Belgium Recognises the Crime of Ecocide: A (Lukewarm) European First

by | Mar 5, 2024

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About Catherine Savard

Catherine Savard is a Canadian human rights lawyer reading for an MPhil in Law at the University of Oxford. Her thesis focuses on the emerging prohibition of ecocide in international law.

On 22 February 2024, Belgium made history by adopting a new penal code that criminalises ‘ecocide’ at the national level. This marks the first time that such a domestic prohibition is to be implemented in Europe. The Belgian prohibition on ecocide includes severe penalties, with individuals facing up to 20 years in prison and legal persons facing fines of up to 1.6 million euros. By enacting this prohibition, Belgium also became the first country to align its domestic legislation with the 2023 revised EU Environmental Crimes Directive, which mandates member states to establish an offence ‘comparable to ecocide’.

While recognising the trailblazing nature of this prohibition, a closer look at the definition enacted by Belgium suggests that this provision may not be as effective as anticipated. This post highlights two shortcomings of the newly adopted definition, aiming to contribute to ongoing discussions toward the adoption of further domestic prohibitions on ecocide.

The concept of ‘ecocide’, coined in 1970 in the context of the US chemical warfare in Vietnam, has since then been plagued by complex definitional conundrums significantly impeding its enaction as a legal prohibition. In 2021, efforts to define this concept culminated in an independent expert panel (IEP) proposing a definition designed to be implemented in the Rome Statute of the International Criminal Court (ICC). This panel defined ecocide 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’. This definition, though not binding, garnered significant international attention and informed subsequent discussions on the prohibition of ecocide.

While Belgium relied on the IEP definition as a starting point in crafting its definition of ecocide, it ultimately adopted a much narrower definition. Article 94 of Belgium’s new penal code now defines ecocide as ‘deliberately committing, by act or omission, an unlawful action causing serious, widespread and long-term damage to the environment in the knowledge that this act causes such damage, provided that this act constitutes an infringement of federal legislation or an international instrument that is binding on the federal authority or if the act cannot be located in Belgium’.

Belgium’s choice to adopt a narrower definition compared to that of the IEP is worrying. As mentioned, the IEP definition was primarily intended to establish ecocide as a fifth crime within the scope of the ICC’s jurisdiction, which constitutes a court of last resort focusing on the most serious crimes of concern to the international community. While the IEP’s definition is by no means perfect, it was carefully designed to balance effectiveness and legality within the restrictive Rome Statute framework. Opting for an even narrower interpretation for a domestic prohibition may not only appear unnecessary but also suboptimal for ensuring robust environmental protection.

Specifically, Belgium’s narrow approach appears problematic in two key aspects. Firstly, Belgium’s definition only includes ‘unlawful’ acts under either Belgian federal law or applicable international law. (By contrast, the IEP definition captures both ‘unlawful or wanton acts’; other proposals included a list of prohibited acts.) Given the scarcity of binding international environmental law norms, the effectiveness of the Belgian prohibition is thus largely premised on the existence of a strong domestic environmental framework in Belgian federal law. In other words, the conduct captured by the definition of ecocide does not significantly expand the scope of conduct already unlawful under Belgian domestic law. One could question the added deterrent value of such a narrow prohibition on ecocide in this context, other than eventually increasing the punishment for already prohibited conduct.

Secondly, the mental element codified in the Belgian definition is strikingly stringent. According to this definition, the alleged act must be carried out ‘deliberately’ and ‘in the knowledge that this act causes’ environmental harm. This approach captures dolus indirectus, a concept borrowed by international courts from continental legal doctrine (see e.g. para. 530). However, this standard proves to be impracticable in the context of ecocide due to the often unpredictable nature of environmental harm. As it stands, the Belgian definition allows for reckless defendants to avoid accountability if they demonstrate the uncertain nature of the harm resulting from the impugned conduct. The IEP favoured a wider approach akin to dolus eventualis or recklessness, requiring only ‘knowledge that there is a substantial likelihood’ of environmental harm. While the inclusion of this mental element remains debated in the context of the Rome Statute, such a low standard remains in principle available for domestic jurisdictions to include in their ecocide definitions.

Overall, the Belgian example serves as a notable – albeit imperfect – example of State leadership in the burgeoning field of ecocide law. This post highlighted two areas where Belgium’s narrow approach significantly hampers the effectiveness of this prohibition. As efforts towards ecocide prohibition are gaining traction globally, strong advocacy for strong domestic, regional and international prohibitions is more needed than ever to close the impunity gap for environmental crimes.

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