Africa should consider criminalising ecocide

It would be no easy task, but given the environmental devastation across Africa, it’s one worth debating.

Published on 12 September 2022 in ISS Today

By

Romi Sigsworth
Research Consultant, ENACT, ISS

Environmental crime is growing about two to three times faster than the global economy. It is particularly devastating in Africa, where natural resources are plentiful, poverty rates are high and governance is weak.

These offences are rife across the continent and include illegal logging, the trafficking and dumping of toxic waste, rampant sand mining and illegal wildlife trading, which enriches organised crime syndicates at the expense of biodiversity and local ecosystems. Environmental crimes also threaten human security and livelihoods, fuel conflicts and drive climate change.

Neither the African Union (AU) nor the continent’s regional blocs have a legal framework for tackling environmental crime. The revised African Convention on the Conservation of Nature and Natural Resources came into force in 2016 but is yet to be applied. It covers, among others, the management of natural resources, acts that damage the environment (including military and hostile activities), and cooperation among state parties.

However, it doesn’t define environmental crimes or set appropriate sanctions like the European Union’s Environmental Crime Directive, which was adopted in 2008 and is due to be strengthened in 2022. This leaves individual countries without adequate recourse to deal with crimes that cross borders and jurisdictions and often have regional impacts.

Because of its transnational nature and the gravity of the threat, ecocide was proposed as an international crime against peace in 1996. But it wasn’t included in the International Criminal Court’s (ICC) Rome Statute that enacted genocide, crimes against humanity, war crimes and the crime of aggression.

Neither the AU nor Africa’s regional blocs have a legal framework for tackling environmental crime

After decades of advocacy, in a renewed attempt to have ecocide included in the Rome Statute, 12 lawyers from around the world proposed this definition in 2021: ‘[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.’ Amending the Rome Statute to enact ecocide would still require extensive advocacy and multiple steps by member states.

Could such amendments be of use to African countries, and are there options other than the ICC that the continent could consider? Treating ecocide as a crime has both potential gains and pitfalls for Africa. At this early stage, the potential gains tend to be theoretical and aspirational, while the pitfalls are largely rooted in Africa’s complex relationship with the ICC.

At the aspirational level, placing environmental crimes on the same level as genocide, war crimes and crimes against humanity raises their significance and recognises that their effects can be equally devastating. However, in 20 years of operation, the ICC has opened just one case of genocide against Sudan’s former president Omar al-Bashir.

The court’s record on the other two international crimes is better, with 21 cases of crimes against humanity and 22 charges for war crimes. However only one conviction for crimes against humanity was secured, and three for war crimes. These numbers are low, even for an institution intended as a court of last resort.

Many multinationals that could be held liable for ecocide in Africa have no legal obligations to the ICC

With much of Africa’s environmental destruction committed by multinational companies, adding ecocide to the Rome Statute could see entities outside national jurisdictions held accountable. Nnimmo Bassey, an environmental activist in Nigeria, says criminalising ecocide would ‘create an arena in which marginalised communities in countries like Nigeria have a voice against powerful, polluting actors.’

However, many of the offending multinationals are based in countries that either aren’t signatories to the Rome Statute or have no legal obligations to the ICC. The United States, China, India and Russia are examples. If those responsible for ecocide are excluded from the court’s net, it will undermine justice for the offence and fuel selective global accountability.

Also, the Rome Statute provides only for individuals to incur criminal responsibility. So prosecutors would not only need to find a way to access multinationals sheltering in countries outside the ICC’s jurisdiction, but also find individuals within corporate entities to charge.

This conundrum is exacerbated by ecocide being defined as ‘unlawful and wanton’, where ‘wanton’ means the ‘reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated.’ Proving that an individual has perpetrated an act that fulfils these criteria would be difficult.

A better route for Africa could be to criminalise ecocide at the continental or regional levels

Operationally, prosecuting the crime of ecocide could pose numerous challenges. Not just in terms of demonstrating damage excessive to anticipated benefits and who bears responsibility, but also in collecting evidence to prove these elements and finding experts to testify.

Successful prosecution at the ICC would open up the possibility of reparations to victims – both in terms of compensation for the loss of natural resources (and therefore the loss of livelihoods, food, health, etc.) and funding for environmental regeneration projects.

But the reality is a far cry from the aspirational. The eligibility and forms of reparation granted in the ICC’s Thomas Lubanga Dyilo, Germain Katanga and Ahmad al-Faqi al-Mahdi cases ‘have been limited to certain victims, subject to years of litigation, and faced difficulties in delivery due to ongoing insecurity.’

An international crime of ecocide would undoubtedly set an important moral and legal precedent and would be symbolically significant. But for Africa, criminalising environmental destruction need not depend on the ICC, particularly given the historically tense relationship between it and African states.

A better route could be to criminalise ecocide at the continental or regional levels, or both, with strategies tailored for local dynamics, needs and capacities. The AU could take the lead by establishing a legal framework encompassing definitions, offences, penalties, inter-state and regional cooperation, and administrative measures.

The Southern African Development Community’s new Integrated Strategy to Prevent and Combat Transnational Organised Crime also offers potential. It includes environmental offences under its definition of transnational organised crime and calls for a legal framework that harmonises national environmental protection laws and provides standards for operational responses. It also covers intelligence and information sharing, mutual legal assistance, extradition and the confiscation of assets.

Whether or not an international crime of ecocide is ever enacted, Africa must confront environmental crime as an existing and growing threat to development, food security and peace.

Romi Sigsworth, Research Consultant, ENACT, ISS

This article was first published by ENACT.

Image: © Richard Whitcombe/Adobe Stock

Exclusive rights to re-publish ISS Today articles have been given to Daily Maverick in South Africa and Premium Times in Nigeria. For media based outside South Africa and Nigeria that want to re-publish articles, or for queries about our re-publishing policy, email us.