Ecocide…Vive le Law!

Photo by Valdemaras D. on Unsplash

I started this blog with the aim of encouraging debate at the intersection of fashion, sustainability, business and law. So far, I have touched on aspects of the first three fields but not law, so I thought I’d say a word about recent developments relating to ecocide.

For those of you who have noticed that ecocide rhymes with (for example) pesticide, you’ll have guessed the meaning: it refers to the destruction of the environment.

The legal press announced in June that a definition of ecocide has been drafted and is about to be submitted to member states of the International Criminal Court (“ICC”) for their consideration, in order to place the destruction of nature on a par with other grave international crimes.

An organisation called “Stop Ecocide” (https://www.stopecocide.earth/about-summary) and its related entities are behind this project, having convened a global panel of legal experts to formulate a definition of ecocide. The aim is to be able to prosecute individuals — rather than corporations — at the ICC. As Stop Ecocide highlight:

“Unlike suing and fining corporations (who simply budget for this possibility), making ecocide a crime creates an arrestable offence. It makes those individuals who are responsible for acts or decisions that lead to severe environmental harm liable to criminal prosecution.”

How can ecocide become an international crime? In practice, this requires amending the Rome Statute (the treaty which established the ICC) in order to add ecocide as a fifth crime, alongside genocide, crimes against humanity, war crimes and crimes of aggression. Once the proposed amendment is ratified by the parties to the Rome Statute (123 states so far), they must implement it domestically within one year. Crucially, this will enable them to arrest, on their own soil, a non-national for ecocide committed elsewhere.

The long-awaited definition of ecocide proposed by the legal experts is as follows:

“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”.

Major nuclear accidents, oil spills and the Amazon deforestation are cited by one of the lawyers involved as potentially constituting ecocide — as opposed to daily acts which many of us are involved in and cause long-term damage such as climate change (see: https://www.theguardian.com/environment/2021/jun/22/legal-experts-worldwide-draw-up-historic-definition-of-ecocide).

Introducing an international ecocide law has been debated since the 70s and, since then, this movement continued to gain momentum. In fact, Polly Higgins, barrister and co-founder of Stop Ecocide, spearheaded a 10-year campaign for ecocide to be formally recognised as a crime against humanity. She believed that “[w]hat is required is an expansion of our collective duty of care to protect the natural living world and all life. International ecocide crime is a law to protect the Earth.” (see: https://www.theguardian.com/environment/2019/apr/22/polly-higgins-environmentalist-eradicating-ecocide-dies).

Higgins’ vision is one step closer to being reached. For the curious minds amongst you, here is the legal text and commentary relating to the newly-created definition of ecocide: https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d7479cf8e7e5461534dd07/1624721314430/SE+Foundation+Commentary+and+core+text+revised+%281%29.pdf

Now is the “watch this space” moment to see if this proposed definition is adopted by the ICC. In the meantime, back to the fashion industry: assuming that an international ecocide law is passed, I’m curious to know whether at some point in the future, fashion company executives and/or their suppliers could be caught by this law. After all, many activities in the fashion supply chain such as dyeing and tanning are notoriously polluting, as various Greenpeace reports have highlighted over the years.

Here’s hoping that this new legal tool contributes to a greater sense of responsibility — and wiser actions — on the part of all decision-makers.