Could an international ecocide law be around the corner?

Lawyers are drafting a legal definition of ecocide which could lead to prosecutions at the International Criminal Court. Anthony Langat explores how this could impact environmental justice struggles in Kenya and beyond.

Lamu Island, 2017. Credit: Ssence Studios/WikiCommons

Fifteen years ago, in the coastal city of Mombasa, Kenya, a battery recycling plant set up operations next to a slum, seeping toxic waste and poisoning residents with lead. From a community of 3,000 people, an estimated 100 died as a consequence. The factory was eventually shut down in 2014 and while local residents of the Owinouhuru suburb have been awarded compensation, legal battles continue.

North of Mombasa, activists have been fighting plans for a 1050 megawatt coal-fired power plant off the coast of the pristine Lamu island since 2014. Amu Power won the bid for the construction but in 2019 the National Environmental Tribunal stopped the project from going ahead, thanks to public pressure. Financiers have also since exited the project, yet Amu Power is continuing to try and push it forward. The plant’s proposed site is home to the indigenous Bajuni and the Aweer people and situated just 21 kilometers north of the UNESCO World Heritage site of Lamu. If completed, the coal-fired power plant is set to cause serious environmental destruction, including pollution of the ocean, air, and fresh water and a 700 per cent increase in Kenya’s greenhouse gas emissions. The plant would threaten the Bajuni and the Aweer’s way of life, as well as wider human and ecosystem health.

Development projects like these can contribute to significant social and environmental harm and the governments and corporations involved are rarely held to account. Communities have to fight lengthy legal battles to get any kind of justice. But, a new international ecocide law could help stop them quicker. By June 2021, an expert panel of international lawyers are set to complete a draft definition of ‘ecocide’ which could see it added to the Rome Statute (the founding document of the International Criminal Court, or ICC) as a fifth international crime against peace.

Omar Elmawi, a lawyer at DeCOALonize, an organization that advocates against coal, believes that an international ecocide law could hold corporations responsible, but that it should also target the people at the top. ‘If a company is involved in a crime, it should not be protected. The law should lift the corporate veil and hold accountable those individuals within the corporation that were responsible. If this is done, directors of a company will not hide behind the corporation’s protection as they destroy the environment, which is the primary source of livelihood for marginalized communities like the one in Lamu,’ he says.

An expanded definition of ecocide covers ‘acts or omissions committed in times of peace or conflict by any senior person within the course of State, corporate or any other entity’s activity which cause, contribute to, or may be expected to cause or contribute to serious ecological, climate or cultural loss or damage to or destruction of ecosystems or a given territory, such that peaceful enjoyment by the inhabitants has been or will be severely diminished.’ Joshua Castellino, Executive Director of Minority Rights Group, argues that there is a clear nexus between corporations seeking to exploit resources to benefit their supply chains, and governments that stand to profit in the short-term from said exploitation. Putting this definition into law would find senior state and corporate officials culpable where environmental destruction can be demonstrated to reduce the marginal benefits provided by ecosystems.

Becoming a target

The work of defending land, ecosystems, indigenous rights and livelihoods often comes with immense risks. Across the world, environmental human rights defenders face threats, from harassment to intimidation, assault and even assassination.

Phyllis Omido vividly remembers the day in 2012 when she was arrested and charged for allegedly inciting violence while protesting the lead-poisoning of Owinouhuru residents in her hometown of Mombasa. It could have been worse. Kenya is ranked among the most dangerous countries in the world for human rights defenders. She is currently fighting for compensation for victims in what has become a drawn-out court battle with government authorities. ‘Land and environmental defenders who insist on implementation of environmental law are always criminalized and, in many cases, assassinated,’ she told New Internationalist. Three years after the incident Omido won the Goldman Environmental Prize, together with Berta Caceres, a Honduran environmental human rights defender who was murdered five years ago.

Legal campaigners Natural Justice work with communities along the Lamu-Port and Lamu-Southern Sudan-Ethiopia Transport (LAPSSET) Corridor in Kenya. LAPSSET is an infrastructure network that traverses indigenous people’s territories from the country’s north to the coast. The roads and other components of the development have led to the clearance of vegetation and the loss of communally held land which communities use traditional systems to protect. ‘The proliferation of such projects that have improper environmental management systems in climate-sensitive areas pose long-lasting environmental threats,’ says Emmanuel Siakilo, research manager at Natural Justice.

He singles out the Lamu coal plant, which is part of the LAPSSET Corridor. ‘Coal dust is a major contaminant, and in this case this would coat the mangroves, reducing their ability to exchange carbon dioxide, and harm marine organisms: the destruction of the mangroves and aquatic ecosystems would have irreparable impacts on their habitat and threaten their existence,’ he says.

Taking responsibility

If ecocide is successfully adopted as an international crime, environmental and human rights defenders, indigenous people and others could formally challenge such projects and stop them once and for all. ‘The adoption of ecocide as a crime by the ICC would be a game-changer for getting justice to indigenous communities and other victims of environmental destruction. The culprits will be taken to the ICC, and the whole world will be able to see the faces of those that destroyed the marginalized community's environment and the livelihoods that they derived from it,’ says Elmawi.

However, some suspect that the International Criminal Court may fail to protect victims and that it does not have strong enough legal teeth. This is not baseless, as the ICC has been found wanting in historic prosecutions. ‘The ICC was set up on the back of the need to ensure against impunity for the most heinous crimes committed against groups. Yet by seeking high profile trials of individuals from politically vanquished powers while letting the powerful get away with crimes against humanity, the justice project appeared to lose its purpose,’ says Castellino.

There is also an argument that ecocide stretches the mandate of the ICC and that the judges are ‘experts in criminal law or humanitarian law and not environmental law.’ Castellino believes that read from a narrow legalistic perspective it may well do. ‘But this is a case of where law does not serve the justice project which it was always intended to be the handmaiden of. If the laws as framed are too narrow in their plain meaning, it is worth going back to what their object and purpose was, which was to protect society from mass scale crimes that devastated their communities,’ he says. Castellino cites the Nuremberg Trials as worth recalling, since jurists were aware then of how companies not originally intended to be the focus of the trials could also be held responsible. ‘That was an instance of justice being served by the law project, and not made subject to it.’

For Omido, the criminalization of ecocide will bestow responsibility on the ICC to protect the environment and its defenders. ‘I welcome any move that creates access to effective remedies for environmental harms at the international level,’ she says. ‘Governments that prioritize profits and, in some cases, have interest in corporate entities, can never deliver environmental justice for citizens and the planet. An international criminal court would ensure protection of land and environmental defenders and the planet.’

Anthony Langat is a freelance journalist based in Nairobi, Kenya who has contributed to BBC Future, Al Jazeera, and the Guardian. He covers social issues, including human rights, the environment and climate change.

This article was funded by the Polden-Puckham Charitable Foundation.