Criminalizing wilful environmental damage is harder than it sounds

Subject: Environment

Section: Environment legislation

Maya Project of Mexico:

Mexico’s ‘Maya train’ project, which aims to connect historic Maya sites with a route length of 1525 km, is being called a ‘Megaproject of death’ or ‘Pharaonic project’ because it imperils Yucatán peninsula of its rich wilderness, ancient cave systems, and Indigenous communities.
The Tribunal for the Rights of Nature in August said the project caused “crimes of ecocide and ethnocide”.

Ecocide and ethnocide- International crime:

Ecocide, derived from Greek and Latin, translates to “killing one’s home” or “environment”.
Such ‘killing’ could include port expansion projects that destroy:
- Fragile marine life and local livelihoods;
- Deforestation;
- Illegal sand-mining; and
- Polluting rivers with untreated sewage.
Mexico is pushing to elevate ecocide to the ranks of an international crime, warranting similar legal scrutiny as genocide.

Ecocide:

Extensive loss, damage to or destruction of ecosystems such that the peaceful enjoyment by the inhabitants has been or will be severely diminished.” Here, “inhabitants” applies to all living creatures.
There is no accepted legal definition of ecocide, but a panel of lawyers in June 2021 for the Stop Ecocide Foundation prepared a 165-word articulation.
- Ecocide, they proposed, constitutes the “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.”
The biologist Arthur Galston in 1970 is credited with first linking environmental destruction with genocide, which is recognised as an international crime.
The Rome Statute of the ICC deals with four atrocities:
- genocide
- crimes against humanity
- war crimes
- the crime of aggression.
The provision on war crimes is the only statute that can hold a perpetrator responsible for environmental damage, but only if it is intentional and in wartime.

Limitations to defining ecocide:

There are also many arguments against criminalizing ecocide.
Words like “long-term” or “widespread damage” are abstract and leave room for misinterpretation.
The threshold to prove ‘ecocide’ may also be too high.
Countries like Belarus and Moldova specify “intentional” or “deliberate” destruction, but environmental disasters are not caused intentionally or deliberately.
Without any significant changes, the ICC will not be unable to hold corporate entities criminally liable.

Why should ecocide be a crime?

Ecocide is a crime in 11 countries, with 27 others considering laws to criminalise environmental damage that is wilfully caused and harms humans, animals, and plants.
Most national definitions penalize:
- “mass destruction of flora and fauna”,
- “poisoning the atmosphere or water resources” or
- “deliberate actions capable of causing an ecological disaster.”

Need for an ecocide law:

Deforestation of the Amazon, deep-sea trawling or even the catastrophic 1984 Bhopal gas disaster could have been avoided with ecocide laws in place, according to Stop Ecocide International.
These laws could also hold individuals at the helms of corporations accountable.
Ecocide laws could also double up as calls for justice for low- and middle-income countries disproportionately affected by climate change.
Small nation-states like Vanuatu and Barbuda are already lobbying the ICC to declare crimes against the environment to be violations of international law.

What has been India’s stance?

India has recognised rivers as legal entities with the right to maintain their spirit, identity, and integrity.
The concept hasn’t fully materialized in law yet.
In Chandra CFS and Terminal Operators Pvt. Ltd. v. The Commissioner of Customs and Ors (2015), the Madras High Court noted: “the prohibitory activities of ecocide has been continuing unbridledly by certain section of people by removing the valuable and precious timbers”.
In an ongoing case, T.N. GodavarmanThirumulpad vs Union Of India &Ors, the Supreme Court called attention to an “anthropogenic bias” and argued that “environmental justice could be achieved only if we drift away from the principle of anthropocentric to ecocentric”.
India’s legislative framework vis-à-vis environmental and ecological governance includes the Environmental (Protection) Act 1986, the Wildlife (Protection) Act 1972, and the Compensatory Afforestation Fund Act (CAMPA) 2016, as well as separate Rules to prevent air and water pollution.
The National Green Tribunal, India’s apex environmental statutory body, does not have the jurisdiction to hear matters related to the Wildlife (Protection) Act 1972, the Indian Forest Act 1927, and other State-enacted laws.

Disaster due to Russia-Ukraine war:

The ICC and Ukraine’s public prosecutor are also investigating Russia’s role in the collapse of the Nova Kakhovka dam, which unleashed a flood that drowned 40 regions, and released oils and toxic fluids into the Black Sea.