The revised directive on the protection of the environment through criminal law entered into force on 21 May 2024 in the European Union (EU), placing its member states under a two-year transposition obligation. It establishes minimum rules with regard to the definition of criminal offences, penalties, prevention and enforcement measures in order to protect the environment more effectively. A first blog post analysed the characteristics of environmental offences and penalties under the directive. The present post focuses on the novel category of ‘qualified environmental offences’ incurring more severe penalties than other offences on account of their devastating impact on the environment. In particular, it considers how to articulate qualified offences under EU law with the emerging crime of ecocide under international law.
A two-tier classification of environmental crimes
The revised Directive 2024/1203 (‘the directive’) aims to improve the protection of the environment in the EU through the criminalisation of an expanded list of environmentally-harmful conducts, the harmonisation of sanction levels for natural and legal persons, and the strengthening of the enforcement chain in the 27 member states.[1]
One of the most significant changes introduced by the directive is the creation of a two-tier system to classify environmental offences depending on the gravity of their impact. On the one hand, article 3(2) lists a series of twenty environmental infractions which member states are required to criminalise in their national law (first-tier offences). On the other hand, article 3(3) specifies that these infractions constitue ‘qualified criminal offences’ when their impact on the environment is particularly severe, ie when they cause substantial, widespread and long-lasting (or irreversible) environmental damage (second-tier offences).
First tier offences are ‘serious infringements of Union law concerning protection of the environment’; they consist of:
- an unlawful conduct (ie breaching EU environmental law or national laws and decisions giving effect to such law);
- which is either a crime of result (causing substantial damage to the environment or serious harm to a person) or a crime of conduct (infringement of a prohibition or failure to comply with specific legal requirements);
- intent or serious negligence as the requisite mental element.[2]
With respect to second-tier (qualified) offences, more restrictive conditions must be met:
- an intentional conduct;
- causing substantial, widespread and irreversible or long-lasting damage to
- an ecoystem ‘of considerable size or environmental value’; or
- a habitat within a protected site; or
- the quality of air, soil, or water.[3]
According to the preamble of the directive, qualified criminal offences correspond to the crime of ecocide discussed in international fora and recognised in some legal systems.[4] These offences should be punished with more severe penalties than first-tier offences because of their far-reaching and enduring impact on the environment.[5]
This classification system creates a new legal framework for environmental offences under EU law. On the one hand, it requires member states to ensure that the twenty conducts defined in article 3(2) constitute criminal offences sanctioned by criminal penalties in their national law. On the other hand, EU countries must also introduce a new category of ecocide-level offences carrying more severe penalties for conducts causing far-reaching and long-lasting environmental damage. This approach establishes the necessity of a penal response for serious breaches of EU environmental law in order to increase their deterrent effect and ensure effective enforcement.[6]
Ecocide as a crime under international law
Since the 2010s, a growing transnational movement under the aegis of the Stop Ecocide Foundation has advocated for the adoption of ecocide as the fifth international crime in the Rome Statute of the International Criminal Court (ICC). With a view to halting the rapid degradation of the global environment as a result of human activities, this would affirm that environmental destruction is a serious crime of concern to the international community as a whole, on the same level as other international crimes.[7] At present, international law does not prohibit the deliberate devastation of the environment, except where such conduct meets the high threshold of a war crime in the context of an international armed conflict.[8]
In June 2021, an Independent Expert Panel (IEP) convened by the Stop Ecocide Foundation proposed an amendment to the Rome Statute defining 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.’[9] This definition forms the basis of the amendment proposal submitted to the ICC Assembly of States Parties’s Working Group on Amendments by the states of Vanuatu, Fiji and Samoa on 9 September 2024. The matter would ultimately depend on a positive vote by a two-thirds majority of the ICC Assembly of States Parties.
At the national level, about a dozen countries including Ecuador, Russia, Vietnam and Ukraine have incorporated ecocide in their criminal law, generally on the same level as international crimes. In the EU, two member states have so far recognised ecocide in their legal system. France was the first to do so through a law of 22 August 2021 integrating ecocide in its Environmental Code.[10] This law was, however, criticised for ‘trivialising’ ecocide by designating it as a delict instead of a crime and overly restricting its ambit.[11] Belgium, in turn, incorporated ecocide in its new Penal Code adopted on 22 February 2024.[12] Although the Belgian version of ecocide recognises it as an autonomous crime, the scope of application of the offence was very narrowly circumscribed due to limitations in the competence of the federal state.[13]
Articulating ecocide and qualified environmental offences
An autonomous environmental crime under EU law?
One significant difference between the crime of ecocide elaborated by the IEP and qualified environmental offences under the directive is that, whereas the former is an autonomous, self-standing, crime, the latter is conceived as an aggravated form of first-tier offences, themselves defined by reference to sectoral legislation.[14] As a result of this sectoral approach, the notion of environmental crime under EU law remains largely dependent on administrative law. On the positive side, this approach relying on a list of prohibited conducts has the advantage of enhancing legal certainty, a key consideration in a criminal law context. It does also provide substance to the notion of ecocide by specifying a set of conducts already prohibited at EU level which may correspond to ecocide when they cause substantial, widespread and long-lasting environmental harm.
For the purpose of an autonomous crime against the environment under EU law, mention should be made of article 3(2)(a) of the directive which, along with article 3(2)(b), is not defined by reference to sectoral legislation. Formulated as a general pollution offence, it requires member states to criminalise:
‘the discharge, emission or introduction of a quantity of materials or substances, energy or ionising radiation, into air, soil or water which causes or is likely to cause the death of, or serious injury to, any person or substantial damage to the quality of air, soil or water, or substantial damage to an ecosystem, animals or plants.’[15]
Accordingly, conducts polluting the air, soil or water (through a ‘discharge, emission or introduction’) amount to a first-tier offence if the pollution causes (or is likely to cause) serious harm to a person (death or serious injury) or substantial damage to the environment (the quality of air, soil or water; ecosystems, animals or plants).[16] If the pollution in question causes damage to the environment that is substantial, widespread and long-lasting, it will amount to a qualified criminal offence under article 3(3) punishable by up to eight years imprisonment.[17]
This autonomous offence, which already featured in the original Environmental Crime Directive of 2008, may be seen as the backbone of EU environmental criminal law as it requires member states to criminalise any intentional or reckless conduct polluting the air, soil or water and thereby causing substantial damage to the environment.[18] In its qualified form, this offence is the one that most closely corresponds to a crime of ecocide under EU law.
Comparing the definitions
The definition of qualified offences under the directive is more restrictive than the crime of ecocide defined by the IEP in three main respects.
First, the directive applies exclusively to unlawful acts whereas the ecocide definition also extends to lawful acts that are wanton, ie carried out with ‘reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated’. However, the directive provides in article 3(1) that prima facie lawful activities authorised by competent authorities may, in special circumstances, constitue a criminal offence if the permit was wrongfully obtained (ie through fraud, corruption, extortion or coercion) or if it is ‘in manifest breach of relevant substantive legal requirements’.[19] This expansive reading of the unlawfulness requirement marks a departure from the dependence of environmental crimes on administrative law which has been described as ‘revolutionary’ by EU law experts.[20]
Second, the impact threshold of qualified environmental offences is limited in two ways. To srtat with, article 3(3) of the directive requires that the environmental damage is substantial, widespread and long-lasting (whereas the ecocide definition requires the damage to be severe and either widespread or long-term). Furthermore, under article 3(3) the damage must also be caused specifically to a particularly sizeable or valuable ecosystem or a habitat within a protected site, or more generally to the quality of air, soil or water. While the impact threshold for second-tier offences is more restrictive than in the ecocide definition, this is compensated by the wider scope of application of first-tier offences which only require environmental damage to be substantial at most.[21]
The third limitation concerns the mental element. Only intentional conducts may constitute qualified offences under article 3(3) of the directive.[22] This is a significant restriction since ecological disasters are rarely caused purposefully; rather, they characteristically result from reckless or negligent behaviour. For this reason, the IEP recommended the inclusion of the mental element of dolus eventualis corresponding to the author’s knowledge of a substantial likelihood of causing environmental harm. While this mental element was not included in the directive, most first-tier offences must be criminalised when carried out with at least serious negligence.[23] It should also be noted that in some continental legal systems such as Belgium, the author’s awareness of necessary or probable criminal consequences (second degree dolus and dolus eventualis) is assimilated to the notion of intent (first degree dolus).[24]
Advantages of the EU law framework
One obvious advantage of the directive is its binding effect throughout the EU. While it is not directly applicable in the legal system of member states, EU governments are under an obligation to incorporate it within their national law by 21 May 2026, failing which an infringement procedure may be initiated by the EU Commission.[25]
Furthermore, if the objective is to establish a comprehensive legal framework providing protection to the environment through the criminal law, the directive may be a more fitting instrument than a crime under international law. Qualified offences form only one part of this legal framework aiming to ensure a more effective prevention, deterrence and repression of environmentally harmful conducts throughout the EU.[26] Criminalising the most egregious acts of environmental destruction in the Rome Statute would be pivotal for a number of reasons, including the deterrent and expressive functions of international criminal law.[27] However, broad societal change in our relationship to the natural world would no doubt require to extend the reach of the criminal law beyond the gravest and most spectacular offences to less visible, but more common, forms of environmental harm corresponding to the concpet of slow violence.[28]
This reading is consistent with the basic message of the Environmental Crime Directive, namely that serious infringements of environmental law should not be left to administrative law and penalties.[29] While the criminal law net should not be cast so wide as to upset the principle of legality, it should be broader in a domestic law context than the noyau dur of the gravest environmental offences that are the object of international criminal law, hence necessitating different levels of incriminations.[30]
One further advantage of the directive is the possibility to hold companies liable for environmental crimes, which is not at present possible under the Rome Statute.[31] This is critical since legal entities are responsible for up to 75% of environmental crimes according to the EU Commission.[32] While a minority of member states whose law does not provide for the criminal liability of legal persons may opt for ‘non-criminal penalties’, the inclusion of mandatory (criminal or non-criminal) sanctions for legal persons should permit to start bridging the impunity gap regarding corporate crimes.
Conclusion
Halting the rapid deterioration of the global environment requires a high level of protection for nature, including through the criminal law. Recognising ecocide as a crime of concern to the international community in the Rome Statute would mark an ecocentric turn of global significance in the evolution of international criminal law. To make this ecocentric turn possible and ensure that it has impact at the local level, domestic reforms extending the reach of the criminal law to serious breaches of environmental law should accompany this global movement. The directive requires EU countries to work towards both objectives by enjoining them to criminalise a series of environmental offences causing substantial environmental harm and to ensure that offences having the most serious environmental impact are punished with more severe sanctions. It may therefore be credited for preparing the ground for, and adding texture and local relevance to, a future ecocentric international crime.
Photo by Ed van duijn on Unsplash
[1] Directive 2024/1203 on the protection of the environment through criminal law and replacing Directives 2008/99/EC and 2009/123/EC (adopted 11 April 2024) (‘the directive’). See article 3 (criminal offences), article 5 (sanctions for natural persons), article 7 (sanctions for legal persons) and articles 13 to 22 regarding the enforcement chain. For a discussion of environmental offences and penalties under the directive, see here.
[2] See preambular para 8, article 3(1), (2) and (4) of the directive (n 1). See also European Commission, ‘Proposal for a directive on the protection of the environment through criminal law and replacing Directive 2008/99/EC’ (15 December 2021) COM(2021) 851 final (Commission’s Proposal), 4-7.
[3] Article 3(3) of the directive (n 1).
[4] Preambular para 21 of the directive (n 1).
[5] Ibid. See also article 5(2)(b) and 7(4). However, first-tier offences causing the death of a person must be punished with longer terms of imprisonment than qualified offences, see article 5(2)(a).
[6] Preambular para 5 of the directive (n 1) states that ‘[p]enalties should be strengthened in order to enhance their deterrent effect, and the effectiveness of the detection, investigation, prosecution and adjudication of environmental criminal offences should be improved.’ On the necessity of a criminal law approach, see the Commission’s proposal (n 2) 4-7.
[7] Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002) preamble (Rome Statute).
[8] Article 8(2)(b)(iv) of the Rome Statute (n 7) provides for the war crime of ‘intentionally launching an attack in the knowledge that such attack will cause … widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.’[8] See also article 35(3) of the First Additional Protocol to the Geneva Conventions of 12 August 1949 and the Convention on the Prohibition of Military or Any Other Hostile Use of Environmental Modification Techniques (ENMOD) (adopted 10 December 1976).
[9] Stop Ecocide Foundation, Independent Expert Panel for the Legal Definition of Ecocide (June 2021).
[10] Article L. 231-3 of the French Environment Code.
[11] See Julia Thibord, ‘Ecocide: l’occasion manquée’, Notre Affaire à Tous (September 2021); Corinne Lepage, ‘Le délit d’écocide : une “avancée” qui ne répond que très partiellement au droit européen’ Dalloz Actualité (17 February 2021); Justine Guitton-Boussion, ‘Crime ou délit ? L’écocide divise les juristes de l’environnement’ Reporterre (25 November 2020).
[12] Article 94, Title 1bis, Book II of the Belgian Penal Code adopted on 22 Frebruary 2024, which will enter into force on 8 April 2026.
[13] See Daniel Bertram, ‘Ecocide à la Bruxelloise’ (9 March 2024) Verfassungsblog.
[14] See article 3(3) of the directive (n 1).
[15] Article 3(2)(a) of the directive (n 1).
[16] Ibid.
[17] Qualified offences require that the damage is caused to the quality of air, soil or water or to a particularly sizable or valuable ecosystem or one that is part of a protected site, see article 3(3) of the directive. With regard to applicable sanctions, see article 5(2)(b).
[18] See article 3(a) of Directive 2008/99/EC on the protection of the environment through criminal law (adopted 19 November 2008).
[19] Article 3(1), last sub-paragraph, of the directive (n 1).
[20] See Michael Faure, ‘Une nouvelle directive relative à la protection de l’environnement par le droit pénal’ Dalloz AJ Pénal 05/2024, 243.
[21] See the first part of this blog post considering the qualitative and quantitative impact thresholds for result and conduct crimes, respectively.
[22] Article 3(3) of the directive (n 1).
[23] Except for article 3(2)(e), (h) and (r)(i) which must be intentional conducts, see article 3(4) of the directive (n 1).
[24] See article 7(2), Book 1, of the Belgian penal Code adopted on 22 February 2024.
[25] See article 28 of the directive (n 1).
[26] The directive itself is part of the Green Deal providing the framework for the adoption of a number of legal instruments aiming to ensure a better protection of the environment, including the Nature Restoration Law and the Corporate Sustainability Due Diligence Directive.
[27] On the justifications for criminalising ecocide under international criminal law, see Rebecca J Hamilton, ‘Criminalizing ecocide’ (2024), forthcoming.
[28] Rob Nixon, Slow Violence and the Environmentalism of the Poor (Harvard University Press 2011). For a critical analysis contrasting ecocide and slow violence, see Eliana Cusato and Emily Jones, ‘The “imbroglio” of ecocide: A political economic analysis’ Leiden Journal of International Law (2024) 37, 49-51.
[29] Preambular para 8 of the directive (n 1); preambular para 3 of Directive 2008/99/EC on the protection of the environment through criminal law (n 18). See also European Commission, ‘Proposal for a directive on the protection of the environment through criminal law and replacing Directive 2008/99/EC’ (15 December 2021) COM(2021) 851 final.
[30] On the narrow purview of international criminal law, see Darryl Robinson, ‘Ecocide – Puzzles and Possibilities’ Journal of International Criminal Justice (20:2) May 2022, 322-323.
[31] See articles 6 and 7 of the directive (n 1) discussed in the first part of this blog post.
[32] European Commission staff working document, ‘Evaluation of Directive 2008/99/EC of the European Parliament and of the Council of 19 November 2008 on the protection of the environment through criminal law’ (28 October 2020) SWD (2020) 259 final, 36.