Stop Ecocide Now – The Environmental Damage and Criminal Punishment in Europe

Abstract

This article attempts to explain the concept of ecocide, and the efforts to criminalise it in peacetime, specifically within the European region. The article discusses the EU directive on environmental protection through criminal law, and the Belgian Federal Law, along with case studies of ecocide in Ukraine and Romania. It concludes that although there are still many challenges for the European policymakers regarding the legislation on criminalisation of ecocide, there is also an opportunity for the EU to enforce their position as global environmental leaders.

Introduction

The European Union (EU) has been labelled by many scholars as the global leader when it comes to setting regulatory standards, especially the ones concerning the environment (Le Cacheux & Laurent, 2015; Zito, 2005). This can be exemplified by the 2020 “European Green Deal,” which aims at making all the member-states climate-neutral by the end of 2050 (European Commission, 2019). The question then is: “To what extent does the EU actually regulate and criminalise the environmental damage performed on its territory?”. In the context of the recently extended list of environmental crimes within the EU, this article will discuss the concept of ecocide and how it is applied in Europe, arguing for a more nuanced approach to the complexity of both challenges and opportunities it brings for the European policy-makers.

More specifically, it will first explain the origins of the notion of ecocide. Second, it will analyse the current state of environmental criminal law in Europe and discuss the cases that could be classified as ecocide. Finally, it will examine the challenges regarding the implementation of legislation on ecocide through different channels.

Origins of the Concept

Up to this day, the notion of ecocide has been mostly applied in the context of military operations, and it is thus concerned with the damage done to the environment as a war strategy during conflict. This is not surprising, as the term originated during the Vietnam War as a response to the destruction of the landscape and crops by the US troops (Zierler, 2011). This event,  among other reasons, was the catalyst for the United Nations (UN) officials to integrate the concept into the International Criminal Court’s (ICC) Statue of Rome, criminalising the ecocide. However, it was included in Article 8 of the “War Crimes,” and has been defined as follows:

“Intentionally launch an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated” (UN General Assembly, 1998, Art.8.2 (b)(iv))

It is clear from this definition that the notion of ecocide has been categorised along attacks on civilians during military conflict. Nevertheless, nowadays environmental damage can be associated with the activities of many companies which perform their business solely focused on increasing growth rates in the Western sphere, with no regard to the planetary boundaries, polluting the natural habitat and increasing their carbon footprint in the run for profit (Human Rights Council 2024, 2). Consequently, alongside the efforts of the Republic of Vanuatu, which is facing one of the biggest consequences of climate change right now, the Stop ecocide organisation has managed to convene an Independent Expert Panel (IEP) on the definition of ecocide, which released the following definition in 2021:

““Ecocide” means unlawful or wanton acts committed with knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts” (Stop Ecocide International, 2021a, 6).

While this definition is not without its controversies, it constitutes a symbolic step in the process of pursuing international environmental criminal law that would punish environmental damage done in peacetime (Minkova, 2023; Robinson 2022). This definition is helpful to discuss how ecocide is understood in the EU and how the EU legislation interprets this definition.

Current Developments in Europe

In the light of the IEP definition of ecocide, it is important to discuss if, and in what form, ecocide has been enshrined into legislation in the EU. When it comes to the Union as a whole institution, it has quite well-developed environmental criminal law, especially in comparison to other actors around the world. In March 2024, the European Council, along with the European Parliament, agreed to the adoption of a new directive which mentions twenty actions that will be qualified as criminal offences (Directive 2024/1203). Criminal responsibility for the offences concerns both companies, which are subject to fines amounting to up to 5% of their yearly gains, as well as natural persons, which in legal terms refers to individuals, who can be imprisoned for even over ten years if the act is intentional (Directive 2024/1203). While this directive covers a lot of issues that the proponents of criminalising ecocide mention, it, nevertheless, does not directly refer to “ecocide” as such. 

When it comes to Belgium, it is the only member-state, and at the same time the first European country, to legally recognize ecocide as a crime (Stop Ecocide International 2024). At the beginning of 2024, ecocide was voted into the Federal Belgian law. The used definition is quite similar to the one developed by the IEP, however, it does not include wantonness, that is the intentionality of the crime (Da Silva and Croisant, 2024). Furthermore, it is conjunctive as instead of “severe and widespread or long-term” it refers to “serious, widespread and long-term” harm to the environment (Da Silva and Croisant, 2024; Stop Ecocide International 2021a). As a consequence, it enforces a higher threshold for crimes than the IEP definition, thus making it harder to convict people who did damage to the environment.

When it comes to other European countries, there has been little or no interest concerning the implementation of ecocide in the form of environmental criminal law. For example, in France it has been mentioned in the Climate and Resilience Act in 2022, but in the form of an offence, not a crime (Stop Ecocide International, 2021b). More positive developments can be noticed in the Netherlands, which as of November 2023 submitted the bill about ecocide for Parliamentary consultation (Marsman and Gieling, 2024).

Ecocide in Europe: Case Studies

Having presented the theoretical background on the notion of ecocide as a crime in general and in the context of the EU, the question that arises is: “To what extent this legal definition by IEP criminalising ecocide would be even applicable in Europe if enforced by any of the international institutions?” Two examples that could be classified accordingly, namely the water dam destruction in Ukraine and illegal deforestation in Romania, will be discussed.

One of the most recent cases of ecocide in Europe has been the damage caused by the Russian invasion to the Ukrainian environment. This case has been raised at the EU level as the Ukrainian territory accounts for over 35% of the European biodiversity (Yildirim, 2023). This irreversible damage is exemplified by the destruction of the dam in Kakhovka, resulting in extreme floodings, which caused the death of civilians, and  also damaged the ecosystem of thousands of fish (UNEP, 2023). In addition to that,  due to the force of the water, many chemical pollutants from the close industrial sites have been released into the natural environment, which can result in the land being inhabitable (UNEP, 2023).

On the other hand, there are also cases where  ecocide is not happening in the context of war, but it is rather a daily practice. This is, for instance, the situation in the Carpathian Mountains region in Romania, as massive illegal logging and deforestation take place without authorities intervening due to issues with corruption and lack of proper monitoring tools (European Parliament, 2023, 3;6). This is a particularly complex issue to solve due not only to the involvement of large powerful corporations, but also to the variety of factors that have to be accounted for. Indeed, the activities have resulted in the destruction of the natural environment for both minority communities living in the region, and the wildlife, such as the Brown Bears, thus causing violent attacks on journalists and environmental activists trying to prevent further loss of biodiversity (European Parliament, 2023, 7-9).

Therefore, these two cases strongly support the need for implementing and enforcing the notion of ecocide into the criminal environmental law in Europe. However, the diversity and  variability of the factors in the two case studies, also pose two key puzzles: in what form would the law generate the most consensus, and how effective it would be in enforcing and preventing further environmental damage. The next section will focus on the challenges for the policy-makers regarding the implementation of ecocide.

Challenges for the Future

Considering the many cases of ecocide in Europe, and those that will probably emerge in the future, the fact that Belgium and the EU are moving forward with the legislation on ecocide is a positive development. The hope is  that these developments may result in a snowball effect, with other member-states adopting even more comprehensive laws than those proposed by the EU, but also causing other countries around the world to criminalise ecocide (Robinson, 2022, 320). However, as EU member-states only have two years to implement the directive on environmental harm, the question is whether this process is going to be fast enough to protect the planet from further extraction of natural resources and complete destruction of natural habitats, as with climate change every moment of inaction has a potential impact (Flannery 2009, xxii). Indeed, as many companies commit ecocide through their business activities on a daily basis, as exposed in the case of Romania, it may lead to irreversible changes to the European ecosystems (European Environment Agency, 2024).

The other challenge for legislators is establishing the scope of the legislation in the sense of definition and jurisdiction. Are the twenty activities that the EU mention encompassing enough of all the damage that is produced against the environment? The Belgian and IEP definition of ecocide is more effective in the sense that it does not demarcate what activity is a crime, but what particular consequence of some activity is a crime. Moreover, looking for example at the ecocide in Ukraine, who would be the natural person or legal entity accountable for that and would the EU institutions be able to punish them? As it is often with issues connected with climate change and the environment, these are global problems, which require global solutions to be most effective and best enforceable. Unfortunately, it is extremely difficult as international criminal law is one of the “regimes of altruism”, not the “regimes of mutual benefits”, in the international relations area (Anderson, 2009, 332). In other words, by enhancing the international law system, states could potentially be in a disadvantaged position, being penalised for their crimes.  Therefore, while the positive developments in the criminalisation of activities that harm the environment in Europe are a big step forward, they need to be accompanied by increased transnational campaign efforts on the EU side, which can be hindered by the fact that the EU does not legally recognise the word “ecocide” at all in its directive.

Conclusions

The main conclusion stemming from the analysis of the current developments within the European law regime reveal that the ecocide law presents many challenges, but also opportunities for the EU to enforce their position as the global environmental leader. 

First, the two case studies of ecocide in Ukraine and Romania highlighted the complexity and the attention to detail needed to create effective legislation on ecocide that could work in both military contexts and peacetime. Second, in this light, the challenges facing European policymakers concerning the scope of the law regarding the definition and jurisdiction also arise. Due to its international recognition, the IEP definition could be potentially more useful for the EU, whilst the Belgian definition could be more convincing due to its higher penalising threshold. Nevertheless, despite the choice of definition, with the introduction of the directive criminalising environmental damage, the EU made hopefully its first step forward towards further campaign to make ecocide a crime on the international level.

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