Law and Disorder
The necessity of an ecocide law and the obstacles on its path
DI MARGERITA CESERANI E MICHELE DANESI
How is the crime of ecocide defined? What can we expect from the worldwide attempt to make it an international crime under the International Criminal Court and what major changes could it prompt? These and other questions were tackled last Thursday in a Hikma Workshop organized in collaboration with the association Stop Ecocidio Italia.
Last week Hikma organised the workshop “Ecocide at the International Criminal Court: a new international crime?” in collaboration with Stop Ecocidio Italia. We had the pleasure to host guests such as Professors Emanuela Fronza and Adán Nieto Martín to describe Ecocide in juridical terms. As this experience has come to an end, we would like to share some thoughts from the insights we received at the conference.
During her intervention, University of Bologna’s Associate Professor Emanuela Fronza dealt with a challenging query about the appropriate tools for codifying enforcement measures against the crime of ecocide. Indeed, a well-articulated legal system should include the definition of applicable sanctions. As she claims in a thoughtful paper, the international legal community doubts as to whether international criminal law can fulfil this role or whether it should be assisted by international economic law. Reflection ensues on the best method of accountability, since in ecological matters there is a shift towards new legal entities, or to say big corporations are deemed as perpetrators and Nature becomes the injured party. To date, criminal law has struggled to identify the penalties to be enforced against economic macro-agents.
Moreover, the problem concerns the intentionality of the misconduct, as a matter a criminal must foresee and intend the act in order to be criminally charged. In this sense, ecocide lawyers would like to admit a broader conception of intent, with an opening to dolus eventualis. As follows, the agent would be pursuing another primary goal, but in doing so he would allow himself the possibilityof conducting the crime and nevertheless pursues the conduct anyway. However, in order to meet this need, international penal law experts argue that it is primarily required to precisely establish a common and widespread understanding of ecocide.
A striking point that was brought up by the Spanish Professor Adán Nieto Martín is the limitedness of a merely retributive approach. Arguably, some of the most impressive achievements that have made the history of the International Criminal Court have come from application of retributive justice procedures that were tailored to specific situations. Prosecuting cases of ecocide, as explained by Nieto Martín, cannot and should not have as a main goal the simple application of a punitive approach targeting a few individuals responsible: it should always aim at the repair of the damage and must take into account corporate responsibility in order to become not only fairer, but also more effective. In an extremely interesting essay published last year [contribution into a publication, downloadable here], Nieto Martín goes through the two main necessities listed above and deepens the argument exposed during this week’s workshop by addressing the importance of the attention to the victims. In other words, the punishment for the crime (whether it is a fine or any other of the possibilities envisioned by the author in the paper) must not affect the capacity of the prosecuted ones to both “pay back” the victims and begin a step-by-step process to repair the damage.
“We are glad we have reached the primary goal of our activity: to involve the younger generations in the debate on the importance to stop long-lasting phenomena such as the most serious environmental crimes. The development of an interactive section of the workshop has provided the students with the possibility to confront a case of ecocide and thus directly approach on a legal perspective a matter that will be dealt with in the future, with their generation on the front line”.
Dani Spizzichino, Stop Ecocidio Italia
“We at Stop Ecocidio Italia believed it is important to stress the key points of the Ecocide debate, most notably the failures of the existing legal structure to adequately deal with the climate and ecological crisis. Remaining cognisant of potential obstacles, we stressed that while there is no optimal legal solution in resolving climate change, the powerful momentum of the Ecocide movement across Europe and beyond was promising in the potential of criminal law’s role. As we argue, the implementation of this law at international and national level isn’t relevant only in the creation of a new crime, but in changing the assumptions and principles that underlie the current legal framework”.
Anna Maddrick, Stop Ecocidio Italia