World Environment Day 2021: Advocating for an Ecocide law in India

The term "ecocide," which refers to the widespread devastation of ecosystems, has been around since the 1970s, when it was first used at the Conference on War and National Responsibility in February of that year. Many academics and legal scholars have urged for the criminalization of ecocide since the 1970s, and have disputed the aspects that should be included in such an international crime.

During the 1970s, 1980s, and 1990s, the United Nations International Law Commission (ILC) considered making ecocide an international crime for inclusion in the Code of Crimes Against the Peace and Security of Mankind (‘the Code'), which eventually became the Rome Statute, and the Sub-Commission on Prevention of Discrimination and Protection of Minorities for inclusion in in the extension of the Convention on Genocide.

The document became the Rome Statute of the International Criminal Court, adopted in 1998 and entered into force on 1 July 2002. As of July 2012, there are 121 state parties to this internationally legally binding statute. It now codifies four named international crimes – Genocide, under Article 6; Crime against Humanity, under Article 7; and War Crime and Crime of Aggression, both under Article 8 of Part II. The Rome Statute’s Article 8 (b IV) on War Crimes is the only provision in international law to hold a perpetrator responsible for environmental damage. Of course, the Article does, however, limit the crime to wartime situations and to intentional damage. The fifth crime that should have ideally found mention in it is Ecocide.

Ecocide is defined as “extensive damage to, destruction of or loss of ecosystem(s) of a given territory, whether by human agency or by other causes, to such an extent that peaceful enjoyment by the inhabitants of that territory has been or will be severely diminished.” The definition incorporates damage caused by individuals, corporations, and nations. It also includes destruction caused from sources other than human activity.

Several nations legislated against ecocide, though no international law against it could come into existence. Vietnam is the first country to come up with a national ecocide law given its horrible experience in the Vietnam War, which devastated its environment. In December 2019, the island nations of Vanuatu and Maldives reminded the international community of the long existing demand for an Ecocide law. Recently, the French National Assembly approved the creation of an “ecocide” offence with a dual aim of protecting the environment and combatting climate change. The ecocide measure was passed by 44 votes to 10 in the lower house of Parliament and is set to become a law, in due course. It would apply to “the most serious cases of environmental damage at national level”, said Environment Minister Barbara Pompili.

The following are a few Ecocide laws in national jurisdictions:

Art 278, Penal Code Vietnam 1990- Ecocide defined as “destroying the natural environment, whether committed in time of peace or war, constitutes a crime against humanity.”

Art 358, Criminal Code Russian Federation 1996 - Ecocide defined as “massive destruction of the fauna and flora, contamination of the atmosphere or water resources, as well as other acts capable of causing an ecological catastrophe, constitutes a crime against the peace and security of mankind”.

Art 161, Penal Code Kazakhstan 1997- Ecocide defined as “mass destruction of the fauna or flora, pollution of the atmosphere, agricultural or water resources, as well as other acts which have caused or are capable of causing an ecological catastrophe, constitutes a crime against the peace and security of mankind”.

Art 131, Criminal Code Belarus 1999 - Ecocide defined as “mass destruction of the fauna and flora, pollution of the atmosphere and water resources as well as any other act liable to cause an ecological disaster.”

Article 409, Criminal Code Georgia 1999 - Ecocide defined as “Contamination of atmosphere, land and water resources, mass destruction of flora and fauna or any other action that could have caused ecological disaster – shall be punishable by imprisonment extending from eight to twenty years in length”.

Article 441, Criminal Code Ukraine 2001- Ecocide defined as “Mass destruction of flora and fauna, poisoning of air or water resources, and also any other actions that may cause an environmental disaster, – shall be punishable by imprisonment for a term of eight to fifteen years”.

Art 136, Penal Code Republic of Moldova 2002 - Ecocide defined as “the deliberate and massive destruction of the fauna and flora, the pollution of the atmosphere or poisoning of water resources, as well as other acts capable of causing an ecological catastrophe, is punishable by deprivation of liberty”.

Article 394, Criminal Code the Republic of Armenia 2003 - Ecocide defined as “Mass destruction of flora or fauna, poisoning the environment, the soils or water resources, as well as implementation of other actions causing an ecological catastrophe is punished with imprisonment for the term of 10 to 15 years”.

In Ecocide: Kill the Corporation Before it Kills Us, David Whyte makes it apparent that anything less than system reform will be disastrous for humankind, let alone the environment. Environmental protection has been pushed aside for the sake of profit maximisation under capitalism. Furthermore, corporations are typically portrayed as the solution to the crisis, rather than the root cause, and it is this dominating image of ‘corporations as solutions' that has been crucial to the survival of capitalism. As a result, Whyte's analysis is centred on the company, and case studies serve as the foundation for his claims.

In the book Eradicating Ecocide, international environment lawyer and Ecocide law expert Polly Higgins sets out to show how the behaviours of businesses and governments are rapidly destroying our planet, aided by 'compromise' laws that provide insufficient deterrence. She proposes a bold yet practical remedy that is necessary. Higgins is a proponent of enacting a worldwide Ecocide law. As the missing 5th Crime Against Peace, it would hold corporate executives accountable if they were proven guilty of ecocide.

In the Indian context, in an attempt to develop an understanding of spawning, the Kerala High Court spelled out the definition of "Ecocide" (in Chambers Dictionary), as "the destruction of the aspects of the environment which enables it to support life". In Ratheesh and Others v. State of Kerala and Others, in the context of the case before it, the Court held,

“.....Therefore, the coastal stretches that are located in areas that are ecologically sensitive and important take in areas close to breeding and spawning grounds of fish and other marine life. Filtration Ponds are shallow water bodies. Fish are bred or grown in the said area. Developmental activities would have deleterious effects on fishing, whether it is natural fish breeding or fish being bred by permissible aqua-culture.”

While the Courts have been hinting towards the concept of ecocide, governance has been an area of utmost concern for most of the environmentalists. The 3,000 MW Dibang multipurpose project in Arunachal Pradesh is a perfect example of India's crumbling environmental governance. In 2013, forest permission was denied twice for the dam, which is double the size of the contentious Sardar Sarovar dam on the Narmada river. However, it was given the green light a year later, not because the idea had been modified, but because the constitution of the Forest Advisory Committee was tweaked suitably, argues Prerna Singh Bindra in The Vanishing: India’s Wildlife Crisis. Bindra reveals arbitrary decisions made in the mazes of power in Delhi and across the country, most of which were taken under duress from corrupt politicians and greedy industrialists.

In Chandra CFS and Terminal Operators Pvt. Ltd. v. The Commissioner of Customs and Ors, the Madras High Court noted,

“the reason why is, the drastic change in the environmental condition as the prohibitory activities of ecocide has been continuing unbridledly by certain section of people by removing the valuable and precious timbers, which are absolutely necessary for maintaining the ecological balance and for economic growth.”

Apart from natural disasters, there have been a few examples of gas leaks, such as the LG Polymers gas leak in Vizag and the oil spill in Baghjan Village, Assam, both of which have had a significant negative impact on our ecosystem.

Given that our constant assault on the environment has made a huge impact on nearly the whole country, resulting in tremendous destruction and a tremendous loss of ecosystem, it is past time for India to pass an effective ecocide law. It must also demonstrate a strong desire and commitment to prevent further loss and alleviate the harm already done to our environment by appropriately enforcing that much-needed law, if it is passed.

The author is a Doctoral Candidate at CHRIST (Deemed to be University), Delhi-NCR. Her research revolves around the broad themes of Water Conflicts and Environmental Constitutionalism.