Criminalizing Ecocide: Is Belgium leading the way?
Elise David
European Law School of Maastricht University, Bachelor's student
Jun 30, 2024
“Ecocide” refers to the mass destruction of the planet by human activities. This term was adopted in the 1970s by the scientist Arthur Galston following the environmental devastation that resulted from the Vietnam War and the use of chemicals as weapons. Since then, scientists have proved the irreversible impacts of human action on the planet and reused the notion of ecocide to define human-induced harm to the environment.
Despite the increasing awareness of the urgent need for action against climate change, few countries in the world have enshrined legislation condemning ecocide as a crime in their national laws. The most recent country to do so is Belgium, which recognized the crime of ecocide in its new penal code in February 2024.
This directive compels Member States to establish a criminal offence that covers situations “comparable to ecocide” in their national law. Other Member States from the European Union have two years to follow Belgium’s example and transpose this measure into their domestic legislation.
Article 94 of the new Belgian penal code defines ecocide as “deliberately committing, by action or omission, an illegal act causing serious, widespread and long-term damage to the environment, knowing that such act causes such damage, provided that such act constitutes a violation of federal legislation or an international instrument binding on the federal government, or if the act cannot be located in Belgium.”
Under this new provision, punishment of severe environmental crimes, such as grave oil spills, will amount to a level 6 sentence: imprisonment from 15 to 20 years for individuals or a fine up to 1.6 million Euros for corporations.
Limits of Belgium’s Ecocide Law
The first shortcoming of this new law is the narrow scope of federal authority in Belgium. Legislative competence over environmental matters is assigned primarily to the three regions: Brussels, Wallonia and Flanders. The competence of the Belgian Federal authority to criminalize ecocide is limited to two concrete cases: environmental damage in the North Sea (extending from the English Channel to the south of Norway) or damage caused by radioactive waste and radiation.
The scope of action to punish ecocide is also significantly circumscribed compared to the recommended definition drafted by the Independent Expert Panel of the Stop Ecocide Foundation, which was inspired by the formulation of Article 7 of the Rome Statute punishing crimes against humanity.
According to Article 94 of the Belgian penal code, an “illegal act” must be committed for a crime to be considered an ecocide. This wording is constraining as there is little legislation on what constitutes an “illegal act” in environmental law both on a national and international level. Creating a provision to criminalize ecocide that rests on existing environmental legislation determining what should be considered an illegal act is arguably ineffective and redundant.
This provision seems to address behaviors already criminalized under other provisions, which might create a grey area where harmful activities fall outside this provision's scope. Moreover, few international instruments contain explicit prohibitions on environmental conduct.
Another limit of this provision is that an offence needs to be committed with a high degree of mens rea: the person must do the act knowing that it will cause severe, widespread, and long-term damage. Proving this knowledge will be very difficult.
Moreover, establishing that the person’s act caused severe, widespread, and long-term environmental harm will also be complex as environmental damages are often the result of a multitude of actions.
The limits of this provision highlight the complicated task of defining what should be considered ecocide in legal terms. Even if enshrining ecocide in a penal code might have a deterrent effect on natural and legal persons who engage in polluting activities, the type and extent of damage encompassed in the definition, and the causal connections between specific actions and environmental damage, are not always clear. This conundrum can lead to the creation of environmental laws that may not effectively address environmental offences.
Only time will tell whether the Belgian law punishing ecocide will hold offenders accountable despite its narrow scope.
Belgium's Commitment to Recognize Ecocide as a Crime under International Law
In addition to criminalizing ecocide on the national level, Belgium also recognized ecocide in its penal code as a fifth international crime alongside war crimes, genocide, crimes against humanity and crimes of aggression. It is the first European country to do so. Samuel Cogolati, a member of the Belgian Green Party who played a major role in pushing the recognition of ecocide in the new penal code, declared that the Belgian penal code was “finally coming to the aid of the planet”.
Recognizing ecocide in the Rome Statute of the International Criminal Court would enable its enforcement as a crime in every jurisdiction upon ratification. Moreover, the Rome Statute mandates that every State must exercise its criminal jurisdiction over those responsible for international crimes. Consequently, wrongdoers could face prosecution in any state that ratified the Statute, irrespective of their nationality or place of residence.
Although international law can be a useful tool to deter countries from engaging in environmentally harmful conduct, it is important to remember that the Rome Statute was only ratified by 123 countries, excluding major powers such as China, the United States, Russia and India. Having national legislation criminalizing ecocide might be a more effective first step to limit the amount of ecocide happening around the world.
Despite an increasing number of States expressing their support for the inclusion of ecocide in the Rome Statute, an amendment would require the approval of two-thirds of the signatory parties.
- Centre for Law and the Environment
