Climate change has been described as one of the known biggest problem faced by the human race, and carbon dioxide its primary contributor. A brilliant stroll through a world of fond memories has uncovered that carbon dioxide has been available since the Earth condensed from a ball of hot gases following its formation from the explosion of a huge star approximately 4.5 billion years ago.
The atmosphere at that time was mainly composed of carbon dioxide., nitrogen and water vapour, which seeped through cracks in the solid surface. As the planet cooled further, some of the water vapour condensed out to form oceans and they dissolved a portion of the carbon dioxide, but a larger amount was still present in the atmosphere.
The concentrations of carbon dioxide in the atmosphere have in the wake of the industrial era risen substantially from an annual average of 280 parts per million (ppm) in the late 1700s to 410 ppm in 2019–a sizeable 46 percent increase. Also, besides carbon dioxide come other greenhouse gases of concern in the atmosphere which are methane and nitrous oxide, with the concentrations of methane being more than doubled since before the advent of Industrial era, reaching over 1, 800 parts per billion (ppb) in 2019. On the other hand, the concentrations of nitrous oxide have equally risen, reaching a new high of 331 ppb in 2019.
Almost all of these increase owns to human activities, and these human activities are gradually killing the ecosystem which is evident from the severe impact felt as a result of climate change which includes: intense drought, storms, increased heats, rising sea levels, melting glaciers and warming oceans et al. It is against this backdrop that this present writer seeks to bring into afore the “long condone crime” against mother nature, the need for this crime to be recognised in every UN member state laws, and in turn be accorded the status of International Customary law with sufficient punishments set out for the perpetrators all in pursuance of sustaining life and saving mother Earth.
- THE HUMAN INFLUENCE ON THE GREENHOUSE EFFECT
The greenhouse effect, identified by scientists as far back as 1896, is the natural warming of the earth that results when gases in the atmosphere trap heat from the sun that would otherwise escape into space.[i] It is a natural process–a phenomenon that allows the Earth to retain enough solar heat to be habitable. Without the greenhouse effect, the Earth would not support most forms of life.
This process is complex, however the greenhouse effect can be understood thus: sunlight passes through the atmosphere. Clouds, ice caps and other light-coloured surfaces reflect some light back into space, but most of the incoming energy reaches the planet’s surface. The Earth radiates heat back toward space. Greenhouse gases in the atmosphere absorb that heat, bouncing some back to the Earth’s surface and releasing some into the atmosphere.
Part of what makes Earth so amenable is its greenhouse effect, which keeps the planet at a friendly temperature. Some of the greenhouse gases include carbon dioxide, methane, nitrous oxide, water vapour and other gases that accumulate in the atmosphere and create the heat-reflective layer that keeps the Earth at a friendly and habitable temperature.
It goes without saying that these gases occur naturally and are part of the making-up of the atmosphere. For that reason, Earth is sometimes called the “Goldilocks” planet–its conditions are not too hot and not too cold, but just right to allow life to flourish. However, at the wake of the industrial era, human activities have been consistently interfering with the Earth’s energy balance, primarily through the burning of fossil fuels that accumulate carbon dioxide in the air. This has made the level of carbon dioxide on the Earth’s surface to increase substantially, causing temperatures to rise.
Modern climate change is caused by an excess of greenhouse gases. This, in turn, over-insulates the planet. As a result, temperatures rise.[ii] Carbon dioxide is emitted whenever coal, oil, natural gas and other carbon-rich fossil fuels are burned. Albeit carbon dioxide is not the most potent greenhouse gas, it is the largest and primary contributor to climate change because it is so common.
In order to reduce carbon dioxide emissions, there is the need to reduce the amount of fuel used in cars, homes, and other human daily activities. Methane, on the other hand, is emitted from a variety of anthropogenic (human-influenced) and natural sources. Anthropogenic emission sources include landfills, oil and natural gas systems, agricultural activities, coal mining, stationary and mobile combustion, wastewater treatment, and certain industrial processes.[iii] Cattle also release methane. Although methane emissions are lower than carbon dioxide emissions, it is considered a major greenhouse gas because each methane molecule has 25 times the global warming potential of a carbon dioxide molecule.[iv]
Similarly, nitrous oxide is released from bacteria in soil. Modern agricultural practices (i.e., tilling and soil cultivation, livestock waste management, and the use of nitrogen-rich fertilizers) contribute significantly to nitrous oxide emissions.[v] A single nitrous oxide molecule has 300 times the global warming potential of a carbon dioxide molecule, and it also depletes the ozone layer.
Since it has a shorter life span, reducing it could have a faster, significant impact on global warming. However, the largest source of nitrous oxide is agriculture, particularly fertilized soil and animal waste, and that makes it harder to rein in. In the words of Ravishankara, “One could imagine limiting carbon dioxide, less methane, less of lots of things. But nitrous oxide is so much a food production issue.”[vi] According to the Food and Agriculture Organisation of the United Nations (FAO), global fertilizer use is likely to rise above 200.5 million tonnes in 2018, 25 percent higher than recorded in 2008[vii]. In Nigeria alone, fertilizer consumption (percent of fertilizer production) in Nigeria was reported at 91.41 percent in 2018, according to the World Bank collection of development indicators, compiled from officially recognized sources.[viii]
In what could be termed the most fearsome prediction, a 2013 report by the United Nations found that since before the advent of the industrial era, nitrous oxide emissions from human activities have increased by 20 percent. At the time, the authors however went further to wrote that if nothing was done, those emissions were expected to double by 2050.[ix]
- THE CONDONE CRIME: ECOCIDE
If there’s a crime in which all humanity would be collectively held liable, then it’s no other crime than Ecocide; which is a crime against the Earth, and, consequently, against human beings, defined as the destruction of ecosystems, humanity and life.
The term covers direct damage caused to land, sea, flora and fauna within affected ecosystems, as well as the impact on the climate that derives from it.[x] The term ecocide which is a blend of the prefix eco- in its sense of ‘relating to the environment’, and the suffix -cide which denotes the act of destroying or killing, has in fact been around for some time. It appeared for the first time, 49 years ago at the United Nations Conference on the Human Environment, also known as the Stockholm Conference, which was the first UN conference on the environment.[xi] It was used by Olof Palme, the premier of Sweden, to describe the environmental damage caused by the Vietnam War.
The year 2021 marked a historic movement. A team of International Lawyers unveiled the definition of “ecocide” that, if adopted, would treat environmental destruction on a par with crimes against humanity. In the words Jojo Mehta, chair of the Stop Ecocide Foundation which commissioned the team of lawyers. “This expert panel came together in direct response to a growing political appetite for real answers to the climate and ecological crisis.”[xii] In the draft law, the panel of 12 lawyers defined ecocide as “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.” If ratified by signatory states, ecocide would become the fifth international crime investigated and prosecuted by the International Criminal Court (ICC), alongside genocide, war crimes, crimes against humanity and the crime of aggression.[xiii]
In criminal law, all crimes can be broken down into different elements which, in order to convict, must then be proven in a court of law beyond a reasonable doubt. Basically, there are two elements that give rise to criminal liability under the definition. They’re unlawful or a criminal act (actus reus) and criminal intent or evil mind (mens rea).
Fortunately, the above-mentioned elements are all found within the definition of the term ‘ecocide’. Firstly, ‘unlawful’ acts (actus reus). No doubt there will be inconsistency in what constitutes illegality at a domestic level, however, crimes are further categorized into: Mala prohibita, or malum prohibitum in its singular form, which is a Latin phrase which literally translates to, it is wrong as, or because, it is prohibited. And Mala in se, or malum in se, in its singular form, which is also a Latin phrase which literally translates to wrong in and of itself.
The latter are acts or omissions, in contrast with mala prohibita, which do not need special criminal statutes to criminalize those acts or omission simply by violating such special laws, and this is where ecocide per se ought to fall in.
Secondly, criminal intent or evil mind (mens rea). This is evident in the definition, and it indicates that the defendant must have had ‘knowledge that there is a substantial likelihood of severe and either widespread or long-term damage to the environment being caused by those acts.’ Also, seen in the definition is the voluntariness of the defendant.
Generally, for an act to be criminal, it must be voluntary—the defendant must control the action. If a defendant acts on reflex, it does not satisfy the requirement of voluntariness.
- CRIMINALISING ECOCIDE
It has been laid to rest in the above writing, that ecocide which gives rise to climate change is a crime against the Earth, and therefore, human beings. Hence, there’s the sense of urgency to criminalise it. Criminalising Ecocide will not only save lives on Earth but it will equally save mother Earth; and notwithstanding bring into fruition the dreams of various environmental activists including this present writer, Jojo Mehta among many others, but not excluding late Polly Higgins, the visionary Scottish lawyer who fought for ecocide to be recognised as an international crime.
Her work was ground-breaking. However, to this day, there still isn’t an effective legal system in place that prevents individuals, companies or governments from damaging the Earth and its ecosystems for profit or power. Their impunity exposes a great shortcoming in international law.[xiv]
While some countries have national laws on environmental harm, there is no international criminal law that explicitly imposes penalties on individuals responsible for environmental destruction. Environmental advocates believe an ecocide law at the ICC would be ground-breaking.
If adopted, it will change the way the environment is valued, and equally rekindle that idea that nature has inalienable rights too, just like humans. Experts were of the view that there are three main areas where an ecocide law would make a difference. First is the symbolic impact of having the ICC elevate environmental destruction to the same level as genocidal crimes. Mehta argues that the fear of being labelled an ecocide criminal could create incentives for leaders to behave more responsibly.[xv] ICC laws have influenced national policies of several countries before.
So the second area where this law could make a difference is by setting a legal precedent, creating a bandwagon effect where international law could prompt changes in national criminal laws, as countries look to signal their environmental commitment to others.[xvi]
Lastly, an ecocide law could be useful is by prosecuting environmental crimes that fall outside of national jurisdictions. This is especially helpful in poorer countries where legal barriers make it difficult to hold foreign companies accountable. According to Bassey, an ecocide law would create an arena in which marginalized communities in countries like Nigeria have a voice against powerful, polluting actors. In addition, he stated that “Most of this ecocide devastation is happening in communities where voices are not heard.”[xvii]
The campaign to make ecocide an international crime has been around for years. However, there is no law yet that regulates it under international jurisdiction. At present, as per the Rome Statute of the International Criminal Court (ICC), only four categories of crime namely genocide, crimes against humanity, war crimes and crime of aggression have gained international jurisdiction. Just a handful of countries like Russia, Georgia, Ukraine, Belarus, Armenia, Ecuador, Kazakhstan, Kyrgyzstan, Moldova, Tajikistan, Uzbekistan and Vietnam[xviii] have classified ecocide as a crime however the jurisdiction is only within their country.
This present writer is of the view that ecocide is a global issue and one that affects the nations in a way that is disproportionate to their contribution towards environmental degradation. Therefore, it should be categorized as a fifth crime under ICC, so that the perpetrators can be prosecuted irrespective of jurisdiction. This becomes expedient seeing the grim picture painted by the recently released Intergovernmental Panel on Climate Change (IPCC) report, which is a cause of grave concern.[xix] Keeping climate change under the target limit of 1.5° C set out in the Paris Agreement seems like a mammoth challenge at the current rate of emissions.
The IPCC report has named this decade as the “make or break” decade. According to UN Secretary-General António Guterres, the current scenario we find ourselves in is a “code red for humanity.” [xx]The actions we take in this decade will decide whether we leave behind a liveable planet for the future generations to come. There has never been a more befitting time to push forward the criminalization of the atrocities committed against nature by big corporations and multinationals on an international level.
A writer put it thus: “But it is quite simple. If human beings claim to have inalienable rights simply by virtue of their existence on Earth, then why should the Earth, which precedes the existence of humans, not equally have inalienable rights? The truthful answer to the logic has been denied in order to serve man’s greed.”[xxi]
[i] Greenhouse Effect 101. Available at https://www.nrdc.org/stories/greenhouse-effect-101 . Accessed 3rd March, 2022.
[ii] https://climatechange.lta.org/get-started/learn/co2-methane-greenhouse-effect/#:~:text=Greenhouse%20gases%20include%20carbon%20dioxide, warm%20enough%20to%20support%20life Accessed 3rd March, 2022.
[vi] What is nitrous oxide and why is it a climate threat? Available at https://insideclimatenews.org/news/11092019/nitrous-oxide-climate-pollutant-explainer-greenhouse-gas-agriculture-livestock/ Accessed 3rd March, 2022.
[vii] Fertilizer Use to Surpass 200 Million Tonnes in 2018. Available at https://www.fao.org/news/story/en/item/277488/icodhttps://www.macmillandictionary.com/buzzword/entries/ecocide.htmle/ Accessed 3rd March, 2022.
[viii] Nigeria – Fertilizer Consumption (% Of Fertilizer Production) Available at https://tradingeconomics.com/nigeria/fertilizer-consumption-percent-of-fertilizer-production-wb-data.html Accessed 3rd March, 2022.
ix Drawing down N2O to protect climate and the ozone layer: a UNEP synthesis report https://wedocs.unep.org/handle/20.500.11822/8489 Accessed 3rd March, 2022.
[xi]  Stockholm +50 Available at https://www.government.se/government-policy/stockholm50/ Accessed 5th March, 2022.
[xii] ‘Historic Moment’: ‘Ecocide’ Definition Unveiled By International Lawyers Available at https://www.desmog.com/2021/06/23/ecocide-definition-international-criminal-court/ Accessed 5th March, 2022.
[xiv] OP.cit (n10)
[xv] Lawyers Are Working to Put ‘Ecocide’ on Par with War Crimes. Could an International Law Hold Major Polluters to Account? Available at https://time.com/5940759/ecocide-law-environment-destruction-icc/ Accessed 4th March, 2022.
[xix] The IPCC Warns This Is a Make-or-Break Decade for Humanity. Available at https://gizmodo.com/the-ipcc-warns-this-is-a-make-or-break-decade-for-human-1847444573 Accessed 5th March, 2022
[xx] Secretary-General Calls Latest IPCC Climate Report ‘Code Red for Humanity’, Stressing ‘Irrefutable’ Evidence of Human Influence. Available at https://www.un.org/press/en/2021/sgsm20847.doc.h Accessed 5th March, 2022.
[xxi] The Climate Crisis: The Ignored Case for the Legal Personality and Rights of Mother Nature by Koikoibo Dieworimene. Available at https://homef.org/wp-content/uploads/2022/01/EI34-E-MAGAZINE.pdf Accessed 27th February, 2022.
About the author:
Nweke Chinonso is a law student, a legal researcher and article writer. He can be reached at [email protected]