6 pacific nations call for just transition to "fossil fuel free pacific" including strengthening law to prevent ecocide

Today in Vanuatu’s capital Port Vila, leaders of 6 Pacific ocean states made an ambitious collective call to phase out fossil fuels, support a rapid and just Pacific transition to renewable energy, and strengthen related legal obligations - including to “prevent Ecocide”.

Following the 2nd Pacific Ministerial Dialogue on Pathways for the Global Just Transition hosted in Vanuatu from 15 - 17 March, the governments of Vanuatu, Tuvalu, Tonga, Fiji, Niue, and the Solomon Islands committed to creating a “Fossil Fuel Free Pacific” and called for all countries worldwide to end the expansion of fossil fuel production and manage a global, equitable and unqualified phase-out of coal, oil and gas. 

The full outcome document can be read HERE and makes specific commitments to join the Beyond Oil and Gas Alliance and to call for a Fossil Fuel Non-Proliferation Treaty.

The call in respect of ecocide is found under section 4 of the Port Vila Call, for “Redoubled efforts to reaffirm, strengthen and codify legal obligations with respect to the global phase out of fossil fuels.” Subsection d. calls specifically for: “Strengthening the rule of international and domestic law to prevent Ecocide and protect the human right to a clean, healthy, and sustainable environment from environmental degradation related to the extraction, production, supply and use of fossil fuels.”

Ukraine justice conference addresses ecocide law

Last week in Lviv, Ukraine, a group made up of heads of state, foreign ministers, prosecutors general, judges and legal advisors from the EU, Eastern Europe, the US and beyond met at a conference United for Justice to discuss legal and fair accountability mechanisms for international crimes being committed by Russia in Ukraine, and in particular to examine the legal practicalities of addressing the crime of aggression.  It was a meeting of historic importance, being the first time such a high-level legal conference has been convened in a war zone during an ongoing conflict in order, in the words of Ukrainian President Volodymir Zelenskyy’s opening address, to “develop a new format of international cooperation for the sake of justice.”

Also unprecedented was the specific attention given, in a panel on ”Prosecuting Environmental War Crimes” moderated by Maksym Popov, adviser to the Prosecutor General of Ukraine , to the severe environmental damage suffered in Ukraine during the conflict.  This damage has already had initial assessment by UNEP and is ongoingly being documented in the affected territories.  Ukraine’s environment minister Ruslan Strilets began the panel by setting out just how many and serious these harms have been.

The panel addressed legal mechanisms already available for prosecution of harm to the environment in wartime, their drawbacks and potential for use in the Ukraine context; but also discussed the usefulness for the future of putting in place an international crime of ecocide, something that Ukraine has a keen interest in, and has already strongly supported (see speeches by Ukrainian MPs at the Council of Europe debate and the PACE Resolution adopted in January). 

Richard Rogers, international criminal lawyer and deputy co-chair of the Independent Expert Panel for the Legal Definition of Ecocide (convened by the Stop Ecocide Foundation in 2020), was a panellist at the event and spoke specifically on this topic, highlighting the advantages of ecocide becoming a standalone Rome Statute crime - most importantly its signal, both to warring parties and to prosecutors, that environmental damage must not be pushed “to the back burner”.  

He also emphasised the appropriateness of Ukraine championing the establishment of such a crime, citing the historical importance of Ukraine (indeed Lviv in particular) as the intellectual birthplace of crimes against humanity and the crime of genocide; the weight of legal support and protection of the natural environment that such a crime would provide both to Ukraine going forward and to other victim states in the future; and the opportunity for Ukraine to “carve out a role for itself in the development of international rule of law issues”, having the credibility and expertise to lead the international community in this area, with “promoting an international crime of ecocide [being] a very good place to begin.” 

In this regard, Ukraine would be joining, from the perspective of environmental harm in armed conflict, a direction of travel already established by the Pacific ocean state Vanuatu, known for championing legal avenues to address the global climate and ecological crisis.  Ecocide law is profoundly relevant to both contexts.

Jojo Mehta, co-founder and executive director of Stop Ecocide International and Chair of the Stop Ecocide Foundation, said: “Ecocide law responds to a clear need for accountability that is becoming ever more visible in contexts both of peace and of war.  Vanuatu as a victim of climate change and Ukraine as a victim of aggression are making the world aware of this need.  Forward-thinking nations like Belgium are taking up the challenge in solidarity, and legislating for ecocide.  Dozens of governments are beginning to take note and more must do so, in the understanding that protecting nature is about all of our futures. Framing this protection in criminal law creates accountability - and also helps everyone to steer in the right direction.” 

Jojo Mehta was also present at the conference in Lviv by invitation of the Ukrainian Prosecutor General’s Office.

Richard Rogers, Maksym Popov & Jojo Mehta

Yuliiya Ovchynnykova, MP with Jojo Mehta

[NB various of the other conference panels including the high-level opening address and remarks can be found on the Ukraine Prosecutor General’s Office YouTube channel]

Ecocide law is a “game-changer” for board directors, says investor network

“Business as usual is not a viable long-term strategy. We need game-changers: concepts, processes, strategies, frameworks, and legal regimes that will change how the economy and capital markets interact with the environment.” - Robert Walker, ICGN Sustainability Policy Manager

A new policy “viewpoint” document Biodiversity as Systemic Risk: 10 Game-Changers for Board Directors and Stewardship Teams has been released by the International Corporate Governance Network (ICGN), highlighting the criminalisation of ecocide as an essential emerging framework.

“Adding the crime of ecocide to the Rome Statute will build on the existing international crime of severe damage to the environment during armed conflict and is expected to both raise awareness and serve as a deterrent to those contemplating projects that could fall under the established definition,” the paper says. “Directors and stewardship teams may wish to enhance their understanding of the potential legal and reputational risks that may ensue, not just for ecocide, but also for other liabilities associated with biodiversity loss.”

The ICGN report goes on to list keeping abreast of legal developments on ecocide, as well as on rights of nature, as a “key area of consideration” (no. 2 of 10).  

The comprehensively referenced paper addresses the most important recent frameworks and initiatives aiming to address biodiversity loss (Post-2022 Global Biodiversity Framework, Human Right to a Clean, Healthy & Sustainable Environment, Taskforce on Nature-related Financial Disclosures, Finance for Biodiversity, Planetary Boundaries and more) with a view to helping companies “to raise their awareness and be prepared to respond” to ensure that “appropriate actions are taken to stave off the significant, if not existential, risks to companies, investors, investment institutions, and the global economy”.

The ICGN is a global network led by investors responsible for assets under management of around US$70 trillion, and is a leading authority on global standards of corporate governance and investor stewardship.  Its membership includes dozens of the world’s largest public pension funds, asset management firms, public listed companies and professional advisory firms (AXA, Blackrock, Chevron, Deloitte, EY, KPMG, Microsoft, Vanguard… to name a few of the best known).

The engagement of the investment world at this level is a concrete indicator of both the significance and the acceleration of the conversation on ecocide law, and opens up real potential for strategic positive change in the light of its approach.

Prestigious law institute publishes EU-specific model law on ecocide

After a year and a half of research and drafting, the prestigious European Law Institute (ELI) has published its Report on Ecocide: Model Rules for an EU Directive and a Council Decision.  The model law draws inspiration from the consensus international definition released by the Independent Expert Panel (June 2021, convened by our Foundation) while making adjustments for the European Union context and certain legal considerations relevant to EU law.

With over 100 institutional members and over 1600 individual members from the legal profession around Europe, the independent Institute was founded in 2011 to “improve the quality of European law, understood in the broadest sense. It seeks to initiate, conduct and facilitate research, to make recommendations, and to provide practical guidance in the field of European legal development.”

The model rules include a threshold of recklessness (dolus eventualis) with regard to knowledge and intent; they include provision to address fraud and corruption in the issuing of licenses or authorizations; and also propose to “extend the powers of the European Public Prosecutor’s Office to include offences of ecocide affecting more than one Member State or one or more Member States and one or more third countries.”

The timing of the publication is potent, as the EU is in the process of revising its Directive on the protection of the environment through criminal law.  Already 4 out of 5 committees consulting on the directive have expressed support for inclusion of ecocide into the operative part of the text; the legal affairs committee will report next month and the resulting text will go to the European Parliament for plenary discussion and voting in April. 

The availability of this EU-specific text could be a concrete support to the inclusion of ecocide - indeed, the ELI hopes “that this Report will contribute to the inter-institutional negotiations in the EU on the Proposal for a Directive of the European Parliament and of the Council on the protection of the environment through criminal law and that it will also inspire legislative developments beyond the EU.”

The report also sets out the context of developments around ecocide internationally and the growing support for its criminalisation.

EU: 4 out of 5 committees now support including ecocide in environmental crime directive

The EU Parliament’s Committee on Civil Liberties, Justice and Home Affairs (“LIBE”) has just voted in support (NB final text still pending publication) of including a crime of ecocide into the Directive on protection of the environment through criminal law, currently under revision.  The committee’s recommendations include introduction of a crime of ecocide with a corresponding definition based on that of the Independent Expert Panel (June 2021) convened by the Stop Ecocide Foundation.  Specific recommended sanctions are 10 years imprisonment (natural persons) and 12-23% of turnover (legal persons i.e. companies).

Inclusion of ecocide has already been backed by the Committees on Environment, Health and Food Safety (“ENVI”), Development (“DEVE”) and Petitions (“PETI”).  Of the five parliamentary committees tasked with providing opinions on the Directive, only the Legal Affairs Committee (“JURI”) remains, after which the text agreed upon by that committee will go forward to consideration by the full EU Parliament (plenary) before final discussions with the EU Commission and Council of Ministers.  Vote in the JURI committee is currently anticipated to take place on the 28th February. 

While last week’s Council of Europe resolution does not oblige its 46 member states (nor indeed the 27-state EU) to legislate for ecocide - the Council of Europe is a separate non-legislating body - it will undoubtedly have a bearing on the EU discussions, as will its recommendation to the Committee of (Foreign) Ministers of those 46 states.

Momentum for the recognition of ecocide at EU level is accelerating fast. You can help us keep the pressure on! Here are some simple and effective ways for you to support: HERE

COUNCIL OF EUROPE ASSEMBLY ADOPTS RESOLUTION TO CODIFY ECOCIDE

“Severe destruction or deterioration of nature that could be qualified as ecocide may occur in times of peace or war. It is necessary to codify this notion…”
~ Resolution 2477 adopted 25/01/2023.

“Nature is always a silent witness and victim of this war.”
~Yuliia Ovchynnykova, MP, Ukraine.

This week in Strasbourg the Parliamentary Assembly of the Council of Europe (PACE) voted overwhelmingly to adopt resolution 2477 and recommendation 2246, both calling for recognition of ecocide, based on a recently issued report from its Committee on Social Affairs, Health and Sustainable Development on the Environmental impact of armed conflicts.  Submitted by rapporteur John Howell (UK, European Conservatives), the report sets out that “multifaceted, severe, long-lasting and mostly irreversible” environmental damages caused in armed conflicts affect “not only ecosystems but also human health beyond the conflict area and long after the conflict is over. The human rights to life and to a healthy environment are thus undermined.”  

The resolution calls for the 46 member states of the Council to “build and consolidate a legal framework for the enhanced protection of the environment in armed conflicts at national, European and international levels” by, inter alia, “updating their legal arsenal to criminalise and effectively prosecute ecocide and taking concrete steps to amend the Rome Statute of the International Criminal Court in order to add ecocide as a new crime”.

While, unlike the EU Parliament, PACE is not a legislative body, this resolution gives huge impetus to the global initiative to recognize ecocide at the ICC.

Ukraine conflict and beyond

The immediate context for the resolution is clear - Ukraine has suffered high levels of environmental damage in many forms over the last year due to Russian attacks, from “massive forest fires” to “agricultural fields contaminated by gasoline, and rivers where fish have suffocated under oil slicks” (reported in Time, 18/10/22).  A UNEP report “shows that Ukraine, already burdened by a host of legacy environmental challenges, is now facing a compounded, multi-dimensional environmental crisis that has either exacerbated existing issues or added new ones [...] associated with chemicals, munitions and military equipment, the presence of a range of pollutants continuing to be released during the active phase of the conflict, damage inflicted to fuel storage facilities, industrial infrastructure, key infrastructure such as water, energy and waste management systems, urban areas, agricultural and natural areas. Assessing such damage will require a multitude of complex methods to establish the impacts and plan recovery activities.” (The Environmental Impact of the Conflict in Ukraine: A Preliminary Review, UNEP October 2022)

The Council of Europe resolution highlights “important gaps [that] subsist in protecting the environment in the context of armed conflicts and their aftermath. The existing legal instruments lack universality in terms of ratifications, precision of terms used (such as for qualifying ‘widespread, long-lasting, or severe effects’), a comprehensive coverage of offences and a sufficiently broad scope of application. Moreover, a permanent international mechanism to monitor legal infringements and address compensation claims for environmental damage is also missing.”

The resolution sets out Assembly support for the codification of ecocide as a criminal offence at national and international levels: “Severe destruction or deterioration of nature that could be qualified as ecocide may occur in times of peace or war. It is necessary to codify this notion in both national legislation, as appropriate, and international law.”

The resolution was passionately supported from the floor by a number of parliamentarians of all political persuasions, including Ukrainian MP Yuliia Ovchynnykova who referred to the Council of Europe’s role as “guardian of human rights and rule of law in times of peace and war.”  

Rapporteur John Howell explained that the report also addresses issues relevant more broadly, not just in the Ukraine context, and other speakers highlighted instances of the extremely long-lasting environmental impacts of war elsewhere, from the still-felt results of the use of Agent Orange in Vietnam in the 1960s (to which the original coining of the word “ecocide” referred) to the pollution from uranium in southern Iraq following gulf war of 1991.  

The resolution was passed with no objections.  

The associated recommendation to the Council of Europe’s Committee of Ministers, included the following calls:

“[To] ensure that the revised Council of Europe Convention on the Protection of Environment through Criminal Law (ETS No. 172) applies also in the context of armed conflicts, wartime or occupation, and covers ecocide;  

“[To] call on member States to update their legal arsenal to criminalise and effectively prosecute ecocide [...] and to take concrete steps to propose amendment of the Rome Statute of the International Criminal Court in order to add ecocide as a new crime;”

This recommendation was also passed with no objections.

It is to be expected that this result will have a galvanising effect on continuing discussions in the EU on the revision of the Directive on protection of the environment through criminal law.

Also of note is the recent adoption by the Council of the European Law Institute (ELI) of a model law on ecocide, drafted for the EU context.  The model law will be voted on by wider ELI membership in February.

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*The Council of Europe is the 46-state international body behind the European Declaration (and Court) of Human Rights, not to be confused with the European Parliament.  It has a Committee of Ministers (these are the Foreign Ministers of the member states) and a Parliamentary Assembly made up of parliamentarians from the member states in their political groupings.