geneva Conventions of 8 June 1977 consider ecocide, namely the intentional launch of an attack in the knowledge that it will cause ‘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’, a war crime. This characterisation is the only one in force and does not cover the described conduct where the offence is not committed in a context of war. A draft Article I of the ‘Study on the question of the prevention and punishment of the crime of genocide’ by the United Nations (UN) Economic and Social Council (ECOSOC) Sub-Commission on Prevention of Discrimination and Protection of Minorities proposed including ecocide among the crimes of genocide prohibited by international law ‘in time of peace or in time of war’. A third characterisation, still under public international law, consisted in defining ecocide ‘a crime against humanity’ and was put forward by the UN International Law Commission in a draft Article 26 of the Code of Crimes Against the Peace and Security of Mankind. Several national criminal codes, both military and general, prohibit ecocide, whether explicitly or implicitly, and not necessarily only in warfare.
For instance, among the behaviours characterised as ecocide are: the ‘mass destruction of the flora and fauna and poisoning of the atmosphere or water resources, as well as other acts capable of causing an ecological catastrophe’; the wilful infliction of ‘widespread, long-term and severe damage to the natural environment’ in any armed conflict; ‘destroying the natural environment’, and the spread of ‘substances dont l'action ou les réactions entraînent des effets nuisibles graves et durables sur la santé, la flore, la faune’ when committed intentionally. The European Union is striving to introduce a coherent regime which will enable – and oblige – Member States to protect the environment. The European Commission’s proposal for the revision of the Environmental Crime Directive uses the term ecocide in a recital listing serious environmental crimes. One of the main aimsof the Directive is to prevent corporate crimes against the environment.

Aim and Methodology: The main aim of this Report is to assist in the present legislative evolution by contributing to the definition of the crime of ecocide as a general crime, thereby ensuring the prevention of the most serious environmental crimes also in peacetime and when they are committed by private persons.

To this end, the Report starts by systematising the existing rules of law and scholarly contributions in order to reconstruct the crime of ecocide from the 1970s up until the present day. It summarises the results by listing the prohibited behaviours, the events that need to be prevented with the criminal instrument, and the level of intentionality required for the criminal threshold to be attained. Even more importantly, the Report highlights the underlying values of the proposed legislation. The present study illustrates clearly that the word ecocide, in its etymological meaning of ‘destroying one’s home’, eloquently expresses the rationale of the proposed rules.

Substantial Outputs: The Report provides a definition of the crime of ecocide. The actus reus must consist in: i) a typified behaviour, ie, behaviour which European Union law has identified as unlawful and dangerous for the environment; ii) resulting or likely to result in severe damage, which is also long-term, or in severe damage, which is also irreparable or irreversible. The actus reus must have been committed with the following mens rea: wilful intention (dolus malus); acceptance of the consequent risk of damage (dolus eventualis or recklessness). The Report also considers it necessary to extend the powers of the European Public Prosecutor’s Office to include offences of ecocide affecting more than one Member State or one or more Member States and one or more third countries.

Formal Outputs: To assist future legal instruments, the project takes the following approach: The existence of a proposal for a Directive on the protection of the environment through criminal law means that the substantive elements of the Model Directive (essentially Articles 3, 4, 5, 7, 11 and the definitions in Article 2) could be presented by the European Parliament as amendments to the proposed Directive under the ordinary legislative procedure.

In the alternative, the European Parliament, acting under Article 225 Treaty on the Functioning of the European Union (TFEU), or the Commission could propose the Model Directive for adoption either as a self-standing instrument or as a Directive amending the new Environmental Crime Directive. This is why the Model Rules include rules already contained in the proposal for a Directive on the protection of the environment through criminal law. It is important to note that this signifies that the Project Team approves those rules.

The Model Rules are formulated for a future EU Council Decision, which would make it possible for the European Public Prosecutor’s Office to investigate, prosecute and bring to judgment the perpetrators of, and accomplices in, offences constituting the crime of ecocide. Although the models are destined for the EU, the substantive proposals for the actus reus and mens rea of the crime of ecocide could be taken up by national legislators, including those of non-EU States.

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