Ecocide and Corporate Accountability
Introduction
Ecocide has gained traction as an essential element to reforming the legal framework to hold individual actors accountable for their role in exacerbating environmental damage. As states continue to drag their heels on climate action, the focus has turned as to how to create legal deterrents that would encourage international leaders to pursue measures to combat climate change. In particular, a debate has arisen as to how to balance liability between states, who contribute to climate inaction and corporations, who also play a key role in rising global emissions.[1] Corporations, which often utilise a complex set of multi-jurisdictional headquarters and subsidiary companies,[2] can often avoid being held responsible for damage caused by climate change through the use of traditional legal principles such as separate legal personality and limited liability.[3] However, without further efforts to pursue corporations, the chance of keeping global temperature within a scientifically acceptable level will remain slim, given one of the primary entities behind unsustainable production i.e business can continue to operate without appropriate liability.[4]
Ecocide, which would criminalise environmental destruction caused by individuals, can be seen as the leading attempt to use international criminal law as a mechanism for accountability. Under the proposed draft law on ecocide, an amendment to the Rome Statute would be made such that the International Criminal Court (ICC) could prosecute relevant actors for “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”.[5] The focus of this article will be on addressing the gaps in this definition, and wider deficiencies within the proposed definition and the ICC that will, without further reform, allow for corporate leaders to continue to escape liability for their role in the climate inaction of their businesses.
Part I Senior Corporate Officers and Ecocide
(a) Why Senior Officers
In order to assess why the current definition of ecocide lacks the necessary measures to hold directors accountable, it must first be established as to why it is important to company leaders, such as executive directors and CEO’s. As the senior officers of the company, directors possess the capacity to shape business policy and identify the risks to the environment caused by a continuation of business practices.[6] This means they can act to introduce mechanisms that would halt or slow down the rate of emissions used in business operations.[7] Executive directors should also be abreast of the day-to-day operations of the company, including any acts of pollution that the company may be engaged in.[8] Consequently, if criminal penalties are to be imposed for corporate climate inaction, it is logical that they should be imposed on the individuals directing the pursuit of such inaction.
(b) Is the Current Definition Sufficient?
The argument put forward by the drafters of the proposed law is that the proposed definition of ecocide is sufficient to encompass corporate leaders. As they state in their explanation of how to make ecocide an international crime; “As soon as a state (or group of states) submits a proposal, we will start to see changes in the way corporations behave. Investors, banks and insurers will start to avoid dangerous investments because they will know the law is coming within a few years”.[9] It is true that theoretically, the definition outlined above in the introduction could seek to target corporate actors. This would require a fulfilment of the actus reus and mens rea components to the proposed law. Taking the example of the CEO of an oil company, this would require that the prosecution demonstrate that the CEO was firstly, responsible for the commitment of unlawful or wanton acts that caused long-term or widespread damage to the environment and secondly, committed these acts with an awareness that they would cause such long-term or widespread damage.
Indeed, a mock ecocide trial conducted in the UK Supreme Court in 2011 outlined how ecocide could be used to target corporate leaders.[10] The trial reached a verdict of guilty for two CEO’s of fictional oil companies and one not guilty verdict for another.[11] It should be noted however that the definition used to prosecute these leaders was the original definition proposed by environmental activist Polly Higgins.[12] This definition used strict liability as the mens rea for the crime and required that the prosecution show that “extensive damage, destruction to or loss of ecosystems of a given territory, whether by human agency or by other causes” could be attributed to the CEO’s.[13] This is important in that it set a lower evidentiary standard that needed to be met by the prosecution. The question remains therefore of whether the official proposed definition can go beyond the theoretical possibility that it could target corporate leaders.
Part II Putting Theory into Practice - The Problem with the Proposed Draft
To assess why the current proposed definition is problematic for corporate leaders, it is useful to break down each element of the crime and see how it would hypothetically operate with the relevant corporate leader.
(a) Actus Reus
The actus reus component of the crime requires that the corporate leader be shown to have committed unlawful or wanton acts. Unlawful acts are less likely to be attributed to corporations, given that most large companies will at least try to adhere to the laws of whichever country they are operating from. However, even in cases where the company acted unlawfully in one country, a multinational corporation may find that the same action in another country is entirely legal.[14] Could a senior officer of a corporation be fairly held accountable for these actions when they may be managing multiple jurisdictions with conflicting legal frameworks on environmental issues? Such a prosecution could falter under criticism that the approach being taken is too narrow or does not adequately take into account the day-to-day reality of being a leader within a global corporation.[15] A focus on one narrow action that was unlawful in a specific national jurisdiction may be more appropriately targeted through the relevant national court. Trying to elevate the action onto an international criminal platform could be seen as legally unfair and politically unfeasible.[16]
This leaves it more likely that a company leader would be prosecuted on the basis of the commitment of wanton acts of environmental damage. According to the expanded commentary of the proposal, this would involve demontaring that ‘with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated’.[17] This definition immediately runs into hurdles due to reference to ‘reckless disregard’. The inclusion of this term would seem to imply an additional mens rea component on top of the existing requirement to show an awareness that the damage would cause harm. Trying to attribute acts of this nature to one actor when they were carried out by the company as a whole and then adding an additional mens rea requirement in terms of requiring the leader to have knowledge of the action may simply be unworkable in practice. Ecocide does not remove concepts of limited liability and separate legal personality, thus it is not enough to identify that an unlawful act has occurred.[18] The act would need to be isolated and then framed in a manner that responsibility can be directed at a particular corporate leader. Whether that can be done without compromising on the fairness of the trial remains somewhat questionable.
From a corporate perspective however, the real issue lies in the need to show the leader engaged in actions clearly excessive of the social and economic benefits anticipated. This is due to the fact that it is unclear under current business frameworks how a company can be expected to outline the full social impact of their decisions.[19] The purpose of a company remains, for the most part, to make a profit.[20] While there has been some movement in favour of corporate social responsibility, any initiatives taken by companies remain largely voluntary.[21] There is no obligation on directors to consider the social interests of a project, even though this may be pursued as part of Environmental Social Governance (ESG) measures, which, once again, remain voluntary in nature.[22] Further, there is no indication of how what is essentially a proportionality analysis on social and economic impacts could be applied in the context of corporations.[23] A state may regularly engage in such analysis given it will be attempting to find the best policy decisions for its citizens as a whole.[24] However, a company acts in the interests of its shareholders not society overall.[25] What the current proposal would involve is a complete reconception of the purpose of a company and specifically the role its leaders play in making business decisions. This may well be a welcome change to corporate purpose, but trying to achieve it through a narrow definition inserted into one aspect of international criminal law is unrealistic.
(b) Mens Rea
Even were it to be found that the corporate leader had acted unlawfully or wantonly, there would still remain the need to establish the requisite mens rea. It should be noted that while the term used in the definition is ‘knowledge’, the drafters of the proposed law acknowledge in their commentary that the actual definition is one of recklessness.[26] This is slightly confusing given knowledge itself would be a higher standard than recklessness. If confusion arises as to which standard applies, then fairness of the trial would dictate that the accused benefit from whichever standard is likely to favour their innocence.[27] Many acts of pollution occur not as result of deliberate awareness that they will cause damage, but rather a causal disregard for the environmental implications of a decision.[28] Would this reach the threshold of recklessness? It is possible the burden would be met but not without clarity as to the exact standard of mens rea the drafters wish to apply.
(c) Prosecutorial Failings
Finally, the current prosecutorial strategy of the ICC must be taken into account. No corporate director has ever been brought to trial before the ICC since its inception.[29] It could be argued that this may change were the proposed ecocide law to be adopted. However, there is no reason why this would automatically be the case when it will be the same lawyers prosecuting ecocide as would be prosecuting the current set of crimes against humanity within the jurisdiction of the ICC. There are questions for example, which corporate leader to target, why choose one over another and how to justify this attention to international state bodies and the general public.[30] Such justification would be necessary in light of the publicity that would undoubtedly be generated by the first international ecocide trial. American and Chinese companies are responsible for the vast majority of emissions from businesses, yet neither country is a party to the ICC. Would a prosecutor deem it ‘worth their while’ to prosecute a CEO of a non US/Chinese company when that will not in itself have an effect on those primarily responsible for emissions? Without an explicit reference to corporate actors in the draft proposal, it is relatively easy for a prosecutor to circumvent these difficult choices in favour of a relatively more straightforward decision to follow traditional ICC policy of targeting heads of state and public figures. These considerations cannot be dismissed readily without a serious discussion of how existing institutional policy choices within the ICC would need to be re-modulated to account for the difficulties above.
Part III: Reforming the Ecocide Law to Enhance Corporate Accountability
What can be done to ensure the final ecocide law addresses corporate responsibility? The ideal reform would be to amend the Rome Statute to encompass non-natural persons. This would allow for the company itself to be held to account in its own rights. However, this would require significant political capital, which, at least for the moment, does not appear to be present. Were such capital to be present, such a reform could have been included in the proposed ecocide law. In the absence of this, the best solution is to work with the existing proposal and modify certain elements to address the concerns outlined above.
(a) Adjusting the Actus Reus
It may be appropriate to remove the concepts of wanton and unlawful from the present definition. Instead, focus on “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”. This would lower the threshold for prosecution and focus the attention of the prosecutor on the knowledge aspect of the crime.[31] This may seem broad at first but it should be remembered that the mens rea element would still be difficult to prove in the context of corporations. This reform would also render the crime more eco-centric in the sense that corporate leaders would need to focus on the impact of the firm on the environment as a whole rather than examine whether an action is lawful or not in the relevant country. It is also not unreasonable for an international court to operate with a broad scope given it has an extensive jurisdiction and already prosecutes crimes with a wide remit.
(b) Making Reference to Corporate Actors
In terms of ensuring prosecutorial strategy targets corporate leaders, the best method of encouraging this is to make it difficult to avoid consideration of corporate actions. The inclusion of a reference to corporate actors in the overall amendment process for introducing ecocide could be the best method.[32] For example, the definition could state ‘acts committed by individual, corporate or state actors’, with a definition of corporate actor included under the relevant provision. This ensures that the public is aware that corporate leaders can be targeted and ensures greater pressure can be placed on the ICC to divert resources accordingly. A direct reference would also assist prosecutors in justifying any focus on corporate leaders, and assist in mitigating any potential backlash. This is due to the fact that prosecutors could state confidently that they are acting within their jurisdiction without needing to justify broadening the traditional scope of the ICC.
These reforms will not automatically ensure that leading CEO’s and high profile directors find themselves in the dock of the ICC. However, they would at least remove hurdles that could be used to either defend their actions or avoid their prosecution in their entirety. International criminal law could be an important weapon in the fight to challenge international business neglect on climate change and thus any reform in this area must do its best to address the matter appropriately.
Conclusion
Corporate accountability is an essential component to climate action. This is due to the impact corporations have on the continuing rise in global emissions. Therefore, any attempt to hold individuals accountable must encompass corporate directors to ensure there are adequate mechanisms in place to encourage them to adjust business practices in favour of sustainable outcomes. The draft ecocide laws’ attempt to address this issue should be commended for allowing a platform through which issues of how to prosecute corporate actors can be debated and demonstrated. There is also no doubt that the successful implementation of the proposed definition would carry at least a temporary deterrent effect for directors, in light of the publicity generated and the at least hypothetical potential for the crime to be applied to their actions. However, in order to retain this deterrent effect, several changes will need to be made to the proposed definition. The removal of unnecessary qualifications to the actus reus component combined with an explicit reference to corporate actors in the proposed definition would do much to alleviate the concern that ecocide will turn into another paper tiger. Ecocide is an exciting prospect for those committed to encouraging greater corporate climate action. It must not have its potential wasted in an effort to be palatable to those most responsible for climate change.
[1] See Geetanjali Ganguly, Joana Setzer, Veerle Heyvaert, I’f at First You Don’t Succeed: Suing Corporations for Climate Change’ (2018) 38 Oxford Journal of Legal Studies 4 Pages 841–868 and Varvastian S and Kalunga F, “Transnational Corporate Liability for Environmental Damage and Climate Change: Reassessing Access to Justice after Vedanta v. Lungowe” (2020) 9 Transnational Environmental Law 323-455.
[2] Helen Anderson, ‘Challenging the Limited Liability of Parent Companies: A Reform Agenda for Piercing the Corporate Veil’ (2012) 22 Legal Studies 2 129-141.
[3] Varvastian S and Kalunga F, “Transnational Corporate Liability for Environmental Damage and Climate Change: Reassessing Access to Justice after Vedanta v. Lungowe” (2020) 9 Transnational Environmental Law 323-455.
[4] British Institute for international and Comparative Law, Corporate Accountability and Liability Mechanisms for Climate Change Developments and Comparative Models Event Report (2021) https://www.biicl.org/documents/150_biicl_models_of_corporate_accountability_report_december_2021.pdf accessed 12/08/2022.
[5] Phillipe Sands and others, Independent Expert Panel for the Legal Definition of Ecocide’ (2021) Stop Ecocide Foundation https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d7479cf8e7e5461534dd07/1624721314430/SE+Foundation+Commentary+and+core+text+revised+%281%29.pdf accessed 12/08/2022.
[6] Nicholson G and Newton C, “The Role of the Board of Directors: Perceptions of Managerial Elites” (2010) 16 Journal of Management & Organization 204-218.
[7] Humphrey Hung, ‘Directors’ Roles in Corporate Social Responsibility: A Stakeholder Perspective’ (2011) Journal of Business Ethics 103 385-402.
[8] Cythnitia Williams, ‘Directors’ Fiduciary Duties and Climate Change: Emerging Risks’ (2021) Harvard Law School Forum on Corprate Governance https://corpgov.law.harvard.edu/2021/12/08/directors-fiduciary-duties-and-climate-change-emerging-risks/ accessed 02/01/2022.
[9] Stop Ecocide Foundation, Making Ecocide a Crime (2021) https://www.stopecocide.earth/making-ecocide-a-crime accessed 11/08/2022.
[10] Robyn Stuart, ‘Ecocide Mock Trial: Case comment’ (2011) 1 Student Journal of Law 4.
[11] David Blair, ‘Supreme Court stages mock ‘ecocide’ trial’ The Financial Times (London, 30th September 2011) https://www.ft.com/content/7e42cb72-eb88-11e0-a576-00144feab49a accessed 04/08/2022.
[12] Polly Higgins, ‘Protecting the planet: A proposal for a law of ecocide,’ (2013) 59 Journal of Crime Law and Social Change 3 251-266.
[13] ibid.
[14] Jelena Aparac, ‘A Missed Opportunity for Accountability?: Corporate Responsibility and the Draft Definition of Ecocide’ (2021) Völkerrechtsblog https://voelkerrechtsblog.org/a-missed-opportunity-for-accountability/ accessed 20/07/2022.
[15] David Whyte, Ecocide: Kill the Corporation Before it Kills Us (2020 1st edn, Manchester University Press).
[16] Rob White, ‘Ecocide and the Carbon Crimes of the Powerful’ (2018) 37 University of Tasmania Law Review 95.
[17] Phillipe Sands and others, Independent Expert Panel for the Legal Definition of Ecocide’ (2021) Stop Ecocide Foundation https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d7479cf8e7e5461534dd07/1624721314430/SE+Foundation+Commentary+and+core+text+revised+%281%29.pdf accessed 12/08/2022.
[18] Rob White, ‘Ecocide and the Carbon Crimes of the Powerful’ (2018) 37 University of Tasmania Law Review 95.
[19] Phillipe Sands and others, Independent Expert Panel for the Legal Definition of Ecocide’ (2021) Stop Ecocide Foundation https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d7479cf8e7e5461534dd07/1624721314430/SE+Foundation+Commentary+and+core+text+revised+%281%29.pdf accessed 12/08/2022 and Bruce Jacobs, ‘The Challenge of Disparities in ESG Ratings’ (2022) The Journal of ESG and Investing 3 107-11.
[20] Milton Friedman, A Friedman doctrine‐- The Social Responsibility Of Business Is to Increase Its Profits (New York Times September 13th 1970) https://www.nytimes.com/1970/09/13/archives/a-friedman-doctrine-the-social-responsibility-of-business-is-to.html accessed 20/05.2022. To see how Friedman doctrine continues to be of relevance for most businesses see Amy Merrick, ‘Is the Friedman Doctrine Still Relevant in the 21st Century?’ (2021) Chicago Booth Review https://www.chicagobooth.edu/review/friedman-doctrine-still-relevant-21st-century accessed 04/02/2022.
[21] Carol Newman, ‘Corporate Social Responsibility in a Competitive Business Environment’ (2020) 56 Journal of Development Studies 8 1455-1472.
[22] Bradford Cornell, ‘Valuing ESG: Doing Good or Sounding Good?’ (2020) 1 The Journal of Impact and ESG Investing 1 76-93.
[23] Kevin Heller, ‘Skeptical Thoughts on the Proposed Crime of “Ecocide” (That Isn’t)’ (2021) OpinioJuris http://opiniojuris.org/2021/06/23/skeptical-thoughts-on-the-proposed-crime-of-ecocide-that-isnt/ accessed 20/05/2022.
[24] Kai Möller, Proportionality: Challenging the critics, International Journal of Constitutional Law, Volume 10, Issue 3, July 2012, Pages 709–731,
[25] Lynn Stout, ‘the Toxic Side Effects Of Shareholder Primacy’ (2013) 1 University Of Pennsylvania Law Review 161 2003-2023,
[26] Phillipe Sands and others, Independent Expert Panel for the Legal Definition of Ecocide’ (2021) Stop Ecocide Foundation https://static1.squarespace.com/static/5ca2608ab914493c64ef1f6d/t/60d7479cf8e7e5461534dd07/1624721314430/SE+Foundation+Commentary+and+core+text+revised+%281%29.pdf accessed 12/08/2022.
[27] Rachael Killean, ‘The Benefits, Challenges, and Limitations of Criminalizing Ecocide’ (2022) Global Observatory https://theglobalobservatory.org/2022/03/the-benefits-challenges-and-limitations-of-criminalizing-ecocide/ accessed 20/05/2022.
[28] Anastacia Greene, ‘Mens Rea and the Proposed Legal Definition of Ecocide’ (Völkerrechtsblog, 7 July 2021) <https://voelkerrechtsblog.org/mens-rea-and-the-proposed-legal-definition-of-ecocide/> accessed 31 December 2021 and Keila McFarland Dias, ‘Environmental Destruction, Business and Human Rights’ (For The Climate EU, 26 April 2021) <https://fortheclimate.eu/blog/environmental-destruction-business-and-human-rights/> accessed 31 December 2021.
[29] Anastacia Greene, ‘The Campaign to Make Ecocide an International Crime: Quixotic Quest or Moral Imperative?’ (2019) 30 Fordham Environmental Law Review
[30] ibid.
[31] Frédéric Mégret, ‘The Problem of an International Criminal Law of the Environment’ (2011) 36 Colum J Envtl L 195-239.
[32] Ibid and Kevin Heller, ‘Skeptical Thoughts on the Proposed Crime of “Ecocide” (That Isn’t)’ (2021) OpinioJuris http://opiniojuris.org/2021/06/23/skeptical-thoughts-on-the-proposed-crime-of-ecocide-that-isnt/ accessed 20/05/2022.