On 23 November, Wild Legal alongside with members of the Citizen's Climate Convention (CCC) discussed with the French Minister of Ecological Transition and the Minister of Justice, following their announcement to adopt a new legislation recognizing the “ecocide offence”. During this meeting, Wild Legal expressed its serious concerns and disagreement with the proposed legal definition.
On 21 November, the two ministers have publicly announced their intention to include a new law on the “ecocide offence” in French law (see press release “ Barbara Pompili et Eric Dupond-Moretti : "Nous créons un délit d'écocide"). But in fact, what the Governement is actually proposing, is only the update of the generic crime of “harm to the environment" that was already suggested in the report "Justice for the Environment" published by the ministries of Justice and Ecological Transition in October 2019, renaming it simply - and auspiciously – the "ecocide offence", in order to simulate compliance with the recommendations of the Citizen's Climate Convention. Citizens of the CCC, who were present at the discussion on 23 November, also realized the maneuver of the Government and expressed that they would not align with this proposal that differs a lot from their proposal.
Wild Legal considers that the Government proposal limits itself to address local environmental litigation rather than taking seriously in consideration the scopes and challenges of mass damage and destruction of the balance of natural environments and the ecosystems on the Earth. The objective of recognizing the ecocide as a criminal offence is to establish that no one should go unpunished for destroying the natural world, and particularly the safety and habitability of the planet.
According to Wild Legal, the Government proposal does not take into account the historical and international context of the notion of ecocide, originated from the Vietnam War to denounce the deliberate and massive destruction of the environment caused by the use of chemical herbicides (Agent Orange)[ See The Origins of Ecocide: Revisiting the Ho Chi Minh Trail in the Vietnam War, by Pamela McElwee, Arcadia, Spring 2020, no. 20]. Ecocide is not just any environmental crime: it is the crime that, if recognized, could put an end to the up-to now legally permitted destruction of our ecosystems. It aims at countering environmental damage of such gravity as to jeopardize the safety of the planet. At the time of writing of the Rome Statute of the International Criminal Court, it was already envisaged to include such offence among the most serious crimes affecting the entire international community. By weakening the scope of the crime of ecocide, this legal definition proposed by the French government would undermine the work of several international legal and citizens’ movements such as “Stop ecocide Foundation”, towards the addition of Ecocide to the Rome Statute as the 5th Crime against peace alongside Genocide, War Crimes, Crimes of Aggression and Crimes against humanity. While numerous jurists are calling for the consideration of this crime at the international level, it seems unconcievable that France reduces it to an offence of pollution. Indeed, the proposal made by Wild Legal encompasses the study of the crime according to its an eco-systemic dimension, based on the understanding of the planetary limits and the biological equilibrium of natural environments, whereas the current government's proposal is limited to studying the action of disseminating polluting substances affecting water, air or soil.
"Despite the French President Emmanuel Macron had described the act of deforestation linked to fires in the Amazon as an Ecocide crime, the legal definition proposed by his ministers would not allow any prosecution against the destruction of forests before the French jurisdictions. This discrepancy clearly shows that the proposed definition will not cope with the current challenges that we are now facing", said Marine Calmet, president of Wild Legal.
In addition, the legal definition of ecocide proposed by Wild legal would aim at creating a paradigm shift in environmental criminal law, in adopting an autonomous crime, dissociating the notion of ecocide from existing administrative law. What contribution in practice? If we look at the case of the red mud discharges from the Alteo factory into the Mediterranean sea (see Wild legal dossier), such industrial pollution, currently legally approved, could no longer be covered by simple prefectural administrative legal authorizations, and could finally be prosecuted for the crime of ecocide. A step that the Minister of Justice has rigorously rejected during the meeting on 23 November.
Finally, the law proposed by the Government suggests that the "ecocide offence" would be sanctioned by up to 4.5 million euros "that can be increased to ten times the benefit obtained". This is well below the proposal made by the CCC, which called for a fine up to 10 million euros, or, in the case of a company, for a fine up to 20% of its annual worldwide sales. The Government proposed calculation procedure would makes it very difficult to estimate for the judges, at it would depend on obtaining sufficient information on the “spared” costs related to waste processing….
Since June 2020 (conclusion of the CCC work), Wild Legal noted the impossibility of translating the planetary limits into the French law, within the deadline self-imposed by the government's political agenda (see Wild Legal dossier on ecocide and planetary limits). Wild Legal has therefore worked on an alternative legal definition, based on existing the applicable concepts in French law. It proposes a definition that would take up the CCC's philosophy, draw on the work legacy of Polly Higgins, and be in conformity with the international law to define and sanction the crime of ecocide through the infringement of the French nation's fundamental "ecological" interests (article 410-1 of the Penal Code), understood as "a serious, lasting or extensive damage to the environment that would be likely to endanger the balance of the natural environment in the long term or that could harm the state of conservation of an ecosystem".
This paper proposed by Wild Legal has been discussed within a working group composed of CCC members, lawyers, magistrates, law academics and scientists. On two occasions, Wild Legal, together with members of the CCC presented its work to government representatives, but none of the proposals were retained by the Government.
"The poker trick of renaming the "generic environmental offence" into an "ecocide offence" is not worth the hopes that CCC members have placed in the commitments made by the President and his government," said Marine Calmet.
Consequently, Wild Legal is calling for the government to withdraw the notion of “ecocide” from its text, since the current legal proposal does not respect the wishes of the CCC or the ambitions of the international movement towards the recognition of the crime of ecocide. Wild Legal will continue to discuss with parliamentarians, ahead of debates starting on December 8 at the National Assembly. Wild Legal hopes to count on the voices of the parliamentarians who have expressed their support to the work of the CCC to table the necessary amendments and defend the recognition of the crime of ecocide that is commensurate with the ecological and societal challenges of our time.
Marine Calmet : +220.127.116.11.03.99
Héléna Seron : +18.104.22.168.12.70
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