THE CASE OF CRIME AGAINST NATURE: ECOCIDE
By: Aneesha Gogoi
In the recent course of works on environmentalism, a series of international media got deeply divulged into the subject matter associated with the criminalization of ECOCIDE. As such, the Independent Panel of Experts had released its proposed definition of the crime in June 2021 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.” The panel was observed to have identified the need for the inclusion of Ecocide within the ambit of international criminal and environmental law, wherein ecocide was proposed as a stand-alone crime, thereby joining genocide, crimes against humanity, war crimes, and the crime of aggression as the fifth crime in the Rome Statute of the International Criminal Court (ICC). As such, the inclusion of Ecocide was believed to enable an effective collaborative legal framework, forged for the promotion of change of consciousness, which will then encourage environmental protection and conservation. In this respect, when seen through the Indian lens, building a consensus regarding the inclusion of ecocide within the Indian legal frameworks tends to leave out many minuscule considerations regarding the rights as well as the question of building a space for negotiation amongst the concerned stakeholders. Hence, the work presented here, basically attempts to problematize the operationalization of ecocide in a developing country like India. Herein, the argument on whether insertion of ecocide in the sphere of Indian legal system, given the disproportionate form of existing power dynamics amongst diverse stakeholders and further, the underlying process of negotiation for its execution, will form the main point of interest in this work.
The main crux that drove the need to accomplish the criminalization of ecocide was based on the observation, wherein it was identified that, the transitions that a society goes through historically, tends to have an inherent impact over the manner in which ecological transformations take place. These forms of ecological transformations, however were seen to be in the form of illegal or wanton environmental degradation. Take for instance, the transformations of pasture fields into private lands, that invariably involved deforestation owing to the reckless enforcement of industrialization, capitalism and technological advancements, which in fact, also furthered the increasing levels of pollution, therefore, having negative implications on the environment. The extremity of the concerned issues was realised when, over the years, a culmination of all these instances of environmental degradation were identified to have induced certain negative impacts discerned through, for instance, the increasing cases of environmental refugees. To this, one of the schools on environmentalism alleged, historical transformations with the dominant hegemonic structures, of masculinity, racism, industrialisation and military, to be responsible for the perpetration of violence over the environment. Arguments such as these, brought to the fore the question on the continual phenomenon of environment degradation that induced the need to focus towards cultural foundations of ecocentrism and environmental justice movements, so that they could find a space for its narrativization into public environmental policies as well as socio-ecological governance frameworks.
As with regards to the social-structural characteristics through which environmental entities got determined, when seen in the context of the profit-oriented society of the modern world, there was promotion towards a lifestyle that recklessly put impetus towards the extraction and exploitation of natural resources for its own use. This enforced, what came to be known as the, ‘humanization of the nature’. These sort of shaping the environment to meet human needs and conveniences has indicated negative implications over the, so-called, less advanced societies that rather depend upon a mutual relationship with the natural world. As humans, we have an inherent deep association with the environment, but continue to be extremely ignorant about it, where our arrogant actions force dominance over environmental resources. This has implications over ecological crisis precipitating both globally and locally without any concrete resolution, thereby leaving the world extremely violent and alienating. Moreover, given the varied forms in which ecological destruction tends to manifests itself, several questions have been flagged regarding the interpretations over the idea of ‘extensiveness’ (in terms of scale) of the destruction that ecology can bear.
The increasing levels of environmental degradation with each passing decade and the society’s ignorance towards this problem can find its echo in Ulrich Beck’s thesis on ‘risk society’. Beck in his writing on ‘Living in the world risk society’, posits how the narrative of risk is basically a narrative of irony, wherein the highly developed institutions of modern society- science, state, business and military- attempts to anticipated what cannot be anticipated. Beck argued that a wilful ignorance of world risk society furthers risk in the reality, and that ignorance of the globalization of risk increases this globalization of risk. The irony of the risk is that, while we often believe the future risk to be anticipated and controlled through experiences of the past, in reality, however, it may not be so, that risks are actually incalculable and unpredictable. Thus, making risk ambivalent in nature.
When the natural world gets manipulated by the social world’s hegemonic forces for its own needs, the result has always been in the form environmental crisis. A phenomenon of this sort justifies the argument that asserts the environmental conditions having an inherent structural characteristic. Hence, the solutions for the environment crisis were emphasised to be sought through a set of collaborative actions involving of politicians, businesses and citizens, giving way towards international agreements to encourage accountability. Take for example the endeavour to reduce carbon emissions that stressed for a broad consensus in which the companies were to be held accountable for the pollution that they were causing, further highlighting the argument that, for an issue as broad as increasing carbon footprint requires a structural solution, and not sum of individual actions.
Regardless of the establishment of numerous frameworks and institutions for environmental protection and conservation, there was a realisation that their performance remains to be largely unsatisfactory. Therefore, given the increasing act of large-scale environment destruction, there emerge a serious emphasis for the requirement of certain stringent legal sanctions that attempts to bring on a paradigm shift. Through the work of international lawyers, this got translated into the legally enforceable crime of ‘ecocide’. It called for ‘serious consideration’ for criminalising destruction of the world’s ecosystems; and this already attracted support from the European countries and island nations at risk from rising sea levels. The proposed definition of ecocide described the crime as one of “recklessness”, where the perpetrator acted in the knowledge that there was “substantial likelihood” of serious harm arising from their conduct, but they acted regardless. It was realised that despite of all the climate warnings, there still continued many systematic, even if non-intentional, ecocides around the world. The destruction of the Amazon rainforests provides a compelling example of ecocide. In the year 2020, more than 1.8m hectares were affected by manmade forest fires, and had faced vast implications on the region’s biodiversity and livelihoods. In such cases, with the ecocide law, those who stand in the highest responsibility for activities leading to deforestation of the Amazon would run the risk of prosecution by the ICC. Along with it, other players — including senior executives at the companies driving deforestation, insurance companies, and funding agencies — would risk legal sanctions.
Here, we are probably talking about environmental degradation on a huge scale, deep sea bottom trawling or oil spills. The talk is on global felonies, comparing it with the same level as atrocities investigated by the ICC like crimes against humanity, that usually involves war crimes and genocide, was expected to ensure the perpetration of the same moral power and legal impact. Polly Higgins, has proposed to the UN that ecocide — the mass destruction of ecosystems — should become the 5th international crime against peace. Implementation of ecocide as an international crime is believed to stop damaging activity where other measures have failed. It would be a crime of consequence (actual damage caused), rather than intent; furthering the focus on preventing harm rather than appointing blame. The law applies to private corporations and their executives in their personal capacities, thus expressly outlawing what many oil and mining companies have done repeatedly to vulnerable indigenous and farming communities around the world.
But the question still remains on how a nation can translate the language of ecocide to its own use, given the existence of a vast number of contrasting interests amongst different stakeholders. For instance, it is clear that the private corporations and its executives would not be very delighted in making extraction of natural resources into an international felony, and as such would try enough to manipulate and surrender the state to decide for a step otherwise. Therefore, it becomes crucial for the nation to maintain a space for negotiation, wherein the interest of both the capitalists as well as those belonging to the disadvantaged communities could be sufficed in a manner that balances out the market oriented political economy and ecological needs. A space that is extremely difficult to negotiate, and becomes more difficult for a developing nation like India to maintain, who cannot afford to forsake one set of stakeholders over the other. But are negotiations really an answer for the issue?
The space for negotiations, amongst the wide variety of concerned stakeholder, has often found to be comprised in the face of disproportionate power dynamics, wherein the state tends to incline towards the economically hegemonic regimes when it comes to the contested politics of environmental rights; an issue which can be reflected through the case of Amazon rainforest. The contestations regarding the ‘internationalization’ of Amazon forests saw conflicting arguments across environmentalists, the indigenous groups as well as the state. Herein, while the state criticised the international community for seeking self-interested motivations for this ‘internationalization’, the NGOs condemned the Brazilian state for soliciting Amazon deforestation for its vested economic interests, with continued protests from the indigenous communities to safeguard their homelands. Contestations like these puts forth the issue of national sovereignty as well as natural resources and ecocide against each other. Here, ecocide only seems to represent an instrument of the powerful nations, at the international level, to manoeuvre state resources for its own interests, rather than actually acting as a tool that enables environmental advocacy.
Furthermore, it also becomes important that the language that ecocide gets translated into in legal policies is communicated in a manner so to align with the unique language of ethics, that the people of a nation’s have faithed in. Therefore, implementation of ecocide requires consideration over the contextual needs of the people belonging to a particular socio-cultural condition. The irony is, these socio-cultural conditions have tendency to incline towards hegemonic requirements. Further, there also remains a question on who represents the rights of nature in this case? An answer for which finds no coherence.
Remember that the relationship between human societies and nature have been often found translations in the forms of religion and livelihood. Now, if the relationship between human societies with their environment is a mediated one, then in the modern advanced era, it is mediated through technologies. However, technology is often manoeuvred by other socio-cultural systems embedded within kind of lifestyles that the society imagines. For instance, the preference over fast-fashion in the modern society has implied ecocide, where the raw materials for clothing have disastrous effects on other natural resources; like the intense cultivation of cotton affecting natural water flows and water quality in river basins, or production of polyester causing higher levels of greenhouse gas emissions. Hence, the present ecological crisis, then, forces a configuration of value preferences involving behavioural norms, attitudes and motivating symbols, woven together in an historical context for a specific group of people, to express such ultimate concerns. This then harks the urgency to develop and promote an environment ethic based on the coherent set of values that, rather than side-lining the traditional moral systems of indigenous knowledge practices, favours them. Moreover, the ideas on semitic religion must be reinterpreted, not to mean subjugation or dominance that furthers ecologically insensitive anthropocentrism, but companionship with the environment, that in a manner, focuses on biocentrism.
Therefore, the question on whether this sort of strong legal sanctions, designed on the lines that emphasised on environmental ethics, borne out of unique cultural eco-friendly will suffice the Indian context, especially given the existence deep-seated tussle between huge industries and other disadvantaged minority groups whose livelihood depend upon the forest resources, remains to be an important one. The issues on tribal rights and environmental conservation revolve around the critical aspects of ecocide. As such, it remains to be seen if India could, at all, afford to imagine to design and implement ecocide, where all the stakeholders to sit on the table for negotiations and consent to be accountable for the conservation, protection and preservation of ecology and the environment.
