Temps de lecture :3 minutes
“An environmental September 11” and “an act of environmental terrorism”. These are the terms the President of the United States used to describe the oil slick in the Gulf of Mexico, and the Italian local authorities used to refer to the carelessness which caused thousands of cubic meters of oil to be washed into one of the Po’s tributaries.
These sorts of statements have recourse to notions bordering on the most serious reprehensible acts in society: crimes. Jurists then have to determine to what extent man can be found guilty of acts that seriously damage the environment.
The fact remains that by resorting to criminal terminology, politicians are falling in line with the growing movement in favour of the criminalization of environmental law. Such a social will to punish practices that pose a threat to the environment was seen during several oil slicks (Erika, Prestige) and the development of toxic waste trafficking. When waste from the “Probo Koala” was spread around Abidjan in 2006, it caused many serious sanitary and environmental problems. And yet, for a long time, the number of sentences meted out to guilty polluters was not at all dissuasive. Total was sentenced to the maximum fine in the Erika case, 375.000 €.
Moreover, just because legal texts increase the number of penalties does not mean that judges enforce them, either because of the field’s legal complexity or political issues. For example, in the case of the bear called “Cannelle”*, the hunter was found not guilty. The only reason for this was that the prosecution, representing the government, did not appeal the decision of the court of first instance of limited jurisdiction to acquit him. And even though official figures (Repères n° 10, oct. 2009, INHES-OND) show that environmental crime is on the rise, many pollution cases have been closed.
Not to mention the differences in legislation throughout the world that create a base for environmental dumping. There is no doubt that we now need criminal law that is more effective and dissuasive towards activities that are detrimental to the environment.
One more thing regarding the appearance of optimum green crime needs to be defined. There is no doubt that intentional behaviour which damages the environment should be raised to the highest level on the scale of offences. The French Penal Code has thus recognised environmental terrorism as a crime since 1994. This involves using terror to seriously disrupt public order by introducing substances that can harm humans, animals or nature, into the environment.
It is a strong sign in favour of the protection of the environment itself if such a crime can incur sentences going up to life imprisonment. However, the demands of “an act that uses terror to seriously disrupt public order”, limits its impact. This would apply if a highly toxic substance that strongly affected all forms of life was introduced into the atmosphere to destabilize the French government, for example. However, acts that cause environmental disasters without a terrorist aim, like destroying natural spaces to make real estate expansion easier, are not included.
Can we not therefore, by pushing this perspective of crime against humanity and crime of genocide further, imagine the creation of ecocide which would go beyond the sole crime of environmental terrorism? This ecocide (which already exists in the Russian penal code) justified by the solidarity man shares with the rest of the living world (E. Morin, Terre Patrie, Le seuil, 1993, p. 212) would allow any voluntary act of massive destruction of animal and plant life, poisoning of the atmosphere, water or soil, as well as all deliberate acts that cause serious irreversible damage to the environment, to be sanctioned.
We need some legislation on an international level to settle on a common definition of ecocide, either by adding this crime to the statute of the international Criminal Court or on a specific international convention. This would be followed by the setup of either a specialized chamber at The Hague International Criminal Court, or an International Environmental Criminal Court created ad hoc (Que sais-je ? Crime contre l’humanité, PUF, 2009, Chapter 3, p. 81 and s.). Several proposals are already heading in that direction, whether one is considering the suggestion made by barristers at the Lyon Bar for an “Arche de justice pour la Terre” or the suggestion for an International Environmental Criminal Court and a European Environmental Criminal Court developed during the conference organised at the end of 2009 in Venice by the International Academy Of Environmental Sciences.
If ecocide is recognised as a crime, behaviour that seriously damages the environment would finally be punished in equal measure to the damage inflicted, whether it occurs during armed conflict – such as the use of Agent Orange in Vietnam and oil wells being bombed in Kuwait – or not, like the Probo Koala waste trafficking, the voluntary pollution of the Po plain or the arson that affects natural spaces of high environmental value like the primary forest.
*Arch of justice for Earth
About green crime by Laurent Neyret
Text courtesy of the author