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Home , Ecocide, Environmental crime, Environmental issues, Overexploitation, Overfishing, Ozone depletion

Ecocide: The Fifth Against Peace

By Patin Lea

Master Thesis, LL.M Public 10th of July 2017, supervisor Mr. Dr. R.J.M Lefeber

Abstract

This examines the prospects to crystallize as one of the five international against peace. It suggests that every actor and member of our international , States, corporations, international organizations, civil societies and individuals should take responsibility for the protection of our common oikos, the planet . As an influencer of social progress, law should evolve for the achievement of that purpose. This legal study starts by describing the current state of two relevant fields of law, international and criminal law, and analyze their inefficiency. It further theoretically and practically assesses the crime of ecocide in order to demonstrate that should from now one be a priority for the well-being and of present and future generations. The normative framework of international criminal law may to some extent not be perfectly suited to comprehensively address ecocide, but it is nonetheless the most powerful tool to allow social change. Ultimately, recognizing ecocide as an international crime will affirm the international society’s very global interests and will to create improved living conditions for all inhabitants of our planet.

Table of Contents

Introduction

Chapter 1: The deficiency of the current international legal system

1. The development of a soft international environmental law system

2. The scarcity of criminal law towards 2.1 International level 2.2 Domestic Level

3. The four international crimes against peace and the environment 3.1 Genocide 3.2 Crimes against Humanity 3.3 Crime of Aggression 3.4 War crimes

2 Chapter 2: The crime of ecocide

1. The comprehensive concept 1.1 Definition 1.2 Constitutive elements 1.2.1 Extensive Damage 1.2.2 Perpetrators 1.2.3 The mental element

2. International environmental crimes 2.1 Illegal Trade, indiscriminate and others crime 2.2 Illegal and its associated timber trade 2.3 Illegal trade in controlled chemicals (including ODS) 2.4 Illegal and Disposal of Hazardous 2.5 Illegal Unreported and Unregulated

Chapter 3: The necessity to harmonize ecocide with the evolving international criminal law regime

1. The impediments of classic criminal law challenging the international

criminalization of ecocide

2. The relevance of an adapted international criminalization of ecocide

Conclusion

Bibliography

3 Introduction

The Office of the prosecutor of the International Criminal Court (ICC) has published its policy paper on case selection and prioritization on the 15th of September 20161. It included for the first time the prioritization of crimes resulting in the “destruction of the environment”, the “illegal exploitation of natural ” and the “illegal dispossession of land2. Even though this internal paper has no binding legal consequences as such, it opens the door to the of an international criminal regime for environmental crimes. It reflects the growing global concern of civil societies and international lawyers fighting for the recognition, the prosecution and the punishment of perpetrators of the so-called crimes of ecocide at the international level. There have been notably calls for their inclusion in the Rome Statute as an international crime and thus to fall within the jurisdiction of the ICC3. The international lawyer Polly Higgins has notably created a campaign to “Eradicate Ecocide” and has launched a draft proposal addressed to the International Law Commission (ILC) for an Ecocide Law to as an amendment of the Rome Statute in April 20104.

The criminalization of ecocide at international level is however not a recent trend and already emerged in the second half of the 20th century5. The term “ecocide” was first used at the Conference on War and National Responsibility in 1970 by professor Arthur W. Galston6, a biologist who assisted in the preparation of the chemical components of the infamous defoliant . The Prime Minister Mr. Olaf Palme then explicitly recognized the War as an ecocide in 1972 during the (UN) Stockholm Conference on the Human Environment7, supported by the heads of state of , and of China, Tang Ke, and the delegations of , Rumania, Algeria, Tanzania and Libya. Civil societies, including non-governmental organizations (NGOs) and public movements, also raised the awareness on

1 Fatou Bensouda, Office of the Prosecutor of the International Criminal Court, Policy paper on case selection and prioritisation, 15th of September 2016 2 ibid. Bensouda, para. 41 3 Another tendency is calling for an environmental criminal court such as suggested during the Venice World Forum of 2009 4 the draft proposal is available at http://eradicatingecocide.com/the-law/the-model-law/ [June, 7th] 5 Anja Gauger et al., Ecocide is the missing 5th , in The Ecocide Project, report by the Human Rights Consortium, School of Advanced Study, University of London, July 2012, https://sas- space.sas.ac.uk/4830/1/Ecocide_research_report_19_July_13.pdf [June, 7th] 6 New York Times, 26 February 1970 ; quoted in Barry Weisberg, Ecocide in Indochina, Canfield Press, San Francisco, 1970 7 Tord Björk, The emergence of popular participation in world politics, United Nations Conference on Human Environment, Department of Political , University of Stockholm, 1972, http://folkrorelser.org/johannesburg/stockholm72.pdf p.15, [June, 7th]

4 this particular issue8. They denounced the disastrous destruction of the Vietnamese through the ecological warfare strategy carried out through intentional large-scale bombings, use of bulldozers and the spreading of , such as the Agent Orange. An academic debate on ecocide developed in the 1970’s focusing on what constitutes this crime and also on the heed that should be given to the intentional state of mind of environmental destructions. R. Falk worked an a Draft International Convention on the Crime of Ecocide9 and serious thoughts were given by the UN to the inclusion of severe environmental damage in the Genocide Convention10. The consideration and even the criminalization of the concept of ecocide was also well-supported11 in some of the studies prepared by the Sub-Commission on Prevention of Discrimination and Protection of Minorities and reports submitted to it on issues regarding the Genocide Convention of 194812. However, these efforts were for unknown reasons not pursued by the work of the Sub-Commission13. Furthermore, the ILC considered in the 1980’s the admittance of extensive environmental crimes in article 26 of the Draft Code of Crimes Against the Peace and Security of Mankind (Draft Code)14, which finally became the Rome Statute adopted in 1998 and entered into force on the 1st of July 200215. In addition to environmental damages occurring in wartime considered in article 22, the Draft Code established the sentencing of “an individual who willfully causes or orders the causing of widespread, long-term and severe damage to the ”16. However, criticisms arose around the restrictive component of mens rea which is mostly absent in time of peace17 and the lack of reference to the term “ecocide”. Article 26 was consequently, through a blurred procedure, removed from the Draft Code18. Informal meetings ensued in 1995 and the ILC’s 47th session decided to form again a Working Group studying the issue of intentional and severe damage to the environment. A report recommended

8 ibid. Björk, p.16 9 Richard A. Falk, Environmental Warfare and Ecocide – Facts, Appraisal and Proposals, Princeton University, 1973, p.21-27 http://rbdi.bruylant.be/public/modele/rbdi/content/files/RBDI%201973/RBDI%201973- 1/RBDI%201973.1%20-%20pp.%201%20Ã%C2%A0%2027%20-%20Richard%20Falk.pdf [June, 7th] 10 Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) of 9 December 1948 11 supra note 5 Gauger, supportive governments Austria, , Poland, , , Congo and Oman 12 see e.g.: E/CN.4/Sub.2/SR.658, p.53, E/CN.4/Sub.2/1985/6 13 supra note 5 Gauger, p.8 14 Draft Code of Offences Against the Peace and Security of Mankind until 1987, see : General Assembly (GA) resolution 42/151 of 7th December 1987, article 26 15 Rome Statute of the International Criminal Court, A/CONF.183/9, on 17th July 1998 16 supra note 14 Draft Code, article 22 17 supra note 5 Gauger, see Belgium and Austria, p. 9-10 18 ibid. p.10

5 either to maintain environmental crimes as a specific provision or to introduce them as crimes against humanity or as a war crime19. The Chairman, Mr. Ahmed Mahiou, unilaterally removed the first possibility during the 1996’s meeting of the ILC leaving the governments with the two remaining proposals. They finally decided to exclude the criminalization of environmental harms during peacetime for reasons that are still unclear today20. At the present time, article 8(2)(b)(IV) of the Rome Statute eventually limits the responsibility of perpetrators of environmental deterioration to the context of war and to willful acts21.

By depleting our planet from all its natural resources, the current course of our international society is engaged in an alarming vicious cycle,22 leading to a century of migration, global shortage war, poverty, loss of and disappearance of archipelagos and coastal cities. The driving legal question of this thesis is to what extent the crystallization of ecocide as the fifth international crime against peace has become crucial. Because most of environmental damages occur during peacetime, the scope of this study will not extend to a wartime context. Moreover, it will mainly process the examination of ecocide through a criminal law approach rather than through human rights law. Beginning with an assessment of the development of modern international environmental law and criminal legislation regarding environmental protection, this paper will first emphasize how domestic and international law failed to establish a comprehensive and constraining legal system tackling environmental crimes (chapter 1). In order to accurately appreciate and prohibit the crime of ecocide, its defining characteristics as well as concrete situations that are to be regarded as constituting it will be discussed (chapter 2). Finally, the challenges but above all the necessity and the beneficial contributions to adapt the features of international environmental crimes and international criminal law are going to be appreciated (chapter 3).

19 ILC (XLVIII/DC/CRD.3 (included in Yearbook of the ILC, 1996, Vol.II, Pt.1 20 supra note 5 Gauger, p.11 21 supra note 15, article 8(2)(b)(IV) 22 see Poly Higgins, Ecocide, the 5th Crime Against Peace, at TEDxExeter, May 2012, available at https://www.youtube.com/watch?v=8EuxYzQ65H4 , [June, 7th]

6 Chapter 1: The deficiency of the current international legal system This chapter will emphasize how present international and domestic legal instruments of both environmental and criminal law regimes are insufficient to counter environmental crimes. These two modern disciplines have flourished concomitantly in the past decades without interacting together. International environmental law has on the one hand developed a soft and non-punitive legal system (1) while criminal law on the other side has nearly omitted to integrate environmental interests in its international and national regimes (2). Finally, it will be assessed whether the four international crimes against peace contain provisions that allow effective remedies regarding environmental protection (3).

1. The development of a soft international environmental law system The Stockholm Conference on the Human Environment of 1972 is often seen as the “foundational moment of modern international environmental law”23. The Stockholm Declaration24 is constituted of a preamble and 26 principles regarding the “Human Environment”. Even if this declaration does not have a legally-binding effect, it still reflects a common State consent. Some key concepts have been formulated and notably principle 2125 recognizing the two essential “no harm” and “preventive” principles of states against “the environment of other states or areas of national jurisdiction” in their sovereign rights to exploit natural resources on which the entire modern international environmental law and the subsequent environmental legal instruments are based. It establishes the prohibition of serious and extensive environmental harm per se, and not from any proprietary or economic perspective26. Likewise, the duty of care owned by States against environmental damage is extended to the global , such as the layer, change and biodiversity which elevates the global environment to an erga omnes status27. The customary law of principle 21 has not only been recognized by the “General Assembly Resolution 2996 on International Responsibility of States in Regard to the Environment”, but also by the International Court of Justice (ICJ) in the “Legality of Nuclear

23 Pierre-Marie Dupuy et al., International Environmental Law, Cambridge University Press, 2015, p. 8 24 ‘Declaration of the United Nations Conference on the Human Environment, Stockholm, UN Doc. A/CONF448/14/Rev.1, pp. 2ff., 1982 25 ibid. principle 21 26 Mark. A. Gray, The International Crime of Ecocide, CWSL Scholarly Commons, Vol. 26 No.2 Art.3 1995, p.248 27 ibid.

7 Weapons” advisory opinion of 199628. The normative value of the Stockholm Declaration has been acknowledged and a momentum for the development of a substantial number of international environmental treaties and soft law instruments, such as UNCLOS29, the Convention30, the Biodiversity and Conventions31, the Rio Declaration32, the Charter of Economic Rights and Duties of States33 and so on and so forth. However, principle 21 does not specify the nature and scope of damage that may be caused to the environment which leaves the discretion to further instruments. The Rio Conference, also known as “” followed 20 years later in 1992. Agenda 2134 was elaborated during the Earth Summit for the adoption of an executive strategy in order to shift from a normative focus to an effective implementation one. It has been a useful guidance for various environment policies even if its impact has not been proved in every field. The World Summit on of 2002 in Johannesburg recognized that despite the implementing efforts of the Rio Conference, the environment still continued to deteriorate and thus put the finger on the main coming challenge, i.e. the implementation of all the principles, standards, rules, regulations and recommendations previously adopted. Regarding the modest concrete achievement in the protection of the environment, the Rio Summit of 2012 had the various objectives of securing the political commitment achieved since the Johannesburg Summit, to evaluate both the progress and the remaining gaps in the implementation of environmental policies and assessing the new growing challenges. The impact on the global of the outcome document “The Future We Want’ is nevertheless too early to assess35.

Since the Stockholm Conference, soft law has always had a predominant value in modern international environmental law. Notwithstanding its non-binding status, it reflects the wide consensus on particular rules of international law and can thus have a significant role in the normative development of international environmental norms. Although its certain influence, soft law is based on a preventive and negotiated approach with no binding status.

28 Legality Of The Threat or Use of Nuclear Weapons, ICJ Reports 1996, p.29 « General obligation of States to ensure that activities within their jurisdiction and control respect the environment of other States or of areas beyond national control is now part of the corpus of international law relating to the environment » 29 UN Convention on the Law of the (UNCLOS) of 10 December 1982 30 The Vienna Convention for the Protection of the Ozone Layer of 22 March 1985 31 Convention on Biological Diversity (CBD) of 5 June 1992 32 ‘Rio Declaration on Environment and Development’, UN Doc. A/CONF.151/26/Rev.1 33 GA Resolution A/RES/29/3281 Charter of Economic Rights and Duties of States of 12 December 1974 34 Report of the UN Conference on Environment and Development, A/CONF.151/26/Rev.1 () of 13th June 1992 35 The Future We Want, UN Doc. A/Res/66/288 of 11 September 2012

8 As mentioned above, its inefficiency in preventing serious environmental harm has been acknowledged and is still existing with the continued environmental destruction arising on a daily basis. International agreements do establish knowledge, achievements and challenges without imputing concrete and precise legal duties to prevent environmental damage. International environmental law, by focusing on a preventative approach of environmental harm does paradoxically and to some extent not provide adequate and coercive legal tools to practically prevent, pre-empt and prohibit the commission of severe environmental crimes. Indeed, although they have had a significant impact on the development of international environmental law, soft law instruments do not consider the environmental criminalization at international level of the most serious crimes. Neither do international treaties that followed the preventative and negotiated approach of the soft law. They do have a prevalent role in the regulation of substantive and procedural rules tackling diverse environmental issues, such as climate change36, the protection of endangered species37, the management of hazardous wastes38, the law of the sea39, the reduction of emissions and so one40, the protection of the ozone layer41 and so one… They developed a new approach toward non-compliance by trying to avoid the traditional dispute settlement mechanisms of international law. Indeed, regarding the implementation of provisions protecting the environment, the emphasis is more on the prevention and assistance rather than on the reparation of the environmental harm which is often difficult to obtain. Thus, through different techniques, such as financial or technical assistance or even non-compliance procedures, States Parties can try to facilitate the compliance by countries that are more often unable than unwilling to implement the treaty obligations. Environmental issues and disputes between states are mostly settled outside the judicial dispute settlement procedures. At the international level, the International Court of Justice, the International Tribunal on the Law of the Sea and arbitral tribunals have jurisdiction over environmental matters. However, their practical use seems to be limited42. Despite notable efforts of creating a global structure of civil liability for environmental damage caused by economic operators, international instruments have a limited practical influence

36 UN Framework Convention on Climate Change of 9 May 1992 37 Convention on International Trade in Endangered of Wild and (CITES), 3 March 1973 38 on the Control of Transboundary Movements of Hazardous and their Disposal (Basel Convention) of 22 March 1989 39 UNCLOS 40 to the UN Framework Convention on Climate Change, (Kyoto Protocol), 11 December 1997 41 on Substances that Deplete the Ozone Layer (Montreal Protocol) of 16 September 1987 42 supra note 23 Dupuy, p.246-247

9 because the majority are not yet in force and thus are not legally binding43.

Modern international environmental law, by trying to find a balance between environmental protection and development and social interests, built up a negotiated and preventive approach towards environmental issues. It failed however to prevent environmental destruction because of a missing coercive legal system. Criminal law in the same vein has evolved for its part without satisfactorily looking at environmental issues.

2. The scarcity of criminal law towards environmental issues 2.1 International level Current criminal legislation at international level regarding environmental crimes is sparse. The provisions of article 35(3) and article 55(1) of the Additional Protocol I of the Geneva Convention are the only norms directly prohibiting environmental crimes occurring by means of warfare that would intentionally or at least expectably “cause widespread, long-term and severe damage to the natural environment”44. However, as an international humanitarian legal rule, its aim is focused on regulating methods of warfare rather than avoiding pure environmental loss. Furthermore, even though natural resources continue to be depleted after the adoption of Additional Protocol I, no claims based on article 35(3) have been raised. Some efforts have been undertaken at regional level with the adoption by the Council of Europe in 1998 of the “Convention on the protection of the environment through criminal law”45 which could be of particular relevance but has regrettably been ratified by only one Member State, Estonia. It is nonetheless a useful model and guide for future international environmental instruments. Besides, certain Multilateral Environmental Agreements (MEAs) indirectly contain criminal provisions46. The London Convention47 and the MARPOL Convention48 for instance provide criminal sanctions related to the breach of certain environmental norms. Criminal implementation provisions are also enshrined in the CITES49 and in the Basel Convention50.

43 supra note 23 Dupuy, pp. 258-261 44 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977 45 Convention on the Protection of Environment through Criminal Law of 4 November 1998 46 Puneet Pathak, International : a Growing Concern of International Environmental Governance, vol. 13 US-China Law Review 382 2016, p. 395 47 Articles 10, 15, Convention for the Prevention of Marine by dumping of Waste and other Matters, 29 December 1972 48 Article 4, International Convention for the Prevention of Pollution from (MARPOL), 3 March 1973 49 Article 8(1)(a) 50 Articles 4(3) and 9(5)

10 Other treaties contain penal provisions targeting criminal behavior and reporting requirement51. Several accomplishments, mainly through soft law, have still been achieved for the protection of the environment related to organized crimes52. UNTOC53 and UNCAC54 have developed forms of cooperation that can be useful for the fight against and wildlife crimes. The UNODC55 has also improved the government’s ability to investigate, prosecute and adjudicate crimes against wildlife species. The need of international cooperation and effective response to environmental crimes has been declared by the CCPCJ56, ECOCOS57 and UNODC58. Intergovernmental organizations’ cooperation between for instance INTERPOL, WCO, ICCWC, UNEP, UNODC and the World Bank59 is in the same vein of utmost importance. Even though non-negligible work is done at the international stage, practical results are regrettably not sufficient. International law regarding the protection of the environment is to episodic and parsimonious. International agreements are lacking efficiency through their deficiency of harmonized punishment of reprehensible environmental acts or through their failure to ensure compelling police and judicial cooperation. International instruments are moving very slowly toward any environmental criminalization. Soft law on the other hand encourages States to enact and amend new domestic criminal laws protecting the environment, but they do not have any binding character and are merely recommendations that could help developing the future if States are willing to do so.

2.2 Domestic Level During the negotiations on the of 2016, emphasis was put on “nationally

51e.g. in the protection of animals: Article 9, International Convention for the Regulation of , 2 December 1946 – in the protection of : article 3(3) and 6 of International convention for the protection of pollution of the sea by oil, 12 May1954 52 supra note 46 Pathak, p. 395, 396, 397 53 UN Convention Against Transnational , 2004 54 UN Convention Against Corruption, 2004 55 UN Office on Drugs and Crime, 1997 56 Resolution on the International cooperation in preventing and combating illicit international trafficking in forest products, including timber, wildlife and other forest biological resources, of the Commission on Crime Prevention and Criminal Justice 2008 57Resolution 2008/25 on the International cooperation in preventing and combating illicit international trafficking in forest products, including timber, wildlife and other forest biological resources, UN Economic and Social Council 58 At the International Tiger Forum in Saint Petersburg, November2010, Executive Director Mr. Yury Fedotov declared « we must encourage and develop a culture of cooperation and criminal intelligence sharing to stop transnational trafficking in », available at https://www.unodc.org/unodc/en/frontpage/2010/November/tackle-organized-crime-to-save-the-tiger-says- unodc-executive-director.html [June, 7th] 59 World Customs Organization, International Consortium on Combating Wildlife Crime, UN Environment Program

11 determined contributions” and domestic efforts to achieve the settled goals60. Quite often unfortunately, environmental harm fail to stimulate an efficient response on the side of governments and authorities. Those offences are not prioritized because, according to an anthropocentric vision, they lack concrete victims when they do not directly harm people. The main and present environmental challenges are unsatisfactorily understood. Environmental criminal legislation is thus pushed to the background and perceived as a mere continuation of administrative laws protecting the . Perpetrators are not sufficiently constrained by current domestic legal responses. Companies, for instance, are not threatened by civil and public laws that limit the possible remedies to fines that are well below benefits obtained through environmental exploitation and destruction. States can be reluctant to criminally punish economic operators that create after all wealth and money at the expense of the environment. The formers fear that businesses then chose to relocate somewhere else were no such impediments exist. Moreover, States do not have the legal duty to criminally prosecute such unlawful offences which consequently shifts the burden to individuals at their own costs and thus deter them to act on behalf of the environment. Only a few domestic systems explicitly prohibit and punish ecocide in their criminal codes61.

3. The four international crimes against peace and the environment The individual criminal responsibility for the most serious atrocities committed on our planet is regulated through international criminal law. The Rome Statute confer on the International Criminal Court the jurisdiction to prosecute the four international crimes against peace62: genocide, crimes against humanity, war crimes and acts of aggression. The question is whether those crimes entail provisions that could enable the punishment of environmentally harmful conduct.

60 The Paris Agreement about the UN Framework Convention on Climate Change (UNFCCC) (Paris Agreement), 22 April 2016, article 3 61 Criminal Code (CC) 1999 article 409, CC Republic of 2003 article 394, CC 2001 article 441, CC 1999 article 131, Penal Code (PC) 1997 article 161, CC 1997 art. 374, PC Republic of 2002 article 136, CC Russian Federation 1996 article 358, CC 1998 article 400, PC Vietnam 1990 article 278 62 article 5 Rome Statute

12 3.1 Genocide First of all, article 6 of the Rome Statute defines the crime of genocide by reproducing verbatim the phrasing of the Genocide Convention of 194863. Moreover, article 6(c) envisages the destruction of a certain group by “deliberately inflicting (…) conditions of calculated to bring about its physical destruction in whole or in part” which could lead to the international prosecution of environmentally devastating acts. In 1985, the Whitaker Report64 suggested the addition of “ecocide” as one of the possible acts of genocide. This environmental crime would amount to “adverse alterations, often irreparable, to the environment; for example, through nuclear explosions, chemical weapons, serious pollution and acid , or destruction of the rain forest; which threaten the existence of entire populations, whether deliberately or with criminal negligence”65. But this phrasing suggests that the required genocidal intent has to reach a lower standard of intent such as “criminal negligence”66. When the intent of the perpetrator is not clearly “to destroy, in whole or in part, a national, ethnical, racial or religious group”67, then no crime of genocide can be established. The element of genocidal intent regarding acts harming the environment is thus easy to overthrow. Although due to environmental damage the actus reus of genocide68 occurs, the mens rea element cannot be satisfied if the intent of the perpetrator was different than a genocidal motive. The targeting and killing of the Aché Indians in Paraguay69 for instance was not primarily intended to destroy the ethnical group, but rather to clear the on which they lived for the purpose of development. To sum up, even if environmental destruction can be seen as a “major accelerator”70 of genocide and also if the current phrasing of the Genocide Convention and the Rome Statute can leave the possibility to prosecute environmentally harming acts as genocidal ones, the mens rea requirement seems nevertheless difficult to establish.

63 article II Genocide Convention 64 B. Whitaker, Revised and updated report on the question of the prevention and punishment of the crime of genocide, E/CN.4/Sub.2/1985/6, 2 July 1985 65 ibid. para 33, p. 17 66 Tara Smith, Creating a Framework for the Prosecution of Environmental Crimes in International Criminal Law, The Ashgate Research Companion to International Criminal Law, Critical Perspective Routledge, 23 May 2013, p.48 67 ibid. 68 ICC, Elements of Crimes, UN Doc. PCNICC/2000/1/Add.2 (2000), 3 elements quoted from supra note 78 Smith pp.48-49 69 M Munzel, The Aché Indians: Genocide in Paraguay, International Workgroup for Indigenous Affairs, Copenhagen, IWGIA Internal Document No. 11 1973 quoted from supra note 78 Smith p.48 70 T. Weinstein, Prosecuting Attacks that Destroy the Environment: Environmental Crimes or Humanitarian Atrocities? 17(4) Georgetown Int’l Environmental Law Review 697, 2004-2005, p.720

13 3.2 Crimes against Humanity The definition and scope of crimes against humanity are stated in article 7 of the Rome Statute. Contrary to the abovementioned crime of genocide, the ones committed against humanity do not require the same high threshold of genocidal intent. The knowledge and the foreseeable result that the act would amount to a “widespread or systemic attack directed against any civilian population”71 would suffice. From an environmental perspective, some particular provisions seem to be relevant72. First, article 7(2)(b) states that “extermination” results in the “intentional infliction of conditions of life [causing] the destruction of part of a population”. Here, the actus reus is similar to the one regarding genocide but the required intentional level is lower. Indeed, as long as the perpetrator has the knowledge that his act results in a systemic attack against a population, he could then be found guilty of a crime against humanity. Secondly, article 7(2)(d) provides that “deportation or forcible transfer of population” results in the “forced displacement [ of persons lawfully residing in an area ] by expulsion or other coercive acts”. The situation in Southern Sudan regarding the targeting of supply and land of rural communities forcing them to desert this region and thus benefiting oil companies that use their natural resources could amount to a crime against humanity through the caused environmental harm73. Thirdly, article 7(2)(g) explains that “persecution [results in] intentional and severe deprivation of fundamental rights contrary to international law by reason of the identity of the group or collectivity”. Consequently, if the destruction of the environment brings such deprivation, a crime against humanity could be recognized. To conclude, environmental damage caused for the sake of development and growth could be prosecuted under international criminal law. However, alike the crime of genocide, the anthropologist vision of crimes against humanity implies that the harm against the environment is necessarily linked to the impact on the human population and does therefore not consider the environment as the first subject of protection. In other words, if damage caused to the environment does not directly harm a population, no prosecution will take place.

3.3 Crime of Aggression The Rome Statute of the ICC has been amended in 2010 to include article 8bis specifying the crime of aggression. Even though considered “acts of aggression”, such as bombardments, invasions or attacks, may certainly have negative impacts on the environment, the unfinished

71 article 7 Rome Statute 72 supra note 66 Smith, pp. 51-52 73 ibid. p.52

14 status74 of this fourth crime in addition to the possible prompt shift to an armed conflict falling within the scope of both articles 8 of the Rome Statute and of API75 and the the lack of willingness to directly address severe environmental crimes makes article 8bis a quite unfeasible path for the prosecution of environmental crimes in front of the ICC.

3.4 War crimes Article 8(2)(b)(iv) is the only international legal provision that addresses environmental crimes but only during wartime. However, this article as well as API76 have proven their inefficiency and inadequacy towards methods of warfare during contemporary conflicts largely causing important environmental harms. Since the Nuremberg Trials77, no individual has been prosecuted for environmental damage committed in time of armed conflict. It is only after the and its well-known use of Agent Orange that “methods and means of warfare which are intended, or may be expected to cause widespread, long-term and severe damage to the natural environment”78 were prohibited. The criminalization of this type of then followed with the adoption of the Rome Statue and the creation of the ICC. However, no prosecution has yet been conducted under the provision regarding environmental war crimes. Moreover, no judicial precedent has helped to clarify the scope and level of environmental damage that could trigger such a criminal prosecution. The conditions set forth in article 8(2)(b)(iv) seem to be almost impossible to achieve. Indeed, the perpetrator must “intentionally launch (...) an attack” while knowing that it will cause “widespread, long-term and severe damage to the natural environment”. Additionally, the attack must be “excessive” and clearly exceed the “concrete and direct overall military advantage anticipated”. Some commentators have suggested that the prohibition regarding damage caused to the environment through methods of warfare was so high that even modern armament could not inflict it, “thus having no limiting or protective effect”.79 Apart from some academicals attempts to interpret them80, the terms “widespread”, ”long-term” and “severe” are also ambiguous, unclear and not precisely defined. At the end, even if

74 ibid. p.57 75 supra note 44 76 ibid. 77 Alfred Jodl, guilty of method of warfare that destroyed environment even if no human death reported, quoted from supra note 78 Smith p.53 78supra note 44 API. This forbiddance has nevertheless not been extended to non international armed-conflict in Additional Protocol II. 79 K Hulme Armed Conflict, Wanton Ecological Devastation and Policies: How the 1990-91 Gulf Conflict Revealed the Inadequacies of the Current Laws to Ensure Effective Protection and Preservation of the Natural Environment, 2 J of Armed Conflict L 45, 1997, p. 61 80 ibid. pp. 94, 96

15 environmental harm in wartime is directly addressed by the Rome Statute and the API, the conditions to be met are so stringent and impractical that even great environmental destruction as inflicted during the 1991 Iraqi occupation of Kuwait81 appear not to breach the required threshold of harm82.

The Rome Statute does not ensure the protection of the environment as , and non-human inhabitants of our planet are not subjects of protection. It only envisages large-scale damages of natural resources occurring in a war context and hence regrettably omits to address the situation were most of environmental crimes are committed, i.e. during peacetime.

More generally, our current international community has neither through soft and treaty law nor by means of international environmental or criminal legislation been able to mitigate environmental damages. On the contrary, the lack of willingness of effective enforcement, or proper understanding of environmental crimes, and the delegation of punishment to domestic systems have impeded the international response against the destruction of our planet. In order to be eradicated, the crime of ecocide must be properly understood. The next chapter will thus focus on generally and practically framing the nature and scope of the crime of ecocide.

81 During the retreat of the Iraqi militants from Kuwait in 1991, Saddam Hussein decided a scroched earth policy where oil wells had to be burned. It has had disastrous consequences on the environment (drop of temperatures between 10-20°C, harm to biological diversity and physical integrity of the Gulf). 82 supra note 79 Hulme, p.70

16 Chapter 2: The crime of ecocide In order to be further assessed, the very crime of ecocide needs to be properly understood. This chapter will attend to define, according to different conceptions, the general notion and its three components, namely the scope of environmental damage, the main perpetrators and the specific mental element (paragraph 1). To shift from a rather theoretical perspective to a more factual one, the second part will describe the five most damaging international environmental crimes occurring in peacetime nowadays illustrating that they cannot be tolerated anymore (paragraph 2).

1. The comprehensive concept 1.1 Definition There is no single and unanimous definition of what constitutes an environmental crime. Different points of view have been expressed on this matter83. Some have considered that such crimes only occur with the intention to damage or potentially damage the ecosystem for the purpose of profit gain84. Others assume that they are acts or omissions enshrined in the law and that perpetrators shall be prosecuted and convicted to criminal prohibitions when they have caused important harms and put at all environmental elements and the health of people85. Another tendency has been the recognition of so-called “green crimes”. No single definition does exist but they involve illegal acts or omissions as legal ones. For instance, even though the cutting of trees is legal, this action does not benefit in the future neither for nature nor people if it is committed in a non-sustainable way. The effect of the environmental harm can be dual: it causes either directly harm to the environment or indirectly as in the case of the ozone layer depletion caused by the presence of in the air and negatively impacting on earth. To be assessed, green crimes should take into account the nature of the victim being human or not, and the scope of damage caused at the regional or international level. Finally, some doctrines have defined the most serious environmental crimes as “ecocide”, which is the very aim of this study.

83M. Jambozorg et al. Challenges ahead of of Envrionmental Crimes Indices as International Crime, Islamic Azad University, Int. J. Environ. Technol., 2015, p. 3721 84 M. Clifford, Environmental Crime: Enforcement Policy and Social Responsibility, Gaithersburg, Md: Aspen Publishers, 1998, quoted from ibid. 85 Y. Situ et al., Combating Environmental Crime: Prosecution. Environmental Crime: the Criminal Justice System’s Role in Protecting the Environment, SAGE Publications, Inc., Thousand Oaks Ca, 2000, quoted from ibid.

17 Even regarding the definition and the scope of “ecocide”, opinions and approaches are diverging86. Some consider it from a human right’s perspective and thus focus on a right to a healthy environment87. Others see in “ecocide” an extension of the Genocide Convention and thus another type of genocide88. A third approach has chosen to build the definition of ecocide on the existing definition of environmental crimes during wartime89 and extend it to peacetime. Semantically90, “ecocide” is composed of the prefix “eco-” deriving from the Greek word ‘oikos’ meaning ‘house, dwelling place, habitation, family’ and the suffix ‘-cide’ deriving from the French ‘killer’ and from the Latin word ‘caedere’ meaning ‘to strike down, chop, beat, hew, fell, slay’. Literally, ‘ecocide’ means ‘killing our home’91. Ecocide is an obvious play on the word “genocide”. Indeed, all attempts of defining this crime have the common understanding that it does not cover every environmental crime but the gravest and most serious ones that have a sever impact on our planet’s balance and ecological system. Polly Higgins defines ecocide as “the extensive destruction, damage to or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been severely diminished”92. The foundation “End Ecocide” describes it as “extensive damage or destruction of the Earth’s ecological systems in such a way that exceeds its natural of resilience. As a consequence this has to be a significant and durable alteration of the or Earth’s ecological systems93”. The French Lawyer, Laurent Neyret, perceives ecocide as an “extensive and systemic act which is enshrined in a list of infractions that cause extensive, durable and grave damage to the natural environment and that is committed intentionally and consciously”94. States that adopted and recognized ecocide in their domestic criminal codes often refer to ecocide as a “mass destruction of flora or fauna, poisoning the environment, the or , as well as implementation of other actions causing an ecological catastrophe”95 or “ ecological disaster”96.

86 supra note 66 Smith p.61 87 L. Berat, Defending the Right to a Healthy Environment: Toward a Crime of Genocide in International Law, Boston University Int. L J, 1993, p.342 88 supra note 64 Whitaker 89 Article 8 Rome Statute 90 P. Higgins, Eradicating Ecocide, Shepheard- Walwyn Ltd, 2nd Edition 2015, p. XII of introduction 91 ibid. 92 ibid. p.63 93 available at https://www.endecocide.org/ecocide/ [June, 7th] 94 translated from French, L. Neyret, Pour la Reconnaissance du Crime d’Ecocide, Revue juridique de l’environnement 2014/HSO1 Vol.39, p.189 95 article 394 Criminal Code the Republic of Armenia 96 article 441 Criminal Code Ukraine, article 409 Criminal Code Georgia 1999

18 1.2 Constitutive elements 1.2.1 Extensive Damage First, all suggestions consider ecocide as destruction or at least a damage that causes severe consequences to the environment. While the extent of what would amount to a “destruction” is quite easily to consider97, the precise scope of environmental damage requires further consideration. In order to assess the crime, its size, duration and gravity of impact on a territory should be considered98. Article 8 of the Rome Statute is in this sense of valuable guidance99. Indeed, it prohibits in time of war the occurrence “widespread, long-term and severe damage to the natural environment”. The meaning of these three adjectives has been specified in the understandings of the military UN Environmental Modification Convention (ENMOD) of 1976100. Firstly, “widespread” would signify “encompassing an area on the scale of several hundred square kilometers”. The Probo Koala case could be an illustration of a large scale dispersal of around Abidjan101. In 2006, the inappropriate dumping of toxic and dangerous waste around the city of Abidjan, in the Ivory , from the “Probo Koala” chartered by one of the largest oil trading private companies in the world, “Trafigura”, caused the death of 17 individuals and intoxicated more than 100 000 others. Secondly, “long-lasting” would mean “lasting for a period of months or approximately a season”. It could for instance target organized crimes that are illegally and massively exporting and trafficking protected species, such as the rosewood from Madagascar102. Thirdly, “severe” would involve the “serious or significant disruption or harm to human life, natural and economic resources or other assets”. The Tar sands extraction in northern Alberta, in , is one of the most damaging projects currently occurring. Indeed, it causes the large loss of peat bogs, the of boreal forests by the size of England’s territory, an important increase of , and it harms local communities through the poisoning of local . Even though this description of the scope of damage concerns behaviors during wartime, it is an existing basis that would perfectly suit environmental crimes occurring in peace time. As

97 supra note 90, Higgins p.63 98 ibid. 99 ibid. p.64 100 UN Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques (ENMOD), 10 December 1976 101 supra note 94, Neyret, p.189 102 ibid.

19 just demonstrated above, “widespread, long-lasting and severe” damage against the environment are nowadays more often committed in a non-armed conflict context. Ecocide thus does not encompasses “common” acts that harm the environment such as triggering an arson or discharging toxic wastes in the nature103. Although the gravity of these offences is not put into question, they do not need a specific prosecution as they already are incriminated under classic criminal law. Ecocide however is of such “extraordinary” nature and causes environmental damage of such extreme gravity that current domestic criminal law does not suffice to eradicate it. P. Higgins distinguishes two type of ecocides104. The first is the “ascertainable ecocide” meaning that the destruction, damage or loss of an environmental area did happen and the liability of a legal person can be determined. This type of crime includes dangerous activities that directly or indirectly severely harm or destroy broad territories and their , such as nuclear testing, dumping of hazardous chemicals, war, exploitation of natural resources, destruction of , extractive methods, and so one. The second type is the “non- ascertainable ecocide” which appears in case of loss, destruction or harm against the environment without identification of a direct causal link. The increase of atmospheric levels could be an example of this second category.

1.2.2 Perpetrators States can, either directly or through permissions, cause severe damage to the natural environment105. First, their policies and actions can be the immediate trigger of ecocide. The acts or omissions of State’s organs and agents are attributable to States which may raise their responsibility in case of an internationally wrongful act damaging the environment106. Second, this responsibility also results from the failure to prevent or at least diminish private harmful acts carried out by individuals or companies through the implementation and enforcement of legislative and administrative provisions and the punishment of unlawful behaviors. To the detriment of sustainable development values, governments do not necessarily equalize or privilege environmental protection to “development”. Contrarily, they often abstain from raising awareness about pressing environmental issues and from co-operating internationally to

103 ibid. p.180 104 supra note 90, Higgins p.65 105 supra note 26, Gray, pp. 5-6 106 ILC report on Responsibility of States for Internationally Wrongful Acts, in Yearbook of the ILC, Vol.II, 2001, articles 3, 4, 5

20 solve them. Moreover, States can be reluctant to penalize and punish profitable corporations destroying the environment by fear of them relocating somewhere else. Even though States may not be the main actors directly damaging the natural environment, they are responsible for their political inaction and passivity towards private damaging acts and omissions. Although the international community increasingly is aware of the need to seriously protect the environment in order to construe a sustainable future, the current international legal system does not seem to effectively coerce unwilling governments in that sense.

More than state actors themselves, corporations are undoubtedly causing major damage and destruction of the environment through their numerous activities. The study “Carbon Majors” for instance declared that approximatively two-thirds of carbon dioxide emitted between 1751 and 2010 was attributable to only the 90 largest and cement producing entities107 causing inter alia the significant rise of sea levels threatening , homes and million of people108. Their profit maximization interests drive them to heedlessly exploit all natural resources, including through illegal means and techniques used for instance for the logging of rain forests, , the transport of hazardous wastes or the management of collections by industrial and pharmaceutical manufacturers109. Other companies employ more misused and dishonest channels such as the bribing of officials, the threatening of competitors or the ignoring of environmental restrictions and regulations while striving to be openly “green”110. Finally, banks also contribute to the destruction of the environment through the funding of damaging activities and the negligence to include environmental concerns in their economic planning or to support favorable projects for the earth. Thinking for instance about the huge investment carried out since 2008 by the Royal Bank of Scotland (RBS) into environmentally devastating activities, the CEO of the bank, Stephen Hester, justified it by saying that “well, it’s not a crime”111. Corporate liability for environmental damages has failed to be implemented. Indeed, despite the attempts of regulating corporate activity by one of the most significant international instruments, Agenda 21, the international community struggles to prevent industrial damages.

107 Tracing anthropocentric carbon dioxide and emissions to fossil fuel and cement producers, 1854- 2010: Climate Change, online 21 November 2013, available at https://link.springer.com/article/10.1007/s10584- 013-0986-y [June, 7th] 108 “Eradicating Ecocide” movement, website available at http://eradicatingecocide.com/the-law/the-elements/ [June, 7th ] 109 supra note 26, Gray, pp. 6-7 110 ibid. 111 supra note 90, Higgins, pp.39-40

21 Indeed, it promoted a voluntary approach through the wording ‘could’ and ‘should’112 rather than establishing compulsory compliance with the provisions.

States and corporations are nonetheless abstract entities incapable of knowledge nor intent and headed by individuals. The ultimate control and eventually responsibility lies thus with the heads of governments and corporations, the individuals that command and are at the highest level of the chain of the decision-making process. Pursuant to the doctrine of superior responsibility established during the Nuremberg Trial, military commanders were given a position of superiority which endowed them with higher rights but also responsibilities for both their own decisions and those of their subordinates. The same logic can be extended outside the military sphere for senior members of governments and companies113. Indeed, according to the principle of “directing minds”, these individuals are “in a position of superior responsibility [ knowing or supposed to know ], of the consequences arising out of any (…) activity”114. Even though heads of corporations are essentially devoted to profit making, this does not imply that they ignore the great environmental damages and destruction that their businesses might generate. Because they do know the ecological loss caused by their businesses but turn a blind eye to it, they should be held responsible for the harmful activities on which they have ultimate authority and control. However, the legal concept of corporate veil that enables the separation of the juridical personality of corporations and the natural personality of its shareholders protects to a certain extent the latter of the company’s acts and obligations. Still, corporate liability at the international level has not been recognized yet and the one at domestic levels seem not to be sufficient. It seems therefore quite simple for individuals to hide behind the corporate fictional person in order to avoid to be held accountable and this is even more true when the company is a large, complex and/or multinational structure. Similarly, the two concepts of immunities of State Officials and of attribution of state’s agents conduct to a State can have as consequence to be used as political shields protecting individuals from the responsibility arising from the commitment of environmental harm. Until the international recognition of the most environmentally damaging and destructive activities as crimes against peace, the corporate and governmental actors will continue to devastate our planet without legal enforceable impediment or punishment.

112 Chapter 30 Para. 3 and Chapter 35 para. 3, Agenda 21 113 ibid. pp.108-109 114 ibid. p.110

22 1.2.3 The mental element Traditionally, crimes are constituted of two elements: the actus reus, ‘the act of doing’, and the mens rea, ‘the mental element’115. Article 30 of the Rome Statute explicitly requires that the mental element of international crimes is committed with intent and knowledge”. The required mental element of damage to the environment was already challenged in 1986 during the elaboration of the Draft Code by the governments of Austria, Belgium, and Uruguay116. While some scholars still sustain that the element of intent is a component of environmental crimes117, the majority tends to lower the threshold of mental element118. Laurent Neyret, for instance, considers that ecocide is an extraordinary crime requiring both “attention et en connaissance”119 (intent and knowledge). However, most of the environmental crimes are not committed with the primary purpose of destroying the environment. This is more a consequence of the conduct of the harmful activities aiming at exploiting natural resources and thus maximizing profit. Therefore, two different levels of subjective element regarding environmental crimes can be established. First, outside of the context of war, acts or omissions still constitute intentional offences in some cases such as the willful devastation of an endangered species . Second, severe environmental damages are very often committed recklessly and negligently. What is relevant for the recklessness test is whether the perpetrator had the knowledge or at least should have known that their acts or their failure to act will or would cause serious ecological harm120. Indeed, ecocide exists when the directing minds knew or unreasonably failed to understand that according to the majority of scientific reports and visions, their acts or omissions supported the global worsening suffered by the planet such as climate change, the depletion of the ozone layer and the loss and destruction of biodiversity121. These reckless activities can be illustrated by unsustainable exploitation of resources, such as oil or tar sands, by logging or by investment in activities without considering the foreseeable risk suffered by the natural environment.

115 ibid. p.192 116 supra note 5, Gauger, p.10 117 Laurent Neyret 118 M. Tomuschat, P. Higgins, M.A. Gray, T. Smith, F. Mégret, M. Jambozorg et al., the European Convention protecting the environment through criminal law articles 2, 3, 4 119 translated from supra note 96, Neyret, p.190 120 supra note 108, 121 supra note 26, Gray, p. 219

23 Knowledge must be proved and this, while being an easy task regarding state actors, can become more challenging regarding for instance companies. However, the numerous publications of official reports, studies and articles, the overall prompt access to information, the actions driven by NGOs and associations and the progressive rise of premises, such as the Paris Agreement of 2016122 acknowledging the causality between industrial activities emitting carbon and the resulting pollution harming the environment, facilitate the awareness of a growing and significant scientific vision denouncing our planet’s deterioration and the knowledge of its cause.

To conclude, the crime of ecocide causes either loss, destruction or extensive damage to the ecosystems obstructing the peaceful well-being of its inhabitants. The former is mainly wreaked by corporate profit-making activities overexploiting our natural resources and are not constrained by governments’ politics. When criminalization is at stake, directing minds should be the first targeted perpetrators of environmental crimes. Finally, ecocide is more a crime of recklessness than of ill will, the knowledge of the potential risk of the activity is thus sufficient. The overall frame of the crime of ecocide being settled, the next paragraph will now depict five recognized123 ongoing international ecocides. It will demonstrate their detrimental impacts on the planet’s inhabitants and thus their need to be eradicated.

2. International environmental crimes 2.1 Illegal Trade, indiscriminate hunting and others wildlife crime Despite the specific status protecting many endangered species provided by the CITES, they are still endangered or even have become extinct because of wildlife crimes such as illegal trade, indiscriminate hunting and the destruction of their habitats. This type of ecocide has recently exploded for two reasons: it is a low-risk activity allowing high profits. On the one hand, there is a strong and increasing demand for the purpose of human consumption which ultimately leads to high profits margins. But on the other hand, even if the UN General

122 signed by 194 UNFCCC Member States 123 supra note 83, Jambozorg pp. 3724-3728 - Debbie Banks et al. report: Environmental Crime, a Threat to Our Future, Environmental Investigation Agency, October 2008 available at https://www.unodc.org/documents/NGO/EIA_Ecocrime_report_0908_final_draft_low.pdf [June, 7th] - supra note 46, Pathak, pp.386-398 – joint work of UNEP and INTERPOL, Assess Impact of Environmental Crime on Security and Development, 6 December 2013 available at http://staging.unep.org/newscentre/Default.aspx?DocumentID=2755&ArticleID=9686&Lang=en [June, 7th]

24 Assembly declared the illicit trade in flora and fauna a form of serious organized crime124, the response of States Parties, and mainly those affected by this kind of trafficking, to protect the species has been little in terms of investigation, enforcement and punishment of the responsible individuals. According to WWF, illegal trade in wildlife has brought between 7.8 and 10 billion USD in 2012. The of rhinos has disturbingly increased recently. Although 13 were hunted in 2007, about 1004 were killed in 2013. The total population of rhinos on the planet in 2010 only amounted to 28000 individuals. This impressive increase can partially be explained by the believe of some populations that rhino horn can cure cancer. Another massive poaching targets the elephants and their ivory. In 2012, 15000 of them were killed and 500 kilograms of ivory were traded in 2013. Maybe one of the most infamous loss of wildlife concerns the hunting of tigers for their skin. Indeed, 100000 individuals lived on our planet in the early 1920s against only 3000 to 39000 in the 21st century.

2.2 and its associated timber trade Besides efforts on the side of the EU, CITES 125and several international organizations126, the illegal harvesting of forests, one of the most urgent environmental issues, has not yet been prohibited by an internationally binding treaty. These organized crimes are mainly carried out by mafia gangs because of corrupt and/or weak governments and the gaining of huge profits. They do not only threaten the biodiversity but also partiallly lead to environmental disasters such as forest fires, flooding and above all, they are directly related to climate change. Indeed, one fifth of the global greenhouse gas emissions are linked to forest destruction. According to WWF127 and an INTERPOL report128, 50 to 90% of all activities in the key producer forests of the Amazon, Central and South-east Asia are realized by criminal groups. Moreover, between 40 and 61% of timber production in Indonesia and 25% in derives from illegal logging. All in all, the later represents between 15 and 30% of the global forest production which is worth between 30 and 100$ billion USD annually.

124GA Resolution Tackling Illicit Trafficking in Wildlife, A/69/L.80, 15 July 2015 available at https://cites.org/sites/default/files/eng/news/pr/2015/N1522120-E.pdf [June, 7th] 125 which called the States Parties for preventing illegal trade of tree species specified in its appendices 126 supra note p.83, Jambozorg, p. 3727 127 http://wwf.panda.org/about_our_earth/deforestation/deforestation_causes/illegal_logging/ [June, 7th] 128 joint work of UNEP and INTERPOL, C. Nellemean, Green Carbon, Black Trade: Illegal Logging, Tax Fraud and Laundering in the Worlds Tropical Forests, Environmental Program, 2012 available at https://fr.scribd.com/document/126709536/RRAlogging-english-scr-pdf [June, 7th]

25 2.3 Illegal trade in controlled chemicals (including ODS) The and its subsequent increased UV-B radiation has direct effects on human and animal health by causing and infectious diseases129. It affects our ecosystems and air quality and contributes to the greenhouse effect130. The Montreal Protocol has the very objective to protect the ozone layer by controlling the production and emissions of ozone-depleting substances (ODS) and by ultimately eliminating them131. It has been amended several times and has progressively phased out the production and use by the end of 2010 and 2030 of respectively chlorofluorocarbons (CFCs) and then hydro-chlorofluorocarbons (HCFCs). However, the illegal trade of ODS and use in equipment continues for several reasons. First, CFCs and HCFCs are cheaper than those products intended to substitute them. Second, the illegal production of CFCs persisted in China, the USA and the European Union (EU) for the fulfilment of domestic needs132. This practice peaked in the 1990s before diminishing through the full phase-out planned in 2010. The same phenomenon of the rise of illegal smuggling of HCFCs alongside its phasing-out is envisaged by a report issued in September 2011133. The major production takes now place in developing countries, mainly Asia, and is delivered to the USA and Europe. The significant price divergence of production costs, from 18 to 30€ per kilogram in Europe and around 2€ per kilogram in developing countries, easily explains this role reversal.

2.4 Illegal Transport and Disposal of Hazardous Waste The Basel Convention was adopted in 1989 with the aim of protecting human health and the environment against the adverse effects of hazardous waste. However, the unlawful transport and disposal of the latter is one of the main expanding practices across the world. Most of the of waste stems from the developed countries, especially from North America and Europe, that hand their wastes to “southern” countries. This is due to the derisory costs proposed by the developing countries for the treatment of hazardous wastes and their lack of consciousness regarding their harmful effects on their people’s health and environment. Therefore, they exempt the offenders from their responsibility in exchange for a small monetary compensation.

129T. Sivasakhtivel et al., Ozone Layer Depletion and Its Effects: a Review, Int. J. of and Development, Vol.2, No.1, February 2011, http://www.ijesd.org/papers/93-D500.pdf [June, 7th], p. 35 130 ibid. 131 Preamble Montreal Protocol 132 supra note 123, Banks 133 Joint Report by UNEP and DG Climate Action, Environmental Investigation Agency, Risk Assessment of Illegal Trade in HCFCs, 2011

26 International documents crucially need unification in their international standards. The former neither have effective punishment against offenders nor proper supervision of waste . Furthermore, due to their direct but also indirect effects on the environment and human health, damage generated by hazardous waste is not only difficult to assess, but also to attribute specifically to an individual. All those issues are well illustrated by the “Trafigura” case. In 2006, the inappropriate dumping of toxic and dangerous waste around the city of Abidjan, in the Ivory Coast, from the “Probo Koala” ship chartered by one of the largest oil trading private companies in the world, “Trafigura”, caused the death of 17 individuals and intoxicated more than 100 000 others. No penal sanction has been found against those who were the most highly responsible for the disaster and the company only had to pay a fee of one million euros. It was ruled that they only breached their obligation to reveal the nature of the transported , but not through the illegal transport and disposal of hazardous wastes and their consequences134.

2.5 Illegal Unreported and Unregulated Fishing The so-called ‘IUU’, ‘Illegal Unreported and Unregulated Fishing’, is the exercise of unlawful practices, such as catching protected species, fishing without authorization, above-quota or high-grading catches, intentional misreporting or under-reporting and breach of gear restrictions. It has become a global threat to the achievement of sustainable fisheries and its management on which many world’s communities rely upon. Indeed, stocks are depleted and entire fish populations and ecosystems damaged. According to WWF, the latest official studies estimate that the annual IUU costs between €8 billion and €19 billion to the world community. Up to 30% of our consumption results from illegal fishing135. The population of for instance, a species of fish living in the North Atlantic, has dramatically declined in the past years due to and IUU. They are know considered as “endangered species” by WWF in need of particular conservation efforts136. Developing countries are the most at risk from IUU. Catches in West African coastal waters are approximatively measured as being 40% higher than those reported137.

134 joint work of fidh, LIDHO, MIDH, L’affaire du “Probo Koala” ou la catastrophe du déversement des déchêts toxiques en côte d’ivoire, /Aslund, Avril 2011 https://www.fidh.org/IMG/pdf/FIDH-LIDHO- MIDH_Rapport_ProboKoala_avril2011.pdf [June, 7th] 135 http://www.wwf.eu/what_we_do/oceans/iuu/ WWF, [June, 7th] 136 http://wwf.panda.org/what_we_do/endangered_species/cod/ WWF, [June, 7th] 137 supra note 46, Pathak, p.391

27 International environmental crimes are a reality that shall be exposed for the greater good and future generations. The international community must take a powerful step to warn the world that it can no longer accept our planet’s destruction. Although challenging from a legal perspective, the recognition of ecocide as international crime against peace is imperative.

Chapter 3: The necessity to harmonize ecocide with the evolutionary international criminal law regime

This final chapter will highlight the particularities of environmental crimes questioning the usefulness of criminal law (paragraph 1) before establishing the essential advantages gained by attracting a suited international crime against peace (paragraph 2).

1. The impediments of classic criminal law challenging the international criminalization of ecocide A few specific components of criminal law hinder the emergence of an international criminal law system protecting the environment138. First, the traditional offences such as crime and forced sexual assault prohibited and sanctioned by criminal law are intrinsically illegal and affecting the society. The clear cut between legal and illegal acts is not so self-evident regarding environmental crimes. Indeed, the distinction between a legitimate and illegitimate act of pollution139 is hard to assess as the threshold from which to prosecute and punish them. Moreover, environmental harm has a two-faced nature. On the one hand it affects our planet, our ecosystems and our society, but on the other hand it allows development, at least on a short run, and considerable making of profits. A substantial part of our economy unfortunately depends on the and mass destruction of ecosystems. The environment therefore suffers of being viewed more as an exploitable resource than a precious . Second, the definite character of a harm constituting a criminal offence, such as death or a physical harm, is not equally identifiable when it comes to environmental damage. Their widespread and diffuse geographically and temporarily nature contrast with the relatively instantly ascertainable criminal harm. Environmental harm can thus sometimes be more felt as a process rather than a single event that may become increasingly detectable over time140.

138 F. Mégret, The Challenge of an International Environmental Criminal Law, McGill University – Faculty of Law, 2 April 2010, pp. 9-10 - supra note 57, Pathak pp. 385-386 139 ibid. Mégret p. 9 140 supra note 46, Pathak, p. 385

28 Third, most substantial aggressions on the environment are common and from diverse origins. International criminal law may as a consequence struggle to identify the scope of individuals’ responsibility. The global nature of transboundary environmental harm may then extend the liability to all actors that had a causal link, sometimes even the entire society, which would ultimately lead to a misappropriation of the essential purpose of criminal law: protecting the society from illegal acts by prosecuting and punishing the perpetrators. Fourth, as explained earlier, environmental damage is mostly committed through reckless or negligent conduct rather than through acts voluntarily destroying natural resources. Criminal law punishes crimes of negligence with more precaution and indulgence than those committed intentionally. In the same vein, international criminal law targets the highest and most serious crimes harming the international community and committed with “intent and knowledge”141. Fifth, international environmental law is driven by general principles (the no-harm principle, the , sustainable development and so one) enshrined in treaty law, soft law and customary international law and influencing domestic systems and inter-state relations without sometimes concretely imposing obligations on international actors. This may conflict with the criminal principle of nullum crimen sine lege or other standards of criminal justice142. Criminal law seems thus not necessarily to be the most suited tool in order to handle the “complex environmental risk management”143. Sixth, it may revive the debate about the criminal liability of legal persons which was already rejected during the adoption of the Rome Statute. While this was not a main issue regarding the four international crimes, corporations are major actors in the global degradation of the environment. A manner to “lift the corporate veil” must therefore be considered. Seventh, criminal law may not be the most appropriate way to determine reparation for pure environmental damage that did not directly injured human beings144. Indeed, international criminal law is more centered on the perpetrator’s crime and his punishment which is nearly always consisting in imprisonment. The priority with respect to any harmed environment though is to focus on the losses and their reparation145.

Ecocide has indeed particularities differentiating it from other crimes perfectly adapted to the classic core of criminal law. But the continuous adaptation of this legal branch to emerging

141 Article 30 Rome Statue 142 supra note 138, Mégret, p. 10 143 ibid. 144 supra note 66, Smith, p.61 145 supra note 90, Higgins, p.143

29 crimes146 is an evidence of its youth and intrinsic value to evolve overtime. The inefficiency of our current legal system to prohibit serious environmental crimes has thus rendered relevant the incorporation of ecocide in the legal regime of international crimes.

2. The relevance of an adapted international criminalization of ecocide The preamble of the Rome Statute recognizes that “atrocities that deeply shock the conscience of humanity (…) threaten the peace, security and well-being of the world”147. The protection of the environment has been related with these same fundamental international values148. The Security Council debated and acknowledged how offenses against the natural environment impact on peace and security149. The association between environment and the protection of basic human rights is unquestioned and is, even though anthropocentric, a promising approach for the protection of our planet. The notion of development is also closely linked to and dependent on the protection of the environment; poverty is then an unavoidable consequence of ecological degradation150.

Domestic systems lack adequate means regarding conduct causing environmental damage. Their civil and administrative responses to ecological crimes fall short of any deterrent and stigmatizing elements151. Indeed, the fines ordered in response to environmental damage for instance are neither satisfactory remedies for the victims nor a preventive punishment for future illegal acts152. The deterioration of the environment increases and the perpetrators’ responsibility is time and time again dodged. The necessity of deterrent criminal rules is then even more true for ecocides that are deliberately and systematically committed for economical purposes without fear of any consequent sanction. The opening of a possible criminal prosecution as an international crime would then pose the threat of a potential incarceration and would very likely urge the perpetrators of environmental destruction to think twice about their unsustainable and harmful methods of maximizing profit. States are however left to their own discretion in their choice to criminalize attacks against the environment. As a consequence of missing volition and incentives, they will either not adopt

146 terrorism, cybercrime, environmental crimes 147 Preamble Rome Statute 148 supra note 138, Mégret, p. 13 149 “Security Council holds first-ever debate on impact of climate change on peace”, security, hearing over 50 speakers, 17 April 2007 https://www.un.org/press/en/2007/sc9000.doc.htm, [June, 7th] 150 see Agenda 21 and Rio Declaration 151 supra note 138, Mégret, p.16 152 supra note 90, Higgins, p.69

30 penal regulations lived up to the severity of the ecological offence or not effectively enforce them. Moreover, the lack of mutual international understanding creates a sort of “environmental dumping”153 due to unequal and differing domestic legislation protecting the environment. An international co-operation would likely have to arise through the common imposed recognition of serious environmental crimes as international. The ICC has a complementary role and thus only has jurisdiction over an international crime when the concerned State is unwilling or unable to investigate and prosecute the offence154. Signatories to the Rome Statute are thus highly recommended to implement effective domestic criminal legislation regarding international crimes. The recognition of ecocide as one of the latter would therefore automatically put pressure on State Parties to consequently adapt their national system155.

The recognition of ecocide as an international crime would also urge the international community to honor and abide by their international responsibility. This would in time appeal to make the prevention of international environmental crimes an erga omnes obligation owed to every inhabitant of this planet by States. The prevention of ecocide would then be ubiquitous in every possible relations of the international society. The erga omnes character of environmental obligations is already reinforced by different international instruments. The climate change156 and the conservation of biological diversity157 are indeed recognized as “common concern of humankind”. Furthermore, the International Tribunal for the Law of the Sea considered that the reference of acting “on behalf” of mankind in article 137 paragraph 2 of UNCLOS158 implies that “each State Party may also be entitled to claim compensation in light of the erga omnes character of the obligations relating to preservation of the environment of the high ”159.

The International Tribunal at Nuremberg proclaimed individual responsibility under international law: “Crimes against international law are committed by men, not by abstract entities, and only by punishing individuals who commit such crimes can the provisions of

153 supra note 138, Mégret, p.16 154 article 17 Rome Statute 155 supra note 90, Higgins, p.70 156 Climate change is a common concern of mankind, Resolution UN GA 43/53, 1988 157 Preamble CBD « the conservation of biological diversity is a common concern of humankind » 158 article 137 (2) UNCLOS 159 Advisory Opinion of 1 February 2011, International Tribunal for the Law of the Sea, para. 180

31 international law be enforced”160. The rationale of international criminal law is to target individuals and to constrain and punish their unlawful acts under international law. Knowing that ecocides are predominantly committed by non-state actors, this is a fundamental argument in favor of criminalizing ecocide. Outside international criminal law, international law does not provide legal instruments and remedies for an individual’s responsibility. However, one of the proper issue of environmental crimes is the possible involvement of a multitude of perpetrators. This is not necessarily an insurmountable hurdle. First, the above- described principle of superior responsibility is a useful tool provided by criminal law to determine the persons with the highest position of authority and thus with the highest criminal liability. Directing minds would then have to bear the responsibility of the environmental degradation caused by their corporations, their governments or their criminal organizations. Criminal law does therefore provide a possibility to prevent senior governmental and corporate members to hide behind the veil provided by the abstract entity through which they act. Moreover, perpetrators of environmental crimes can sometimes be easily ascertainable if we think for instance of the Probo Koala case.

Contrary to the four international crimes against peace, ecocide is a crime requiring a lower threshold of intentional element for several reasons161. First of all, it is a crime of consequence. The focus is more on the consequences arising from an act or omissions rather than on the conduct in itself. Furthermore, the seriousness of the extensive loss, damage or destruction of an environmental territory justifies the irrelevance of ill will. This intentional element might be an aggravating circumstances162 though. International environmental crimes then end up at being regulatory offences rather than classic criminal offences163. They create a global legal duty of care to eradicate activities that harm the environment by imposing legal obligations to prevent and pre-empt ecocide.

160 supra note 90, Higgins, p.68 161 ibid. 162 supra note 108, Eradicating Ecocide website 163 supra note 90, Higgins p.69

32 Conclusion Criminal law is an executor of “norms that would otherwise not exert sufficient pull in terms of values or interest to constrain the actions of all actors”164 and this is why it requires criminal sanctions. Even though ecocide has features of its own that do not necessarily fit in the traditional criminal law mould, the danger and impact of these environmental crimes on our planet and on humans and non-humans is not a mystery anymore. If we would have foreseen in the 1930s the tragic fate of millions of people during the Holocaust, the Genocide Convention would certainly have been adopted earlier in order to prevent these crimes from happening165. Criminal law is not engraved in the marble but rather inherently subject to perpetual evolution. When we think about slavery or woman’s rights, every social progress and development started with “transnational norm entrepreneurs”166 that fought to create a global consciousness. A prohibitionist regime can be realized if a group of likeminded States, the global civil society and intergovernmental organizations gather167 to be the voice that will secure the protection of our planet as an inviolable value crucial for our sustainability and that of future generations. To recognize ecocide as fifth international crime would be a first step towards effective justice defending and protecting the planet to its fair value. It would be the acknowledgement that the international society does no longer legitimate and tolerate crimes harming the environment. The increasing depletion, destruction and loss of our natural resources urge us to no longer allow the enforcement of our environmental standards on a voluntary basis but by rendering it mandatory to all. Domestic legislation prohibiting serious damage and strengthened international co-operation would progressively develop, and NGOs and international lawyers would be granted a strong legal basis to defend and speak on behalf of the silent suffering nature. It would pave the way for a shift in consciousness to understand our collective responsibility towards the protection of our planet. A strong message would be shared to the world by acknowledging our legal duty to act responsibly for the well-being of every human but also non-human life on earth168.

It is now urgent to stand up for the protection of our common oikos.

164 supra note 138, Mégret, p.12 165 ibid. p.21 166 H. H Koh, How is international human rights law enforced, Indiana Law Journal Vol.74 (1999), p.1409 http://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=2279&context=ilj 167 supra note 138 Mégret, p.21 168 supra note 90, Higgins, p.71

33 Bibliography

Books • Dupuy, Pierre-Marie and Viñuales, Jorge E. International Environmental Law Cambridge University Press 2015 • Higgins, Polly Eradicating Ecocide: Exposing the Corporate and Political Practices Destroying the Planet and Proposing the Laws to Eradicate Ecocide Shepheard- Walwyn Ltd, 2nd Edition 2015

Legal Articles • Björk, Tord The emergence of popular participation in world politics United Nations Conference on Human Environment, Department of Political Science, University of Stockholm 1972 • Gray, Mark A. The International Crime of Ecocide, CWSL Scholarly Commons, Vol. 26 No.2 Art.3 1995 • Jambozorg M., Pournouri M., Poorhashemi S. A., Hermidasbavand D. Challenges ahead of Codification of Environmental Crimes Indices as International Crime, Islamic Azad University, Int. J. Environ. Technol. 2015 • Neyret, Laurent Pour la Reconnaissance du Crime d’Ecocide Revue juridique de l’environnement 2014/HSO1 Vol.39 2014 • Pathak, Puneet International Environmental Crime: a Growing Concern of International Environmental Governance vol. 13 US-China Law Review 382 2016 • Tomuschat, Christian Draft Code of Crimes against the Peace and Security of Mankind (Part II)- including the Draft Statute for an International Criminal Court from the Yearbook of the ILC vol. II(1) 1996 • Sivasakhtivel T. and Siva Kumar Reddy, K.K. Ozone Layer Depletion and Its Effects, Review, Int. J. of Environmental Science and Development, Vol.2, No.1 February 2011 • Smith, Tara Creating a Framework for the Prosecution of Environmental Crimes in International Criminal Law The Ashgate Research Companion to International Criminal Law, Critical Perspective Routledge 23 May 2013 Conventions • Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) of 9 December 1948 • Convention for the Prevention of by dumping of Waste and other Matters (London Convention), 29 December 1972 • Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES), 3rd March 1973

34 • UN Convention on the Prohibition of Military or any other Hostile Use of Environmental Modification Techniques (ENMOD), 10 December 1976 • Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977 • United Nations Convention on the Law of the Sea of 10 December 1982 • Vienna Convention for the Protection of the Ozone Layer of 22nd March 1985 • Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol) of 16th September 1987 • Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal of 22nd March 1989 • UN Framework Convention on Climate Change of 9th May 1992 • Convention on Biological Diversity of 5th June 1992 • Kyoto Protocol to the UN Framework Convention on Climate Change, (Kyoto Protocol) of 11th December 1997 • Rome Statute of the International Criminal Court, A/CONF.183/9 of 17th July 1998 • Convention on the Protection of Environment through Criminal Law of 4 November 1998

Reports • Agenda 21, Report of the UN Conference on Environment and Development, A/CONF.151/26/Rev.1 of 13th June 1992 • Banks Debbie, Davies Charlotte, Gosling Justin, Newman Julian, Mary, Wadley Jago and Walravens Flonnuala Report on Environmental Crime, a Threat to Our Future, Environmental Investigation Agency October 2008 • ILC report Responsibility of States for Internationally Wrongful Acts, in Yearbook of the ILC, Vol.II, 2001 • Gauger Anja, Pouye Rabatel-Fernel Mai, Kulbicki, Short Damien, Higgins Polly Ecocide is the missing 5th Crime Against Peace, in The Ecocide Project, report by the Human Rights Consortium, School of Advanced Study, University of London July 2012 • Whitaker Benjamin Revised and updated report on the question of the prevention and punishment of the crime of genocide, E/CN.4/Sub.2/1985/6 2 July 1985

Declarations • ‘Declaration of the United Nations Conference on the Human Environment’, Stockholm, UN Doc. A/CONF448/14/Rev.1, pp. 2ff 1982 • ‘Rio Declaration on Environment and Development’, UN Doc. A/CONF.151/26/Rev.1 1992 • ‘Political Declaration’, Report of World Summit on Sustainable Development in Johannesburg (), UN Doc. A/CONF.199/20 2002

35 Work of International Organizations • Joint work of fidh, LIDHO, MIDH L’affaire du “Probo Koala” ou la catastrophe du déversement des déchêts toxiques en côte d’ivoire, Greenpeace/Aslund Avril 2011 • Joint Repor tby UNEP Risk Assessment of Illegal Trade in HCFCs, European Commission DG Climate Action, Environmental Investigation Agency 2011 • Joint work of UNEP and INTERPOL, Nellemean C. Green Carbon, Black Trade: Illegal Logging, Tax Fraud and Laundering in the Worlds Tropical Forests, Environmental Program 2012 • Joint work of UNEP and INTERPOL Assess Impact of Environmental Crime on Security and Development 6 December 2013

Agreement • The Paris Agreement about the UN Framework Convention on Climate Change 22 April 2016

General Assembly Resolutions • Draft Code of Offences Against the Peace and Security of Mankind until 1987, GA resolution 42/151 of 7th December 1987 • Tackling Illicit Trafficking in Wildlife, GA Resolution A/69/L.80, 15 July 2015

Policy Paper • Bensouda, Fatou Office of the Prosecutor of the International Criminal Court Policy paper on case selection and prioritization 15th of September 2016

Case Law • Advisory Opinion of 1 February 2011, International Tribunal for the Law of the Sea

Websites • Eradicating Ecocide http://eradicatingecocide.com • End Ecocide https://www.endecocide.org/ecocide/

Video • Higgins, Polly Ecocide, the 5th Crime Against Peace, at TEDxExeter, May 2012 available at https://www.youtube.com/watch?v=8EuxYzQ65H4 [June, 7th]

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