10.6092/issn.2531-6133/13921
application/pdf
2531-6133
13921
2
en
Valeria Luz Puleo
https://creativecommons.org/licenses/by/4.0
University of Bologna Law Review
A New International Crime of Ecocide?
Text.Serial.Journal
https://bolognalawreview.unibo.it/
6
Obiter Dictum
2021-12-01
2021-11-30
2021-11-10
2021-12-19
163-170
UBLR
Valeria Luz Puleo
2021/12/01
10.6092/issn.2531-6133/13921
163
University of Bologna
2531-6133
2
en
170
A New International Crime of Ecocide?
https://bolognalawreview.unibo.it/article/download/13921/13421
6
llVOLUME 6                               llISSUE 2                        OBITER DICTUM



                        UNIVERSITY OF BOLOGNA LAW REVIEW
                        https://doi.org/10.6092/issn.2531‐6133/13921



                 A New International Crime of Ecocide?

As part of an internship in the discipline of international criminal law, I came into
contact with a topic of debate that seems to be of interest to many actors in academic
circles - and beyond. The new international crime of ecocide. In this regard, in early
2021, I had the opportunity to interview two scholars immersed in the topic, Professor
Emanuela Fronza, from the Department of Legal Sciences of the University of Bologna
and Professor Adán Nieto Martin from the University of Castilla-La Mancha. They kindly
answered my questions about the international crime of ecocide.




    PROFESSOR FRONZA

         1. The introduction of a new crime of ecocide is increasingly at the center
of debate. Can you tell us more about this controversial topic? Climate urgency,
climate crisis, increases in average global temperatures, CO2 and greenhouse gas
emissions, depletion of ecological resources, and extension of urbanization to the
detriment of wild areas. The expressions of ecological concerns continue to multiply, but
they are all based on what science tells us about the state of the planet: we must
intervene immediately. If not, the present dangers will damage our future irreversibly.
They will make the Earth uninhabitable for human beings and other forms of life. It is
not a question of if, but of when it will occur, if we do not change the way these crises are
managed. That a clear emergency exists, cannot be disputed. What is unresolved and
extremely complex, however, is the debate about the measures to be taken and their
effectiveness.
        Faced with this urgency, made more evident by the global pandemic, initiatives
about what measures ought to be taken are burgeoning. Among them is the proposal for
a new international crime of ecocide.




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                         A NEW INTERNATIONAL CRIME OF ECOCIDE?


Ecocide comes from the Greek word “oikos”, meaning home, and the Latin verb caedere, to
kill. Literally, it means the destruction of the common home of humans and other
inhabitants of planet Earth. In this sense, “ecocide”, a word with powerful rhetorical
resonance, evokes another term, “genocide”.
          At present, however, the rhetorical force of the term is not accompanied by a
precise legal definition. Highlighting this point is essential. On one hand, there are many
types of conduct - even lawful ones - which significantly impact the environment,
damaging and depleting available resources.         Some of them are, however, already
punishable under environmental criminal law. On the other hand, introducing a new
international crime, namely “ecocide”, requires further necessary steps: to identify the
conduct that could be considered criminally relevant and, subsequently, to determine
which ones are serious enough to reach the threshold of severity typical of international
crimes.
          As far as the origins of ecocide are concerned, the concept first appeared in the
mid-1970s in relation to the environmental damage caused by the use of Agent Orange
during the Vietnam War. The ecological damage that was caused by its use generated
great concern.
          Currently, the call for a new crime of ecocide is at the core of a renewed interest
in our planet’s ecological woes; as such, it is advocated by a number of civil society
organisations (such as End Ecocide on Earth; End Ecocide Sweden; Global Alliance for the
Rights of Nature; Earth Law Alliance; Stop Ecocide Foundation) and institutional
initiatives. While the Rome Statute of the International Criminal Court (ICC) does not
contain a specific provision on ecocide, moves are being made in the ICC framework to
deal with such issues.      In particular, the 2016 Policy Paper on Case Selection and
Prioritization marked a step towards environmental concerns.             That Policy Paper
requires the Office of the Prosecutor of the International Criminal Court (OTP), which is
responsible for analyzing those situations that could fall under the jurisdiction of the
court, to select and prioritize the prosecution of crimes which involve damage to or
destruction of the environment. It should be noted that the Paper – despite its limited
impact – expresses the OTP’s intention to address these issues.
          This fits well within a growing call for action, including the formulation of a
specific international crime. Such an endeavour requires a careful justification as to why
existing instruments are insufficient for resolving the challenges of the climate
emergency. A significant problem in dealing with the climate crisis is that, at present,
legal instruments for protecting the environment are numerous, fragmented and not
rationally organized at international, regional and domestic levels. The seriousness and


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systematic nature of the criminal phenomena and the insufficiency of the existing
protection system call for a new international crime. The introduction of a separate
offence would fill this gap, providing structure and universal protection, which could be
implemented at national, regional and international levels.
        2. Do you consider Criminal Law as an instrument adequate to respond to
the climate crisis? First, if ecocide is to be prosecuted, it must be kept in mind that not
every violation can fall under this crime, but only those environmental violations that are
more serious and massive. An important consideration in order to correctly criminalize
ecocide may be to distinguish this legal category from the one of the ecocrimes, as we have
already done with the working group under the supervision of Laurent Neyret in 2015. In
addition, the reflection on the criminalization of ecocide could also be an opportunity to
rationalize the existing material. In this respect, I believe that criminal law can be used,
but not solely by itself. Civil law and administrative law will also be needed.
        In other words, criminal law can perform the function of «giving a name», but
only to the most serious violations of the “common home” of humanity. With regard to
the crime of ecocide, it may answer the purpose of conferring a denomination to serious
phenomena and making people aware of the climate crisis.
        As stated by the chairwoman of the Monsanto Tribunal Françoise Tulkens, “[t]his
offence still does not exist and in order for that to happen, it first has to be precisely
defined”. However, the introduction of a new criminal offence of ecocide requires the
precise description of its constitutive elements.
        The path to a new crime demands awareness that, for the codification of a vaguely
defined legal concept into a criminal offence, it is not sufficient for it to be anchored to
a narrative/symbolic/pedagogical function. The outcome of such a complex law-making
process is uncertain.
        A key question in our discussion concerns a fundamental choice, that of whether
international criminal law or economic criminal law should drive the introduction of a
crime of ecocide. The question then arises whether the latter could not be located at the
intersection of the two disciplines. In this case, would it require a simple evolution of
international criminal law or a real integration of new notions within it? In the latter
case, which discipline of law should cover the center and which the periphery: classical
international criminal law or economic criminal law?
        A commitment not only from civil society and governments, but also from
international criminal lawyers is needed. Only political will along with the required legal




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technical knowledge, and combined with imagination, can develop thinking about how
to respond to the climate crisis.
         It may be that the conclusion is that it is either not suitable, useful or necessary
to introduce a new international crime. It could be that legal measures and mechanisms
already exist, even outside criminal law, such as in administrative law or civil law. It
seems important to not assume a binary logic in dealing with this. Rather, different steps
can mark the resolution of this complex process. To this regard, harmonization, a
constructively collaborative dialogue between national judges and cooperation between
institutions might actually foster paths of universalization towards the achievement of a
definition of ecocide to be agreed on.
         Ultimately, if the crime of ecocide is to be introduced, a precise definition of its
constitutive elements has to be found and adopted. The definitions of its component
parts (namely of the contextual element) should be consistent with general principles of
criminal law.
         In conclusion, I hope that the debate will continue, that it will be conducted
responsibly to avoid trivializing the category of international crimes and that it will be
accompanied by a multi-level discussion: international, regional and national. With the
eventual creation of an ad hoc Committee, composed of representatives from the
academic, judicial and corporate worlds. In particular, the involvement of multinational
companies in the process is essential, so that they can be socialized to the message that
this indictment does not mean criminalizing them but making them responsible.
         The debate on the need for a crime of ecocide will also be an opportunity to
reflect on how to legally translate the need to protect a new universal common good, the
common home of humanity. Furthermore, it will promote the acknowledgment of the
interdependence between human beings and nature. The protection of nature, in this
sense, is necessary for the human being.
         Indeed, establishing a new pact for humanity’s common home is a challenging,
crucial target, which is not to be addressed by criminal law alone. To conclude, if ecocide
is to become an international crime, thus signaling awareness of and an assumption of
responsibility vis-a-vis the climate and health crisis, its contours will have to be carefully
defined in accordance with the functions and limits proper of criminal law. We better
hurry, before it is too late.




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2021]                     UNIVERSITY OF BOLOGNA LAW REVIEW                       [Vol. 6:2


    PROFESSOR MARTIN

         3. The instance of criminalization of ecocide presents the criminal law
sphere with some challenging issues. Among them is the question of identifying
the appropriate sanctions for this new crime. What can you tell us about this? The
criminalization of ecocide as an international crime presents many legal and technical
questions regarding its characterization, but in my opinion, the debate about ecocide
should contribute to opening up a meaningful reflection on the shaping of criminal
policy in international criminal law. The iconography on which international criminal
law is based remains Nuremberg. A framework of discussion that was characterized by a
retributive view of criminal law and an identification of international criminal law with
warfare contexts, in which the perpetrators were mainly state agents.
        Ecocide poses the challenge of building an international criminal law for
peacetime, in which the main actors can also be multinational companies, and in which
the victims, together with the reparation of the harm suffered, must enjoy the major
role. This change of perspective, and of interpretation of what international criminal law
should be, seems to me to be more important than the criminalization of ecocide itself.
Perhaps, for instance, some cases of very serious harms to the environment could be
considered under the existing case law pertaining to crimes against humanity, in which
results such as the damage to a certain community lifestyle, forced transfers and the
submission of a population to conditions that endanger its life or its health, are already
contemplated.
        If we place international criminal law within the framework of corporate crime,
one of the most important debates concerns the introduction of legal persons’ criminal
liability. This should be linked to compliance programs and human rights due diligence
obligations. At this moment, a draft of a directive about due diligence is being discussed
at the EU. In some countries, such as France, there are already laws that oblige parent
companies to monitor respect for human rights and the environment in their
subsidiaries or in the supply chain. A similar piece of legislation is currently being
discussed in Germany. In the last week, a large French supermarket was sued for its
involvement in the devastation of the Amazon region and other large textile companies,
such as Zara, have also been prosecuted for using slave labor for using cotton that had
been produced in China by the Uighurs. Therefore, I believe that the time has come to
discuss the introduction of the criminal liability of legal persons into international
criminal law, a discussion which, as is well known, dates back to Nuremberg. At the
moment, moreover, there is an increasingly widespread model in comparative law for



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establishing this liability.   It is a model similar to the Italian model established in
Legislative Decree 231.
        What we lack at the moment are new sanctions, a new system of punishment.
To fine a multinational company for committing a crime against humanity, genocide or,
in the future, ecocide, seems to me a ridiculous idea. Criminal sanctions must have the
expressive potential of being socially perceived as genuine punishment. The fine also has
other no less important problems. It would seem absurd if, for instance, Italy imposed a
fine on a large Italian company for a crime of ecocide committed in Brazil or Ecuador, and
if the funds coming from that fine went to the Italian Treasury. The same would happen,
for example, with the seized funds, if the company had obtained some kind of profit from
the crime.
        And what could these sanctions be? I have been proposing formulas, such as an
equity fine or capital fine, for a long time. This is a penalty that is already used in countries
like Australia. An equity fine consists of reducing the capital of the company, depreciating
the value of the shares, and then issuing new shares for the same value. Then, the latter
could be managed by the victims, empowering them within the entity. In this way, they
would be able to influence the management of the company, and use the benefits of these
shares for projects addressing the devastated community etc.
        However, there are other possible sanctions. Think, for example, of a “traditional”
fine, the amount of which is used to build a trust fund administered by victims, and that
functions as a “spin off ” for reparations. Similarly, we can think of a model of intervention
penalty, in which victims, for instance, become part of the monitoring body.
        To conclude, what I want to emphasize is that the debate on the crime of ecocide
must focus also on developing an appropriate system of penalties, especially for legal
persons, and on the reparation of the harm. As far as I can see, efforts have focused on
the definition of the crime, which represents only a small part of the problem.
        4. What role could restorative justice play, taking into consideration the
characteristics of the victims and perpetrators of these violations?                Restorative
justice plays a very marginal role in the current criminal justice system; it is almost an
“exotic” element. My view is that it will gradually become more important in the future.
Then, as it evolves, from being almost an alternative solution to criminal law, as is still
conceived today, it may become one of its constituent components. At this point, it
would be possible to proceed to reshape elements of the criminal justice system from its
base. The “traditional” criminal law approach to the whole social conflict generated by a
case of very serious environmental pollution, reduces the problem to very specific
elements; those that serve to establish the fattispecie. It neglects the other elements that

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2021]                     UNIVERSITY OF BOLOGNA LAW REVIEW                         [Vol. 6:2


make up the conflict generated by the crime. The social damage produced by a crime is
much more complex than the damage to a legal good. In a similar way, it is illusory to
think that the world would be much better for everyone by imposing a 10-year prison
sentence on the perpetrators of an environmental catastrophe.
        Therefore, restorative justice may be, in my opinion, a more effective way to deal
with corporate macro-crime cases. Corporate victims in many cases need the company
that caused the damage to continue to invest and provide jobs in the area. In addition,
the company itself will need to reacquire its legitimacy in the social context in which it
operates, if it intends to pursue economic activities in the region that has been devastated
by its past wrongdoings. In other words, the company needs to be seen in a positive light
to continue developing its activities. Actually, restorative justice in these cases could be
interpreted as a special manifestation of corporate social responsibility. Today it is often
said that the purpose of corporate social responsibility consists precisely in managing the
legitimacy of the company.
        The problem is how to combine corporate restorative justice with the criminal
justice system. A proposal to be discussed would be the confirmation of what I have called
restorative deferred prosecution agreements. Well known in the United States, but by now
also in some EU countries, this type of agreement is a system of probation for the legal
person, who must comply with a series of conditions imposed by the prosecutor. The
proposal is that this tool be used to enable companies and victims, on a voluntary basis,
to participate in restorative processes, under the direction of a mediator. The European
directive about the protection of the victims, recognizes the right of restorative justice
to all of them. There is no reason to exclude victims of corporate activities, who have a
degree of helplessness and, therefore, a need for rights, at least as great, if not greater,
than the victims of other traditional crimes.
                                                                            Valeria Luz Puleo
                                                     MSc Candidate in International Relations
                                                                        University of Bologna




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