ELI Report should Inspire Africa into Speedy Action Against Ecocide

By Daniel Otunge

In another clear sign that Ecocide is inching closer to becoming the 5th international crime under the Rome Statute of the International Criminal Court (ICC), the European Law Institute (ELI) recently published the final outcome of its project on Ecocide.

The report dubbed ELI Report on Ecocide: Model Rules for an EU Directive and a Council Decision is timely, given the ongoing legislative developments at the international and national levels, aimed at ensuring the prevention of the most serious environmental crimes.

The report improves the proposed legal definition of the proposed crime of ecocide in two key areas. First, by proposing that the objective element of a crime (actus reus or action)) must consist of typified behaviour, that is (1) behaviour which European Union law has identified as unlawful and dangerous for the environment; (2) behaviour which results or is likely to result in severe damage, which is also long-term, or in severe damage, which is also irreparable or irreversible.

This approach to the actus reus lends itself to incorporation in the proposed directive on the protection of the environment through criminal law, is compatible with the legal basis of Article 83(2) of the Treaty on the functioning of the European Union and does not raise doubts about compatibility with the principle of legality which an unadulterated version of the definition proposed by the Independent Expert Panel chaired by Philippe Sands QC and Dior Fall Sow for inclusion in the Rome Statute might well have raised.

The independent panel convened by the Stop Ecocide Foundation, proposed the following definition for inclusions into the Rome Statute: “… 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.”

Secondly, it makes criminal law principles effectively applicable in the matter by proposing that, for the purpose of determining mens rea, a person has intent where, in relation to conduct, that person means to engage in that conduct, and, in relation to a consequence, that person means to cause the consequence, or is aware or could not be unaware of the substantial likelihood that it may occur.

The standard of proof required equates to recklessness or the legal principle of dolus eventualis, that is, a form of intent demonstrated if a person foresees the possibility of a prohibited consequence of his actions and continues with the action, thereby accepting and approving of the potential outcome if it occurs.

In addition, the Report clarifies that “the circumstances when an authorisation by a relevant public authority is unlawful, and therefore ineffective, include circumstances where the authorisation authorises conduct constituting the crime of ecocide or was obtained fraudulently, by coercion or through corruption. A person engaged in conduct which constitutes the crime of ecocide will not be relieved of criminal liability where the authorisation was unlawful. Moreover, where an authorisation is lawful but the holder of the authorisation does not comply with all specific obligations of that authorisation or with other relevant obligations not covered by the authorisation, the holder of the authorisation can still be liable for the crime of ecocide.”

Significantly, the ELI Report (here)contextualizes the debate about the criminalization of ecocide by providing an overview of other initiatives in the field, both at national and international levels. It also draws attention to the growing political support for recognizing ecocide as a crime.

It is hoped that this report will inspire the Africa Union to speed up its decisions on the ongoing global push to criminalize ecocide through the Rome Statute, AU regulations and national legislative developments throughout the continent.

Internationally, several countries, including France, Ukraine and Russia, have already codified aspects of ecocide as a crime. For example, the French Climate & Resilience Act provides for a 10-year jail term for serious environmental offenses.

As an international crime, Ecocide law will not only reduce corporate immunity by punishing their environmentally destructive actions, but it will also help to protect the rights of current and future generations.

In Kenya, for example, Article 42, as read together with Article 70 sub-article (1), protects the rights of present and future generations to a clean and healthy environment, and they can seek enforcement of those rights through the court.

These constitutional rights are implemented through Section 3 of the Environmental Management and Coordination Act (EMCA 2012). Subsection (1) states that every person in Kenya is entitled to a clean and healthy environment and has the duty to safeguard and enhance the environment.

Kenya, being the global headquarters of the United Nations Environment Program (UNEP), should lead other African states in recognizing Ecocide as a crime in two ways. First, by ratifying (if it has not done so) the proposal to amend the Rome Statute to accommodate Ecocide as the 5th international crime, and, second, by amending the EMCA 2012 to include Ecocide law.

The writer is an expert in climate change, environment & biodiversity laws.

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