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Valérie Cabanes on a victims’ perspective on an international crime of ecocide

If you decide to adopt this ecosystemic perspective, anyone can denounce an ecocide anywhere on the planet. Why? Because societies, economies and ecosystems are interlinked, intertwined, are interdependent.

Valérie Cabanes is an international lawyer specialised in humanitarian law and human rights. She is involved in defending Indigenous peoples’ rights and in the recognition of the Rights of Nature. She is part of the steering committee of the Global Alliance for the Rights of Nature and advises the NGO Stop Ecocide International and the UN initiative “Harmony with Nature”. Further, she co-founded the French NGO Notre affaire à Tous which works towards climate justice. In 2013, she launched a European citizens’ initiative on the crime of ecocide in France and in 2014 the global movement End Ecocide on Earth advocating for the inclusion of the crime of ecocide in international criminal law. In 2020, she joined the panel of international experts commissioned by the Stop Ecocide Foundation to draft a legal definition of the crime of ecocide. Her publications include “Un nouveau Droit pour la Terre, pour en finir avec l’écocide” (Seuil, 2016 – Points, 2021) and “Homo Natura, en harmonie avec le vivant” (Buchet/Chastel, 2017).


Interview conducted by Laura Dzimballa (2022)

 

The interview was conducted in the spring of 2022 and has been edited for clarity


The inclusion of a crime of ecocide under the Rome Statute has been debated for several years now. Such a proposal holds great potential to promote climate justice. However, the opportunities for victims’ participation at the International Criminal Court (ICC) have often been criticised. On the one hand, limited results and slow processes at the ICC, especially from a victims’ perspective, would hinder the effective implementation of a crime of ecocide without substantial other reforms. On the other hand, even though some countries, in the past and present, have recognised the crime of ecocide under national law (e.g., the former Soviet states, and Vietnam), including a universal definition of the crime of ecocide under the Rome Statute, and recognising it as an autonomous crime, opens up pathways for universal jurisdiction and unifies current environmental law, replacing soft by hard law. Adopting an “eco-sensitive” or “ecosystemic” approach can help to green the reparations at the ICC and actually provide opportunities to grant justice to victims of environmental crimes, human and non-human alike. The recognition of a crime of ecocide sets a “moral imperative” and has a deterrence effect on individuals, companies and governments to respect human rights and planetary boundaries.


1. In the light of the limited investigative resources of the ICC but also the limitations there are regarding victims’ participation, why would it still be helpful for the crime of ecocide to be included under the Rome Statute, especially for the victims?


If the crime of ecocide is recognised as an autonomous crime, it will change something very important, crimes against the environment will be recognised during peace times. At the moment, they are only recognised during war times under Article 8 of the Rome Statute. It will help to seek justice for the victims when the environment they live in is destroyed, when they are forcibly displaced or when their living conditions are not sustainable anymore. It is interesting to mention that this is something which worried the last prosecutor of the ICC, Fatou Bensouda, because she was regularly asked to investigate on forced displacement of populations and the destruction of the environment, for example in Cambodia by industrial activities and the complicity between corporates and government aides. She was helpless because the crimes against the environment were not recognised in the Rome Statute during peace time, so she decided, in a document for her own office that she released in September 2016 [1], to create a team to look into these cases as considered within the scope of the crimes against humanity. It is interesting to consider the fact that within the ICC itself, the staff started to realise that something was missing and tried to look for solutions.


The second advantage I see, which can also be seen in Cambodia, is the fact that the Rome Statute does not foresee trying CEOs, corporates or legal entities. And this is why the crime of ecocide should be recognised as an autonomous crime, so we are not limited by the definitions and the scope of the crimes against humanity. This would offer opportunities to look into the responsibilities of physical entities. It will also help to link the complicities between multinationals and states which, in peace time, are the main perpetrators of environmental destruction.


About Indigenous peoples, it is interesting to see that one of the cases that was brought to the ICC in 2021, Jair Bolsonaro’s, made the case looking at how the destruction of the Amazon forest was also a way to destroy peoples, where ethnocide leads to genocide when you lose your culture, your identity, your ancestral lands and your ancestral links to your territories. So, the lawyer William Bourdon, proposed to recognise the actions of Jair Bolsonaro as crimes against humanity, but in fact, he asked the ICC to realise and consider even to use the word ecocide to give it credibility. It is very interesting because it shows that even if Bolsonaro was explicit in saying “a dead Indian is a good Indian” it is very difficult to prove. When you look at the Rome Statute, you realise that you need proof that there is an intention to kill, an intention to harm, but the way we defined the crime of ecocide, we propose to also consider arbitrary actions leading to the destruction of the environment, the destruction of cultural, natural and economic resources. And this idea of arbitrary means that people who act knowing the consequences of their decisions or activities can be hold accountable not only when there is an intend to harm. So, if the crime was recognised, Jair Bolsonaro’s responsibility would have been much easier to proof.


That was the first part about how the law is and how we can use it for the human victims, today. But when we speak about ecocide, we also look at other kind of victims that are never mentioned in international criminal law or in law in general, most of the time. We look at two other subjects of law: non-humans and the future generations.


The definition of what is environment in the proposal of the definition of the crime of ecocide looks at the environment as the Earth.[2] This is tricky, it is a way to say that nature is a subject of law. We don't need to count human victims when a crime is committed, we have to look at the impacts on the environment. If you destroy a primary forest but there are no human victims, currently you cannot recognise that as a crime today. But if you destroy this forest, in fact, you destroy the links of interdependence between human beings and the earth system. And in the long-term you may destroy the living conditions of the next generations. So, recognising the crime of ecocide as we propose is a way to recognise the victims who are non-humans and the victims to come, the next generations. And so, it is also a way to protect the rights of the future generations. Mentioning biocultural rights, which is a legal concept that was proposed by a court in Colombia for the Atrato River and other cases, as a way by the judges to explain the decision. They said, they want to protect the right to a healthy environment for future generations and to do so they grant a legal personhood to the Amazon forest. They link the rights of future generations to the rights of nature. That is what I wanted to say about the victims, it depends what we describe as victims, and I think we have to have a wider view of who the victims are if we want to tackle climate change and the ecological crisis today.


2. Under the Rome Statute rights now, only human victims are recognised. If the crime of ecocide is recognised under the Statute, what would that mean for the definition of victims, who would speak on behalf of nature, and who would be admissible as a victim?


It is the same situation with the Rights of Nature, you need people to speak on nature’s behalf. If you look at the Rights of Nature Movement, for example in Ecuador where the Rights of Nature are included in the constitution, everyone can speak on behalf of nature: the citizens, the Indigenous people, the NGOs, but also a public minister. And that is because they recognise that law should become ecosystemic and not anthropocentric. Which means that they legally recognise what science says, we cannot survive without nature and a healthy environment as we are interdependent.


If you decide to adopt this ecosystemic perspective, anyone can denounce an ecocide anywhere on the planet. Why? Because societies, economies and ecosystems are interlinked, intertwined, are interdependent. But of course, it is a strong change of paradigm and the reason why it needs to be recognised as an autonomous crime. We need to integrate this ecosystemic view and the definition of what is environment. I understand that it is not comfortable, it is not easy, but that really is the goal, integrating this ecosystemic vision of humanity in law today.


3. The same would then also count for the inclusion of the future generations as victims, so that anyone could speak on behalf of the victims of future generations?


Yes. If you look at Colombia, the ones that spoke for the future generations, in fact, were the youth. And it is interesting because they say they are the future generations even if they are alive already. But again, they link their life today with their life tomorrow and the state of the environment today with tomorrow. Agent Orange in Vietnam has an impact on the generations today which were future generations yesterday, they were not born in the 1960s.


I think considering the long-term effect and then trying to protect future generations on the basis of science and showing the impossibility of a quick recovery of ecosystems that have been impacted in peace time is also very important. As example, I’m thinking about the poisoning of the French Caribbean island with chlordecone, which was a molecule forbidden in mainland France, but the government decided that for the Caribbean island, for the Afro-descendants, it was okay. We realise today that a large majority of the population have cancer and that the pollution will last for 700 years and the responsibility of the government is crystal clear. Again, we have no way today to seek justice for this because it is more than 30 years ago. There will be no criminal liability proposed, no jail sentence pronounced, but I am quite sure that there will be a decision of justice at the end, asking to recognise the victims and the need for compensation. This is something very important, what we call transitional justice. The crime of ecocide also seeks transitional and regenerative justice, to help regenerate the ecosystem which has been destroyed, which are two very important aspects of the crime.


4. Moving on to reparations under the ICC which are part of victims’ rights and would be part of the trials. In your opinion, what impact would that have on the current idea of reparation? How would this notion change or be impacted by an inclusion of the crime of ecocide under the Rome Statute? Or what would be ideal and what would you like to see?


It is very difficult to answer that question. You know the process of amending the Rome Statute, even if we propose a definition, we don’t know at the end what will be kept and how it will be integrated and implemented. So, I know what I would like to see but I don’t know how it will evolve.


If ecocide is recognised by the ICC, I do think that we need a team attached to the ICC that is specialised in the investigation of environmental crimes because it is very specific, and it also means understanding the gravity of the crime. And it is the same for national law, we need the help of scientific investigators. Because science will tell us, for example, how long it takes an affected ecosystem to regenerate or if an ecosystem can be regenerated by human intervention. So, first we need this scientific team to help the investigation, the prosecutor and also the judges, to qualify the crime, and to then decide which kind of compensation is adequate.


I am not very comfortable with the idea of compensation because who do you compensate? If you compensate Indigenous people, it will not help them to live in a natural environment on which they rely to survive. I have seen that in North Quebec or in Brazil, just giving them money leads the people to live a very poor life. They lost their ancestral connection, they lost their identity, their culture and then it leads them to spend the money on drugs, on alcohol. It leads to a lot of disease, a lot of suicides. And that is why when we speak about ethnocide and that it can lead to genocide. So, financial compensation is not the solution. What we need is really to see how we can help to regenerate the ecosystem. But when we speak about ecocide, we speak about the worst crimes, like I said with chlordecone, impacts can last up to 700 years, which makes it very complicated.


I would just mention something important about the advocacy work we do on the crime of ecocide. Our goal is not to imprison or punish, our goal is to draw a moral line, to draw new rules to protect nature and the living conditions of people to come. And that is also the goal of the crime against humanity, or the crime of genocide, it cannot stop those crimes, but it helps the international community to understand that this is not acceptable. You see with the Ukrainian war that there are already cases brought to the ICC after a month of war, which is something that would not have happened before the ICC and the Rome Statute’s creation. My hope is really that recognising the crime of ecocide will draw a new line and a new framework.


When I was speaking about relying on science, I promote the idea of trying to respect the planetary boundaries, a concept drawn by scientists. The United Nations used the planetary boundaries as indicators for their sustainable goals. But I always say that we have to go a step further; these planetary boundaries should become legal norms. Then, if there is a risk to cross these boundaries with a certain kind of technology, or industrial activity, we have to forbid these activities because we know we are crossing a boundary, putting the habitability of the planet at stake. It will help also to investigate and to prosecute the crime of ecocide because it can really help the prosecutor to define if there is a long-term risk for humanity or for the Earth. This is something that is really missing when we speak about reparation, compensation and restorative justice, we need science to help on that.


5. How politically feasible do you see the inclusion of the crime of ecocide under the Rome Statute or also that other countries will start, like Colombia now, prosecuting this crime or including the Rights of Nature in national legislation?


It has been going very fast since 2019. The new Chilean constitution, proposed in 2022, included an article on the Rights of Nature. It has to pass through a referendum so we can’t be sure yet, but it has been voted as one of the articles of the new constitution to be presented to the people (Note: the proposed constitution project was rejected on 4 September 2022 for unrelated reasons, and works are underway for a revised proposal). There are a lot of countries that are recognising the Rights of Nature in their laws at the moment, I spoke about Ecuador, Bolivia, Panama, a month ago, Uganda. And then you have the Rights of Nature recognised at a local level, like municipalities of specific ecosystems in many countries in the world, in the US, New Zealand, India, Bangladesh, Nepal, Belize, even now in Corsica and there are some motions which have been voted in North Ireland, the Republic of Ireland, the Netherlands. There is a lot happening everywhere.


About ecocide, it is the same, there are some states who are considering recognising the crime of ecocide within their national criminal law. It is in discussion in Mexico, it has been voted by the Belgium parliament and has to be endorsed by the government at the moment. There are already 10 countries that recognised the crime of ecocide in the world. But there are more and more states now who are recognising the idea of including the crime of ecocide in the Rome Statute. Some of them, e.g., France, say that the ICC has to be the first step, then it will be easier because as members of the ICC, they will have to integrate the crime of ecocide within national law afterwards. But some other countries try to recognise the crime of ecocide within their national law in order to show that it is possible, it really depends on the strategy.


The European parliament, during the past 2 years, has voted six times in favour of recognising the crime of ecocide in EU law. The idea is to integrate the crime of ecocide within the new Directive on crimes against the environment. There is a revision of the 2008 Directive at the moment and it is a six-month process of consultation and the EU parliament requested to integrate the crime of ecocide. The problem is the EU Commission, it is the Commission who drafts the directive, but it has all the lobbies on its back. So, there were six requests, this is important and at the same time, they also voted in favour of pushing forward the recognition of the crime of ecocide at the ICC. There is now an inter-parliamentarian alliance for the crime of ecocide which has been started by a French member of the European parliament (MEP), Marie Toussaint. It is a global alliance, including members of parliament from many countries around the world. Each one who joins the alliance commits to push the recognition of the crime of ecocide on the agenda of their countries or to push for the support of their governments to amend the Rome Statute. Which, finally, is the strategy we support the most.


The first countries who officially requested to recognise the crime of ecocide including Vanuatu, the Maldives, Bangladesh, Samoa are at the frontline of climate change. But the fact that Belgium decided to support them, and discussions are ongoing in Finland, Iceland, Canada, France, Spain, and the Netherlands, shows that Western, rich countries may decide to help to build this coalition of states to bring the amendment. We needed a Western country to help these small states to have a voice, that is diplomacy. Belgium is the first, and even if it is a small country in Europe, it has universal jurisdiction. If the crime of ecocide is not recognised fast enough by the ICC, but recognised in national law in Belgium, then Belgium could be a state where we can prosecute international crimes of ecocide. A national judge can, on the worst crimes, prosecute any citizen from any country on any act committed in any country.


What we also try to do at the Stop Ecocide Foundation is to bring along the financial and business sector. If they start to support the crime of ecocide and speak up, things might also change because it means that they will lobby in favour and not against it. Which might help to convince some politicians who are relying on the support of lobbies. And then the third strategy we have is religious, we try to secure the support of the main religious leaders in the world. We received many of them already, from the Pope, the Dalai Lama. This is also very important because they have a voice heard by over hundreds of millions of people and they can really help to raise awareness and get ground-level citizens' support.


To learn more about Valérie: https://valeriecabanes.eu/about/

 

About the interviewer: Laura Dzimballa graduated from SciencesPo Paris in Summer 2022 with a Master's degree in International Security and is currently completing a BlueBook Traineeship at the EU Commission in Brussels in the field of humanitarian aid and civil protection. She specialises in Latin America, sustainable development and environment and is especially interested in the intersection of human security, climate justice and gender.


Photo credits: Jérôme Panconi


[1] The Office of the Prosecutor (OTP). Policy Paper on case selection and prioritisation. ICC, September 15, 2016. https://www.icc-cpi.int/sites/default/files/itemsDocuments/20160915_OTP-Policy_Case-Selection_Eng.pdf.


[2] Stop Ecocide Foundation. Independent Expert Panel for the Legal Definition of Ecocide – Commentary and Core Text. June 2021, https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d7479cf8e7e5461534dd07/1624721314430/SE+Foundation+Commentary+and+core+text+revised+%281%29.pdf.




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