Ecocide Developments
by Vansh Arora Guided and Edited by Dr Linda S Spedding (c)
The urgent need to challenge traditional mechanisms for punishing environmental harm is underscored by recent catastrophic events that have inflicted severe ecological damage. The ongoing conflict in Gaza has led to unprecedented levels of soil, water, and air pollution, significantly harming the local environment and public health. Reports indicate that the destruction of infrastructure and ecosystems has rendered large areas uninhabitable, with long-term implications for both human and ecological resilience. Similarly, the war in Ukraine has not only resulted in a humanitarian crisis but has also caused extensive environmental degradation, including chemical pollution and habitat destruction, raising concerns about the military's ecological footprint. Additionally, the BHP Samarco disaster in Brazil highlights the devastating consequences of corporate negligence, leading to loss of life, displacement of communities, and irreversible ecological harm. These incidents collectively emphasize the failure of current mechanisms to deter activities that have the possibility of causing environmental harm and showcase a necessity for robust legal frameworks for the purpose of holding corporations and state actors accountable for large scale environmental damage. These incidents starkly illustrate the failure of existing legal mechanisms to deter activities that pose significant risks of environmental harm. They underscore the urgent need for robust legal frameworks that can hold corporations and state actors accountable for large-scale ecological damage.
The traditional view of environmental harm is being challenged and prioritised with the recognition of ecocide by the European Union. A term that has been at the centre of environmental discourse for some time and more so recently, ecocide is best defined through its purpose - the criminalisation of environmental harm. Through the lens of the BHP Samarco Class action suit, this essay seeks to justify the introduction of ecocide into the international environmental framework. After a brief introduction to the facts of the Fundao dam disaster, this essay dives into why a new and more enlightened approach is necessary to tackle disastrous environmental harm. Thereafter, it addresses the appropriateness of criminalisation as a means to achieve the same, and assesses ecocide and corporate manslaughter as possible alternatives.
For the purpose of this essay, the focus is only on large ecological disasters. Therefore, the impact of ecocide, if any, on damage caused by small actors is not assessed within the scope of this paper.
BHP Samarco
The BHP Samarco Class Action arises out of the Fundao Dam collapse in Brazil. The dam had been built by BHP and operated by Samarco (a joint venture between BHP and Vale) when it collapsed in 2015. This directly caused nineteen human deaths, destroyed 80% of native vegetation near the tributaries and main channel of the Doce river, and led to the deaths of nearly 29,000 marine animals. The accumulated socio-environmental damage is estimated to be between 6.73 billion and 10.85 billion dollars.
Ecological damage at this scale is not uncommon. The Romanian cyanide spill, Ivory Coast’s toxic waste dumping and BP oil spill in the Gulf of Mexico are just some examples of major ecological disasters in the 21st century.
Failures of the traditional mechanisms
Monetary compensation, injunctions and sanctions are all terms synonymous with environmental harm proceedings. The established system treats environmental damage as a civil wrong, and compensates accordingly. This may partly be attributable to the human-focussed approach of traditional environmental law. The focus was on appropriate resource distribution instead of resource management for the long term. This focus shifted in the 1970s, with the recognition of environmental preservation and the protection of biodiversity as being useful in and of themselves. However, there was no change in the manner in which countries and companies were held responsible for ecological harm.
It would be incorrect to say that environmental law has not progressed since the 1970s - several protocols, treaties and court opinions have led to the development of international environmental law. Countries are recognising their responsibilities towards the environment, with many local targets and initiatives in place. Additionally, environmental organisations have been successful in mobilising the public - exerting pressure through voting trends, or consumption habits. However, the prevalence of ecological disasters in the 21st century indicates that there is room - indeed a need - for development of international environmental law. Some improvements are being made – in 2024, the European Court of Human Rights used the breach of EU regulation related to Climate Change to find that the Swiss government breached the citizens’ Article 8 European Convention on Human Rights (ECHR) right to respect for private and family life. However, a more universally applicable solution is required to effectively address large-scale environmental harm.
Criminalisation as the solution
The clear impact of criminalisation is stigmatisation of the prohibited activities. The term criminal represents an individual that has committed a grave harm against another or against society at large. The stigma associated with the criminal law makes the reintroduction of convicted criminals into society often extremely difficult. Difficulty in finding work and a sense of fear amongst friends and neighbours, are a few examples of the form this stigma takes for individuals.
A second factor to consider is the enhanced individual awareness to corporate Environmental and Social Governance (ESG). This is a defining feature of the 21st century. Many individuals and groups have committed to making sure large corporations are held accountable for the environmental and social harm that they have caused, regardless of whether there are any legal proceedings or consequences for the company. This has influenced consumption trends. As such, it has become prudent and effective for corporations to engage in socially responsible practices. This has taken the form of commitments to zero carbon footprint by technology companies such as Apple, sustainable fashion initiatives by fashion companies, and the issuance of ESG statements by banks and law firms highlighting their contributions to society.
The following illustrations demonstrate how reputational damage can impact a Company’s profits:
Therefore, damage to the company in terms of reputational damage and monetary losses could be severe. This can have two possible impacts on general corporate practice:
The possibility of enhanced reputational damage would almost force directors and managers to be proactive and undertake detailed research into the existing local and international laws and conduct thorough due diligence on environmental impact prior to commencement of a project. An Environmental Impact Assessment (EIA) provides vital insights into the extent of environmental damage and potential long-term consequences. It identifies areas of ecological significance and assesses risks associated with a project, including their likelihood and potential environmental impacts. Companies and Governments rely on this information to make informed decisions regarding environmental risk management. Currently, many companies only conduct EIAs when legally mandated. However, with the threat of criminalisation and heightened reputational damage, companies are incentivised to conduct EIAs regularly and effectively because they need to understand if there is a risk of environmental harm. The key difference would be where the environmental impact report states that there is a chance of a devastating environmental disaster. Whereas prior to criminalisation, the company would weigh the risk to the environment against their own personal gain, with the introduction of ecocide, the environment and the Company become linked. A risk to the environment implies a risk to the reputation of the company, which makes the factors to be assessed completely different to the current scenario. This acts as an effective deterrent against activities that may cause devastating harm.
Alternatively criminalisation would empower the public to avoid corporations found guilty of ecocide, and to actively protest against the award of any government contracts to such companies in the future. Ideally, the public can act as soon as a project is suggested or proposed. Using information from experts and from the environmental impact report, they can exert pressure on the corporations and the government, if there is even a chance of an ecological disaster. This again has direct negative impacts for the corporation and for the ruling parties.
Ecocide or Corporate Manslaughter
Ecocide criminalises activities that lead to environmental harm. In order to qualify as ecocide, there is scholarly agreement that this harm must meet the threshold of ‘disastrous or devastating.’ This definition is useful for dealing with the large-scale environmental disasters of the level of BHP Samarco. Another option is to strengthen pre-existing rules around Corporate Manslaughter. Ecocide is more appropriate as a long term solution for the following reasons:
Arguments against ecocide
Ecocide is still a developing concept despite the fact that it has been the subject of extensive lobbying for several years. The boundaries of what the term encompasses are yet to be clarified. The current scope of Ecocide, as supported by the European Parliament, is for the criminalisation at an international level of damage caused to the environment during or as a result of armed conflict. Although it is a good starting point, it is clear this is a very narrow definition. This essay supports a wider definition of ecocide, criminalising devastating environmental damage caused whether in times of peace or war.
The lack of clarity in ecocide law is a big impediment since it makes outcomes unpredictable. The terms devastating or disastrous seem self-explanatory but are subjective and open to interpretation. Firstly, clarity is required to understand what harms can be considered when deciding whether this threshold is met. Specifically, whether the harm to be considered is the scale of instantaneous harm, or harm caused over the course of several years. Using the Fundao dam disaster as an example, the scale of the damage to local flora and fauna, coupled with the loss of life, makes it clear that the threshold would have been met in 2015, when the dam collapsed. However, had the case been that there was slow dumping of the mud into the river over the course of several years, leading to similar scale damage to the environment, would the harm be calculated on a collective basis? To what extent can any mitigation activities be considered when calculating the threshold? Issues related to causation and mens rea, are all questions that must be answered for proper deployment of ecocide at the international level.
On the other hand, the risk with ecocide is the possibility of over-criminalisation. Civil remedies exist to guarantee rights in order to support the already over-worked criminal justice system. General policy used by most legal systems is to use criminalisation as a last resort. The stigma associated with criminal law and the psychological and emotional harm to those convicted, coupled with the lifelong consequences of having the label ‘criminal’, makes this approach necessary. A possible argument against ecocide is that the civil law is more than sufficient to address environmental problems, and therefore using the criminal law is just a form of over criminalisation. This argument is addressed through the introduction of a high qualifying threshold of devastating harm, and historic evidence indicating that despite a robust civil redressal system for global environmental harms, it has proved ineffective to curb environmental disasters particularly in times of war.
Conclusion
Stigmatisation and higher global awareness of BHP’s activities would have probably led to a greater public response, and would have stopped some of the other unscrupulous business activities of BHP such as its continuous violation of the rights of indigenous communities in Chile.
Ecocide as a concept requires more legal, academic and scientific discourse to appropriately address the problems that the environment is currently facing. It is a step in a positive direction to recognise harm to the environment in this manner, and if implemented suitably, should reduce violations of international environmental law. Ecocide must exist to support the existing international environmental law framework, and complement it in the same way that Civil and Criminal Law complement one another to assist individuals in protection of their interests and rights.
The scope of the term should be expanded beyond armed conflicts, but should only apply when the threshold of devastating and damaging ecological harm is met. This ensures that the criminal law is not unnecessarily used, and at the same time, the rights of nature are protected, which is a priority for international law at this time.
The traditional view of environmental harm is being challenged and prioritised with the recognition of ecocide by the European Union. A term that has been at the centre of environmental discourse for some time and more so recently, ecocide is best defined through its purpose - the criminalisation of environmental harm. Through the lens of the BHP Samarco Class action suit, this essay seeks to justify the introduction of ecocide into the international environmental framework. After a brief introduction to the facts of the Fundao dam disaster, this essay dives into why a new and more enlightened approach is necessary to tackle disastrous environmental harm. Thereafter, it addresses the appropriateness of criminalisation as a means to achieve the same, and assesses ecocide and corporate manslaughter as possible alternatives.
For the purpose of this essay, the focus is only on large ecological disasters. Therefore, the impact of ecocide, if any, on damage caused by small actors is not assessed within the scope of this paper.
BHP Samarco
The BHP Samarco Class Action arises out of the Fundao Dam collapse in Brazil. The dam had been built by BHP and operated by Samarco (a joint venture between BHP and Vale) when it collapsed in 2015. This directly caused nineteen human deaths, destroyed 80% of native vegetation near the tributaries and main channel of the Doce river, and led to the deaths of nearly 29,000 marine animals. The accumulated socio-environmental damage is estimated to be between 6.73 billion and 10.85 billion dollars.
Ecological damage at this scale is not uncommon. The Romanian cyanide spill, Ivory Coast’s toxic waste dumping and BP oil spill in the Gulf of Mexico are just some examples of major ecological disasters in the 21st century.
Failures of the traditional mechanisms
Monetary compensation, injunctions and sanctions are all terms synonymous with environmental harm proceedings. The established system treats environmental damage as a civil wrong, and compensates accordingly. This may partly be attributable to the human-focussed approach of traditional environmental law. The focus was on appropriate resource distribution instead of resource management for the long term. This focus shifted in the 1970s, with the recognition of environmental preservation and the protection of biodiversity as being useful in and of themselves. However, there was no change in the manner in which countries and companies were held responsible for ecological harm.
It would be incorrect to say that environmental law has not progressed since the 1970s - several protocols, treaties and court opinions have led to the development of international environmental law. Countries are recognising their responsibilities towards the environment, with many local targets and initiatives in place. Additionally, environmental organisations have been successful in mobilising the public - exerting pressure through voting trends, or consumption habits. However, the prevalence of ecological disasters in the 21st century indicates that there is room - indeed a need - for development of international environmental law. Some improvements are being made – in 2024, the European Court of Human Rights used the breach of EU regulation related to Climate Change to find that the Swiss government breached the citizens’ Article 8 European Convention on Human Rights (ECHR) right to respect for private and family life. However, a more universally applicable solution is required to effectively address large-scale environmental harm.
Criminalisation as the solution
The clear impact of criminalisation is stigmatisation of the prohibited activities. The term criminal represents an individual that has committed a grave harm against another or against society at large. The stigma associated with the criminal law makes the reintroduction of convicted criminals into society often extremely difficult. Difficulty in finding work and a sense of fear amongst friends and neighbours, are a few examples of the form this stigma takes for individuals.
A second factor to consider is the enhanced individual awareness to corporate Environmental and Social Governance (ESG). This is a defining feature of the 21st century. Many individuals and groups have committed to making sure large corporations are held accountable for the environmental and social harm that they have caused, regardless of whether there are any legal proceedings or consequences for the company. This has influenced consumption trends. As such, it has become prudent and effective for corporations to engage in socially responsible practices. This has taken the form of commitments to zero carbon footprint by technology companies such as Apple, sustainable fashion initiatives by fashion companies, and the issuance of ESG statements by banks and law firms highlighting their contributions to society.
The following illustrations demonstrate how reputational damage can impact a Company’s profits:
- Starbucks UK: In 2012 it was revealed that Starbucks pays no tax in the UK even though they made 3 billion pounds in sales. They were engaging in tax avoidance schemes. As a result, Starbucks faced backlash from customers and was faced with protests by an anti tax avoidance group, UK Uncut. As a result of this backlash, Starbucks’ reputation was so significantly under threat that they believed a 20 million pound payment to the Treasury was deemed to be less expensive than the possible loss in profits as a result of this reputational harm and impact.
- Pret A Manger: In 2018, a 15 year old girl died due to suffering from a severe sesame allergy. The presence of sesame was not stated in the label of the food product. Even though there was no legal obligation to do so, their reputation was impacted. To avoid further loss, they had to invest in a complete overhaul of the labelling standards and re-labelling of the products already on shelves.
Therefore, damage to the company in terms of reputational damage and monetary losses could be severe. This can have two possible impacts on general corporate practice:
The possibility of enhanced reputational damage would almost force directors and managers to be proactive and undertake detailed research into the existing local and international laws and conduct thorough due diligence on environmental impact prior to commencement of a project. An Environmental Impact Assessment (EIA) provides vital insights into the extent of environmental damage and potential long-term consequences. It identifies areas of ecological significance and assesses risks associated with a project, including their likelihood and potential environmental impacts. Companies and Governments rely on this information to make informed decisions regarding environmental risk management. Currently, many companies only conduct EIAs when legally mandated. However, with the threat of criminalisation and heightened reputational damage, companies are incentivised to conduct EIAs regularly and effectively because they need to understand if there is a risk of environmental harm. The key difference would be where the environmental impact report states that there is a chance of a devastating environmental disaster. Whereas prior to criminalisation, the company would weigh the risk to the environment against their own personal gain, with the introduction of ecocide, the environment and the Company become linked. A risk to the environment implies a risk to the reputation of the company, which makes the factors to be assessed completely different to the current scenario. This acts as an effective deterrent against activities that may cause devastating harm.
Alternatively criminalisation would empower the public to avoid corporations found guilty of ecocide, and to actively protest against the award of any government contracts to such companies in the future. Ideally, the public can act as soon as a project is suggested or proposed. Using information from experts and from the environmental impact report, they can exert pressure on the corporations and the government, if there is even a chance of an ecological disaster. This again has direct negative impacts for the corporation and for the ruling parties.
Ecocide or Corporate Manslaughter
Ecocide criminalises activities that lead to environmental harm. In order to qualify as ecocide, there is scholarly agreement that this harm must meet the threshold of ‘disastrous or devastating.’ This definition is useful for dealing with the large-scale environmental disasters of the level of BHP Samarco. Another option is to strengthen pre-existing rules around Corporate Manslaughter. Ecocide is more appropriate as a long term solution for the following reasons:
- High threshold for holding Directors liable: Considering directors’ duties under the common law, individual directors may be prosecuted for gross negligence manslaughter if their actions or inactions can be proven to constitute a gross breach of duty of care to an employee or the public. However, establishing this liability is difficult, as it requires proving that the director's negligence was "gross" and that it directly caused a death, which is a high threshold that has historically resulted in few convictions.
- Complexity of Corporate Structures: The requirement to identify a "controlling mind" within a corporation complicates prosecutions. In large organizations, decision-making is often dispersed across various levels, making it difficult to pinpoint an individual whose negligence can be directly linked to a disaster. This issue was evident in cases like the Southall rail crash, where the prosecution failed to establish the necessary culpability within the corporate hierarchy. Directors have a duty to ensure that their organizations comply with health and safety regulations. In the UK, under the Health and Safety at Work Act 1974, directors can be held liable if they consented to or neglected unsafe practices leading to workplace deaths. However, the interpretation of this duty often hinges on the degree of control and responsibility a director has over the organization’s operations. This can lead to a situation where directors in larger organizations, where responsibilities are diffused, may escape liability due to the complexity of corporate governance structures.
- Focus on Direct Fatalities: The Corporate Manslaughter and Corporate Homicide Act 2007 primarily addresses cases resulting in death. This focus excludes many environmental disasters that, while catastrophic, do not lead to immediate fatalities but cause long-term harm to communities and ecosystems. For instance, incidents like oil spills or chemical leaks can have devastating health effects without directly causing deaths, thus falling outside the purview of corporate manslaughter laws. This means that there is an unfortunate lack of accountability in this context in the absence of death.
- Penalties and Enforcement: The penalties for corporate manslaughter typically involve fines rather than imprisonment, which may not serve as a sufficient deterrent for large corporations. The lack of personal liability for corporate executives can lead to a culture of impunity, where companies may prioritize profit over safety and environmental responsibility .
Arguments against ecocide
Ecocide is still a developing concept despite the fact that it has been the subject of extensive lobbying for several years. The boundaries of what the term encompasses are yet to be clarified. The current scope of Ecocide, as supported by the European Parliament, is for the criminalisation at an international level of damage caused to the environment during or as a result of armed conflict. Although it is a good starting point, it is clear this is a very narrow definition. This essay supports a wider definition of ecocide, criminalising devastating environmental damage caused whether in times of peace or war.
The lack of clarity in ecocide law is a big impediment since it makes outcomes unpredictable. The terms devastating or disastrous seem self-explanatory but are subjective and open to interpretation. Firstly, clarity is required to understand what harms can be considered when deciding whether this threshold is met. Specifically, whether the harm to be considered is the scale of instantaneous harm, or harm caused over the course of several years. Using the Fundao dam disaster as an example, the scale of the damage to local flora and fauna, coupled with the loss of life, makes it clear that the threshold would have been met in 2015, when the dam collapsed. However, had the case been that there was slow dumping of the mud into the river over the course of several years, leading to similar scale damage to the environment, would the harm be calculated on a collective basis? To what extent can any mitigation activities be considered when calculating the threshold? Issues related to causation and mens rea, are all questions that must be answered for proper deployment of ecocide at the international level.
On the other hand, the risk with ecocide is the possibility of over-criminalisation. Civil remedies exist to guarantee rights in order to support the already over-worked criminal justice system. General policy used by most legal systems is to use criminalisation as a last resort. The stigma associated with criminal law and the psychological and emotional harm to those convicted, coupled with the lifelong consequences of having the label ‘criminal’, makes this approach necessary. A possible argument against ecocide is that the civil law is more than sufficient to address environmental problems, and therefore using the criminal law is just a form of over criminalisation. This argument is addressed through the introduction of a high qualifying threshold of devastating harm, and historic evidence indicating that despite a robust civil redressal system for global environmental harms, it has proved ineffective to curb environmental disasters particularly in times of war.
Conclusion
Stigmatisation and higher global awareness of BHP’s activities would have probably led to a greater public response, and would have stopped some of the other unscrupulous business activities of BHP such as its continuous violation of the rights of indigenous communities in Chile.
Ecocide as a concept requires more legal, academic and scientific discourse to appropriately address the problems that the environment is currently facing. It is a step in a positive direction to recognise harm to the environment in this manner, and if implemented suitably, should reduce violations of international environmental law. Ecocide must exist to support the existing international environmental law framework, and complement it in the same way that Civil and Criminal Law complement one another to assist individuals in protection of their interests and rights.
The scope of the term should be expanded beyond armed conflicts, but should only apply when the threshold of devastating and damaging ecological harm is met. This ensures that the criminal law is not unnecessarily used, and at the same time, the rights of nature are protected, which is a priority for international law at this time.