Disclaimer: Asymmetrical Haircuts is produced as a podcast, meaning it is meant to be listened to and not read. Because of this, we recommend that you listen to the episode while reading, because the written word does not do justice to the emotion or tone used by our speakers. However, because we recognise there might be bandwidth issues or you might be using a hearing aid, we have provided written transcripts for all our available episodes.

[INTRO TUNE] 

[00:00:09] Janet

Hi, Steph.

[00:00:10] Stephanie

Hi, Janet.

[00:00:11] Janet

So we’re doing a series at the moment. We’re trying to get our heads around some of the climate justice developments of recent times.

[00:00:17] Stephanie

And last time we looked at exactly what was being asked of the International Court of Justice by Vanuatu, who is requesting an advisory opinion.

[00:00:26] Janet

And this time it’s the broad picture on ecocide, which is a word that we’ve been hearing about for many years.

[00:00:33] Stephanie

So there is a movement that will come back to to make ecocide the fifth crime at the ICC to essentially add it to the Rome Statute.

[00:00:40] Janet

But we thought what might be interesting is to start with some of the current news, because that might also help us understand some of the underlying debates a bit more. In June this year, there was the attack on the Kakhovka dam in Ukraine, which led to terrible flooding in parts of the Kherson region. Thousands had to be evacuated from the low lying areas and now we can see some of the more. Long term environmental effects. Those are starting to appear. And that attack has been described by the Ukrainian authorities as ecocide.

[00:01:11] Stephanie

And there are a number of investigations into who is responsible, with most saying that it was likely an internal explosion which would implicate Russia. But we are looking now at how eventually this attack might play out in courts, especially with that ecocide label, because Ukraine is one of the few countries that has national legislation on the crime of ecocide.

[00:01:35] Janet

That makes it really interesting to have a place that’s already got this national crime. So we started with Ukraine and the international investigators. Daphne Yuqing Liu is a senior legal advisor with the Global Rights Compliance Organization. They have mobile teams working with the office of the Prosecutor General in Ukraine. And she gave us an idea of the environmental damage that was caused by the attack, how they’re analyzing it under international humanitarian law, the laws of war, and Ukraine’s own ecocide law.

[00:02:09] Daphne Yuqing Liu

Even from the satellite imagery, you can see the mass loss of flooded farmlands and fishing grounds. But one helpful way to group these effects is to see what’s going on directly. That’s the short term effect, and that’s very obvious. The flopping fish and also the mass destruction of flora and fauna and the impact on the ecosystem, especially in the inlets areas and certain bodies of water. But we’re also thinking about the mid-term and long term impact. Of course, that’s something we can’t really meaningfully evaluate, fully evaluate in the immediate aftermath of the dam breach. But we are seeing this environmental impact are still unfolding up close. The impact is very sobering. So this delegation has visited this village called Marianske, and it’s a village in the Dnipropetrovsk Oblast. And we saw the one of the Ukraine’s four major canal inlets that’s been damaged. So this is one of the four that’s currently still in Ukrainian control. And it’s significantly important to agriculture. Irrigation work. So in the summer months, Ukraine relies very heavily on these four primary canals, inlets for farm irrigations. And because the projected rainfall for this season is going to be most likely insufficient to maintain the crop health and the yield of the land without irrigation. So this part of destruction is going to significantly affect the farming activities and people’s capacity to either generate income through farming activities or access food by their own growth.

[00:04:09] Janet

When we try to apply the different sort of lenses of what international humanitarian law and war crimes. I mean, what frame can we use?

[00:04:18] Daphne Yuqing Liu

This is looking very much like war crimes, and that’s the long and short of it. So exactly which war crimes will be dependent on the actual factual findings. So the things that I would like to flag at this stage that’s very relevant to the future determination is that, first of all, all dams are presumed to be civilian in nature. So in terms of principle of distinction, the law is in favor of its protection. It only loses such status like many other civilian objects, when the dam is used by a warring party in direct support for military operations, and with the Kakhovka dam, we know there is a hydroelectric power plant on the spot. But with all the information that we have seen so far, there is no indication that it has been used in direct support for military operations. So even in the unlikely event that this was the case somehow and render this dam a legitimate target, what we always emphasize is that as an installation that contains dangerous force such as dikes, nuclear power plants, dams, they enjoy an elevated protection status. Not only the dam itself may not be directly attacked. Even the valid, legitimate military objectives situated on or near the dams. They cannot be attacked either when the impact of this destruction would knowingly cause severe losses among the civilian populations, and this is clearly the case with them. So even with that, the proportionality assessment is very much against the attack.

[00:06:14] Janet

It feels that in this case, your analysis of it as a war crime, crime under international humanitarian law kind of shows how absolutely huge and important this is. And we have other people trying to say that we need desperately a crime of ecocide, which I think therefore is kind of for longer term and a different kind of set of crimes. But I’m just trying to get my head around the idea that it’s actually possible in this case, such a huge environmental disaster is already covered, essentially by IHL.

[00:06:56] Daphne Yuqing Liu

IHL covers many aspects of the criminality of such conduct. Since we are not experts in ecocide and this subject matter only comes in our peripheral. So I wouldn’t venture to say whether there is or is not added value for this individual crime. But I would just highlight the fact that we have plenty of tools to deal with the criminality of this conduct, and maybe there is a specific aspect of the ecological damage that’s not sufficiently addressed by the existing rules on human suffering, on excessive incidental damage, on displacement, for example, that can be addressed through this crime of ecocide. And the other thing I would like to mention is that there is such a crime called ecocide with different definition. Of course, under the Ukrainian law. And we are seeing that this is being closely evaluated as a viable means of prosecution under the domestic law.

[00:08:09] Janet

Could you expand on that a little bit? How would that work in Ukrainian domestic law?

[00:08:15] Daphne Yuqing Liu

So we know for a fact that the ecological damage angle is being pursued by the Ukrainian prosecutors as early as the 8th of June. That’s two days after the dam breach. The Eastern District Prosecution Office has opened an investigation in the criminal proceedings for both ecocide in light of the mass massive death of aquatic bio resources. That’s basically the fish. Due to the decreased water levels in the reservoir and also at the same time for violation of laws and customs of war. That’s addressing this kind of destruction as a method of warfare. So this dual approach is somewhat expected since the full scale invasion, Ukraine’s environmental prosecutors have been actively involved in investigations of at least 190 war crimes. That’s alongside the war Crimes unit. So these war crimes are where environments were damaged. And 13 of these investigations were environmental prosecutors were involved, have ecocide listed as a possible prosecution alongside war crimes. So these investigations involves acts such as attacks on oil deposits, shelling of Kharkiv Institute of Physics and technology, where the. Which houses several separate nuclear energy facilities. The destruction of North Crimean Canal, which caused water to flood nearby towns, and settlement, which is kind of similar to the situation we’re looking at here. And cases of dolphin corpse being washed ashore. And of course, attacks on objects of the natural reserve fund. So these are the known investigations where environmental damage is caused by an attack. And we are seeing the dual prosecution of ecocide and war crime.

[00:10:22] Janet

So as you heard there, the attack on the Kakhovka dam could potentially be going to be prosecuted as a war crime. And the prosecutors in Ukraine have already been looking at other environmental disasters resulting from the war through that existing ecocide legislation. The definition of ecocide in the Ukraine context that Daphne touched on their covers. Here’s a quote. “Mass destruction of flora or fauna, pollution of atmosphere or water resources, as well as committing other actions that can cause an environmental catastrophe”.

[00:10:56] Stephanie

So we’re already starting to see how national jurisdictions define ecocide, and they talk a lot about environmental damage. And that term, and what you’re looking at also plays a huge part in the development of the ecocide debate.

[00:11:12] Janet

And from this Ukraine example, we can see that in the context of conflict, international humanitarian law, the one that covers the laws of war, could potentially cover the extensive damage like this Dam as a war crime. But the question kind of comes back to us. Do these national definitions, national ways of looking at things go far enough.

[00:11:33] Stephanie

And beyond as a war crime? Could Ukraine deal with the attack also as a crime against humanity, which would have to be part of a widespread and systematic attack on the civilian population. And how would you look at command responsibility if you look at environmental damage?

[00:11:53] Janet

Yeah, it just raises so many questions. This, which kind of really brings us back to where potentially the ICC, the International Criminal Court, comes in.

[00:12:04] Stephanie

But before we turn to the ICC, let’s take a little break to persuade our listeners to help us with a bit of crowdfunding.

[00:12:11] Janet

Hi. We’re glad that you’re enjoying our podcast.

[00:12:13] Stephanie

We love making it and we do it for almost free.

[00:12:16] Janet

But it does cost us some time and money.

[00:12:19] Stephanie

So if you want to support us, you can do so for as little as a few dollars or euros a month and get even our bonus book club recordings via our Patreon page.

[00:12:28] Janet

Or if you don’t want to be tied down to that monthly payment, you can check out our tip jar over on the website and that’s on the page. How to support us, where you can also make your donation.

[00:12:39] Stephanie

We appreciate all the support we’ve gotten so far, and we’ll let you get back to the episode.

[00:12:44] Janet

So let’s look now at where we are on this potential debate for ecocide to be included as another one of the core crimes in the Rome Statute, which is the governing body which established the ICC. So, Steph, where did this push for a fifth crime come from?

[00:12:59] Stephanie

I did some podcasts about this already, and the big push has come from the NGO Stop Ecocide International, which was started in 2017 by Jojo Mehta and Polly Higgins.

[00:13:11] Janet

So I just have to stop you there before you go any further to say, I met Polly, I think shortly before she died of a very fast cancer. When she came here to The Hague to to speak about her push for ecocide. And I saw her in action as she was telling people about it and her arguments as a legal activist. And she was. Yeah, I mean, hugely impressive and really quite prescient sort of the way that she was positioning the movement. Now, I’ve also just met Jojo Metha last month and goodness, she’s also really impressive and she’s pushing very hard.

[00:13:48] Stephanie

Yeah, she’s everywhere and she’s really taken up Polly’s mantle of making ecocide an international crime. And in 2020, Stop Ecocide convened an independent expert panel made up of human rights experts, former ICC judges and environmental law experts to work specifically on a legal definition of ecocide, which could be used in international law.

[00:14:10] Janet

And in 2021, they produced just that. Their legal definition of ecocide, which was brought forward by the panel, defined it as, quote, “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”. Close quotes. I’ve seen a lot of debate about those individual words like wanton and substantial likelihood. Obviously there’s a lot going on there. So to get a bit more understanding and the inside view, we got in touch with Kate Mackintosh. Kate is the executive director of the Promise Institute for Human Rights at UCLA, and she was deputy chair of the Independent Expert Panel, which came up with this definition of ecocide.

[00:14:56] Stephanie

And, Janet, I understand that with Kate, you were able to get down to the nitty gritty of what having this definition of ecocide is trying to achieve, as well as exactly how the panel navigated trying to incorporate environmental law into international criminal law and the and the kind of boundaries that that has. And to mix these two types of law together.

[00:15:20] Kate Mackintosh

We had the task to come up with the definition specifically for the Rome Statute. So to specifically propose a definition for the amendment of the Rome Statute. And the reason that seemed to be exactly what needed to be done at that moment was. Of course, there have been people talking about ecocide as an international crime for many years. I’m sure you know that it was first mentioned in the 70s in connection with Vietnam. You know, it had a bit of a life, then went somewhat into disuse as a term, was revived very much by Polly Higgins in the UK, as well as by some French lawyers, including ones who participated on our panel. But those developments had all taken place before or when international criminal law was in a very different stage. So by the time we got to 2020, there was a lot of jurisprudence, not just from the ad hoc tribunals, but from the ICC itself. The principles of international criminal law had become much more developed and elaborated. And these previous definitions were not written in that language. They were not written by international criminal lawyers who had been in the system and knew the state of the law at that point. And so it seemed like what we really needed to launch this conversation into a serious dialogue with states and legal advisors and diplomats and international lawyers and academics was a credible definition that was then written in the language of current international criminal law.

[00:16:55] Janet

So how difficult was that then, to come up with an actual definition? I mean, okay, you know, you can you can put it in the the terms that you want that needs to be in in order to start the dialogue, but the actual terms need to be acceptable. So how difficult was that?

[00:17:12] Kate Mackintosh

Speaking as somebody who comes from the international criminal law or humanitarian law background, for example, it was I really had to grapple with this environmental law system, which has no concrete prohibitions. It’s all about process and principle. And to mesh that, to answer your question about how difficult it was, that was the real challenge to bring the regulatory system and the concepts of international environmental law into a criminal law system, which has to, of course, be clear for the principle of legality. There have to be clear prohibitions. You know, it has to be a high standard of fault, etc.. So that was really the work of the panel, and that was the fun of the panel, actually was trying to take concepts from very different legal systems and translate them into something that was credible and workable within international criminal law.

[00:18:02] Janet

Do you think it is actually credible what you came out with? Because I can remember sort of fairly soon after the publication of the definition, there was a kind of big assault on on different words that you’d used and, you know, different elements that were in there. I mean, not an assault to say this is completely wrong, but just questioning whether whether you got it right.

[00:18:24] Kate Mackintosh

Yeah, I think it was quite a small assault actually, but very focused. But yeah, I think we had, you know, people that thought it was fantastic and people that hated it. And I don’t think there were that many in the latter camp. But I think criticisms, at least at that early stage, tend to be around whether the, you know, the threshold was too high or too low, which is something that we struggled with. Of course, in the panel. So on the one hand, there’s the desire to protect the environment, which means that the threshold for wrongdoing should be low. And on the other hand, there’s a kind of realistic understanding of many things. First of all, that this is going to be something that states are going to have to agree. Secondly, that this is going to be something that’s going to have to reflect existing international law standards, otherwise it doesn’t have a chance of survival. We can’t just launch something idealistic that is completely at odds with the way, you know, the international legal system is functioning. And these kind of pressures are pushing for a, you know, for a much higher standard of fault. And balancing those two out was really the struggle of the panel was the central job. So, you know, a low enough standard, a low enough standard to be effective in terms of environmental protection and a high enough standard to meet the requirements of international criminal law. So it cannot be that the, you know, the CEO of a company that is polluting the environment in whatever way is, is unable to know when she or he is crossing the line into criminality. You know, it has to be clear it we have to set a standard which respects the rights of the individuals to know whether they’re behaving according to law or not. So it has to be clear. It has to be defined. It obviously has to be. For an international crime, that standard would have to be quite high. I mean, the level of fault would have to be high. It would have to be known in order to make somebody an international criminal on the same level as somebody who is guilty of genocide or crimes against humanity. On the other hand, that does mean that there will be all sorts of acts which are damaging to the environment that won’t be caught by that definition.

[00:20:34] Janet

So, you know, we touched a bit there on some of the kind of broader criticisms that have come in about it, and it still feels to me that there’s an enormous amount to be defined here. Like what’s the threshold exactly, and how you define what that threshold is of, of when such a crime has actually taken place?

[00:20:57] Stephanie

Yeah, I think it also the term ecocide, of course, is picked to mirror genocide. So you think it has to be the worst of worst. So then do you only pick the absolute worst environmental disasters? And how would you rate that?

[00:21:12] Janet

And the other thing, they seem to put in some stuff into their definition about sort of weighing what the effects of ecocide were in terms of economics for places which might be a way of making sure that this definition is something that works well for for countries in the Global South. I mean, it was I had the sense that they were really balanced from the way that Kate spoke about it. They were really balancing a lot of different interests here.

[00:21:43] Stephanie

And a lot of the eco side debate is also around companies, but the ICC only recognizes individual criminal responsibility. Could that lead to scapegoating of certain people, or do you want this to be more Nation? Do you want this to be more focused on countries or companies? You know, how do how do you fit that in?

[00:22:05] Janet

And we already know that the ICC somewhat feels like it’s quite overburdened and it doesn’t really want to step into any new situation. So how do you make sure the ICC kind of only steps in if a country is unwilling or unable itself? So surely it should be something that really is dealt with at the at the national level. I mean, overall, I still think we have so many more podcasts to do on this because we’ve just got so many more questions that this raises.

[00:22:33] Stephanie

Absolutely. And also, I mean, yes, there is this movement now to add ecocide as a fifth crime to the Rome Statute. But I remember a couple of years ago, there was a policy paper by then prosecutor Fatou Bensouda, where she wanted to really incorporate looking at environmental damage as a part of, of the, of the charges that the court could bring, fitting it into the framework that’s already there of crimes against humanity and war crimes. So do you really need to give it in like a special name and make it a special category of crimes? Or could you slot it into what the ICC already has? And that policy paper seemed to suggest that that’s something you could do. I don’t know what happened with it. And I don’t see.

[00:23:19] Janet

Well, we’ve not seen it’s actually been been been applied anywhere. I mean, it came out. I mean, you can quote from it. I think it was back in 2017, if I remember correctly, that it came out, but we haven’t actually seen that it’s been applied in any sort of charging since then.

[00:23:36] Stephanie

Yeah. So there is a lot of debate and a lot of criticism. And you can wonder whether ecocide actually has a chance of becoming international law, but we are seeing a kind of trickle down effect where ecocide legislation is making its way into national and regional governments. As we said, Ukraine has it on the books. Russia also, surprisingly, has ecocide on the books as a crime. But now other countries are also joining. Most notably, Belgium is said to add the crime of ecocide into its penal code, and the European Parliament’s Committee on Legal Affairs unanimously voted to condemn the crime of ecocide under EU law.

[00:24:17] Janet

So, despite all of the hurdles, because we do know that the ICC sort of changing the statute is not the the easiest thing to do, because it takes up a very large number of states to be able to do that. Maybe having come up with this definition of ecocide, it is actually making an impact already. So I also got Kate’s reaction to to that. And I wondered how all, you know, national level, there are these different definitions being proposed. They are different from those of the of Kate’s sort of body that put it together the IEP. So we spoke also about the way forward for ecocide on the international stage.

[00:25:01] Kate Mackintosh

We were very happy to see national governments or regional organizations like the European Parliament picking up and taking seriously our definition of ecocide. Although, as I said, our original brief was to draft something that would work for the International Criminal Court. It is of course, going to be a lot easier for something to get into the International Criminal Court statute if it’s already in the criminal laws of national bodies, in international criminal law. So, so I think that’s a great development. And I think that, you know, that may very well be the way it moves a lot faster. And in terms of how the different those different national bodies or regional bodies have adapted the definition. And it’s interesting in the European Parliament definition, interestingly, they have lowered the fault level, the mens rea. So where we had a recklessness, they have put criminal negligence, you know, which is interesting. I mean, in my view, a criminal negligence would be too low a mens rea standard for an international crime. But of course, the EU is not proposing an international crime. It would be a national crime, you know? So there’s no reason why that wouldn’t be applicable and relevant to EU member states. But that was interesting because we had conversations about that, because the recklessness standard that we’ve proposed for the ecocide definition is lower than most of the men. At least it’s lower than the standard mens rea, the default mens rea in the Rome Statute, which is set out in article 30, you know, that is a higher mens rea standard, although that’s just the default standard. And the statute makes clear that lower standard is possible and the lower standard appears in various different bits of the statute. But, you know, we were aware that it was lower than the default. We thought that that might, you know, that might attract some criticism or some reluctance on the part of states. At the same time, we thought it was absolutely essential because obviously it’s very, very rare that somebody actually intentionally sets out to damage the environment with their actions. It’s much more going to be the case that they are aware that that’s going to happen and they carry on anyway. So we thought it had to be recklessness standard. That was the only one that really made sense to capture the behavior that we’re trying to criminalize. The fact that the European Parliament has taken a lower standard of criminal negligence might be helpful for the international proposal at the higher level of recklessness.

[00:27:30] Janet

I was wondering kind of looking at this, you have these different ways of trying to change, you know, move international law along. As you say. It’s been kind of bumbling along for a while and then gets a lot of attention to it. And the focus in your case, you know, was very much on the changing of the Rome Statute. Now we see things happening on a national level, potentially. Did anyone ever think about kind of trying to negotiate a treaty and trying to get it changed on on that level, in the same way as we see some other big parts of international law being, you know, going through that whole international. Let’s all chat about it together. Process. Was ecocide ever part of a of a treaty negotiation?

[00:28:22] Kate Mackintosh

I think that would be fantastic. I think our project was to draft a text that would work for the Rome Statute. But that’s not to say that we thought that was the only way forward at all. And there are all sorts of advantages to a treaty negotiation. There are all sorts of disadvantages as well. I think all of these different ways of progressing the idea have their pros and cons. So the national level one that we just discussed is fantastic because it only depends on one state. So it’s a lot easier, you know, to move forward in a way. It also builds up state practice and opinio juris, which very much supports an eventual amendment to the Rome Statute or a new treaty. The disadvantage of a national progress at national level, of course, is that there could be some fragmentation in that the definition may vary from jurisdiction to jurisdiction, which is not ideal. That’s a huge advantage of either the Rome Statute route or the treaty route is that there can be one internationally agreed definition. The treaty route. This has not happened. There is not a treaty being negotiated at the moment, but that would be fantastic. Some advantages are that states who are not party to the International Criminal Court statute might be interested in joining a treaty negotiation, for example, because obviously the Rome Statute is only going to be binding on states who are members of the International Criminal Court system. So the treaty negotiation could open that to states who were not and who might be interested to join. It also could be a lot more detailed. There could be all sorts of other provisions in a treaty about legal cooperation, about lower forms of ecocide that were less serious about the obligations on nationals, national states to investigate or prosecute or extradite and so on, along the lines of the Torture convention or the Crimes Against Humanity convention that’s currently being negotiated. So that would all be fantastic. As for the negatives, I mean, I think it would have been a little odd not to have gone for the Rome Statute. The ICC is there. It does deal with international crimes. If we want to create a new international crime. I think it would be strange not to engage with the Rome Statute system. It also potentially has the advantage, of course, that if it’s if ecocide were to be adopted into the statute, it would then be incorporated into the legal systems of all the states who accepted that amendment. And so it’s a sort of one stop shop. It would have a kind of cascading effect out through states who accepted it in a way, you know, that that would be very helpful. And of course, through the principle of complementarity, those states would be then set up for prosecuting it themselves, all with the introduction of just one clause into the Rome Statute, so it could be faster. It could not. I mean, we don’t know how fast things are going to move at the ICC. I don’t think the ICC has a reputation for lightning speed in terms of amendments to its statute.

[OUTRO TUNE]

Stay safe and enjoy your day.