Ecocide à la Bruxelloise

It had been a long time coming. After eight years of fervent political debates and painstaking legal drafting, the Belgian House of Representatives finally adopted a reform of its ancient Penal Code (dating back all the way to 1867) during the late hours of 22 February 2024. There is much to be said about the progressive spirit underlying this once-in-a-lifetime rehaul of the country’s criminal justice system (for instance, its treatment of imprisonment as a penalty of last resort). My focus in this analysis, however, lies with one of the Code’s substantive innovations: the introduction of a new crime of ‘ecocide’ to punish severe environmental transgressions.

The ecocide provision has been hailed as a resounding victory for environmental activists, particularly so for the burgeoning Stop Ecocide campaign. But is the widespread excitement justified? Can the new law deliver on the lofty expectations? And how does it fit within the soon-to-be adopted revision of the Environmental Crime Directive at the EU level? Despite constituting a highly symbolic step, I argue that the Belgian law’s constrained scope makes it a toothless tool to punish environmental outlaws in practice. Its true potential, then, may lie in having broken the ice for future ecocide laws, as the much more ambitious EU law intimates.

A Crime in Search of a Law

The idea of criminalising ‘ecocide’ – particularly severe forms of environmental destruction – has been around for more than five decades. The term was originally coined in the early 1970s by Yale botanist Arthur Galston to condemn the devastation wrought by the US military’s recourse to herbicidal chemicals throughout the Vietnam War. Although herbicidal – and indeed, environmental – warfare gradually came to be outlawed in international treaties and customary law over the next two decades, the label ecocide quietly disappeared from policy debates, surviving mostly as an academic hobby horse and activist slogan.

In 2010, the late Scottish barrister Polly Higgins excavated ecocide’s promise as a criminal norm and refurbished it as the missing ‘fifth international crime against peace’, with reference to the four crimes currently under the jurisdiction of the Rome Statute (genocide, war crimes, crimes against humanity, crimes of aggression). Higgins’ proposal was as catchy as it was bold. While it initially attracted little interest among states and lawmakers, it sparked a transnational civil society campaign to promote the codification of ecocide in national and international laws.

Over the past few years, these civil society efforts have increasingly worked their way into legislative realms. A crucial step occurred when the Stop Ecocide Foundation tasked an illustrious group of legal experts (the independent expert panel, or IEP) with drafting a uniform definition of ecocide. In June 2021, the IEP determined that ecocide constituted ‘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 IEP definition has attracted significant commentary in academic circles (both supportive and critical), but more significantly, it also inspired a wave of ecocide bills being introduced in parliaments across the globe (recent examples include Mexico, the Netherlands, Catalonia, and Brazil). To be sure, countries like Vietnam, Ukraine, Russia, Uzbekistan, and others have recognised some version of ecocide for decades – a vestige of the Cold War era – but these largely symbolic prohibitions seem to have suffered from a general lack of enforcement (although Ukraine has recently made use of its ecocide law to prosecute environmental crimes committed in the context of the ongoing Russian aggression).

In August 2021, France became the first European country in recent history to codify ecocide via its Climate and Resilience Law (No. 2021-1104). The French provision, however, did not take account of the IEP definition and ultimately turned into a mere re-qualification of existing environmental offenses where those are committed with intent. Belgium’s new Penal Code thus marks the first comprehensive ecocide law to be adopted in a Western legal system, and the first one to be modelled after the IEP definition. How and why did this occur?

A Legislative Odyssey

The idea of reforming Belgium’s century-old and heavily convoluted criminal code first arose under the previous government of Charles Michel. In 2015, then Minister of Justice Koen Geens entrusted the redrafting to two respected criminal law experts, Damien Vandermeersch and Joëlle Rozie. The main goals were to restructure the law for better readability, simplify its logic, and modernize its substance. Like its predecessor, the new Code was structured into two books, the first of which dealt with general provisions relating to the material and mental elements of crime, rules on participation, and criminal attempts, among others. Book II, by contrast, reconfigured the substance of Belgian criminal law, abolishing some offenses, adjusting penalties, and introducing some new crimes – although there was no mention of ecocide yet.

After the fall of Michel’s government in late 2018, the revamped Penal Code failed to reach a parliamentary vote and was eventually put on ice until the new administration would take over. Unfortunately, though, the federal elections in May 2019 created an ever-splintered parliament, with both progressive and far-right parties gaining seats from the centre. When there was still no coalition agreement in sight one year later, MP Samuel Cogolati – a newly elected parliamentarian from the Francophone green party Ecolo with a PhD in international law – tabled a resolution calling on the caretaker government to push for the criminalisation of ecocide at the national and international level.

This is how a reference to ecocide came to be included in the coalition agreement between a total of seven green, liberal, centrist and social democrat parties (the so-called ‘Vivaldi’ coalition, for the four ‘seasons’, i.e., political ideologies represented) in October 2020, a mere 494 days after the elections. The agreement called upon the government to seek expert input on the possibility of codifying ecocide in national law and to undertake diplomatic efforts towards international criminalisation.

Both demands were swiftly implemented by the new government. At the 19th annual gathering of parties to the Rome Statute (Assembly of State Parties, or ASP) in December 2020, Minister of Foreign Affairs Sophie Wilmès prominently called on the international community to consider the ecocide proposal. Only a few days later, Minister of Justice Vincent Van Quickenborne tasked the group of legal experts who had drawn up the initial reform project (with the addition of two new members, Jeroen de Herdt and Charles-Hubert Born) to study ecocide’s domestic criminalisation.

To keep up the pressure from the parliamentary side, MP Cogolati submitted another parliamentary resolution in June 2021 drawing attention to the IEP definition published just days earlier. After receiving a positive verdict in the Committee on External Affairs, that resolution was eventually adopted in plenary on 2 December 2021. Just one day before this crucial vote, MP Cogolati had also introduced a fully-fledged legislative proposal to criminalise ecocide in the new Penal Code.

Almost simultaneously with the parliamentary endorsement of Cogolati’s resolution and the introduction of his legislative initiative, the group of Belgian legal experts transmitted its own positive assessment to the Minister of Justice. Protracted discussions within the government ensued, during which Minister of the Environment Zakia Khattabi (of the same party as Cogolati, Ecolo) emerged as a vocal supporter of the ecocide proposal. In November 2022, Book II of the new Penal Code – including an ecocide provision – passed a first vote in plenary.

Before the law’s adoption, however, the Belgian Council of State – the country’s supreme administrative court with far-ranging, mandatory advisory powers in the legislative process – took issue with several aspects of the reform, including the proposed ecocide provision. This negative opinion, issued in June 2023, forced the government to make further adjustments. In July 2023, it reintroduced Book II to the House of Representatives, which finally gave its green light on 22 February 2024.

Ecocide Domesticated

In Art. 94 of the final version of Book II, ecocide is outlawed in the following terms:

§1 The crime of ecocide, as hereinafter defined, committed both in time of peace and in time of war, is punished in accordance with the provisions of this title.

The crime of ecocide consists of deliberately committing, by act or omission, an unlawful action causing severe, widespread and long-term damage to the environment in the knowledge that this act causes such damage, provided that this act constitutes an infringement of federal legislation or an international instrument that is binding on the federal authority or if the act cannot be located in Belgium.¹⁾

Art. 94 further defines several key concepts and classifies ecocide as a level 6 offense, that is, punishable by a prison sentence between 15 and 20 years for natural persons and a fine between EUR 1.2 million and EUR 1.6 million for legal persons.

At first glance, Art. 94 might seem like a monumental victory for Samuel Cogolati, Zakia Khattabi, and the many civil society organisations that had fought for the ecocide law – and in many ways, it is. Throughout the bumpy legislative process, however, the law also incurred various modifications, many of which severely reduced its reach.

At the outset, it is important to stress that the very adoption of an autonomous crime of ecocide is a significant achievement – recall that the French counterpart, for instance, is a mere requalification of existing crimes. Moreover, Art. 94 makes clear that ecocide applies both in times of war and peace, thus distinguishing it from environmental war crimes. Another curious detail is its placement in the overall structure of Book II. Indeed, Art. 94 is the only article under Title 2, ‘The Crime of Ecocide’, and directly follows the crimes enshrined in Title 1, ‘Grave Violations of International Humanitarian Law’, which is the domestic instrument implementing the international crimes of genocide, crimes against humanity, war crimes, and forced displacement. This positioning cleverly symbolises ecocide’s claim to international criminality without directly equating it to crimes recognised in international treaties. It presents a compromise vis-à-vis the proposal made by the Belgian expert commission, which would have included ecocide within Title 1 and explicitly recognised it as an international crime. (Widespread reports of Belgium ‘recognising ecocide as an international crime’ are thus ill-founded).

The rosy picture acquires some more cracks when considering the actus reus and mens rea elements. The 2021 legislative initiative by MP Cogolati foresaw a direct translation of the IEP definition (which some commentators already view as too restrictive). Similarly, the experts’ proposal still retained the ‘unlawful or wanton’ formulation (‘actes illicites ou arbitraires’) and the mental threshold of ‘knowledge of a substantial likelihood of damage’ (‘en sachant qu’il existe une réelle probabilité que ces actes causent de tels dommages’). However, it required the acts in question to be committed deliberately, and changed the material yardstick to the cumulative ‘severe, widespread and long-term damage’, rather than ‘severe and widespread or long-term damage’, as postulated in the IEP definition.

Over the course of negotiations within the governing coalition, the mens rea was changed from a form of dolus eventualis (knowledge of likelihood of damage) to dolus indirectus (knowledge of severe, widespread, and longterm damage). This significantly higher threshold will likely be near-impossible for prosecutors to prove. Moreover, the government’s legislative proposal of November 2022 also removed the ‘wanton’ element, thus strictly requiring ecocidal acts to be unlawful. To make matters worse, the final version further explains that ‘unlawfulness’ includes only violations of Belgian federal law and of international instruments to which Belgium is a party. As explained by Kevin Jon Heller, this is a severe restriction considering that the Belgian regions possess near-exclusive competence over environmental protection measures (with the exception of nuclear waste management and trade in illegal species, among others), and that few international instruments contain clear-cut prohibitions in relation to environmental conduct.

This brings me to the last, and perhaps most impactful defect the law suffers from – its territorial scope. The division of competences between the federated entities and the federal government in the Belgian legal system is not only mutually exclusive in terms of substance, but also in territorial terms. That is, the new crime only applies in areas under federal control, which includes most of Belgium’s sea territory, or acts that occur outside of Belgian territory altogether. The latter category, however, is severely restricted by national and international rules constraining the extraterritorial effect of domestic law. Under the active personality principle, though, the law would presumably still apply to Belgian nationals committing ecocide abroad.

This point had been a key source of conflict in terms of constitutional interpretation, which boils down to a simple question: Is ecocide a criminal law or an environmental measure? While the federal government retains competence in matters of general criminal law, Belgium’s three regions enjoy almost exclusive rein in environmental matters. The group of Belgian criminal law experts considered ecocide to be closer to an international crime such as the prohibition of environmental war crimes (hence also their unsuccessful proposal to include ecocide in Title 1), and thus within the competence of the federal government. The Council of State begged to differ. It argued that ecocide primarily concerned environmental protection and thus fell to the regions.

Of course, this flaw could be easily remedied if the regions chose to adopt ecocide individually – a step that seems more likely for left-leaning Wallonia and the capital region of Brussles than for the increasingly conservative Flanders. As it stands, however, Art. 94 is unlikely to lead to high-level prosecutions.

Amidst all these technical details, it is all too easy to forget that criminal law, more so than other branches of the law, also fulfils a strong expressive function. The proof of Art. 94’s pudding may not only lie in the eating. The mere risk of association with a federal crime may be enough to shift corporate practices and public consciousness – particularly so when considering recent developments at the EU level.

Ecocide in the other Brussels

The Belgian Penal Code is not the only ecocide law being hammered out in Brussels these days. In November 2023, news broke that the EU Parliament and the Council had reached an agreement on the revised Environmental Crime Directive (ECD). The revised ECD was approved by the Parliament on 27 February 2024 and is now awaiting the final green light by the Council. Although it only mentions the word ‘ecocide’ in a preambular provision, its content comes much closer to environmentalists’ ambitions than the Belgian law.

Instead of stipulating one overarching rule, the revised ECD criminalises a long list of prohibited conduct (Art. 3(2)) and requires member states to provide for higher penalties where such conduct causes ‘widespread and substantial damage which is either irreversible or long-lasting’ to ecosystems or to the quality of air, soil, or water (Art. 3(3)). The revised ECD thus adopts a version of the cumulative ‘severe, widespread, and long-term damage’ threshold, similar to the Belgian law and in contrast to the IEP definition.

Yet, the European law differs in two crucial respects from the Belgian one. First, it defines unlawfulness much more leniently. ‘Unlawful’ conduct includes not only breaches of the EU’s corpus of environmental law and national instruments giving effect to such law, but also formally authorised conduct where such authorisation was obtained fraudulently or is in ‘manifest breach of relevant substantive legal requirements’ (Art. 3(1)). This latter part potentially opens the door to prosecutions of environmental damage in connection with human rights abuses or constitutional infringements, for instance, even if formally sanctioned by a valid license.

Second, the revised ECD stipulates an intentionality requirement only for some types of conduct, whereas others are also punishable if committed with ‘serious negligence’ (Art. 3(4)). This significantly lowers the mens rea yardstick and should facilitate prosecutions.

What’s Next for Ecocide?

If and once the revised ECD is formally adopted, Belgium and other EU member states will be forced to revisit their environmental criminal laws. This development will only give further impetus to mounting pressure to codify a new environmental crime at the international level. The Council of Europe has already picked up the thread by proposing a revision of its stillborn 1998 Convention on the Protection of the Environment through Criminal Law. Within the Rome Statute system, more and more states have expressed support for an ecocide amendment, although no formal proposal has yet been lodged (an amendment would require approval by a two thirds majority of state parties). Whatever the prospects of these endeavours, the ecocide debate is here to stay.

Acknowledgments: I am grateful to Antoine De Spiegeleir for helpful advise on the intricacies of Belgian criminal and constitutional law. Naturally, remaining errors are mine alone.