“We’re not heading in a good direction and I sense trouble ahead,” Philippe Sands QC, one of the world’s leading human rights lawyers, tells me when we speak over Zoom. Known for his work on the origins of genocide, Sands has long been acutely conscious of the horrors that humans can commit. But, to date, prosecutions at the International Criminal Court (ICC) have been limited to those acts which primarily impact other human beings – something Sands no longer believes is adequate.
Sands is now part of a push to make the systematic destruction of nature a recognised international crime known as “ecocide”. Since November, Sands has been co-chairing an expert panel charged with giving the term legal definition. If an amendment to the ICC’S founding treaty is then adopted, ecocide will sit alongside war crimes, genocide and crimes against humanity as a legally binding offence – one through which chief executives and heads of state can be brought to justice.
There are multiple reasons for making ecocide a criminal offence, from giving legal teeth to international treaties such as the Paris Agreement, to facing up to the scale of the threat posed by the climate crisis. There is also a practical need for environmental criminal prosecutions to be truly international in scope, so that its perpetrators have nowhere to hide – as Jojo Mehta, who co-founded the Stop Ecocide campaign alongside the late legal pioneer Polly Higgins, has highlighted.
As co-chairman of the panel, Sands will listen to and attempt to assimilate contributions from all quarters (a responsibility he repeatedly stresses throughout our conversation), including via an ongoing public consultation. But, in his personal view, the justification for the law’s introduction hinges on one particular idea: the need for humanity to understand that it is not all-powerful, and that non-human interests must be given expression and protection in their own right.
“To be frank, I’d be extremely disappointed to come up with a definition of ecocide that is centred, or even significantly based, on the protection of the human,” he says with characteristic candour. “I think this is the moment to go beyond that.”
Sands’s own connection to the subject is rooted in an almost uncanny entwining of the personal and the historical. In one way, he says, it began with the Chernobyl nuclear disaster in 1986. This cataclysmic event, he explains, “changed my life”, prompting him to write one of the first textbooks on international environmental law and to visit Vienna, the site of the International Atomic Energy Agency as well as his family’s historic home.
In another respect, the connection for Sands dates back to the 1945-46 Nuremberg trials of Nazi war criminals and the beginning of modern human rights law itself. In his acclaimed 2016 memoir, East West Street, he weaves together the birth of these influential laws and his own family’s traumatic wartime experience. Two brilliant legal thinkers, Raphael Lemkin and Hersch Lauterpacht, are central to this story. And it is their fearless commitment to judicial innovation that Sands sees as particularly relevant today.
“We need to do the same thing now,” Sands says. “We have to get off our arses and do something about it.” What comes out of that effort may not be perfect, he recognises, and some people won’t approve – but he’s “very inspired” by the events of 1945 and driven, in turn, by a sense of responsibility towards the next generation.
[See also: Philippe Sands’s diary]
The splits between Lemkin and Lauterpacht – and the resulting definitions of genocide and crimes against humanity – also have a technical bearing on ecocide’s formal conception, not least because the crime of genocide requires proof of intent, and proving this in relation to the destruction of nature can be difficult.
The issue of intent also raises questions about what standards of care should be consciously applied to environmental harm and by whom. “Am I, merely by being a barrister, complicit?” Sands asks with regard to his own legal work on maritime boundary disputes, which often involve the distribution of rights to oil and gas. “We all have individual responsibility,” he says, while recognising that responsibility rises to the top. “You’ve got to ask yourself: who ultimately is going to stop this?”
In his previous work, Sands has criticised the treatment of crimes against humanity as less significant than genocide and has consequently argued that the latter concept should be widened. But he nonetheless recognises the term’s emotional pull. His “instinct” therefore is that the definition of ecocide should fall somewhere between the two: drawing its name from “genocide” but, in practice, being more akin to crimes against humanity.
[See also: Could ecocide become an international crime?]
Sands does not expect the working group to concur with him on all these points, nor does he expect it to have answered all these questions by the time it concludes work in June. But his aim is to produce a generic set of principles that can be applied by judges to particular sets of facts.
After that, attention will turn to seeking diplomatic support. For the definition to become international law, a country must formally propose it at the ICC in The Hague, where it will then need to be adopted by a two-thirds majority vote. Countries such as France and Sweden, as well as at-risk island states such as Vanuatu and the Maldives, have already expressed varying degrees of support, but full acceptance could still take years.
However, a slower pace isn’t wholly negative, says Mehta, pointing to the project’s potential to transform the world’s “ecocidal” economy into a more sustainable one – something that will take time.
And even while ecocide remains only a potential crime, its growing prominence may lead governments and companies to question their own role in the climate crisis.
“Nothing concentrates the mind better than the prospect of an individual being found criminally liable,” says Sands.