Understanding the Elements of Ecocide Law: A Seven-Part Series

This series breaks down the seven key elements of adopted and proposed ecocide legislation, why they matter and how they have changed in comparison to the international proposal.  

Xuchen Zhang and Kate Mackintosh conducted an extensive comparison of existing and proposed laws that you can read here. In this series, we present their findings in bite-sized pieces, examining each element in detail to highlight its significance. 

The criminalization of ecocide aims to punish conduct that causes the most serious kinds of environmental damage and thus requires the harm to reach a certain threshold.  

The International Proposal describes the threshold of harm as severe and either widespread or long-term damage to the environment. These terms appear in international humanitarian law protecting the environment in armed conflict as well as in the specific environmental war crime in the Rome Statute where all three are required.  

There is ongoing debate regarding whether all three of these standards should be required, conjunctively, in order to establish ecocide, or whether the lower threshold of the International Proposal is more appropriate.  

A conjunctive approach avoids the risk of overcriminalisation and could encourage the prompt mitigation of environmental damage by polluters wanting to avoid being caught by the “long-lasting” criterion. However, the requirement to prove all three criteria would exclude significant cases where harm is severe and long-lasting, but not widespread, for example. And the evidentiary burden of proving long-lasting damage in uncertain cases may limit the effectiveness of the ecocide offence. 

All the existing ecocide laws and current proposals incorporate a version of the three terms used by the International Proposal.  Most of them adopt the approach of the International Proposal, requiring damage to be severe and either widespread or long-term (laws in Mexico (Jalisco state & federal) and France, proposals in Scotland, Italy and Brazil). Only the law in Belgium and the 2024 EU Directive use the conjunctive approach.  

The 2024 EU Environmental Crime Directive (ECD) introduces a qualified offence that includes cases ‘comparable to ecocide’. The threshold of harm is defined as destruction or widespread and substantial damage which is either irreversible or long-lasting. While substantial may be a lower threshold than severe, the cumulative test of the ECD, requiring all three criteria, appears to set a higher overall threshold than the International Proposal.