Main image: Kakhovsky reservoir; the texture of the dried-up bottom of the lake, taken June 2023
Final stage negotiations are underway on the inclusion of ecocide-level crimes in the European Union’s revised crime directive.
Following a historic unanimous Legal Affairs Committee vote in March 2023, the European Parliament officially declared its support of the inclusion of ecocide-level crimes into the European Union’s revised Directive on protection of the environment through criminal law.
The text approved by the Parliament states that ‘Member States shall ensure that any conduct causing severe and either widespread or long-term or irreversible damage shall be treated as an offence of particular gravity and sanctioned as such in accordance with the legal systems of the Member States’.
This closely follows the international definition drafted by an independent panel of experts in 2021.
This is the first time that such a definition has been included in a legislative text at the European level.
Over the coming months representatives from the European Parliament, Council and Commission will engage in a consultation process known as ‘trilogue’ negotiations, with a final vote due to take place at the beginning of October this year.
In an open letter, Stop Ecocide International, We Move Europe and Avaaz are urging European Justice Ministers to take note of the 600,000 signatures gathered on the issue and advocate for the inclusion of a crime that punishes the gravest harms to the environment, as defined in the European Parliament’s recommended text. If the proposal is approved, the EU would take a leading role for the recognition of the gravest environmental crimes at the international level.
Outside the EU, both Ukraine and Russia are among the growing number of countries which formally recognise the crime of ecocide in domestic legislation.
The breach of the Kakhovka Dam in southern Ukraine has already had severe ecological consequences and been repeatedly referred to as ecocide.
Sewage has spilled into the streets lining the Dnipro, washing away rich topsoil from farmland in the region.
Upstream, the sudden drainage of the reservoir could rapidly change the ecosystem in a process of desertification.
There is also the long-term danger posed to Europe’s biggest nuclear plant, Zaporizhzhia, which could suffer critical damage to its cooling systems if the dam is significantly depleted.
From damage assessed so far, it appears that the destruction of the Kakhovka Dam could fit the definition of ecocide outlined in Ukraine’s domestic penal code and could also potentially be addressed using international humanitarian law in Ukrainian courts or through the Rome Statute of the International Criminal Court’s clause on environmental harm in wartime.
‘It is timely and wholly appropriate for the EU to support inclusion of ecocide-level crimes into its revised Directive on protection of the environment through criminal law. The EU Parliament has shown leadership, foresight and, indeed, solidarity with the many vulnerable nations and communities suffering the effects of ecocide. We trust that all EU agencies will recognise this text for the essential safeguard that it is and work out how to welcome it into EU law.”
‘Ukraine has strongly supported this direction of travel, pushing in the Council of Europe for recommendation to all 46 member states to legislate for ecocide and support establishment of a standalone international crime.
‘The destruction of the Kakhovka dam in Ukraine is devastating. Ukraine will certainly want to prosecute under existing (if limited) provisions, which can be found both in its own domestic laws and in various parts of the Rome Statute, including the dedicated war crimes clause on environmental harm.
‘It is notable, however, that environmental damage in wartime is largely perceived as “incidental” by aggressors, historically and still today. It is essential therefore to recognise ecocide as a crime in its own right.”
Co-founder and executive director of Stop Ecocide International
Incorporating ecocide legislation into the European Crime Directive would represent a substantial stride towards globally acknowledging ecocide as a stand-alone crime, applicable during both peacetime and conflict.
Advocates contend that this move will serve as a more potent deterrent against severe environmental damage.
‘It is greatly encouraging that the European Union is taking the concept of ecocide seriously. As with genocide and crimes against humanity in 1945, the global community is today faced with a new kind of threat: severe and widespread or long-term damage to the environment, of a kind that breaches existing legal obligations and corresponds to the emerging concept of ecocide.’
PROFESSOR PHILIPPE SANDS KC
International lawyer and writer, co-chair of the Independent Expert Panel for the Legal Definition of Ecocide