The Change Potential

1. Introduction

A few years ago, the International Environmental Agreement Database Project identified more than 1,300 signed multilateral environmental agreements (MEA), thirty of which had over 100 member states. Since the early 1990s, the 180 UN member states have averaged more than 50 MEA memberships. But despite the abundancy of international agreements, environmental destruction continues. Presumably, this is partly because of the limited scope of these treaties, which are primarily binding only to states. Harmful activities are often carried out by corporations, which are not bound by most of the MEAs.

Back in 1991, the International Law Commission (ILC) created the Draft Code of Crimes Against the Peace and Security of Mankind, the original version of what would later become the Rome Statute – i.e. the statute of the International Criminal Court (ICC). The original ILC draft included an environmental crime, "Willful and Severe Damage to the Environment." However, by the time the Draft Code was adopted by the UN General Assembly in 1996, this crime had mysteriously disappeared from the text, leaving the Rome Statute without any protection for the environment, except in the context of war crimes.

The late pioneer Polly Higgins (1968-2019) described ecocide as the missing fifth crime against peace. She initiated the Stop Ecocide campaign, which calls for ecocide to be added into the Rome Statute, alongside genocide, war crimes, crimes against humanity and crimes of aggression.

In June 2021, an Independent Expert Panel (IEP), convened by the Stop Ecocide Foundation and cochaired by international lawyers Philippe Sands and Dior Fall Sow, proposed a new definition for the crime of ecocide:

"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."

The addition of ecocide into the Rome Statute as per the IEP's suggestion would mean that the ICC can investigate, prosecute and sentence individuals responsible for grave environmental destruction.

This article discusses one facet of the potential impact of the proposed international ecocide law, i.e. how it can be expected to influence the conduct of industrial corporations. In Section 2, the limitations of current international environmental law are examined. Section 3 illustrates the potential impact of an international ecocide law by comparing two legal cases; one in which international criminal law was not applicable, and one where it is. Section 4 addresses a few key objections against an international ecocide law, and Section 5 elucidates the role of stakeholders in shaping corporate behavior. This section also discusses how the enactment of an international ecocide law can enhance the competitive landscape for corporations by creating a level playing field.

2. The Shortcomings of International Environmental Law

This section identifies key challenges in international environmental law. It clarifies that while there is currently a huge number of international treaties and other agreements concerned with the protection of the environment, there are some fundamental shortcomings in international environmental law that hamper the efficiency of the international environmental regime. The section also emphasizes the limited enforcement options against states and corporations for environmental damages.

Catherine Redgwell has identified a few of the challenges. Firstly, there is no general customary or treaty law obligation on States to protect and preserve the environment per se. Though there is a no harm principle, there are no general, positive obligations. Secondly, there is no global environmental organisation with competence over environmental matters, such as e.g. the World Trade Organization's Dispute Settlement Body. Thirdly, there is no comprehensive codification of the basic rules and principles applicable to international regulation of the environment. Fourthly, there is no holistic and integrated approach that applies within as well as between and beyond states.

In terms of enforcement, international treaties generally only bind States. And for a State to even have legal standing in a case against another State, the plaintiff State must show that there is an obligation owed to it and, usually, that injury has been incurred. According to Redgwell, traditional rules of State responsibility are inadequate for the development of international environmental law. Few environmental treaties address legal standing or provide for compulsory third-party settlement of inter-State claims, and there are few legal cases.

In addition to the issues mentioned by Redgwell, we currently live in a world where corporations, in many cases, have larger impact and influence than many of the world's countries. As already mentioned, international agreements do not bind corporations, only States. Though corporations are legally bound by domestic laws and regulations, the application of those is not always efficient. As shown in the WJP Rule of Law Index, the rule of law is especially weak in many of the countries that are rich in natural resources and therefore subject to large-scale industrial exploitation; for instance, Nigeria is ranked as no. 118 of 140 countries, the Republic of Congo is at 120 and the Democratic Republic of Congo at 137.

3. Corporate and Personal Liability: Comparing the Criminal Cases against Shell Nigeria and Lundin Oil

To illustrate the complexities of holding corporations accountable for environmental destruction, this section presents a comparison between two court cases with international implications. The first case involves Shell Nigeria, ultimately owned by Royal Dutch Shell PLC, headquartered in the Hague, Netherlands, and the second involves the Swedish Lundin Group, as group of companies controlled by the Lundin family, mainly focussed on oil, gas and mining. These two cases, one of which has been concluded and the other one ongoing, are used to illustrate the effects of an international ecocide law, but without making any claims that any particular events would or should be considered ecocide. The comparison highlights the differences between civil tort cases and criminal cases and emphasizes the challenges faced during the legal process. The lack of significant deterrents and personal responsibility in civil cases is also discussed.

Case 1: Shell Nigeria

In 2008, Friends of the Earth Netherlands supported several Nigerian claimants in filing a lawsuit in the Netherlands against Shell Nigeria and its parent company, Royal Dutch Shell, headquartered in the Netherlands. The background of the case is that an estimated 240 million litres of oil leak into the Niger Delta every year, contaminating rivers and farmland and releasing toxic chemicals into the air. Researhers have found that infant mortality in the Niger Delta is twice as high as in the rest of the country. The widespread oil spills also result in contaminated drinking water and poor yields from crop fields and fishing ponds, resulting in hunger and health problems. When the lawsuit was initiated in 2008, Shell was the largest foreign company in the joint venture producing oil in the Niger Delta. The lawsuit concerned three different oil spills from Shell's oil pipeline that took place in the 1990s.

In January 2021 – thirteen years after the initiation of the lawsuit – the Court of Appeals in The Hague (not to be confused with the International Criminal Court, also situated in The Hague) ruled in favour of the claimants in significant parts. The Court ruled that that based on common law, Royal Dutch Shell was responsible for actions taken by its subsidiary in Nigeria, and that Royal Dutch Shell had failed to fulfil its duty of care. The final award, rendered in December 2022, resulted in damages to the claimants totalling 15 million euros.

A few points should be made with regards to this case. Firstly, this was a civil tort case against Royal Dutch Shell and its Nigerian subsidiary, as opposed to a criminal case. Procedurally, this makes a significant difference. In a criminal case, a Court has significantly broader powers to request evidence, request assistance from law enforcement in other countries, push the case forward etc. The cases in the Netherlands were slowed down by the attempts of Royal Dutch Shell to resist the jurisdictional powers of the Dutch Court. Not until December 2015, more than six years after the filing of the lawsuit, did an appellate judge finally conclude that the Dutch Court was authorised to rule on the oil spills in Nigeria.

Another reflection is that the deterrent results of the case are, at best, small. Even though Shell lost the case, the final ruling ordered Shell to pay 15 million Euros, less than 0.04 percent of Shell's profit for 2022. Even considering that the outcome of this case will spur other claimants to seek remedies, the amount is hardly deterring. If this is the level of liability incurred when a company is found liable for large-scale destruction, a decision-maker performing a sound profit-risk calculation might find that it is rational to pursue operations, since the profits massively outweigh the risks.

A final reflection on the limitations of the civil case, and this is perhaps the most significant consequence: No individuals were held responsible for their actions and decisions as corporate officers in Shell. A corporation, regardless having legal personhood, is not a human being. It consists of human beings doing their jobs, but the corporation itself doesn't feel shame and it cannot be sentenced to prison; it is immune to these deterrence mechanisms. And humans come and go in the corporation. By the time the actions of a corporation are tried in Court, the persons responsible may be long gone.

Case 2: Lundin Group Executives

In contrast, let us consider the case against two executives of the Lundin Group, which is currently ongoing in the District Court of Stockholm, Sweden. In November 2021, the prosecutor filed charges against two former senior officers in the Lundin Group for complicity in grave war crimes in Sudan from 1999 to 2003. The first of the indicted persons was, at the time of the purported offences, president and CEO of the parent company of the Lundin Group. The second indicted person was, among other roles, the Vice President of Operations (COO) of the parent company and a member of the board of several of the group's companies.

According to the prosecutor, the two senior officers are responsible for having requested from the Sudanese government that the military be made responsible for the security around their oil explorations, while knowing that this meant that the military would take control of the area via military force. During the time of the exploration, there was a civil war, characterized by a lack of respect for international humanitarian law. The alleged complicity, according to the prosecutor, "is that they made these demands despite understanding or, in any case being indifferent to, the military and the militia carrying out the war in a way that was forbidden according to international humanitarian law". If found guilty, the Lundin Group officers could face life sentences.

In this case, there is a direct and obvious connection between the officers, their decisions, the consequences, and the legal consequences. Though the Lundin Group case is far from resolved, it can be expected to have repercussions on the risk analysis of multinational corporations and their senior officers, already by its existence.

4. Addressing Arguments Against an International Ecocide Law

When discussing the potential of an international ecocide law, it is essential to engage with the valid concerns and objections against the proposed law. While the prospect of holding individuals accountable for environmental harm is promising, skeptics raise various arguments against the feasibility and effectiveness of such a legal framework. This section aims to address some of these arguments and provide counterarguments that underscore the potential benefits and viability of an international ecocide law.

Argument 1: Jurisdiction Concerns

Some critics point out that the limitations in geographic and temporal jurisdiction severely limit the ICC's possibilities to investigate crimes. Firstly, The ICC's jurisdiction is limited to crimes committed within the territories of its member states or by their nationals. If a country is not a member of the ICC, the court generally does not have jurisdiction over crimes committed on its territory by its citizens, unless the crime occurred on the territory of a member state that has accepted the ICC's jurisdiction. Some of the world's largest economies are not members of the ICC; including the United States, China, Russia and India.

But although the jurisdiction of the court stretches only to its member states, its effects have a wider reach, as shown by the choice of Russian president Vladimir Putin not to attend a BRICS summit in South Africa in August 2023. Had he travelled to South Africa, South Africa – as a member of the ICC – would have had an obligation to arrest Putin as per the ICC's arrest warrant issued against him in March 2023.

Furthermore, it is worth noting that the ICC's jurisdiction is complementary to national jurisdictions. This means that the ICC only steps in when national legal systems are unwilling or unable to prosecute individuals for the crimes under its jurisdiction. If a state is genuinely investigating and prosecuting individuals for these crimes, the ICC may defer to the state's jurisdiction.

The implementation of an international ecocide into the Rome Statute means that all the member states that accept the ecocide amendment confirm that ecocide is a crime, which is also part of domestic law. This means that not only the ICC, but also domestic courts, will have jurisdiction to adjudicate individuals for ecocide, similarly to other international crimes such as in the example with the Lundin Energy executives, who are being tried in a local Swedish court for grave war crimes.

Yet another limitation is the temporal jurisdiction. As pointed out by Adam Branch and Liana Minkova, "the ICC's limited temporal jurisdiction and the principle of nonretroactivity preclude investigations into the environmental footprint of those countries that have already industrialized and instead shifts international attention toward those countries that might be currently undertaking development in a manner deemed to be environmentally unsustainable."

This, too, is a valid observation. The principle of nonretroactivity is the principle that new laws or regulations should not be applied to events, transactions, or situations that occurred before the law came into effect. In other words, the principle prohibits the application of laws retroactively, meaning that individuals should not be held accountable for actions that were not considered illegal at the time they were performed. The principle is rooted in notions of fairness, justice, and legal predictability, and it is fundamental to the rule of law. It is, arguably, not a disadvantage, but a sound and necessary protection against authoritarianism and arbitrariness.

What this critique highlights is, perhaps, the need to clarify that ecocide law will not solve every environmental problem on the planet. An ecocide law provides one essential piece of the puzzle; an end to impunity for blatantly reckless environmental destruction. It is not a panacea that will, by itself, save the future of humanity.

Argument 2: Ambiguity and Uncertainty

Yet another issue that is raised as an argument against ecocide law is the difficulties in determining environmental harm and to establish cause and effect. Branch and Minkova point out that the court may face the choice to "pursue localized and easily established cases of harm" – risking a legitimacy crisis – rather than those that affect large-scale, planetary ecological processes and systems. "If the ICC does choose to pursue a more ambitious ecocide agenda, however, the challenges will multiply. Once spatially or temporally expansive ecological systems are at stake, discerning relations between specific human actions and specific environmental impacts—between a criminal act and a harmful outcome—with the precision required by international criminal trials can be extremely difficult."

This too is a valid concern. As science develops, the methods for linking certain acts to a certain outcome are likely to improve. However, some of the largest environmental problems, such as the emission of greenhouse gases, do not stem from one large source but from multiple sources. It could be the case that no individual can be held responsible for these issues, because no individual's acts reach the gravity threshold required in international criminal law. In contrast, some cases are likely to be more clearly delineated; such as massive dumping of toxic waste, or large-scale destruction of ecologically valuable lands.

Again, an international ecocide law should not be expected to solve every problem. Ecocide law is a tool for addressing some of the largest environmental problems facing humanity. While it is a valid point that some of the worst environmental issues that humanity faces will not be addressed by criminalizing ecocide, this should not prevent humanity from addressing those that it can address.

Argument 3: Intent to Harm?

A few authors have criticized the wording of the definition of ecocide proposed by the IEP, see e.g. Kai Ambos and Kevin Jon Heller. The criticism includes arguments against the proposed mens rea, i.e. the mental element or state of mind of a person when they commit a crime. Typically, criminal offences require knowledge and intent, e.g. the intent to murder somebody. For certain crimes, the bar is lower, and the mens rea is instead recklessness or, even lower, negligence.

Heller argues that "'knowledge' in the definition of ecocide really means recklessness or dolus eventualis — which raises the question of why the IEP decided to use the term "knowledge" instead." Branch and Minkova argue: "Actions that cause environmental harm outside of war rarely have that harm as their primary objective; moreover, environmental harm is often not a guaranteed outcome of an action but rather a risk associated with that action, which may not be foreseen at all. Environmental damage is thus most often a side effect of actions undertaken for economic, social, or political reasons, and so it is the lack of a clear link between intention, action, and harmful outcome that tends to characterize peacetime environmental damage. This immediately presents a major question for international criminal law: If individuals do not intend, or even know, that their actions will cause environmental harm, how can they be prosecuted for what they did not intend or know with certainty would happen?"

The technicalities of the proposed ecocide definition will not be discussed in depth here, as this would require an entire article in itself. However, a few comments will be made. Firstly, the mens rea, as proposed by the IEP is, presumably, a compromise between various views of the experts constituting the panel. For the reasons stated by Branch and Minkova, the mens rea for an environmental crime cannot be intent, since it is unlikely that anybody would have such an intent (at least in peacetime). However, in response to Branch and Minkova's question; it is justifiable to assert that an individual who knowingly engages in high-risk activities should be held to a certain standard. Presently, the failure to meet these standards is linked to minimal risk, as evidenced by the Shell Nigeria case.

Second, although the suggestion of an international environmental crime is far from new, it will require a shift of mindset from the other crimes of the Rome Statute. Unlike crimes such as genocide, war crimes, and crimes against humanity, ecocide involves complex interactions between human actions and environmental consequences. Environmental harm is usually a result of multifaceted activities undertaken for economic, social, or political reasons, and presumably, there is very seldom a direct intention to harm the environment. Therefore, to effectively address ecocide, the approach of the IEP recognizes the intricate web of causal relationships involved in environmental damage, and aligns with the broader objectives of preventing large-scale ecological devastation.

5. Shaping the Behaviour of Corporations

With the aim to understand how an international ecocide law can impact the behaviour of corporations, this section explores the factors that mould corporate behaviour.

As discussed previously, an international ecocide law is expected to have a deterrent effect on senior executives, who stand the risk of becoming personally liable for a serious international crime. Nevertheless, the decision-making of senior executives constitutes only one facet of the multifaceted landscape moulding corporate behavior. This section aims to explore a few of the key factors, and how an international ecocide law can be expected to influence those.

The Role of Shareholders and Stakeholders

This sub-section will explain the influence of shareholders and stakeholders on corporate practices. It introduces competing views on corporate objectives, namely, maximizing shareholder value versus adhering to stakeholder theory. It emphasizes the importance of risk assessment and responsible investments for both shareholders and financiers.

According to the prominent American economist Milton Friedman – who still yields a huge influence – the only objective of a company is to maximize shareholder value. A different view was proposed by Freeman, Harrison, and Wicks, who developed a model for stakeholder theory. According to this view, companies are surrounded by many stakeholders – in addition to the shareholders – to which a business owes certain duties. Stakeholders are actors that are either impacted by the company or are in a position to impact the company. Primary or definitional stakeholders are vital to the continued growth and survival of the business, and as per the model developed by Freeman, Harrison, and Wicks, they comprise customers, employees, suppliers, communities, and financiers. Secondary shareholders, with the potential to influence primary business relationships, can be activists, governments competitors, media environmentalists, corporate critics and special interest groups.

Regardless of which philosophy a company ascribes to, most companies consider those stakeholders that have influence over the company – shareholders, financiers and customers – as strategically important.

For shareholders and financiers, a central interest is that the company properly assesses and manages risks. In addition, today many of the largest institutional investors have some kind of ethical guidelines that require a basic level of ethics in the companies in which they invest. As of 2022, 4,902 investors were signatories to the UN Principles of Responsible Investment (UNPRI), ranging from venture capital firms to large institutional investors. The signatories commit to six principles, which include incorporating environmental, social, and governance (ESG) issues into investment analysis and decision-making, being active owners and incorporating ESG into their ownership policies and practices.

Financing institutions are of course also concerned with risk – it is how they price their products. Many financiers also adhere to some type of responsible investment scheme, e.g. The Equator Principles, a risk management framework for financial institutions to identify, assess and manage environmental and social risks when financing projects. Many of the world's largest investment banks incorporate sustainability measurements into their financing projects.

An international ecocide law will give institutional investors and financiers stronger incentives to require transparency around the risks of the projects which they consider financing, including environmental risk. As reputational risk increases, investors will distance themselves from companies that cause large-scale destruction. Financiers will either steer away from unmitigated ecocide risks or price the risk considerably higher.

In terms of employees, the risk of being held personally responsible is likely to act as deterrent on decision-makers. It is also worth considering that in most companies, there are individuals who want their company to act responsibly. Where a company's leadership prioritizes profits before responsible business practices, a solid legal framework provides support for the internal stakeholders who wish to influence the company in a responsible direction.

Activist groups can be influential in various ways. In the case of ecocide, activists can play important roles, for instance by highlighting an issue and the scientific research around it, thus making it impossible for decision-makers to claim ignorance. Activists can also play an important part by collecting evidence.

Yet another method of activism is to influence through litigation, see e.g. the example above where Friends of the Earth Netherlands coordinated the lawsuit against Shell. Another example, on a different subject, is the Austrian privacy activist Max Schrems and the privacy watchdog organisation None of Your Business (NYOB). Using the EU data protection regulation (GDPR) as a tool, Schrems and NYOB have, i.a., disrupted the tech sector by challenging data transfers from the EU to the US. These cases have forced the private sector to define and specify their data processing activities and the European Commission to negotiate terms with the US to protect the privacy of European citizens.

Competition and Level Playing Field

Yet another factor that shapes corporate behaviour is the competitive landscape. Competition on equal terms is crucial to corporations because it creates a fair and balanced business environment where companies can compete based on their merits, innovation, and the quality of their products or services. The concept of level playing field means that companies are not unfairly advantaged or disadvantaged by regulatory loopholes or inconsistent standards, ensuring that success is determined by their ability to meet customer needs and provide value. This fosters a healthy competitive landscape that encourages efficiency, innovation, and the pursuit of excellence.

In the present global competition, responsible corporations are at a disadvantage. An international ecocide law seeks to establish a level playing field by removing the impunity for individuals accountable for large-scale environmental destruction, regardless of their geographic location or the legal environment in which they operate. The law will empower responsible corporations, as their efforts will not be undercut by entities exploiting regulatory gaps.

6. Concluding Discussion

In this exploration of the potential impact of an international ecocide law on corporate behavior and environmental protection, we have uncovered both promises and challenges that lie ahead. The question of whether an international ecocide law can effectively alter corporate conduct and prevent large-scale environmental devastation is vital to the discussions on criminalizing ecocide.

As we have seen, the current landscape of multilateral environmental agreements is fraught with limitations. The prevailing situation, where international treaties primarily bind states while harmful activities are often orchestrated by corporations, underscores the urgent need for a paradigm shift in addressing environmental harm at an international level.

However, the proposal to incorporate ecocide into the statute of the ICC offers a beacon of hope. This groundbreaking step aims to hold individuals accountable for their decisions as corporate officers, curtailing jurisdiction-shopping and acting as a deterrent against reckless industrial practices. The ICC's jurisdiction, while limited to member states, carries transnational implications, as demonstrated by instances where leaders of non-member states have faced potential arrest under its warrant.

Furthermore, the effects of an international ecocide law can be expected to reach beyond deterring senior executives from making reckless decisions. An international ecocide law will shape the behaviour of corporations by advancing the development of new standards for corporate responsibility, risk assessment and transparency. The growing trend of responsible investing and the incorporation of environmental, social, and governance (ESG) factors into investment decisions signal a shifting landscape. An international ecocide law would amplify this trend, compelling investors and financiers to demand transparency and accountability in environmental risk assessments. The potential personal liability for decision-makers can resonate with employees who advocate for responsible business practices.

Nonetheless, it is important to acknowledge that an international ecocide law is not a panacea. It will not single-handedly address every environmental challenge, and its jurisdictional and temporal constraints are valid concerns. The principle of nonretroactivity, a cornerstone of legal fairness, prevents the application of new laws to past events. Additionally, there are important discussions to be had on the type of intent suitable for the crime of ecocide. While some critics worry about ambiguity and difficulties in establishing cause and effect, the proposed ecocide law serves as a critical tool for addressing the most egregious instances of environmental devastation.

While it may not address all environmental issues, it is an important step towards ensuring that corporations are held accountable for irresponsible risk-taking, and deterring the global corporate community from taking and investing in such risks. The prospect of a world where environmental destruction is met with accountability, and where corporations recognize their role as stewards of the planet, is an aspiration worth pursuing. The path forward requires international collaboration, legal innovation, and a shared commitment to safeguarding our planet for present and future generations.

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