Shaida, Uzair and Jasmine were law student scholars, participating in the WS Society Summer Scholarship programme during July 2024. This article summarises their research and presentation.
Introduction and Background
“If genocide could be perpetuated against humankind... then an attempt to destroy a natural environment should be qualified as equally disturbing. Such an atrocity required a similar concept – ecocide or an attempt to wipe out a specific environment.”
The concept of "ecocide" originates from the 1970s, when professor Galston advocated against harmful herbicides during his environmental campaign. In today’s climate, ecocide has been regarded as “long-term and severe damage to the natural environment” recognised as a war crime under Article 8(2)(b)(iv) of the Rome Statute.
Ecocide is defined 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.
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This report aims to provide a comprehensive review of the EU's 'Ecocide' Law as embodied in Directive 2024/1203 (“the 2024 Directive”). It will compare the new directive with its predecessor, Directive 2008/99/EC (“the 2008 Directive”). It will also examine the penalties and legal liability thresholds, the enforcement mechanisms, the scope of the new directive, and implications for small-medium enterprises (SMEs) and big corporations. Furthermore, the report will provide a global insight on Ecocide, with a particular focus on the Scottish and UK frameworks.
Comparison of the 2008 and 2024 Directives Including Offences
“The Directive now outlines 20 environmental offences, which significantly widens the scope of prosecution. Also, the introduction of a ‘qualified offence’ under Article 3(3) widens the scope even more, and doesn’t limit environmental offences to 20 separate acts.”
The 2024 Directive is a substantial improvement over the 2008 Directive, increasing the number of criminal offences from 9 to 20. New offences such as the placing of harmful products on the market and executing projects without consent have been introduced. It categorises offences based on intent or serious negligence, providing clearer definitions and penalties for unlawful conduct. It introduces new offences relating to hazardous substances, waste management, ship recycling, ship-source pollution, offshore installations, and more. Additionally, ‘qualified offences’ comparable to ecocide are introduced, mandating severe penalties for catastrophic environmental damage.
Unfortunately, the Directive is incomplete, and there are some acts which are not yet criminalised. This includes unregulated and illegal fishing, which was a concern for the European Parliament. Although the European Commission is tasked with updating the list of offences, it is unclear how often this exercise will be carried out.
While there are gaps and some criminal acts are not yet formal offences, the 2024 Directive still covers a lot of the key environmental offences which cause harm. Also, theoretically the Directive still has the opportunity to be updated to reflect the changes in environmental criminal law, which is left to the Commission to do so.
Scope
The scope of the 2024 Directive is extensive and wide-ranging. Member States have jurisdiction over offences that have been committed within their territory. This also extends beyond the territory of the State, including (a) on board on ships or aircraft registered to the Member State, (b) when the offender is a national or habitual resident of the State, (c) when the offence benefits an organisation established in their territory, or (d) if the offence poses as an extreme environmental risk to their territory.
Pollution on the Rhine River, located in Switzerland, Liechtenstein, Austria, Germany, France and The Netherlands.
The scope of this Directive is undoubtedly wide, as Member States can still prosecute for crimes which still concerns them, even if it wasn’t committed on their land. The increased scope of the Directive will make it a lot easier to actually prosecute these crimes on an EU level. Thus, it becomes a stronger deterrent as organisations who commit offences can open themselves to increased prosecution.
For example, in a scenario where a river, such as the Rhine, is polluted, Member States where the Rhine cuts through can prosecute if they are impacted by environmental offences caused within the Rhine in another Member State.
Penalties and Sanctions
In the 2024 Directive, penalties can be imposed on natural and legal persons for any of the offences carried out. These penalties should be effective, proportionate and dissuasive criminal penalties.
For natural persons, the maximum sentence that can be imposed for the most serious offences causing death should be 10+ years. For qualified offences, the maximum sentence should be 8+ years, and for other offences, at least 3-5 years depending on the specific offence. For legal persons, they could be fined either up to 5% of their total worldwide turnover, or €40,000,000 for the most serious offences. For other offences, they could be fined either up to 3%, or €24,000,000.
Other penalties can also be imposed, such as the requirement to restore or compensate for damage to the environment, be excluded from public funding, or have permits withdrawn. These penalties can vary depending on the circumstances of the case, known as ‘mitigating’ and ‘aggravating’ circumstances which can either reduce or increase the penalty.
The severity of the penalties reflects the severity of the offences, and acts as a sufficient deterrent for perpetrators. According to Europol, environmental crime is a global industry with an annual worth of $70bn - $213bn. The increase in fines, and the introduction of prison sentences creates a stronger deterrent, stopping companies from incorporating these fines into the budget. Simply, there is more on the line.
Legal Liability Threshold for Legal Persons
To justifiably impose penalties onto a legal person, they must be held liable for the offence committed. Article 6 of the 2024 Directive states that a legal person will be liable when an individual within the legal person commits the offence for the benefit of the legal person. This individual must also have (a) the power to represent the legal person, (b) the authority to make decisions on their behalf, or (c) the authority to exercise control within the legal person. A legal person may also be liable when an individual commits an offence due to exercising a lack of supervision or control over them.
This threshold can be compared to the Manchester Ship Canal Case (discussed further below). Also, it can be compared to vicarious liability as both stipulate a responsibility for companies over their employees.
Although it is clear what is required to hold a legal person liable, this threshold is too high, as there needs to be definitive proof of a benefit to the company, as well as the individual holding a position of authority. Legal persons can easily avoid liability by distancing themselves with said individual.
Enforcement Mechanisms
“The Directive is enforced through cooperation between Member States, and with EU bodies. However, the European Public Prosecutor’s Office (EPPO) has no power to prosecute environmental offences.”
Articles 19-20 ensure that the Directive is enforced through Member States cooperating with each other, and with EU bodies, through establishing specialised coordination bodies. This essentially makes it easier to prosecute environmental crime and makes assistance more readily available.
Enforcing the Directive, and prosecuting offences will be a lot easier, as Article 13 requires Member States to have sufficient staff, funds and resources to properly investigate and prosecute offences. However, EPPO cannot prosecute themselves, and only assists with cooperation. This is a missed opportunity to make prosecuting offences even easier at EU level.
Implications on SMEs and Big Corporations
Application of the 2024 Directive varies depending on the organisation’s size. Article 7(3) states that the penalties imposed must be proportionate “to the individual, financial and other circumstances of the legal person concerned.” Although the size of the organisation will be considered when issuing penalties, larger corporations will less likely be affected by financial sanctions than smaller entities. This is because for smaller entities, a larger proportion of funds will be required to pay the fines.
Comparisons with Similar Legislative Pieces
Scotland:
According to a Scottish Sentencing Council Report, there has been long-standing criticism of the viewpoint that Scotland’s environmental offences are excessively light, and do not serve as enough of a deterrent. Scotland has proposed ecocide legislation in November 2023, which aligns closely with the 2024 Directive, albeit imposing stricter penalties of a minimum of 10-20 years. Additionally, the proposed Bill seeks to impose a sanction on legal persons of up to 10% of worldwide turnover, compared to the EU’s 3-5%.
The new Bill would act as an overarching piece of legislation seeking to fill in the gaps in the current legislation. It has been drafted to complement existing environmental bodies like the Scottish Environmental Protection Agency (SEPA), who will act as the enforcing body, as currently the Environmental Rights Centre for Scotland (ERCS) found that enforcement efforts are not enough. For example, recent data confirms that prosecutions, statutory notices and other penalties for pollution breaches have decreased by over 100 since 2017.
The UK:
The UK’s approach to environmental law has traditionally involved criminal penalties for regulatory breaches. While there is no specific crime of ‘ecocide’, existing legislation covers a range of environmental offences. The UK's piecemeal approach contrasts with the comprehensive nature of the 2024 Directive, highlighting the need for more unified and stringent environmental laws.
While the UK has no obligation to implement the 2024 Directive, Baroness Boycott proposed an Ecocide Bill at the end of 2023, but the Private Member’s Bill did not receive government support. Although the Bill was unsuccessful, it highlights issues of public importance, potentially influencing future legislation. The biggest setback for the UK is not a lack of environmental laws, but a lack of investment and inadequate enforcement and sanctions. However, new sentencing guidelines are gradually leaning towards imposing higher penalties, and the new Office for Environmental Protection already has a useful oversight on regulatory action.
Manchester Ship Canal Company v United Utilities Water (No 2) [2024] UKSC 22 discussed whether a civil law claim in nuisance or trespassing could be raised against the utilities company. This was in relation to unauthorised discharges of untreated foul water. It was held that the canal company could bring a claim in nuisance or trespassing, regardless of there being no negligence or deliberate misconduct. The actions by the utilities company would likely be considered under the 2024 Directive as unlawful waste management constituting a criminal offence, where such conduct concerns hazardous waste. If the UK was to adopt the Directive, this case may have gone through criminal proceedings as opposed to the civil route.
The EU:
In the Czech Republic, the 2008 Directive was implemented and environmental regulation is governed by the Czech Criminal Code (CCC). Although it does not fully recognise the term ‘ecocide’, it is still reflected in the CCC. To comply with the 2024 Directive, new offences will need to be introduced into the CCC, as well as increasing the penalties.
Belgium has been in support of the new Directive even before its publication in the EU Journal. It included the crime of ecocide into a new criminal code which is to be adopted in 2026. They define it as “deliberately committing an unlawful act causing serious, widespread and long-term damage to the environment knowing that such acts cause such damage.”
Conclusion
“In order for the Directive to actually work, Member States need to take steps to ensure that it is properly implemented. They also need to continuously enforce the Directive, otherwise, it merely becomes a list of provisions.”
In conclusion, the 2024 Directive represents a significant advancement in the EU's efforts to combat ecocide, despite it not being specifically mentioned. However, it is crucial that Member States abide by the Directive, by implementing specialised bodies, as well as cooperate with one another, for it to actually work. Additionally, the countries seeking to prevent ecocide-type crimes should remain conscious of adequate enforcement. If Member States fail to do so, the Directive will be ineffective in combating ecocide, and will merely become another list of provisions.