Top international lawyers to draft definition of "Ecocide"
75 years after Crimes Against Humanity and Genocide coined at Nuremberg
International lawyer Philippe Sands QC and international judge Justice Florence Mumba* are to co-chair an expert drafting panel on the legal definition of “ecocide” as a potential international crime that could sit alongside War Crimes, Genocide and Crimes Against Humanity. Launching with preparatory work this month, and set to draft the definition over the early months of 2021, the panel has been convened by the Stop Ecocide Foundation on the request of interested parliamentarians from governing parties in Sweden.
The concept of criminalising mass damage and destruction of ecosystems or “ecocide” at a global level has been steadily gaining traction in recent months since small island states Vanuatu and the Maldives called for “serious consideration” of it at the International Criminal Court’s annual Assembly of States Parties in December last year. President Macron of France has actively promised to champion the idea and the newly formed Belgian government has pledged diplomatic action to support it. Now an impressive list of top international and environmental lawyers will be tackling how best to define it.
The timing is powerful. 20th November marks exactly 75 years since the opening of the Nuremberg trials of high-ranking Nazi officers in 1945, and Philippe Sands QC, co-chairing the Ecocide drafting panel, will be among the speakers at a ceremonial event to be held in Nuremberg’s historic Courtroom 600 where the trials took place. Sands’ award-winning book East West Street documents the origins of - and the lawyers behind - the terms Crimes Against Humanity and Genocide, first used in that very courtroom. The story intertwines with Sands’ own family history as those lawyers (Hersch Lauterpacht and Rafael Lemkin respectively) studied in the hometown of Sands’ Jewish grandfather. Now, Sands’ own choice of career and specialisation in international public and environmental law brings him full circle to the defining of a new international crime - Ecocide - in the context of a new global threat: the climate and biodiversity crisis.
““The time is right,” says Sands, “to harness the power of international criminal law to protect our global environment - seventy five years ago, ‘crimes against humanity’ and ‘genocide’ were spoken for the first time, in Nuremberg’s Courtroom 600, and my hope is that this group will be able to draw on experience since that day to forge a definition that is practical, effective and sustainable, and that might attract support to allow an amendment to the ICC Statute to be made. It is a privilege to work with such a fine and representative group, in the shadow and spirit of those who gave us ‘crimes against humanity’ and ‘genocide’, Hersch Lauterpacht and Rafael Lemkin.”
Sands is joined on the drafting panel by a heavyweight list of judges and lawyers. Co-chair Justice Florence Mumba is a judge at the ECCC (Khmer Rouge Tribunal) and former supreme court judge in Zambia. “I am honoured to participate. An international crime of ecocide may be important in that individual/State responsibility may be regulated to achieve balance for the survival of both humanity and nature,” Mumba suggests.
Jojo Mehta, Chair of the Stop Ecocide Foundation commissioning the panel’s work, explains the significance of the project: “There have been working definitions of ‘ecocide’ over the years and the general concept - of mass damage and destruction of ecosystems - is reasonably well understood. However when parliamentarians from a number of countries, from European states to Pacific islands, will be considering this definition in the light of possible proposal at the ICC, the text that emerges over the coming months must be both clear and legally robust. It is vital that the drafting panel has in-depth relevant legal expertise as well as a breadth of geographical perspective.”
She is thrilled with the line-up of the panel: “We couldn’t be happier with the calibre of expertise this project has attracted. It demonstrates a recognition in the legal world that Ecocide can, and now perhaps should, be considered alongside Genocide and Crimes Against Humanity as one of the ‘most serious crimes of concern to humanity as a whole’. It’s an honour to be working with these judges and lawyers, and an extraordinary moment to be launching the project as the first international trials are remembered at Nuremberg.”
Panellists and comment:
Also on the panel are former ICC Judge Tuiloma Neroni Slade from Samoa in the Pacific, where island states are already feeling the impacts of climate change in the form of rising sea levels and extreme weather events; and Pablo Fajardo, the award-winning Ecuadorean lawyer who took on Chevron over massive oil pollution in the Amazon rainforest. Fajardo explains: “I live in the Ecuadorean Amazon. From here I am a witness to the way in which crimes are committed against Nature, against life, on a daily basis. These crimes take their toll on humanity, they do not remain confined to Ecuador… and they go unpunished due to the great legal vacuum that exists globally.”
Professor Christina Voigt (University of Oslo), Chair of the Climate Change Specialist Group of the IUCN World Commission on Environmental Law and Member of the IUCN Task Force on Climate Change, sees a potential deterrent in the new crime: “We see both systemic, wide-spread and deliberate destruction of the environment without any obvious consequences. Establishing that - above a certain threshold of severity - such actions or omissions are crimes could not only bring those responsible to justice, but also more importantly prevent further destruction.”
International criminal lawyer Richard J Rogers, founding partner of Global Diligence LLP, executive director of Climate Counsel and Co-deputy chair of the panel, sketches out the challenge of developing a definition: “On the one hand, any new crime must attempt to address the worst violations committed against the natural environment or atmospheric systems. On the other hand, it must satisfy the basic norms of criminal law, including legal certainty and causation.”
Rodrigo Lledó is director of renowned criminal lawyer Baltasar Garzón’s international foundation FIBGAR. His interest is to “contribute to building a very consistent definition of Ecocide, applicable by any judge… whoever carries out an activity that creates a high risk of causing severe damage to nature must take adequate precautions, and if this is not the case, the person must be held responsible.”
Growing state support
There is growing state support for the move to make ecocide an international crime: last December the small island states of Vanuatu and the Maldives called for serious consideration of ecocide crime at the International Criminal Court’s assembly; earlier this year the Swedish workers movement urged Sweden to lead on proposing it; in June President Macron of France promised to champion it on the international stage. Pope Francis has also stated that he believes ecocide should be added to the list of international crimes; he received Stop Ecocide’s Advisory Board member Valérie Cabanes for an audience recently. Last month the newly formed Belgian government pledged to “take diplomatic action to halt ecocide crime”, and two motions on ecocide have recently been submitted to the Swedish parliament, one from the Left Party and one from the Greens/Social Democrats.
Full drafting panel details:
Co-chairs
Philippe Sands QC (UK/France), Matrix Chambers / UCL
Justice Florence Mumba (Zambia), international judge, Extraordinary Chambers in the Courts of Cambodia, former Supreme Court judge, Zambia
Co-deputies
Kate Mackintosh (UK/USA), executive director, Promise Institute, UCLA
Richard J Rogers (UK), founding partner, Global Diligence LLP, executive director, Climate Counsel
Panel members
Rodrigo Lledó (Chile), director, Baltasar Garzon's International Foundation FIBGAR (Spain)
Judge Tuiloma Neroni Slade (Samoa), former ICC judge
Syeda Rizwana Hasan (Bangladesh), director of Bangladesh Environmental Law Association
Prof Charles Jalloh (Sierra Leone), Florida International University / Int. Law Commission
Valérie Cabanes (France), international jurist and human rights expert
Pablo Fajardo (Ecuador), key lawyer in Chevron case, Goldman Prize and CNN Hero Award winner
Prof Christina Voigt (Norway), climate law expert, Univ. of Oslo
Alex Whiting (US), former ICC Prosecutions Co-ordinator, Professor of Practice, Harvard Law School
Convenor
Jojo Mehta, Chair, Stop Ecocide Foundation
*Dior Fall Sow replaces Florence Mumba who had to withdraw from the panel in December 2020 for personal reasons. Please read more here