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In recent years, the idea of creating international law to better punish damage to the environment has gained ground. But there is still a long way to go.
The inclusion of a crime of " ecocide " in the French Criminal Code is not yet for today. Already revoked by the Senate in the spring, a new bill brought to the National Assembly by the Socialist Party was rejected Thursday by the deputies.
However, the concept has emerged in recent years in public debate. Didn't we hear Emmanuel Macron himself mention last summer an " ecocide " by talking about the fires in the Amazon?
But if the environmental question is more and more central in our societies, the idea of a crime of "ecocide", constructed by analogy to genocide and which would make it possible to punish the most serious attacks on the planet, has a lot of struggling to make its way into law. This is despite the work of activists who have been demanding its inclusion in French and international law for several years.
This is the case of international law lawyer Valérie Cabanes , Co-founder of Notre affair à tous and member of the European movement End Ecocide on Earth, she helped write the text presented this week in France. This defines ecocide as " any concerted and deliberate action tending to directly cause widespread, irreversible and irreparable damage to an ecosystem, committed with knowledge of the consequences that would result from it and that could not be ignored ".
The text provided for a sentence of twenty years' imprisonment and a fine of ten million euros or, in the case of a company, 20% of total annual worldwide turnover for the previous financial year. A law which would therefore aim to punish the most serious crimes committed against the environment and which directly jeopardize the security of the planet.
Vietnam, the first country to recognize the " ecocide "
Formed by oikos (the house in Greek) and the suffix -cide derived from Latin, which means " who killed ", this neologism is defined in Larousse as the " total destruction of a natural environment ". But the concept is not new. In 1970, biologist Arthur Galston used the term " ecocide " for the first time. We are in the midst of the Vietnam War and the American army is dropping tons of orange agents to flush out enemy fighters hidden in the forests. The ecological and human consequences are catastrophic in the long term. Two years later, the term was resumed at the opening of the UN conference on the environment in Stockholm.
In 1990 Vietnam became the first state to define "ecocide" as " a crime against humanity committed by destroying the natural environment, in peacetime as well as in wartime ". Since then, a dozen states, including Russia, Ukraine, Armenia and Georgia, have incorporated "ecocide" into their legislation, but without any real application.
The 1998 Rome Statute, which founds the International Criminal Court, establishes as a war crime " the willful conduct of an attack knowing that it will incidentally cause widespread, lasting and serious damage to the natural environment which would be manifestly excessive. in relation to the overall concrete and direct military advantage expected ”. But "ecocide", as a crime in its own right, does not figure among the four planned (genocide, crime against humanity, war crime and crime of aggression).
All attempts to include “ecocide” in the Rome Statute since the 1990s have so far failed. But if, at the beginning of December, during the General Assembly of States Parties to the ICC, Vanuatu and the Maldives asked for recognition of the crime of ecocide, the road seems still long.
" Being able to intervene upstream "
In France, progress has been made in environmental law. Since the Erika disaster , justice has recognized, for example, " ecological damage ", introduced into the Civil Code in 2016 with the biodiversity law. In 1999, the sinking of this oil tanker had polluted 400 kilometers of coastline and caused the death of tens of thousands of birds.
Since 2017, the law on corporate vigilance has also obliged companies to avoid the damage they could cause during the activities of their subsidiaries. It is under this law that six NGOs have assigned Total for an oil project in Uganda . But this is insufficient, for Valérie Cabanes.
While others, such as the lawyer Laurent Neyret, propose to confine the "ecocide" to acts committed with intent to harm, which would limit prosecution to cases like that of the Probo Koala , this ship chartered by a Swiss company which dumped hundreds of tons of toxic waste in Abidjan, the lawyer defends a broader definition.
A way to target criminal groups who enrich themselves through wildlife trafficking of course, but not to spare either multinationals, or even States which, through their negligence or their actions, would cause environmental disasters. “ We must look at these serious attacks on planetary ecological systems not from the angle of intentionality alone, but also from the angle of knowing the consequences of its decisions. This is what we defend as a moral element of the crime. Because we know very well that it is very difficult to prove the intention to harm a multinational or a political leader. On the other hand, proving that multinational oil companies have known for decades the consequences of their activity on climate change - as we sometimes know from leaked reports - is possible, and all this characterizes a climate attack in knowledge of the consequences of its decisions ”.
A more dissuasive law could avoid new scandals like that of chlordecone , she explains. Used until the early 1990s in the French West Indies in banana plantations, this insecticide has polluted the soil for several centuries and is accused of being responsible for thousands of prostate cancers. However, the United States had banned it since 1973. " The advantage of the crime of" ecocide ", unlike environmental damage, is that one can intervene upstream, in the name of the interests of ecosystems to remain healthy, human health and the health of future generations. And ask a judge to take protective measures, that is, to say no to a project before it takes place ”. Reinforce in some way the precautionary principle.
A right characterized by its anthropocentrism
The definition of the crime of "ecocide" is often found to be too vague, which could undermine "its criminal legality". How to define "ecocide"? An essential question because, in criminal law, points Jean-Christophe Saint-Pau, professor of criminal law, the limits of the offense must be clearly defined. Valérie Cabanes responds by pleading to make the concept of “ planetary limits ” a legal norm. Established in 2009 by a team of international researchers and nine in number, " these are the limits that would allow us to qualify what becomes intolerable ".
By creating a crime of "ecocide", it is nature that we would place at the center. Contrary to the way laws are constructed today. The Environmental Code is full of criminal charges, but " they evoke the environment through people or their property ", analyzes Jean-Christophe Saint-Pau.
For example, the crime of river pollution is more intended to protect the fish resource for humans than the fish itself. “ We need to reshape the law to recognize that we are interdependent on living ecosystems and systems, that we are one of the elements of nature and that we depend on it; and therefore get out of this anthropocentrism which characterizes the law, pleads Valérie Cabanes again. It is a complete change of philosophical paradigm and of this legal fact ”.