Ecocide crime in the new Belgian Criminal Code: understanding scope and context

1. Definition 

Under Article 96 of the new Criminal Code, the crime of ecocide "consists of deliberately committing an unlawful act causing serious, widespread and long-term damage to the environment, in the knowledge that such acts cause such kind of damage". The various components of this definition are also specified:

• "serious damage": damage that results in highly detrimental adverse changes, disruptions or impairments to any component of the environment, including serious repercussions on human life or health, biodiversity or natural, cultural or economic resources for society;
• "extensive damage": damage that extends beyond a limited geographical area, that crosses the borders of a region or state, or that is suffered by an entire ecosystem, an entire species or a significant number of human beings;
• "long-term damage": damage that is irreversible or that cannot be repaired by natural regeneration within a reasonable time;
• "environment": the earth, its ecosystems, biosphere, cryosphere, lithosphere, hydrosphere, atmosphere and outer space.

2. Historical and political context

The notion of "ecocide" has been used since the 1970s, under the impetus of Arthur Galston, an American botanist, both in international political spheres (such as the 1972 United Nations Conference on the Human Environment in Stockholm) and in doctrine (as illustrated by the proposal for an International Convention on the Crime of Ecocide, drafted by Richard Falk, an American professor of international law).

The current movement to criminalize ecocide takes place in a different context from that in which it was born in the 1970s.

The Belgian legislator indeed noted that, since then, scientists have demonstrated with great precision the profound and irreversible transformation of the earth by human activity. In 2009, an international team of 26 researchers identified nine "planetary boundaries" that must not be exceeded if mankind is to develop in a safe ecosystem, i.e. one free from abrupt, non-linear, potentially catastrophic and difficult-to-predict environmental change. In 2022, the thresholds of at least five of these nine boundaries were likely to have been exceeded.

The criminalization of ecocide represents a real challenge, given its transnational nature, its connections with organized crime and the financial sums it represents, i.e. between 91 and 259 billion dollars per year. It thus complements "ordinary" environmental crimes, which fall within a strictly national framework, and "transnational" crimes.

The term "ecocide" is used to describe exceptional environmental degradation that has a negative impact on a large number of people, whether past, present or future generations. Thus, in addition to its reparative dimension, the term ecocide also incorporates a preventive approach. The severity of the sanctions incurred, the possible corollary civil penalty of having to restore the damaged environment (the cost of which may prove substantial) and the effect of social stigmatization, is expected to have an important dissuasive and therefore preventive effect, over and above the punitive aspect.

The symbolic weight of this criminalization is also important. On the one hand, it could lead to a movement of imitation by other States and contribute to strengthening recognition of the crime of ecocide in conventional or customary international law. Secondly, recognition of the crime of ecocide can be seen as a symbol of collective awareness of the unfolding ecological crisis. For one of the values of the crime of ecocide may be its "expressive function".

At national level, eleven countries have already incorporated the ecocide into domestic law: Georgia (1999), Armenia (2003), Ukraine (2001), Belarus (1999), Kazakhstan (1997), Kyrgyzstan (1997), Moldova (2002), Russia (1996), Tajikistan (1998), Vietnam (1990) and France (2021). Several Mexican states (Guerrero, Jalisco, Mexico City, Oaxaca and Chiapas), as well as Brazil, Ecuador and Guatemala, have launched parliamentary initiatives or developed jurisprudence aimed at recognizing it.

In the same vein, the new Directive of the European Parliament and of the Council on the protection of the environment through criminal law also refers to the notion of “ecocide” (see here recital 21). Although the legal provisions of the Directive do not themselves mention ecocide, those provisions will introduce a number of environmental offences into national criminal law that cause significant damage to nature and the environment comparable to ecocide.

3. Constitutional limits

In its opinion of June 9, 2023, the Council of State repeated the rules governing the division of powers in the environmental field: " (…) the regions are competent to maintain environmental protection on their territory, whether or not by criminal means. (...) This raises the question of the competence of the federal authority to provide for the crime of ecocide”. In the same opinion, the Council of State provided an answer to this question, indicating that it would be appropriate to limit the scope of application of the crime of ecocide so that it could fall within the federal jurisdiction.

Consequently, when illegal activities qualifying as ecocide take place on Belgian territory, they fall in principle within the competence of the regions as regards environmental protection, even when the consequences go beyond their territory and extend, for example, to outer space.

In concrete terms, there are three cases in which the federal authority is competent to criminalize ecocide:

• for damage resulting from ionizing radiation or radioactive waste;
• for damage caused in or on the North Sea;
• for acts that cannot be located in Belgium.

The latter possibility depends on concrete federal regulations concerning environmental damage abroad. In the meantime, it is necessary to rely on already existing federal legislation, notably as described in the first two scenarios or such as the law of July 21, 2017 on environmental protection and the regulation of activities carried out under Belgian jurisdiction in Antarctica.