‘Ecocide, because it is not just an environmental disaster’

‘Environmental disaster is a common offence. Ecocide not only names and thus frames the facts differently, but also brings environmental violations and damage into the realm of international crimes, with significant procedural consequences.’ These words are spoken by Emanuela Fronza, Professor of Criminal Law (in the Department of Legal Sciences) at the Alma Mater Studiorum University of Bologna, who adds: “It is a concept that emerged in the early 1970s in relation to the damage caused by Agent Orange in Vietnam and which has now returned with force to the global debate to fill the protection gap in the face of the climate emergency. It has re-entered the debate with a proposal to classify it as an international crime alongside genocide, crimes against humanity and war crimes, thereby addressing the inadequacy of current instruments in tackling the climate emergency. The difference from an environmental disaster is profound: international crimes are not subject to any statute of limitations, exclude immunity and amnesties, and require a ‘contextual element’ that characterises serious and systemic violations. An environmental disaster may constitute ecocide, but additional elements are required. A distinction also exists at the level of domestic law: an environmental disaster remains a standalone offence, whilst the most serious acts comparable to ecocide are currently treated as aggravating circumstances of the offence of pollution, without becoming a separate offence in its own right’.

What is meant by the ‘fifth crime’ under the Rome Statute?

This refers to the proposal to include ecocide in the Statute of the International Criminal Court (the best-known definition is that drawn up in 2021 by the Independent Expert Panel for the Legal Definition of Ecocide ). Ecocide would mark a significant break with the international criminal law that emerged from Nuremberg: whilst genocide or crimes against humanity are direct evils (human against human), ecocide is indirect, affecting the ecological balance and jeopardising the survival of entire populations. The object of protection therefore changes: no longer just individual human rights, but the biosphere as a condition for survival. This approach also addresses the need to hold those responsible for large-scale environmental devastation to account, often multinationals and complicit states.

Are EU regulations adequate to address environmental damage in a wartime context?

I don’t think so. The International Criminal Court recognises environmental damage as a war crime, but the threshold required (damage that is ‘extensive, long-lasting and severe’) is so high that it has never been applied. Not even the new European Directive fills this gap in the context of war, leaving room for international humanitarian law which is now inadequate. Furthermore, in overseas missions, agreements limit the administrative controls exercised by the host state, rendering the mere extension of jurisdiction insufficient.