Ecocide, a new crime for a global crime

The largest legal case ever instructed in Spain for an environmental crime, that of the Prestige disaster, ended with a single prison sentence. He was initially for nine months and did not fall to any of the public positions that managed the steps prior to the sinking of the old oil tanker or to any director of any of the companies in the business network that operated it. Not even after the Provincial Court of A Coruña concluded in 2013 that the state of the ship meant that it should never have obtained the permits to carry the toxic cargo that hit 2,000 kilometers of coastline, causing one of the greatest environmental disasters in the history of Europe . Only the captain of the ship, Apostolos Mangouras, was sentenced to prison for disobedience to authority, for taking three hours to comply with the order to move the ship further away from the Spanish coast. “And that was the only one who asked for totally logical things to avoid ecocide”,Stop Ecocide in Spain . Mangouras, whose sentence was increased in 2018 by the Spanish Supreme Court to two years for a crime against the environment, was declared the main civil liability, although the owner Mare Shipping Inc ended up being the subsidiary from which the Spanish justice demanded 2,500 million euros . Trials and arbitrations through, the figure ended up lowering to 900 million, an amount that the insurer London P&I Club, 20 years later, continues to litigate. He hasn’t paid for it yet.

In the case of the Bhopal (India) disaster , a chemical leak in a pesticide factory that killed some 25,000 people and affected half a million more within a radius of 40 km ² , the process ended with eight prison sentences, all factory employees. No trace of imprisoned managers. The main owner, a subsidiary of the American Union Carbide, was sentenced in India to a fine of 500,000 rupees. About 8,000 euros. 

The history of trials for environmental disasters is arduous for its victims. There are especially bloody cases, such as the lawsuit filed by Ecuador and those affected by the spill of 80,000 tons of oil residues in the Ecuadorian Amazon by Chevron, later merged with Texaco. The oil company, responsible for devastating half a million hectares of jungle, has not even paid to restore the area or compensate the affected population, even though an Ecuadorian court sentenced it to disburse 9,500 million dollars. Although the vast majority of the time there is no trial. See the case of bituminous sand extraction in Alberta (Canada) or, more closely, the degradation of the Mar Menor, among the dozens of environmental tragedies on the planet. Let’s not talk about non-targeted disasters, such as overfishing or the climate crisis linked to the extraction and burning of hydrocarbons, although lawsuits like the one carried out by a group of environmental organizations against Royal Dutch Shell ended in a sentence against the oil company to reduce its emissions by 45% in 2030. All these processes, moreover, have taken place in recent decades. Before, it was difficult to see similar lawsuits, let alone criminal ones.

giant leap

The story of environmental crimes is still young. An example: in Spain the first person to go to prison for an environmental crime —Josep Puigneró, for polluting several tributaries of the Ter River with his textile company— did so only 25 years ago. However, now, in a world immersed in the climate crisis and the sixth mass extinction of species , a varied conglomerate of groups and jurists wants to take a giant step in terms of global environmental legality: the creation of an international crime of ecocide.

“We see very clearly the need to create this new criminal figure, which is not just any environmental damage; that is something we already have,” Maite Mompó tells El Salto . She is the director of the Spanish branch of Stop Ecocide, an international campaign founded in 2017 by Scottish lawyer Polly Higgins —who died in 2019—, who spent the last years of her life shaping an idea that has already reached the main global debate forums. “When we talk about ecocide we talk about serious damage, a higher scale, of attacking the bases of life. We believe that it has to be with the worst crimes that can be committed, “explains Mompó. That is why from this organization they seek ecocide to be included as the fifth crime —after genocide, war, aggression and against humanity— dealt with by the International Criminal Court (ICC).

“Crimes against the environment, their criminal framework, do not reflect the extreme seriousness of a crime of ecocide,” says Adán Nieto. This professor of Criminal Law at the University of Castilla-La Mancha (UCLM) is part of an international group of jurists that advocates the implementation of an International Convention on the Crime of Ecocide so that it is placed alongside genocide in international criminal law. Although there are voices that advocate the creation of an independent International Environmental Court, the majority consensus is that the ICC is the one that integrates the new crime in its jurisdiction. It would do so in a process relatively similar to the one followed with the crime of aggression, which although it was included in the Rome Statute from the beginning —the constitutive instrument of the ICC—,

Beyond the groups that promote the international classification of the new crime, the debate has already reached the centers of power. On July 2, on the 20th anniversary of the ICC, ecocide and its possible implementation in the Court was a star topic in the debate. The Secretary General of the United Nations, António Guterres, has repeatedly supported the proposal, which also has the support of organizations such as the Inter-Parliamentary Union, which, at the request of Belgium – a country that has turned to the development of the new crime —, asked the parliaments of the world to analyze the possibility of developing it. In addition, in February, the European Parliament called for the second time on member states to support the international criminalization of ecocide and its legislation in the EU.

Step by Step

Precisely, the UCLM professor sees in the EU one of the main poles for the expansion of this crime. “We should discuss it in the European framework and that there be a harmonization by the EU of the criminal law of the member countries.” A European directive that would oblige the members of the Union to introduce the crime of ecocide in their legislation “would be a decisive step”, he indicates, for its arrival at the International Criminal Court. 

There are already twenty countries in the world that have integrated it into their legislation, led by Vietnam, which was the first to do so due to the environmental consequences left by the massive use of Agent Orange by the United States in the war between both countries. Several nations in Eastern Europe and Asia have also instituted it, although Nieto points out that there are wide differences in what each country recognizes as ecocide. Others, such as Belgium or France, have announced their future implementation. 

In Spain, the Commission for Ecological Transition and Demographic Challenge of the Congress approved in May a resolution for the Government to promote the recognition of ecocide as an international crime. The coordinator of Alianza Verde and deputy for United We Can, Juantxo López de Uralde, promoter of the resolution, then referred to the “enormous environmental aggressions” that the country has suffered and that went without punishment or consequences for those responsible. Among the disasters he cited, he pointed to the Aznalcóllar mine(Seville), another case in which no corporate official was convicted. “Unfortunately, we are very used to environmental aggressions going unpunished,” he lamented in Congress. Autonomous parliaments such as those of Catalonia or Navarra have processed resolutions in the same direction. However, Spain is not among the countries that propose to include the crime of ecocide in their national criminal legislation.

pending discussion

Despite the fact that there is a consensus among the defenders of the environment that the inclusion of ecocide as a fifth crime in the International Court would be an advance, there are voices that warn against the risks that this is the best path to choose. “This route has many shortcomings: you cannot condemn States or companies,” says lawyer Pilar Rodríguez Suárez, in whose thesis The regulation of the crime of ecocide, the end of impunity? she studied the different proposals on the table.

Leaving out the States —“they are always outside the criminal jurisdiction,” says Adán Nieto— in effect, the ICC does not try legal persons. “It is true that since [the] Nuremberg Trials there has been a tradition in international criminal law of not punishing legal persons,” the professor points out, “but since then it has rained a lot and today I think it is being considered in all the levels that it is absolutely essential that legal persons are also sanctioned in international criminal law”. The professor emphasizes that this would be key in relation to the repair of damage in an ecocide: “The repair of catastrophic environmental damage such as the one we are talking about can only be carried out by a large company, because an individual person, no matter how rich I mean, he doesn’t have that ability.”

For her part, the director of the Stop Ecocide Spain foundation points out in this regard: “It is true that the CPI cannot judge companies, but it can judge their executive directors, and that is a fundamental change because until now the top bosses have always they have gotten away scot-free, hiding behind shell companies.” For her, the crime of ecocide would have a particularly preventive nature, a point of view with which Pilar Rodríguez does not entirely agree. “Of course, it’s all very well to protect it from happening, but once it happens, who do we condemn? Who pays for it?” This lawyer specializing in environmental litigation emphasizes that it is the States and the taxpayers who end up paying the costs of climatic disasters. “A company does the damage, but since it cannot be done, and since the insurance covers up to this point,

The modification of the Rome Statute so that the ICC attends not only to individual criminal responsibility but also to that of legal persons is an option that all the voices consulted for this report would welcome despite the difficulty that it would imply to achieve it. “It’s not that complicated, it’s already changed,” says Mompó, alluding to the process that culminated in the definition and adoption of the crime of aggression by the International Criminal Court. The debate, in any case, is complex from a legal point of view: “Imagine a large multinational, Monsanto for example,” explains Nieto. “We sanction Monsanto’s subsidiary legal person in India, but to what extent can we sanction the parent company? There is a debate and a series of difficulties of a technical nature”.

The other great pending debate is to define what an ecocide is. In June 2021, an international panel of experts led by renowned jurist Philippe Sands drafted a legal definition of this crime. They consider ecocide “any illicit or arbitrary act perpetrated knowing that there is a substantial probability that it will cause serious damage that is extensive or lasting to the environment”, a definition to which they added a series of comments for its interpretation. However, while for Stop Ecocide an episode like the Prestige could imply a crime of ecocide, for the group of jurists in which Nieto participates, it does not. “It is not only a very serious damage to the environment, but it is something else,” explains the professor. “It is not so much a specific case as that of thePrestige . In the proposal we made, we speak of ecocide when a company or a country, in a generalized or systematized way, has a whole line of behavior in which there is destruction or disregard for the environment”, he continues. 

In any case, the professor of Criminal Law emphasizes that, beyond the legal discussions that will have to shape the crime, there is an agreement between the different groups that promote the proposal that ecocide be a crime belonging to the field of the International Criminal Court and to promote that this crime enters the legislation of the highest possible administrations. On a planet with so many open environmental conflicts, and where the fossil and extractive industry multinationals accumulate so much power, all help is little.