Weighing the scales on the crime of ecocide

2022-08-19

Transnational organised environmental crime is the fourth largest criminal activity globally after drug trafficking, human trafficking and counterfeiting. And it’s growing at an annual rate of roughly 5% to 7%. This crime is particularly devastating in Africa, where natural resources are plentiful and people are poor. The crime threatens human security and livelihoods and impacts heavily on climate change.

Africa is the continent most vulnerable to the harms of climate change, despite contributing the least to global warming. Environmental crimes in Africa are rife: Illegal logging accounts for 15-30% of the international timber trade, criminal syndicates traffic and dump toxic waste that pollutes ecosystems, and rampant sand mining fuels environmental degradation that threatens livelihoods and fuels conflicts.

Neither the African Union (AU) nor the regional blocs have a uniform legal framework for addressing environmental crime as a whole. While the revised African Convention on the Conservation of Nature and Natural Resources (adopted in 2003) is an umbrella agreement, it only came into force in 2016 and is yet to be operationalised. It covers, among others, the management of natural resources, activities and processes that damage the environment (including military and hostile activities), procedural rights and cooperation among state parties.

However it does not define environmental crimes, set appropriate sanctions or establish a targeted approach to applying those sanctions, like the European Union’s Environmental Crime Directive, which was adopted in 2008 and is due to be strengthened in 2022. This leaves individual countries without adequate recourse to address crimes that cross borders, traverse jurisdictions and often have regional impacts.

Transnational organised environmental crime is the fourth largest criminal activity globally

In June 2021, after decades of advocacy, a panel of 12 lawyers from around the world proposed that a crime of ecocide be added to the Rome Statute. This is the treaty that established the International Criminal Court (ICC) and enacted the international crimes of genocide, crimes against humanity, war crimes and the crime of aggression.

The panel proposed that ecocide be defined as ‘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.’

There’s still a long process of advocacy and multiple steps to be taken by member states before the Rome Statute can be amended to include and enact the crime of ecocide. While that process is unfolding, it’s worth asking whether having an international crime of ecocide could provide African countries with an international legal framework to address transnational organised environmental crime.

Regarding ecocide as a crime has both potential gains and pitfalls for Africa. At this early stage, the potential gains tend to be theoretical and aspirational, while the pitfalls are largely rooted in Africa’s relationship with, and the prosecution of other crimes through, the ICC.

An international crime of ecocide would set an important moral and legal precedent

At the aspirational level, placing environmental crimes on the same level as genocide and crimes against humanity raises its significance, recognising that its impacts can be equally devastating. However, in 20 years of operation, the ICC has only ever opened one case of genocide (against Sudan’s former president Omar al-Bashir) and 21 of crimes against humanity. Three of these 21 were closed, four resulted in acquittals, six suspects are at large, seven are in ICC custody awaiting trial and only one has been convicted.

With much of Africa’s environmental destruction committed by multinational companies, adding ecocide to the ICC’s jurisdiction could provide a pathway for holding entities that fall outside of national jurisdictions accountable. Nnimmo Bassey, an environmental activist in Nigeria, says enacting a crime of ecocide would ‘create an arena in which marginalised communities in countries like Nigeria have a voice against powerful, polluting actors.’

While this is desirable, the reality is that many of the multinationals that could be held liable for ecocide in Africa have their headquarters in countries that either are not signatories to the Rome Statute or have no legal obligations to the ICC. The United States, China, India and Russia are examples. If those responsible for ecocide are excluded from accountability, it would not only undermine the crime but create a system of selective global accountability.

In addition, the Rome Statute only provides for individuals to incur criminal responsibility. Prosecutors would need to find a way to access multinationals sheltering in countries not obligated to the Rome Statute. And then, within that corporate entity, they would need to find an individual or individuals to hold responsible.

African countries must address crimes that cross borders and traverse jurisdictions

This conundrum is exacerbated by ecocide being defined as an ‘unlawful and wanton’ act, where ‘wanton’ is defined as ‘reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated.’ Proving that an individual has perpetrated an act that fulfils these criteria would be difficult.

Operationally, prosecuting the crime of ecocide would probably pose numerous challenges. Not just in terms of demonstrating damage excessive to anticipated benefits and who bears responsibility, but also in collecting evidence to prove these elements and in finding experts to testify.

Successful prosecution at the ICC would open up the possibility of reparations to the victims of ecocide – both in terms of compensation for the loss of natural resources (and therefore the loss of livelihoods, food, health, etc.) and funding for environmental regeneration projects.

However, again, the reality is a far cry from the aspirational. The eligibility and forms of reparation granted in the Lubanga, Katanga and Al Mahdi cases in the ICC ‘have been limited to certain victims, subject to years of litigation, and faced difficulties in delivery due to ongoing insecurity.’

An international crime of ecocide would undoubtedly set an important moral and legal precedent, as well as being symbolically significant. However, as an answer to current legislative gaps, Africa would be better served complementing an international framework with strategies tailored to the dynamics of environmental crime in specific regions, as well as local and regional needs, mechanisms and capacities.

The Southern African Development Community’s new Integrated Strategy to Prevent and Combat Transnational Organised Crime offers potential in this direction. It includes various environmental crimes under its definition of transnational organised crime and calls for a more collaborative and effective legal framework to respond to all its forms.

This includes harmonising national legislation to protect the environment in the region, and providing common standards for operational and strategic responses to environmental crime. It also includes establishing mechanisms for intelligence and information sharing, and mutual legal assistance for evidentiary matters, extradition and the confiscation of assets.

Whether or not an international crime of ecocide is ever enacted, Africa’s regional economic communities must urgently address transnational organised environmental crime as a current and increasing threat to sustainable development, food security and peace.  

Romi Sigsworth, Research Consultant, ENACT

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