FROM ECOCRIMES TO ECOCIDE PROTECTIN THE ENVIRONMENT THROUGH CRIMINAL LAW Under the supervision of Professor Laurent NEYRET 1 Foreword LAURENT NEYRET Law Professor at the Université de Versailles – Paris Saclay Professor at SciencesPo Paris The idea to initiate a collaborative research dedicated to the protection of the environment through criminal law has arisen after giving serious thoughts to the transformation of the concept of crime against humanity in the environmental field, which resulted in a proposal for a new international crime: the crime of ecocide. The analysis of the desirability and feasibility of establishing such a crime at the international level involved working more broadly on the protection of the environment through criminal law. Indeed, if the crime of ecocide were to be included in the category of the most serious crimes, this involved the determination of its specific features compared to those of the other environmental crimes. Such an endeavour required the bringing together of a number of specialists from various disciplines, including criminal law, environmental law, international law, as well as human rights law and comparative law. The team of sixteen jurists - scholars, lawyers, judges - of six different nationalities, worked for three years independently to put forward proposals for setting up a graduated and effective system of protection of the environment through criminal law. The initial goal was to make a diagnosis of the level of protection of the environment under the existing criminal law, both under domestic and international law. To do this, the research group has benefited from the valuable work of students of the Clinique du droit de Sciences Po (Law Clinic of Sciences Po) headed up by Manon Garin who undertook an inventory of texts and scholarly writings concerning the fight against environmental crime in all legal systems1. Moreover, a good understanding of the legitimacy and effectiveness of criminal environmental law involved comparing theory with practice. A team of journalists of the newspaper Le Monde, led by Marie-Béatrice Baudet and Serge Michel, respectively awarded with the prizes Grand reporter and Albert Londres Prize agreed to conduct investigations in nearly ten countries to uncover the levers of environmental crime in an unprecedented way for a research group in the field of law. Their work allowed five illegal channels to be traced back, ranging from trafficking in rosewood to the illegal exploitation of tin mines, including the trafficking of e-waste and the trafficking of wild tigers. The result of these investigations was published in the newspaper Le Monde in a series of publications entitled "Ecocide" between January and February 2015 and also in a book entitled "Les prédateurs – La nature face au crime organisé"2. Finally, it should be noted that a good understanding of all the issues related to environmental crime required listening to what operational stakeholders had to say regarding these matters. This has ultimately led the legal team to hold meetings with members of Interpol, the European Commission, the French Ministry of Justice, the French Central Office against Attacks towards the Environment and Public Health, as well as representatives of that States that are affected by environmental crime, prosecutors specialized in environmental matters, representatives of associations for the protection of the environment 1https://www.sciencespo.fr/ecole-de-droit/sites/sciencespo.fr.ecole-de-droit/files/rapport_ecocide_project.pdf(last accessed April 2016) 2 Ed. Ateliers Henry Dougier, October 2015. 2 and representatives of companies. In this first phase of this study in which an inventory of all related legal matters was drawn up, journalistic investigations were carried out and discussions were held with stakeholders, it became clear that there were a number of gaps in the criminal legislation concerning the protection of the environment. During the second phase, in order to close the loopholes in the law, each member of the research group has worked on proposals for changes within their specialty, all this being enriched by the fresh perspective of the other team members. This work led to the drafting of specific articles that were published in the framework of French version of this research3, with a series of proposals emerging therefrom. These proposals were collected and made coherent by Isabelle Fouchard through the preparation of the two draft international conventions, one dealing with ordinary environmental crimes, the so-called ecocrimes, and the other one concerning extraordinary environmental crimes, based upon the notion of ecocide. This book contains the text of the above draft conventions (Part I) and a consolidated report containing 35 proposals for “a more effective punishment of crimes against the environment” (Part II). We express the hope that this project will become a driving force for the establishment of an environmental criminal justice of the 21st century in full awareness of the critical challenges facing the planet and humanity. 3 L. Neyret (dir.), Des écocrimes à l’écocide – Le droit pénal au secours de l’environnement, Bruylant, 2015. 3 Composition of the Working Group Scientific Director : – Laurent Neyret, Law Professor at the Université de Versailles – Paris Saclay Professor at SciencesPo Paris Members of the Working Group: – Pascal Beauvais, Professor at the Université Paris Ouest Nanterre La Défense – Luca d’Ambrosio, Ph.D. in Law (LL.D), Associate Researcher at Collège de France – Rosmerlin Estupiñan-Silva, PhD. in Law (LL.D), Colombian Lawyer, PhD. in International Law, Post-Doctoral Researcher at GEDILAS- IREDIES (Université Panthéon- Sorbonne, Paris I) – Isabelle Fouchard, Researcher Fellow, UMR Comparative Law, Université Paris I – Emanuela Fronza, Researcher in the field of Criminal Law, Lax faculty, Université de Bologne (Italy) – Nicolas Guillou, Justice Attaché in the United States of America – Hugues Hellio, Lecturer (HDR) at the Université d’Artois – Solveig Henry, PhD. in Law (LL.D), Legal Officer to the Registry of the International Court of Justice – Kathia Martin-Chenut, Researcher at CNRS, UMR DRES – Adan-Nieto Martin, Professor of Criminal Law at the Université Castilla La Mancha, Institut de droit pénal européen et international (Italy) – Camila Perruso, PhD. Candidate at the Université Paris Descartes and the Université de São Paulo – Corinne Robaczewski, Lecturer at the Université d’Artois – Ioannis Rodopoulos, PhD. in Law (LL.D), Research Associate, University of Luxembourg – Carlo Sotis, Associate Professor at the Université de la Tuscia-Viterbev(Italy) – Juliette Tricot, Lecturer at the Université Paris Ouest Nanterre La Défense Secretary of the Working Group : – Mélanie Cayron, LLM (2) in Business Law, Université de Versailles Saint-Quentin and Trainee Lawyer at the Haute École Des Avocats Conseils 4 PART I DRAFT INTERNATIONAL CONVENTIONS 5 INTRODUCTION ISABELLE FOUCHARD Researcher at the CNRS Researcher Fellow, UMR Comparative Law, (Université Paris 1, Panthéon-Sorbonne/CNRS) The following draft conventions are the result of a collective work carried out during a period of more than two years by a team of sixteen jurists specialized in environmental law, criminal law, international criminal law and international human rights law. The multidisciplinary nature of the team has had a crucial impact on the conduct of the research activities, which also contributed to go far beyond of its starting point - the study of the ecocide - to include the development of two draft international conventions. The conduct of this research has been marked by several stages. On the merit, it cannot fail to be noticed that, the environment has for a long time not been considered a legal interest important enough to deserve legal protection of a criminal law nature: at the national level, the regulation of environmental damage is basically deemed to be a violation of an administrative law nature; at the international level, environmental law contains only a few criminal law provisions. Yet, an awareness of the fact that this "criminal law gap" concerning environmental crime, coupled with the general phenomenon of internationalization of crime, has contributed to quantitative (ever increasing statistics of environmental crime) and qualitative developments (transnational organized crime, linked to other types of international crime, such as smuggling or corruption). These developments have shown the increasing inability of States to prevent and repress transnational crime, acting alone, and highlighted a greater need for intergovernmental cooperation in criminal matters on the issue. Moreover, the choice to tackle environmental crime based upon a comprehensive approach has led to distinguish between "ordinary"and "extraordinary" forms of this crime, reflecting the distinction among international crimes, in the context of which a distinction is drawn between transnational crimes (ecocrimes) and supranational crimes (ecocide) and requiring differentiated prevention and repression regimes. Nevertheless, the question arose as to how to move forward towards this criminalization of the most serious violations to the environment at the national and international levels. According to Émile Durkheim, "it should not be presumed that an act hurts the collective consciousness because it is criminal, but rather that it is criminal because it hurts the collective consciousness. We do not condemn that act because it is a crime, but