A Critical Review of the Law of Ecocide

Abstract

This paper reviews key definitions of ecocide that have emerged since the 1970s, from Richard A Falk’s early draft International Convention on the Crime of Ecocide, to the Stop Ecocide Foundation Expert Panel’s definition of 2021, and analyses enduring legal and political challenges to the prospects for a new international crime. Despite the latter definition gaining prominence and considerable support we argue that there is a continuing necessity to reflect on the key challenges to the development of an international crime that can actually deliver accountability for serious crimes against the environment, and that engagement with previous definitions can assist in these reflections. We discuss core problems with categorising and negotiating ecocide, guaranteeing legality and ascertaining appropriate gravity and requisite levels of intention. Based on our analysis of past and present definitions, and the social construction of related crimes and international norms, we advocate for a robust articulation of the potential crime that balances foreseeability and flexibility, detached from the requirements of the other core crimes and includes an understanding of intent that embraces reckless acts and omissions and which avoids a cost versus benefit analysis. While we are advocates of ecocide’s criminalisation, we are also conscious of the political and operational barriers to ecocide’s creation and implementation. As such, we argue both for interim measures such as non-binding declarations in support of ecocide, and for humility with regards to what the law can meaningfully achieve. For us, ecocide represents one possible tool in a toolkit that must include a range of legal and political interventions to prevent and repair environmental destruction.

Keywords: Ecocide; international criminal law; green criminology