Daan van Uhm on ecocide: "We increasingly see discussion about the question: How can we protect the environment through criminal law?"

On 6 March 2024, the municipality of Utrecht became the first Dutch municipality to sign the Stop Ecocide NL Manifesto. The manifesto calls on organisations (including NGOs and civic movements), businesses, local authorities and political parties to urge the Dutch government to support the recognition of ecocide as an international crime. To this end, a legal definition of ecocide was drafted by an independent expert panel in 2021. Daan van Uhm, environmental criminologist at Utrecht University, was also present, telling the AD that the signing of the manifesto has an important symbolic value since it shows public support and increases pressure to realize the aims behind it.

The signing took place in Utrecht's Griftpark, which may be called a fitting location. The site was once home to the city gasworks, which left heavily polluted soil behind. For a long time, the area was inaccessible, until the soil was finally partly remediated, partly covered with foil. Councillor Linda Voortman referred to the gradual action of organic processes that are now slowly restoring the soil, and called the park a great example of how to strengthen biodiversity in a growing city. “It is especially important to have good legislation, to properly define what we actually mean by ecocide. That is why we support the manifesto”, Voortman said. 

Time has come to include ecocide in criminal law

The organisation Stop Ecocide International (SEI) aims to add ecocide, through an amendment, as a fifth crime to the Rome Statute, which would bring this form of large-scale environmental destruction – alongside genocide and war crimes, among others – under the jurisdiction of the International Criminal Court in The Hague. Serious environmental crimes are now typically dealt with through civil lawsuits and penalized with a fine, but there is a growing belief that criminal law is a much stronger and necessary deterrent, as it would hold those responsible (including corporate executives) personally accountable.

We cannot just keep polluting on a large scale; actual legal action must also become possible

“There is no international ecocide legislation at the moment. There are several trends going on at the international, European but also national level – for example, an Ecocide Bill in the Netherlands – and you see that governments are starting to talk more and more about it: How can you better embed the protection of the environment, and especially from a criminal law perspective?”, Daan van Uhm said in the radio programme Vroege Vogels (also present in the Griftpark on 6 March). 

Speaking to the Dutch newspaper AD, Van Uhm said: “If we look at the Rome Statute, an international treaty [from 1998] that includes genocide, crimes against humanity, war crimes and the crime of aggression, it almost included the ban on ecocide as well. This only just failed to pass at the last moment. Now, in this day and age, it is increasingly difficult to dodge the large-scale ecological consequences of man's acts against the environment.”

Legal definition of ecocide

A first important step was taken in 2021, when a panel of international law experts came up with a legal definition of ecocide at SEI's request:

“Ecocide” means 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 legal term “wanton” means with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated, somewhat similar to the legal definition of acts of war that may or may not have military justification. 

Workable result

Speaking about the result achieved by the panel, Jojo Mehta (director of SEI) earlier told Dutch newspaper NRC: “The combination of 'unlawful or wanton acts' makes the definition very workable. The word 'unlawful' shows: laws exist, but they are not sufficiently enforced. Thus, an international ecocide law can be a push in the right direction for existing national laws. With the addition of the word 'wanton', the law can also address activities that may not be illegal, for instance because they are not explicitly mentioned in a law, but are obviously causing great harm.”

Mehta further said she realises that an ecocide law is not primarily about punishing violators, but that its main purpose is to ensure that companies and countries start to operate differently, that they change their behaviour.

Meanwhile - in the EU and elsewhere

The EU very recently, on 26 March, adopted a new Directive on the protection of the environment through criminal law. This includes a provision to criminalise cases “comparable to ‘ecocide’, which is already covered by the law of certain Member States and which is being discussed in international fora”. These include, for example, widespread and significant damage that is irreversible or long-lasting, to an ecosystem of significant size or environmental value or to a habitat in a protected area. So it will be interesting to see how Member States will implement and enforce these new rules in their national legislation in the coming years, and also to what extent they align with the SEI definition of ecocide in doing so.

And even though ecocide, as a "fifth crime", is still (far) from being included in the Rome Statute, pressure is also mounting on the ICC to take action against serious environmental crimes within its existing mandate. Chief Prosecutor Karim Khan announced in February a new policy initiative to promote accountability for environmental crimes, and invited experts to contribute ideas. Currently, environmental crimes are mentioned in the statute only in the context of war crimes (exactly why SEI is pushing for the amendment) but some experts argue that activities leading to serious environmental damage may also violate human rights, and thus could qualify as genocide, crimes against humanity or war crimes. 

In an article, The Guardian refers to a contribution by (legal) experts to this policy discussion. They argue that politicians, CEOs or leaders of organised crime can also be indicted. They also cite as examples CEOs in the fossil energy sector who – despite knowing about the harmful effects of greenhouse gases for at least the past 50 years – continued their practices anyway.