When reports emerged in late December that the Israeli military planned to pump seawater into the underground tunnel networks used by Hamas fighters in Gaza, scientists and advocates around the world sounded the alarm over the prospect of an environmental disaster. The flooding of the tunnels threatened to permanently salt the land, making it impossible to grow crops. Seawater can also seep underground and seep into an aquifer that the majority of Gazans rely on for water. Palestinian rights groups and protesters around the world were already accusatory the Israeli government to commit genocide against the Palestinians, with more than 20,000 killed by Israeli bombings of Gaza since Hamas’ attack on southern Israel last October. Now, another term has entered the conversation: ecocide.
Broadly defined as the severe, widespread and long-term destruction of the environment, ecocide is not considered a crime under international law. At the moment, the only way to prosecute massive environmental destruction internationally as a war crime is in the International Criminal Court, based in The Hague, Netherlands. But a growing number of countries, advocates and legal experts are trying to change that. While some, such as representatives of the island nation of Vanuatu, are motivated by the escalating climate crisis, and others, such as Ukraine, are more interested in prosecuting environmental war crimes, they ultimately share the same goal: to make ecocide the fifth international crime the ICC can prosecute. along with crimes against humanity, war crimes, crimes of aggression and genocide.
Their campaign reached a major milestone in 2021, when a panel of legal experts worked for more than six months to create a legal definition of ecocide. Subsequently, a number of countries and the European Union have incorporated at least part of this definition into new legislation, which experts say increases the likelihood that it will eventually be accepted by the International Criminal Court. While there are many obstacles to making such a law effective, advocates interviewed for this story said its symbolic importance could have far-reaching consequences. Creating a law against ecocide could finally force government officials and corporate executives to think twice before polluting rivers, poisoning the air or destroying the land.
“It will clarify what we care about and what we think cannot be left to individual states to regulate,” said Kate Mackintosh, the executive director of the Netherlands-based UCLA Law Promise Institute Europe, which provides training to students working in international law interested. . She explained that to be a crime under international law, an act must be a violation against not only its direct victims, but all of humanity. “Destroying our environment has to be on that level.”
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The term ecocide was coined during the Vietnam War after the US military sprayed more than 90 million gallons of Agent Orange and other herbicides over South Vietnam’s countryside. The chemical’s half-life of 20 years can increase to more than 100 years if buried underground, and people in South Vietnam are still alive with its consequences more than half a century later. After visiting the region in the early 1970s and observing the chemicals’ destructive effects, a group of American scientists and legal experts began a campaign against the use of herbicide as a weapon of war. Their efforts led to an executive order by President Gerald Ford in 1975 who renounced the use of defoliants in future wars and to a UN convention in 1978 which prohibited the “hostile use of environmental modification techniques”.
But none of these official declarations made ecocide prosecutable as a crime under international law, experts pointed out, underscoring the importance of the current campaign to codify it as one.
After the adoption of the UN convention, the movement against ecocide died down for the next few decades. When it reappeared in the early 2000s, it was linked to concerns about climate change. A UK-based campaign run by the late lawyer and environmentalist Polly Higgins spoke at the ICC’s annual meeting in 2019, when Vanuatu called for the Court to consider recognizing the crime of ecocide. The South Pacific island nation, where sea-level rise has eroded coastlines and salt water has contaminated most sources of drinking water, is be widely considered to be a leader in the global fight against climate change.
Vanuatu’s petition “puts ecocide back on the diplomatic table,” says British environmentalist Jojo Mehta, who is the founder of the Stop Ecocide Campaign with Higgins in 2017. This was the impetus for that panel of lawyers to convene in 2021 with the aim of developing a legal definition of ecocide that could be accepted by the ICC. After months of deliberation, they settled on the meaning of ecocide as “unlawful or wanton acts committed with the knowledge that there is a substantial likelihood that serious and either widespread or long-term damage to the environment will be caused by those acts.”
Mackintosh, who was on the panel, stressed that this definition allows prosecutors to pursue legal action simply if they intention cause environmental damage. “The crime doesn’t make the damage happen,” she explained. “It creates a significant risk for that harm.”
This distinction fills an important gap in the ICC’s legal code. The Rome Statute, the treaty established by the Court in 2002, criminalizes environmental damage under war crimes law. Prosecutors must prove that the damage to the environment is “widespread, long-term, and serious” – that is, the damage must already be done. But there has not been a single successful prosecution of environmental crime under this statute, even in seemingly clear-cut cases such as the Russian military’s destruction of the Kakhovka dam in southern Ukraine last summer. The more than 1 mile long hydropower facility held back one of Europe’s largest reservoirs, and when it bursta torrent of water flooded over 230 square miles, killing scores of people and spreading chemical pollution across the country.
While there is no clear path to codifying ecocide as a crime under international law, Mehta said, the campaign has already cleared several hurdles, particularly with the European Union’s adoption of its own ecocide law in November. In the coming years, the Stop Ecocide campaign will focus on gathering an informal group of countries willing to propose a law at the ICC’s annual meeting. “It’s not really a matter of if,” she said, “it’s a how and a when.”
The campaigners pushing for an international ecocide law have two main goals. The first would be to bring specific people, such as the military officers behind the Kakhovka Dam’s destruction, to justice, because the ICC requires defendants to be individuals rather than governments or corporations. That presents some challenges, says Richard Falk, a veteran legal expert and environmental advocate. (Falk, along with biologist Arthur Galston, was the first to use the term “ecocide” in the 1970s.) For example, if the ICC wanted to prosecute fossil fuel giant Shell for large parts polluted of the Niger Delta with crude oil, it will have to place the blame on individuals within the company, rather than on the company itself.
“That would make proof of intent extremely difficult,” though not impossible, to establish, Falk said.
The second main goal of an international ecocide law would be to prevent widespread environmental damage. At this point, experts Grist spoke to were torn about the effectiveness of an international ecocide law. First, the prosecution of any crime takes time, during which the environmental destruction can continue. What’s more, Falk said the ICC has previously acted as a “policy tool” of Europe and the US, often voting with the flag rather than the law. In a case like the war in Gaza, countries can defend their diplomatic allies rather than trying to judge their guilt or innocence in good faith, he said.
Rob White, a professor of criminology at the University of Tasmania who has written extensively on ecocide, wrote in an email that he agreed with this perspective, adding that “one could well argue” that Israel’s actions in Gaza meets the existing Rome Statute’s standard of “widespread, long-term and serious” environmental destruction. “As the genocide unfolding in Gaza also illustrates, international law is basically useless” in stopping the ongoing aggression, he said.
All four of the ecocide experts interviewed for this story said Israel’s actions in Gaza likely fit the definition of ecocide as determined by the panel. Evidence of immense environmental devastation is everywhere in the Gaza Strip, from the destruction of farmland with heavy machinery on the use of white phosphorus on porous soil. The Israeli military confirmed in late January that it had begun underground tunnels flooded with sea water, increase fear that it will contaminate the main source of drinking water for the strip’s 2 million people.
While Mehta admitted that it will be difficult to stop acts like this even with an ecocide law in place, she is optimistic that the law will have a deterrent effect. She offered the example of the United Kingdom Children Act of 1989which made it illegal for parents to spank their children, helping to turn a once-acceptable behavior into a taboo.
The law “actually has a kind of cultural power to it, which I think is super, super important,” Mehta said.
The experts interviewed by Grist insisted that an ecocide law would serve at least an important symbolic purpose.
“The impact of this kind of decision, even if it is not enforced, has a legitimizing and mobilizing effect on civil society activism,” Falk said. He pointed to his and scientists’ efforts after the Vietnam War, which led to Ford’s executive order and the UN declaration that effectively made the use of Agent Orange taboo. “That’s the most you can expect from the law,” he said.
