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Libertatem: Navigating Legal Perspectives

Ecocide as a ‘Crime against Peace’

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One cannot be really hopeful of the peaceful subsistence of humanity, if earth itself is going to have an ailing existence in the future. There is, thus, much doubt cast on the current international and municipal environmental regime, on its efficacy and implementation. There are countless international legal instruments in the form of conventions, treaties, protocols but it is unfortunate that nothing much has been done to hold the group of persons or an individual criminally liable for the perpetration of crimes associated with environment. Interestingly, not much time has passed since the crusade for inclusion of ecocide in international crimes was launched. In April 2010, a fully drafted proposal on ecocide as the fifth Rome statute crime was submitted to the United Nations by Polly Higgins, a UK based lawyer and author. Since then, many have vouched for the idea of the inclusion of ecocide as an international crime prosecutable by the International Criminal Court. Notably, Ecocide is the killing of Mother Nature and is expressis verbis, the worst kind of environmental demolition. However, in spite of the support, for ecocide to become international law it would need the support of 86 nations to amend the International Criminal Court’s Statute of Rome.

As a scar on the universal landscape, Exxon Valdez released an estimated 10.8 million gallons of crude oil before the spill was contained, fouling about 1,300 miles of coastline. The remote location of the spill and a delayed and inadequate response from Exxon and Trans-Alaska Pipeline operator Alyeska made matters even worse on March 24, 1989. This accident stands as a testimony to the factum of man- made environmental demolition and casts a lingering impact on the international community. Much worse in case of Gulf of Mexico oil spill BP, there are mutual agreements being reached right now between the partners and contractors, namely Halliburton and Transocean. Nonetheless, the draft as submitted by Higgins has no retrospective provision, it is highly acknowledged fact that any retrospective law in crime leads to injustice.

Polly Higgins’ Draft Ecocide Act, 2012 is a landmark work indicating a judicial shift in intelligent, universal human consciousness to allow animal rights and environmental protection in its world. The proposal entails two kinds of ecocides, namely Ascertainable and Non-ascertainable.

On examining the already existing four ‘Crimes against Peace’, it is realized that the gravity and the adversity involved in those is incomparable to ecocide. Since, the International Criminal Court can intervene in certain circumstances even in non-signatory states by virtue of Article 12(3) of the Rome Statute, it will be possible to render justice on matters concerning silent killing of nature. Additionally, there is an unsettling question revolving around this, i.e., shouldn’t there be a drastic change in the existing international environmental regime itself and while doing so that the identified loopholes should be plugged? The existing Crimes against Peace have the element of mens rea included in them but the proposed crime of ecocide is mostly a negligent act.

Another claim supporting the inclusion is rather emotive. As the humans have right to be protected against homicide, Mother Nature or earth has a right as well against the ecocide. There is, inter alia, an underlying assumption here that the perpetrators of ecocide, viz. the corporate giants would not be able to escape the prosecution by the ICC as against the prosecution under the municipal laws. And of course, the deterrence theory would hold good even in this case. The approach might be really effective in the long run as compared to the conventional approaches the nations have been sticking to all this while. Yet another contention is that, the obscurity of the definition as suggested by Higgins. The drafting panel of International Law Commission will have to take extra pain to cautiously do the words rights with a foresight of effective lawmaking in this arena.

There is also an argument of creating an International Environmental Tribunal under the aegis of the United Nations. The rise of environmental consciousness in international law has been accompanied by another phenomenon: the growing number of international forums within which environmentally related disputes can now be addressed. The present corpus of international environmental obligations in conventions and multilateral environmental agreements (MEAs) is mostly overlapping. There is little or no opportunity for the development of consistent decision making or interpretation of those obligations.

More Specifically, Article 22(2) of the ICC statute prescribes that, “The definition of a crime shall be strictly construed and shall not be extended by analogy. In case of ambiguity, the definition shall be interpreted in favour of the person being investigated, prosecuted or convicted.”  If crimes against humanity are given an ecological perspective, there are four main elements or concomitants to be fulfilled, viz. prohibitions on extermination, forcible transfer of population, persecution and other inhumane acts

To conclude with, while codifying the law, the focus area will have to be the standard of liability that can be ascribed. At times, only actus reus is enough and the liability is absolute but how to lay down the liability is contestable. An alternative view point on this is that the primary concern should be to restore the environmental damage but this argument falls flat in view of the deterrence which is needed to stop such crimes to take place in future. If the environmental character or attribute of the crime is fault or negligence based and not intent wise, the crime of ecocide will not fit the context of international crimes at present. Another plausible manner in which the change can be accommodated is that constructive knowledge of the consequences of the actions is brought into the picture. Besides this, a taxonomical classification of sub offences under the main offence of ecocide is a legitimate option. It is fairly expected from all the nations to incorporate the crime of ecocide in their criminal law corpus and fix individual accountability towards the environment, its processes and resources. It can be also asserted without exaggeration that regardless of the draft proposal being adopted or rejected, the movement or the initiative has urged the global population to take ecocide seriously.

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