Should Israel Be Held Accountable for “Ecocide”?
A decades-old movement aims to make it an internationally prosecutable
crime.
LYLLA YOUNES
Palestinians are inspecting the damage caused by Israeli bombardment in Al-
Zawayda, central Gaza Strip, on February 22, 2024. Majdi Fathi / AP
This story was originally published by Grist and is reproduced here as part of
the Climate Desk collaboration.
When reports emerged in late December that the Israeli military planned to
pump seawater into the underground tunnel networks used by Hamas
fighters in Gaza, scientists and advocates around the world raised alarm over
the prospect of an environmental disaster. Flooding the tunnels threatened to
permanently salinate the land, making it impossible to cultivate crops.
Seawater could also seep underground and into an aquifer that the majority
of Gazans rely on for water. Palestinian rights groups and protesters around
the world were already accusing the Israeli government of committing
genocide against the Palestinians, with more than 20,000 killed by Israeli
bombings on Gaza since Hamas’ attack on southern Israel last October. Now,
another term has entered the conversation: “ecocide.”
MOTHER JONES TOP STORIES
Advertise with Mother Jones
Broadly defined as the severe, widespread, and long-term destruction of the
environment, ecocide isn’t considered a crime under international law. At the
moment, the only way to prosecute vast environmental destruction
internationally is as a war crime in the International Criminal Court, or ICC,
based in The Hague, Netherlands. But a growing number of countries,
advocates, and legal experts are trying to change that. While some, like
representatives from the island nation of Vanuatu, are motivated by the
escalating climate crisis, and others, like Ukraine, are more interested in
prosecuting environmental war crimes, they ultimately share the same goal:
making ecocide the fifth international crime the ICC could prosecute, along
with crimes against humanity, war crimes, crimes of aggression, and
genocide.
Making ecocide prosecutable by the ICC, “would make clear what we care
about and what we think cannot be left to individual states to regulate.”
Their campaign reached a major milestone in 2021, when a panel of legal
experts worked over six months to create a legal definition of ecocide.
Afterward, a number of countries and the European Union incorporated at
least part of this definition into new legislation, which, experts said, increases
the likelihood that it will eventually be adopted by the International Criminal
Court. While there are plenty of obstacles to making such a law effective,
advocates interviewed for this story said that the symbolic importance could
have far-reaching consequences. Creating a law against ecocide could
eventually force government officials and corporate executives to think twice
before polluting rivers, poisoning the air, or destroying the land.
“It would make clear what we care about and what we think cannot be left to
individual states to regulate,” said Kate Mackintosh, the executive director of
the Netherlands-based UCLA Law Promise Institute Europe, which provides
training for students interested in international law. She explained that to be a
crime under international law, an act must be a violation against not only its
direct victims, but all of humanity. “Destroying our environment has got to be
on that level.”
The term “ecocide” was coined during the Vietnam War after the US military
sprayed more than 90 million liters of Agent Orange and other herbicides
across South Vietnam’s countryside. The chemical’s 20-year half-life can
increase to more than 100 years if it’s buried beneath the soil, and people in
southern Vietnam are still living with its effects more than half a century later.
After visiting the region in the early 1970s and observing the chemicals’
devastating effects, a group of American scientists and legal experts began a
campaign against using herbicide as a weapon of war. Their efforts led to an
executive order by President Gerald Ford in 1975 renouncing the use of
defoliants in future wars and to a UN convention in 1978 prohibiting the
“hostile use of environmental modification techniques.”
Advertise with Mother Jones
But none of these official declarations made ecocide prosecutable as a crime
under international law, experts pointed out, underscoring the significance of
the current campaign to codify it as one.
After the adoption of the UN convention, the movement against ecocide died
down for the next several decades. When it reemerged in the early 2000s, it
was tied to concerns about climate change. A UK-based campaign helmed
by the late lawyer and environmentalist Polly Higgins gained traction at the
ICC’s annual assembly in 2019, when Vanuatu called for the court to consider
recognizing the crime of ecocide. The South Pacific island nation, where sea-
level rise has eaten away coastlines and saltwater has contaminated most
sources of drinking water, is widely considered to be a leader in the global
fight against climate change.
“Israel’s actions in Gaza may constitute “widespread, long-term, and severe”
environmental destruction, but “international law is basically useless” in
stopping the aggressions, one expert says.
Vanuatu’s petition “put ecocide back on the diplomatic table,” said the British
environmentalist Jojo Mehta, who founded the Stop Ecocide campaign with
Higgins in 2017. It was the impetus for that panel of lawyers to convene in
2021 with the aim of developing a legal definition of ecocide that could be
adopted by the ICC. After months of deliberation, they settled on the
meaning of ecocide as “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.”
Mackintosh, who was on the panel, emphasized that this definition allows
prosecutors to pursue legal action simply if they can prove the intent to
cause environmental harm. “The crime is not making the damage happen,”
she explained. “It’s creating substantial risk of that damage.”
Advertise with Mother Jones
This distinction fills an important gap in the ICC’s legal code. The Rome
Statute, the treaty that established the court in 2002, criminalizes
environmental damage under its war crimes statute. Prosecutors must prove
that the damage to the environment is “widespread, long-term, and severe”
—that is, the damage must already be done. But there hasn’t been a single
successful prosecution of environmental crime under this statute, not even in
seemingly clear-cut cases, such as the Russian military’s destruction of the
Kakhovka Dam in southern Ukraine last summer. The hydropower facility,
more than 1 mile long, held back one of Europe’s largest reservoirs, and
when it burst, a torrent of water flooded over 230 square miles, killed scores
of people, and spread chemical pollution across the land.
While there is no clear path for codifying ecocide as a crime under
international law, Mehta said, the campaign has already cleared several
hurdles, particularly with the European Union’s adoption of its own ecocide
law in November. In the coming years, the Stop Ecocide campaign will focus
on getting together an informal group of countries willing to propose a law at
the ICC’s annual assembly. “It’s not really a question of if,” she said. “It’s a
how and a when.”
The campaigners pushing for an international ecocide law have two main
objectives. The first would be to bring specific people, such as the military
officers behind the Kakhovka Dam’s destruction, to justice, because the ICC
requires that defendants be individuals rather than governments or
corporations. That presents some challenges, said Richard Falk, a veteran
legal expert and environmental advocate. (Falk, along with the biologist
Arthur Galston, was the first to use the term “ecocide” in the 1970s.) For
instance, if the ICC wanted to prosecute the fossil fuel giant Shell for
contaminating vast swaths of the Niger Delta with crude oil, it would have to
pin the blame on individuals within the company, rather than on the company
itself. “That would make the proof of intent extremely difficult,” though not
impossible, to establish, Falk said.
The second major objective of an international ecocide law would be to
prevent widespread environmental damage. On this point, experts Grist
spoke to were torn about the effectiveness of an international ecocide law.
For one, prosecuting any crime takes time, during which the environmental
destruction may continue. What’s more, Falk said the ICC has previously
behaved as a “policy instrument” of Europe and the US and often votes with
the flag rather than the law. In a case like the war in Gaza, countries might
defend their diplomatic allies rather than trying to judge their guilt or
innocence in good faith, he said.
Advertise with Mother Jones
“The impact of this kind of decision, even if it’s not enforced, does have a
legitimating and mobilizing effect on civil-society activism.”
Rob White, a professor of criminology at the University of Tasmania who has
written extensively about ecocide, wrote in an email that he agreed with this
perspective, adding that “one could well argue” that Israel’s actions in Gaza
fit the existing Rome Statute’s standard of “widespread, long-term, and
severe” environmental destruction. “However, as the genocide unfolding in
Gaza also illustrates, international law is basically useless” in stopping the
ongoing aggression, he said.
All four of the ecocide experts interviewed for this story said that Israel’s
actions in Gaza could plausibly fit the definition of ecocide, as determined by
the panel. Evidence of immense environmental devastation is everywhere in
the Gaza Strip, from the razing of farm lands with heavy machinery to the use
of white phosphorus on porous soil. The Israel military confirmed in late
January that it had started flooding underground tunnels with seawater,
raising fears that it will contaminate the main source of drinking water for the
strip’s 2 million people.
While Mehta acknowledged that it would be difficult to stop acts like these
even with an ecocide law in place, she is optimistic that the law would have a
deterrent effect. She offered the example of the United Kingdom’s Children
Act of 1989, which made it illegal for parents to hit their children, helping to
turn a once acceptable behavior into a taboo. The law has “actually got a
kind of cultural force to it, which I think is super, super important,” Mehta
said.
The experts Grist interviewed insisted that an ecocide law would, at the very
least, serve an important symbolic purpose.
“The impact of this kind of decision, even if it’s not enforced, does have a
legitimating and mobilizing effect on civil-society activism,” Falk said. He
pointed to his and scientists’ efforts after the Vietnam War, which led to
Ford’s executive order and the UN declaration that effectively made the use
of Agent Orange taboo. “It’s the most you can expect from the law,” he said.
|
|