March 19, 2021, Austria. Copyright Ivan Radic, licensed under CC BY 2.0.
In 2020, nearly 17,000 boats in the Chinese Ghost Shipping Fleet were muscling into distant waters. Around the Galapagos Islands, one of the earth’s last abundant sites of biodiversity, the fleet’s squid jiggers circled for more than 70,000 hours, hoovering up any sea creatures foolish enough to cross the islands’ marine boundary.
In 2021, an ultra-large container ship carrying leaking chemical cargo caught fire and sank off the coast of Sri Lanka, disgorging its contents into the Indian Ocean. Bunker oil, twenty-fives tons of nitric acid, caustic soda, methanol, and toxic epoxy resins, as well as almost 1,700 tons of plastic nurdles gushed out, instantly polluting fishing waters, upon which tens of thousands of poor Sri Lankans relied for income and protein. The nurdles coated mangroves, sank down to corals, stuck in gills, and thickened up the surf. Soon hundreds of poisoned turtles and dolphins washed up on Sri Lankan beaches.
And last year, in 2022, deforestation in the Amazon in Brazil hit record levels as, by July, more than 1,500 square miles were lost to logging, land conversion, and fire. The former Brazilian president, Jair Bolsonaro, enacted no additional protections. In fact, throughout his four-year presidency, he gave big winks to the criminal networks in the Amazon, who already enjoyed substantial impunity. He sneered that indigenous people who live in the forest, and who are often its most effective protectors, are not fully human. He fired most of the regional directors of the environmental agency that protects the forest and scaled back the value, number, and enforcement of the agency’s fines. He called NGOs working in the Amazon a “cancer” he could not “kill.” And so through his administration, criminal groups involved in logging and agribusiness redoubled attacks on the groups he had vilified and set fires on deforested land close to the jungle. These fires destroyed the former forestland and poisoned the air of 4.5 million people. In 2021, the fires spread into the still living forest, opening the overstory to light, which dried the ground vegetation into better tinder for the next burning season. In 2022, the number of wildfires burning hit a fifteen-year high, months before the fire season’s normal peak. The forest’s degradation and the sanctioning of criminal violence leaves a daunting legacy for Bolsonaro’s successor, Luis Inacia “Lula” Da Silva.
It’s long been popular—maybe even satisfying—to call acts such as these “crimes against nature.” But none of them are, in fact, wholly illegal, and certainly not in a way that accounts for the fact that they have consequences that stretch far beyond the borders of any one country.
Yet it’s starting to seem sensible to people who pay attention to these problems, from ordinary Joes to influential thinkers, that these might be things that our leaders—instead of ignoring or excusing or, worse, subsidizing—could criminally condemn. Things for which cases can be opened, dockets investigated, and suspects hauled up for first-of-their-kind hearings in symbolically freighted, internationally powerful, courts.
They say there’s no such thing as a new crime—only new laws. And that’s why activists and advocates are campaigning for crimes against nature to become a reality. They want the International Criminal Court (ICC) in The Hague to add the crime of “ecocide” to its statute, putting massive environmental damage in the books alongside the four existing major atrocity crimes—of genocide, crimes against humanity, war crimes, and the crime of starting an aggressive war. If they succeed, they’ll be winning a battle that has been waged for more than seventy years—and in the process, creating a new tool for those who fight on the side of the natural world.
The Birth of Ecocide
In August 1970, three American scientists drove to the Beu Cat district in South Vietnam and visited the home of an old lady.
Five weeks earlier, eighty of her chickens had died, and she showed them those that remained alive, some of which could not stand. For a swath through the jungle five hundred meters wide—which covered her village—a fifth of the trees were sickly. Dried leaves hung limp on the branches: banana leaves, dead; mango leaves, shrivelled. In the village, a deputy administrative chief told the men that half of the village’s 200 pigs and 10,000 chickens had fallen sick. One of the men noted in his diary that, according to the official, the chickens did not eat, “and upon death they ran in circles.”
The group were members of the independent American Herbicide Assessment Commission, biologists volunteering their expertise to investigate the Pentagon’s claim that its widespread use of a chemical compound, a herbicide commonly known as Agent Orange, did not have adverse effects on humans and animals. The United States government claimed defoliating the Vietnamese countryside, in an attempt to deprive South Vietnamese guerrillas of crops and cover, was simply a smart military tactic. As one U.S. military scientist put it: “No one appreciates food or [in]visibility more than those deprived of it.”
But after the commission’s survey, a group of activist scientists began to call this something other than a “tactic.” They called it “ecocide.”
The Herbicide Assessment Commission’s mission, the product of years of campaigning by concerned scientists, confirmed that massive ecological damage had been unleashed by the defoliation project. The scientists then used this evidence to lobby senators attending hearings on whether the U.S. should assent to the Geneva Protocols—the international treaties that form the core of humanitarian law aiming to limit the barbarity of war—arguing that the Protocol’s prohibition of chemical and biological weapons should apply to the use of herbicidal weapons too. The harm from weapons that targeted plants, they argued, was inextricable from harm to the civilians who relied on them.
One of the key figures at the hearing was a Brooklynite named Arthur Galston, then the chair of the Department of Botany at Yale University. Galston had been one of the earliest scientists to campaign about the risks of using an herbicide on peopled forests, but his involvement in the issue stretched further back. In his youth, as a graduate student, he had invented chemical defoliants that were later used to create Agent Orange. In his public appearances he cut the picture of be-spectacled scientific sdobriety, but his words were passionate:
“These days it is convenient for man to consider himself as master of all he surveys. His ability to reach the bottom of the sea or the surface of the moon, to fly at supersonic speeds, to split the atom, and to construct sophisticated computers makes him feel that there is no problem … that he cannot overcome . . ..[But] man lives in this world only by the grace of vegetation. He is totally dependent on and cannot substitute for that thin mantle of green matter living precariously on the partially decomposed rock that we call soil.”
In the hearings, according to the historian David Zierler, author of the landmark history of this period, The Invention of Ecocide, Galston and other scientists deliberately tried to link the devastation made evident in the scenes at Beu Cat to the debates that had risen in the aftermath of WWII about the treatment of civilians. It was Galston who coined the term “ecocide” for such massive damage. He did so intentionally, drawing on the moral weight that accrued to the term “genocide” since the Nuremberg trials, hoping he could extend that gravitas to the nonhuman casualties of war. It was certainly a term with broader political appeal than “imperialist poison war”—as favored by Hanoi, Moscow, and Beijing.
Galston’s activism would have results. In 1971, after further research in the USA, which showed that exposure to Agent Orange caused birth defects in rats, the spray missions were halted—though not completely. The height of the “ecocide” concept’s first ascent was probably reached in Sweden, at the 1972 United Nations Conference on the Environment in Stockholm, the event that launched the idea of environmental problems as issues of international peace and development. There the word appeared on the lips of the progressive Socialist Swedish prime minister, Olof Palme. In his plenary address, Palme railed against the wartime “outrage” of the “large-scale use of bulldozers and herbicides…sometimes described as ecocide.” This was a confrontational move that annoyed the U.S. yet carved out a non-partisan space for criticism of wartime ecological destruction.
In the coming years, indignation over America’s “poison war” would fade, as hostilities in Vietnam concluded. Still, in 1973, a definition of “ecocide” was crafted by a lawyer named Richard Falk. He campaigned for the term to have the trappings of respectability in the eyes of international law—an agreement between states—in the form of an international Convention on Ecocide, which might have elevated it to a global norm. But his lobbying did not succeed. The Stockholm Conference would give rise to the major UN agencies that deal with environmental issues, which would in turn nurse huge bureaucracies yet completely fail to forestall the massive ecological damage wrought by human activity in the coming decades.
The term “Ecocide” slipped into obscurity—just another also-ran of plans to use multilateralism to restrain the destructive powers unleashed by technological innovation and economic growth. It sank into the intellectual muck where ideas about international politics are either decomposing or fertilizing, depending on your mood.
That’s not unusual. It’s hard for an idea to become a legal concept, and a legal concept, a law. International laws aren’t hatched in judicial rookeries. They don’t claw their way into existence, able to stand, run, and forage for themselves. So how does the ultimate abstraction—a rule—grow a spine? How does it flesh out, put on clothes, and start to yell at people to show up in court?
Polly Higgins’s Epiphany
In 2009 Polly Higgins, a lifelong employment law barrister with a “deep love for the Earth,” had a “lightbulb” moment about how she, as a lawyer, could contribute to the fight to save the planet’s natural ecosystems. She later recounted in an interview for High Profiles:
“I began to realise that rights in isolation are not enough. If you have rights, there are corresponding duties and obligations—it’s like two sides of the coin. And what gives enforcement to your rights are the responsibilities that are put in place in criminal law. So, your right to life is governed and protected by the [law against] murder, or homicide—or, at a collective level, genocide…. I’m a practising lawyer, a barrister in court, so my natural predisposition is to find the law that’s required; and when I couldn’t find it, I came to recognise that it has to be created.”
In 2010, Higgins’s epiphany led her to search for past attempts to criminalize massive acts of natural destruction and see where they had failed. Together with two British legal academics, she dusted off the records of the UN negotiations that had led to the drafting of the Rome Statute, the treaty that established the International Criminal Court in 1998. They found there had been serious consideration of including a separate crime of “ecocide” in the creation of the court, but powerful states like the UK and the U.S. opposed it as “too novel” and “vague.” The idea was ultimately quashed by the chair during a meeting of the legal drafting committee.
None of this had attracted public criticism at the time. In fact, the creation of the International Criminal Court had been heralded as a triumph for the international human rights movement. In the previous half-century, individual post-conflict tribunals—like Nuremberg—had set new ideals of how justice and rule of law could replace a human tendency to follow conflict with reprisals, summary executions, and show trials. They had brought hope to victims of mass atrocity, and forced men who had seemed inhumanly powerful in the theater of war to account for their actions before civilian judges. The ICC was intended to replace cumbersome temporary tribunals with an agile and permanent court. It would prosecute individuals—even heads of state—for their role in genocide or crimes against humanity. And simply by having the power to bring the highest decision makers to book, it was hoped the court’s impact would prevent crimes being committed in the first place.
But though the Rome Treaty was ratified in 2002, vesting such unprecedented powers in a multilateral institution was rejected by the major global power of the period, the United States, as well as China and Russia. Many other states, often those most implicated in human rights abuses, have refused, or failed, to ratify the treaty.
The court now has 123 member states, compared to the UN’s 193. With some exceptions, and arguable workarounds, the court’s jurisdiction is limited to within the territories of its member states. These members vote on the adoption of new crimes under the court’s charter, and, ideally, write national legislation to cover domestic prosecution of the court’s core laws. The ICC is intended to be a court of “last resort,” which will only act if states are not able or willing to prosecute individuals themselves.
Pella Thiel Spreads the Word
In Stockholm in 2011, nearly forty years after Palme’s speech, Pella Thiel attended a talk in one of the pokey meeting rooms in the offices of her then-employer, the Swedish Society for Nature Conservation. She didn’t know the speaker, a Scottish Barrister called Polly Higgins, and went as a favor to a friend.
Polly Higgins, meanwhile, was in the process of becoming an important provocateur. Her research had led her to see the responsibility to address massive environmental damage as a missing plank of the ICC’s legitimacy. She started to advocate that “ecocide” was the “missing crime against peace,” which should have been included in the Rome Treaty, but which had been narrowly—and foolishly—excluded.
Higgins began to build a campaign around it. In 2010, she presented her own definition of ecocide to the UN Law Commission, an expert body that initiates studies and issues recommendations to develop and codify international law in support of the UN’s Charter. Higgins’s definition spoke about “extensive loss, damage, or destruction of ecosystems” and its effects on “the peaceful enjoyment of the inhabitants.”
As Higgins made her sales pitch in that small room in Stockholm, Thiel—who would herself eventually become one of Sweden’s most recognizable environmentalists—listened closely. She is a brunette with a round face and an infectious laugh, who grew sober when she recalled what she had felt back in 2011. “I thought: ‘This is a very small room, for such a huge idea.’”
Not long before, Thiel had discovered an insistent inner desire to be involved in something that could trigger, not just a reaction to environmental damage, but a systemic shift that would address its root causes. While she hadn’t been searching, exactly, for an idea to be a vehicle for this, Higgins had presented one. “And to me,” Thiel says today, “this idea was so simple: Make it illegal to destroy ecosystems on a large scale. And it’s applicable to an existing legal framework and institutions that are already there.”
While Higgins was good at selling the idea, what she needed was signs of public support that would make it look viable to politicians. She wanted, she told Thiel when the two women wrote to each other after the event, someone to organize a march… Could Pella be the one? Thiel demurred. But they met again in Stockholm in 2013 and started to collaborate, organizing a Rights of Nature conference in the Swedish capital in 2014. (Thiel and Higgins, like several other environmental activists in the ecocide movement, were then also becoming proponents of the ecocentric concept of Rights of Nature, which argues nature itself should have legal standing). Soon Thiel began inviting speakers, hosting debates, writing articles, and advocating for the idea of criminalizing ecocide, which began to spread in activist environmentalist circles in Western Europe.
Pablo Farjardo Tells His Story
On one occasion, in 2019, Pella Thiel organized a meeting at a hotel in downtown Stockholm about the largest environmental lawsuit the world had ever seen—the class action suit on behalf of Ecuadorians living around Lago Agrio in the Amazon, against Chevron, for forty years of allegedly befouling the earth, air, and waters of the forest where they lived. Pela invited the Ecuadorian lawyer who had led the plaintiff’s case, Pablo Farjardo, to speak, and the Bolivian Ambassador to Sweden, Milton Soto, to listen.
It was a story Farjardo must have told well: Not only did he know the case but, he argued, he had lived the crime.
Born into a poor family with twelve siblings, Fajardo grew up in the midst of the oil field’s industrial waste. During its operations in Lago Agrio, Texaco (which was later bought by Chevron) stored polluted liquid in unlined open pits, which leaked into the water system. The company used crude oil to clean the roads, and what its critics called inadequate safety measures meant millions of gallons of crude oil spilled straight into the jungle. In a 2005 profile in Vanity Fair, Fajardo described how his family moved to the small town Shushufundi, which had sprung up outside the Texaco facilities. Their house was between two streams, one so polluted that all the fish had died and another in which the family had hoped to bathe, but which was coated in oil. When they later moved to another neighborhood, things were no better:
“We had a water well, but its water tasted like acid. We had to wait for rainwater. But the rain would fall with black particles. My house was about 500 meters from the central separation station. There were some burners that burned permanently with very black smoke, and when it rained, oil fell, mixed with the water. I thought this was very unfair, but I still did not know it could poison us.”
From the age of fourteen, and while completing secondary school at night, Farjardo labored in palm oil groves, and then in the oil fields themselves. In between, he fitted in all kinds of jobs—labor organizer, human rights advocate, night school principal—that made the world a better place but paid little. Catholic priests who had been observing his good works paid for his law school fees, and eight equally cash-strapped friends pooled money to provide him a stipend. He had been practicing law for one year when he took on one of the richest companies on earth.
A case was first was launched in 1993, and its progression was staunchly resisted—first by Texaco, and then Chevron—for almost two decades. Finally, in 2011, the Ecuadorian court hearing the case handed down a fine of $18.1 billion to Chevron to remediate the vast despoilation of the forest around Agrio Lago—a cataclysm that has been called “the Amazon’s Chernobyl.” This was reduced to $9.5 billion by the Ecuador Supreme Court in 2013, which still made it the largest-ever corporate sanction of its time. But though Chevron itself had insisted the process be heard in Ecuador, it refused the judgment as “illegitimate” and subsequently alleged the ruling had been influenced by corruption. What happened next either vindicates the company or is an absolute indictment of the current ability of the international legal system to hold corporations to account.
According to Farjardo’s team, Chevron “forum shopped”—a luxury open only to multinationals with large pockets and with subsidiaries in various jurisdictions—seeking out friendly courts. According to Chevron, legitimate courts around the world have arbitrated the case, finding in Chevron’s favor. But the subject of these latter cases, most recently in Argentina and The Hague in 2020, have all been over the integrity of the process used to award the judgment, not the question of whether Chevron caused catastrophic pollution and should be accountable for it.
At the 2019 presentation Soto, the Bolivian ambassador to Sweden, was moved by the portrait of injustice that Farjardo painted. It reminded him of other cases he had encountered when he worked, as a younger man, advocating for the rights of indigenous people. To this day, like many South American environmental activists, he uses an Indigenous term whenever he refers to the natural world in generic terms: Pacha Mama. Mother Earth.
After Farjardo’s talk, Soto logged on to YouTube and watched a TEDTalk by Polly Higgins. He remembers being struck by her words when she talked about the expensive legal teams employed by polluting corporations, “But who,” Polly asked, “is the lawyer for Mother Earth?” Soto would go on to promote the concept in Sweden, and back home, in Bolivia.
Meanwhile, Thiel’s End Ecocide movement was not only organizing events but also beginning to target Sweden as a potential vehicle for the diplomatic lobbying it needed to get the ecocide issue put to a vote at the ICC. Her people lobbied the ambassador to the Vatican, hoping to get the Pope’s approval, to build broad support. Thiel participated in live debates with union leaders, and the largest trade union in Sweden later became an official supporter of the call to make ecocide an international crime.
But then the movement seemed to hit a wall. Thiel says they “knocked on hundreds of doors.” Governments often gave them an audience, “but the response was always, ‘Well, this is an interesting idea—but sadly impossible.’ Year after year, that was the case….” But, in 2021, that would change.
A timely request out of Sweden
In 2019, Polly Higgins, at the age of fifty, was diagnosed with late-stage lung cancer and given six weeks to live. She died in April of that year. Her co-founder, Jojo Mehta, who took over as executive director of the international chapter of the Stop Ecocide movement, says Higgins’s sudden death stunned the others in the small movement—“which was, at that time, just a few volunteers and a couple of, you know, well-disposed lawyers at the international level.”
But her death was, in another sense, galvanizing.
Higgins had resurrected the concept and been the figurehead of the movement, but as her partner Jojo Mehta says, “Sometimes, when you have that situation, other people tend to either take a back seat or just sit back and go, ‘well, she’s doing that so either I can’t, or I don’t need to.’” With Higgins’s absence, leadership came from all quarters. Emails started to arrive, and the small group realized its supporters were more committed than they had guessed. “There were campaigners and lawyers and politicians in many different parts of the world,” says Mehta, “who were either already working on this, or wanted to be.”
As it happened, that year the small island state of Vanuatu, which is existentially threatened by rising sea-levels due to climate change, called for the ICC—the International Criminal Court in the Hague—to seriously consider adding the crime of ecocide to its remit. Separately, a group of Swedish parliamentarians approached Thiel and asked the ecocide movement to provide them with a definition they could use in their own advocacy to have Sweden take the issue forward at the ICC.
A political moment was opening, and the Stop Ecocide Foundation decided to call together a diverse group of twelve legal experts into an ‘Independent Expert Panel’ to craft a new definition.
This definition would have to earn global legitimacy by the substance of its drafters. They were going to be from countries across the Global South and North, and would have impressive track records. They would not agree on everything. But, together, they would either have firsthand experience of the Court—or the crime.
Rizwana Hassan’s Sense of Justice
For the latter, Rizwana Hassan’s career fit the bill. When she had graduated as a lawyer in Bangladesh in 1993, it hadn’t been her ambition to practice environmental law. But she had found work with the Bangladeshi Environmental Law Association, often called BELA, which had recently been set up. She took the job because she thought she might do a Phd—and being a new field, environmental law might throw up a novel topic for her thesis.
The 1990s were a boom time in this niche—as environmental laws had proliferated since the 1970s, so had the need for lawyers to apply them. But most graduates found themselves working on compliance, often finding ways for corporations to get around the not-very-imposing thicket of civil regulations that had sprung up as a sop to widespread complaints of corporate environmental damage. Like impact assessments. Or assigning fines and awarding or blocking licenses for developers to convert land. But BELA’s work was considerably closer to the consequences of environmental degradation than that, and Hassan would be drawn in—for life.
Her first assignments were to visit farmers losing topsoil and livelihood to the ‘burnt-brick’ masonry industry and with villagers battling skin diseases from rivers polluted by tanneries. These experiences sparked something in her. If she stuck with BELA, she realized “all the thrust that I had for practicing law yet not asking for money from people, of being an academician, of working closely with common people—they actually can all be fulfilled from this organization.”
It was a fruitful match. Since Hassan joined the organisation, BELA has taken on all the major environmental fights of a fast-developing Bangladesh, which were also workers’ fights and peasants’ fights, from tanneries to air pollution to the shipbreaking industries of Chattogram.
In 2020, Hassan, by now Chief Executive of the Bangladeshi Environmental Law Association, received an invitation to join the Panel of Experts working on a definition of “ecocide.” The co-chairs were Philippe Sands, a British Professor of Law, a practicing lawyer and writer; and Dior Fall Sow, a Senegalese jurist and legal scholar. They were inviting a mix of participants, including lawyers who had been knee deep in the muck of litigating against corporations and governments, matched with others who had pled cases in international courts and knew what prosecutors would need to work with.
It wasn’t the first time she had heard of the term “ecocide”; she had been introduced to the concept by European colleagues and journals. It hadn’t interested her much then—but in 2018 something had shifted. When she was on a visit to Vietnam (to learn about their progress on using less-polluting methods of brick kilning), she had found out that ‘ecocide’ was a crime in their penal code. Something about knowing that there had been this Asian adoption of the term—she can’t put her finger on what, exactly—made her open to the panel’s invitation.
When Hassan speaks about the idea of laboring to shape a credible definition of ecocide, she talks about rich industries that refused to bear the costs of safety protocols that would protect workers and coastal waters, village livelihoods, or mangroves. Industries that were protected because the laws against their transgressions didn’t exist, or because of their donations to political parties—or their straightforward contributions to the national economy.
Most of all, though, she spoke about what climate change meant for her country: “My grandchildren will learn to draw a different map of Bangladesh than the one I learned to draw as a child,” she said, referring to how much of the country’s landmass would be lost to sea-level rise. “This year, denge virus arrived in Bangladesh, which we’ve never had before,” she said, “and which they tell us is because of the rising temperatures.” Ecocide seemed like a tool with which—if it had existed—she could have fought the people and companies that had seemed so untouchable for her whole career.
When she accepted the invitation, she did so with “a deep sense of justice.” When I ask Hassan what that felt like, she says, “anger, frustration… and hope.”
The Nuremberg Connection
Phillippe Sands, the co-chair of the Independent Expert Panel, is perhaps most famous for his book about Nuremberg, which itself throws the development of the concept of “ecocide” into a curious light.
In his 2016 history East West Street, Sands tells the story of how two different Jewish lawyers from the (now) Ukrainian city of Lviv played decisive roles in the formation of modern international criminal law. Each had articulated rival ideas about the nature of the horrors of the Second World War and campaigned for distinct legal concepts to deal with them in the Nuremberg trials. Hersch Lauterpacht worked on the British prosecution, and advocated for an approach that drew on the idea of “crimes against humanity”—the killing of vast numbers of individuals. Raphael Lemkin worked for the Americans and promoted the idea of “genocide”—the deliberate attempt to destroy a particular group.
As it happens, Sands’s maternal ancestors, including his mother, who went into exile as an infant, were also from Lviv. After Germany’s invasion in 1941, those who did not escape were murdered by the Nazi regime. At Nuremberg, Lauterpach and Lemkin both played a role in the prosecution of Hans Franck—once Hitler’s lawyer, the Minister of Justice in Bavaria, and then the Governor General of Nazi-occupied Poland—who unbeknownst to the lawyers, was responsible for the death of most of their families in Lviv.
One could read Sands’s account of this history as one of the inevitabilities of the emergence of international laws out of awful events, driven by impassioned activist lawyers. But the book can be read too as a tale of the unpredictable development of our entire international law apparatus. During their lifetimes, Lemkin was a marginal figure compared to Lauterpacht, who was widely celebrated before Nuremberg; Lemkin’s “genocide” concept was the intellectual underdog, whose passage into the Nuremberg procedures was less likely than the “crimes against humanity” framing that Lauterpacht gave to mass killings. But since then genocide has risen to be the pre-eminent crime in global consciousness, the so-called “crime of crimes.” Crimes against humanity—though it is applicable to a broader range of cases and easier to prosecute (and so more practical for addressing atrocity)—has receded in prominence.
The history of Nuremberg is in fact full of contingencies, choices shaped by accidents or omissions, and scenes that might have played out differently. Take, for instance, the fact that no leading German industrialist was prosecuted in the main trial, despite the fact that both the Soviets and the Americans argued that German industrial support for both Nazism, pre-1939, and in the war itself, were crucial pre-conditions to the atrocities that followed, a monstrous force on par with ideology. The prosecutorial teams selected the Krupp family as culpable parties who would be symbolic representatives of the industrialist class, but time was wasted confusing Gustav the father with Alfried the son, then returning to focus on the elder Gustav, who turned out to be too senile to testify, and the idea was dropped.
How different might be the history of the second half of the twentieth century be if the Krupps—corporate managers rather than military generals—had been at the center of the Nuremberg trial, their testimony and prosecution transmitted to the world on the typewriters of Walter Cronkite and Martha Gelhorn?
Fifty years after Nuremberg, at the time that Pablo Farjardo was pursuing Chevron for its despoiling of the Amazon and poisoning of indigenous lands, the idea that corporations could be guilty of atrocity—and their representatives held accountable—might not have seemed so alien.
“Distressed Seamstresses,” Working With Words
Because of the Covid-19 pandemic, for half a year from late 2020, the Independent Expert Panel met once a month over Zoom, for an afternoon of deliberations, while emails flew between them in the intercessions. There were twelve of them—including Sands, Fall Sow, Hassan, and Fajardo, as well as former judges and prosecutors from the UK, Samoa, Sierra Leone, Norway, Chile, and the U.S. At the start, they agreed they would debate the definition of “ecocide” until they reached a consensus. This was a brave ask of a diverse team.
One member of the panel was Christina Voight, a Professor of Law at the University of Oslo and a renowned expert in international environmental law. To her, one of the major challenges the group faced was that while its members had to fashion something new, those who had worked on previous conventions knew it had to look familiar to the (inherently conservative) international lawyers representing ICC member states. So ideally their definition would borrow as much language as possible from other international laws, which had already been accepted by states. “But so little environmental damage was actually illegal at an international level,” Voight says. Not even the word “environment” had an existing, accepted, international legal definition.
They worked, Sands has since said, like distressed seamstresses: gathering scraps of international case law and salvaging anything they could from existing definitions. “We were sewing together the bits and bobs that came before so that, for every part of our definition, we could point them to some international convention that is already entered into force.” The exception to this was the definition of the “environment,” again, because it does not currently exist in international law. The group instead borrowed from an earth science definition that divides the environment into five spheres, and adapted that definition to a legal context.
Then there was the question of what exactly the law should criminalize. Some members of the Panel wanted the most ironclad prohibitions against destroying ecosystems. Others argued that the law had to make compromises with the realities of economic development—so that it could be accepted in the first place. This could be necessary, they argued, to win over developing countries whose paths to raising incomes and providing services like electricity to their populations cannot yet be conceivably de-coupled from environmental damage. The latter argument won the group over, which inserted a proportionality clause so that damage from legal but reckless acts would be “ecocide” only if it was deemed “excessive in relation to the social and economic benefits anticipated.”Another, related, compromise, tried to address the fact that most environmental damage is currently legal, and that the ecocide law would have to nonetheless find damage over a certain level was an international atrocity. The definition therefore carves out a criminalization of “lawful” (in other words, legal) acts which have still been committed “wantonly,” e.g with disregard for the foreseeable consequences.
For example, a wanton, or careless act could be one in which a shipping executive ignored or failed to consider widely available facts about the damage that pollutants would have on marine ecosystems when deciding to transport hazardous waste in run-down ships. “Wantonness” is a subjective legal concept that requires prosecutors to prove the mental state of perpetrators. For a prosecutor, this type of a requirement—known as a mens rea—is a tricky legal proposition.
The “wanton” and “excessive in relation to” parts of the definition generated the thorniest discussions amongst the group. These would also become the most heavily criticized parts of the definition. The panel members, however, have been uniformly at peace about the compromises they made. As Voight wrote in response to legal criticism, the group had chosen a definition that was “dynamic, abstract, and general, and thereby would capture a wide range of possible perpetrators and acts.” This definition was issued in press release and published on the Stop Ecocide website, where it could be downloaded in a .pdf with the headshots and biographies of the panellists—in the world of law, a strikingly theatrical approach. Perhaps this is what gave the definition a kind of official aura, though the group had no official mandate.
Not yet given heft by application, the words of the definition of “ecocide” remain abstract. There is no list of specific acts which fit the definition, a proposal rejected because of what any list, by its nature, leaves out. No list could include the environmental damage we have not yet invented the technology to commit. Nor could it, strategically, include the one item that it would logically have to include—climate change, which by being made explicit would chill any chance of adoption by the ICC member states.
But one fact is immediately graspable: if adopted by the Hague, a law against “ecocide,” like all ICC crimes, would charge individuals. This law would not just make visible ecocide, but would also anoint ecocidaires.
The definition was released in mid-2021, when, despite the roll-out of vaccines, the Covid-19 pandemic was still raging. This might have given the members of the panel pause for thought, not just about the words they chose for a new international law, but about the chances of it ever being adopted.
Among the pandemic’s many tragedies was its damage to the very idea of multilateralism. This can be seen in the massive failure to coordinate a global response to a problem that refused to acknowledge borders, the lack of burden sharing, and the refusal to share intellectual property around the vaccines or to facilitate technology transfers. These sad facts exposed how there is, in the current geopolitical climate, scant sense of global public good among the community of nations.
Given all that, the members of the international panel, and the activists of Stop Ecocide, might have feared their definition would sink beneath the waves of the news of a world in turmoil.
“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.
~ Independent Expert Panel for the Legal Definition of Ecocide, June 2021
Shared Fights and Shared Truths
What does putting something into words do? Saying something out loud to another person is sometimes the one thing that makes it seem true to ourselves. Writing ideas down liberates them from the craniums of their originators and allows them to travel far beyond the bounds of the place and time that gave rise to them.
In The Rule of Laws, her epic 2021 account of the history of attempts of legislators to order the world, Fernanda Pirie argues that even in the monarchical Middle-eastern city states that wrote the first laws, their edicts contained an inherently democratic principle: They set down a rule as a public reference point, which anyone could at least consult, and so perhaps appeal to. Legal decisions generate shared fights, which is often the closest we get to shared truths.
The immediate reaction to the release of the Panel’s definition in June 2021 took the Stop Ecocide campaign and the panel by surprise. Again, the panel had no official mandate, and no official link to the ICC. Yet the media interest was intense and the coverage positive, or at least, curious, even from “extremely mainstream publications like The Economist,” says Jojo Metha, the executive director of the campaign, who attributes this outburst of interest to the fact that grassroots climate activism by groups like Extinction Rebellion and Fridays for the Future had shifted the Overton window—the bounds of acceptable public policy debate—until a proposal like theirs was squarely in the frame. Six months after the definition’s 2021 release, Sands has said, he could still do “two to three media interviews a day on this.”
It helped that some major figures publicly backed the movement’s goals. UN Secretary-General Antonio Guterres called including ecocide crime at the ICC “highly desirable,” joining Pope Francis, the activist Greta Thunberg, and the pioneering primatologist Jane Goodall as vocal supporters, as well as a number of current and former political leaders, monarchs, and celebrities like Paul McCartney and the model Carla Delevigne.
At the national level, the definition may be galvanizing moves to criminalize ecocide in domestic legislation. A provision on ecocide was included in the proposed new Constitution for Chile, for example, though this constitution was rejected in a referendum in September 2022. France has adopted “ecocide” as a “délit,” a criminal offense of medium severity, with a ten-year jail sentence. Though activists were disappointed by the final form of this adoption—which is neither international, nor attached to a stronger penalty—the first criminal ecocide investigation in now underway in France, surrounding the poisoning of land in a village by industrial “forever chemicals.” A piece of national legislation criminalizing ecocide, meanwhile, is under consideration in Kenya, and national adoption is being proposed in Bolivia. These domestic gambits may serve as emergent evidence of a new ‘global norm’ against ecocide, which the ICC will weigh as it considers Vanuatu’s request.
The reception from legal scholars has been frosty, much of it born out of disappointment with how the ICC itself has fared since the 1990s. Several practicing scholars have criticized the ecocide definition proposed by the Independent Panel of Experts, primarily on the grounds that some elements (phrases that define the law) make it too hard to prosecute (namely the mens rea requirement). From the perspective of the frontier of legal debate, meanwhile, ecocide is seen as conservative. Approaches that give nature itself legal standing are considered the radical edge of law, and this is something the current proposed definition of the crime of ecocide does not do.
Much of the criticism has focused on the International Criminal Court itself. In the last twenty or so years, the shine has come off the ICC, its recent indictment of Vladimir Putin for war crimes notwithstanding. Its prosecutions are complex, and the court’s investigations are hampered by a lack of resources. Unable to compel some of those indicted to appear in court, or to protect crucial witnesses with evidence condemning the powerful, prosecutions have stalled or failed. In twenty years, it has heard just thirty cases. It has acted where it has had the jurisdiction to act, which has created the impression it singly pursues rebel leaders in Africa, and, in 2021, it had to beat a retreat from stretching its jurisdiction to cover potential U.S. military abuses in Afghanistan. As such, the Court has fallen far short of the internationalist aims with which it was established back in 1998. And in that time, due to withdrawals by Burundi and the Philippines, states whose leaders have been accused of international crimes, its membership has shrunk, not grown.
But it is in criminalizing ecocide—the Stop Ecocide campaign contends—that one antidote to the Court’s waning relevancy may be found.
Who gives the orders now?
Whether this sentiment is foolish or simply sanguine, the path to international criminalization of ecocide is now in the hands of the ICC’s 123 member states. They must request that its adoption be put to a vote, which must be carried by a two-thirds majority.
The prospect of this vote sheds light on how much the concept’s contents have morphed and prospects have shifted since the 1960s, when the scientists of the Herbicide Assessment Commission were first interviewing old women about their sick chickens and wondering how to characterize the broader destruction they saw. Ecocide is no longer associated with wartime, or just one conflict—Vietnam—but buoyed by the zeitgeist of the age of climate change, which sees equal destruction in “peacetime” activities. It has not been defined by one lawyer, but carries a provisional identity drawn from the combined and diverse experience of twelve, like Hassan, Farjardo, Voight and Sands. It is no longer championed by just one strong voice—like Higgins. With the campaign at the ICC, it may soon contend in the arena of a global political process.
A few ICC-member states have already officially endorsed the proposal to make “ecocide” an international crime under the court: Vanuatu, the Maldives, Samoa, Bangladesh. Notably these are all countries that will be heavily affected by sea-level rise caused by climate breakdown, an injustice that may drive these countries to view the proposal positively. Across western and northern Europe there is a small but noticeable wave of political support. The first European countries to raise the issue at the ICC have been Belgium and Luxembourg; in Denmark, Spain, and France there have parliamentary discussions or official government inquiry into the feasibility of supporting the proposal at the ICC, and in Scotland, Ireland, and Iceland statements of cross-party support have been issued. Select committees within the European Union have discussed the proposal to criminalize ecocide, and there appears to be momentum towards including the concept under EU law.
All in all, some eighty member states will ultimately have to be brought on board, each making a calculation in which they will be weighing their attitude toward current approaches to economic development. As Christina Voight, who helped draft the definition, has put it, “There is no state in the world that does not have some environmental damage in its history.” This will be on the mind of rich states, who may or may not believe their economies, and their power, can be decoupled from environmental damage; so too, it will be on the mind of developing countries, who may see environmental extraction and pollution in their own territories as the exclusive route out of poverty. In addition, the scope of the current definition covers deep sea mining and damage in outer space, threatening developing areas of economic exploitation. The real opposition is likely to come from industry lobbies, state actors who resent impositions on economic sovereignty, and those that reject the very idea that the environment deserves international protection. This opposition is discrete for now, but no doubt engaged in its own counter-lobbying cause.
The next phase for the international criminalization of “ecocide” is one that happens behind closed doors. Campaigners have begun lobbying member states to support the adoption of a fifth crime, ecocide, at the ICC, using the Independent Expert Panel’s proposed definition as an example of what such a law might look like. When a vote is proposed, the horse-trading between states will begin. This may be in five years, or twenty, or never.
It’s not clear that any of the examples at the beginning of this piece would make good candidates for prosecution under the Panel’s definition, despite the wide-spread, severe and long-term environmental damage they encompass. For now, the essential concept itself—of “ecocide” as a massive crime against the Earth, punishable by imprisonment—bubbles away, popping up on placards and the minutes of committees when news breaks of such catastrophes. In the age of climate breakdown, it is a useful concept for activists—now, when a political leader or corporate CEO allows the poison bombing of a reef, the torching of a rainforest, or the razing of a fishery, they can channel outrage through an idea that asks not just, “What has happened?” but, “Who, exactly, gave the orders?”
For some people, this shift in consciousness is itself a victory.
Simone Scriven is a writer and researcher. She is the author of the “Last Words of Rowan du Preez: murder and conspiracy on the Cape Flats,” a nonfiction story about the costs a failing criminal justice system brings to bear on residents of a slum neighborhood in Cape Town. She lives in Geneva, where she writes about emerging ideas about environmental crimes and how to stop them.
