International Criminal Law Review (2021) 1-27 The Draft Convention Ecocide and the Role for Corporate Remediation. Some Insights from the International Monsanto Tribunal and a Recent Research Proposal Marco Colacurci Post-doc in Criminal Law, Department of Law, Università della Campania ‘Luigi Vanvitelli’, Santa Maria Capua Vetere (CE), Italy marco.colacurci@unicampania.it Abstract The debate on introducing the international crime of ecocide and corporate liability at the international level has been intense during the last fifty years. A recent research project elaborated two draft conventions on the supranational crime of ecocide and transnational crimes (eco-crimes), both acknowledging corporate liability. Also in recent years, the International Monsanto Tribunal – an opinion tribunal – found the Monsanto multinational enterprise responsible for ecocide: although not binding, its advisory opinion tackles most of the critical issues arising from corporate environmental crime. After a review of the case, the article analyses the Draft Convention Ecocide, focusing on the main features of this crime and the corporate liability system provided. Albeit some aspects could be subject to critics, the project has several strengths, particularly for its pragmatic approach to corporate remediation, and also aimed at fostering the dialogue between the national States through the approval of a specific convention. Keywords ecocide – multinational corporations – Monsanto – corporate criminal liability – corporate compliance – corporate remediation – environmental crime – opinion tribunals © koninklijke brill nv, leiden, 2021 | doi:10.1163/15718123-bja10038 9 9 121 3:9 / 0 9: 5 5 2: 5 25 93 :9 5 42 10.1163/15718123-bja10038 | colacurci 2 1 Introduction The debate on introducing the international crime of ecocide has been intense in the last fifty years, with scholars that have adopted different positions.1 Nowadays, the urgency to protect the environment, vigorously arising from the growing consent over the potential catastrophically consequences of the so-called climate change, has dramatically increased.2 Consequently, the idea to criminalise the most serious attempts to the environment on a global scale 1 2 The debate on ecocide spread in connection with the devastating impact on the environment of the Vietnam war. The word ecocide was firstly used in public by the plant biologist and chair of the Department of Botany at Yale University Arthur Galston at the 1970 Conference on War and National Responsibility in Washington, where he proposed a new international agreement to ban ecocide. As a biologist, Galston identified the defoliant effects of a chemical later developed into Agent Orange, used by the US army on the forests where Vietcong where hidden. In 1972, the Prime Minister of Sweden Olof Palme, in his opening speech at the United Nations Stockholm Conference on the Human Environment, explicitly referred to the Vietnam war as ecocide. Since then, the idea of introducing at the international level the crime of ecocide has continued to be addressed, both by expanding the 1948 Genocide Convention and by introducing ecocide within the Rome Statute. However, these projects have never been completed. Since the Nineties, a whole area of research intensively developed. Labelled as ‘green criminology’, it is mostly focused on the identification, punishment, and remediation of important environmental harms. Many scholars stand for the introduction at the international level of a law prohibiting ecocide. One of the most renowned examples is represented by the draft model law of ecocide submitted by Polly Higgins to the United Nations Law Commission, proposing ecocide to be the fifth crime against peace. On the historical evolution of the debate on ecocide, see Richard A. Falk, ‘Environmental Welfare and Ecocide Facts. Appraisal and Proposals’, 9 Rev. Belge Dr. Int. (1973) 1–27; David Zierle, The Invention of Ecocide: Agent Orange, Vietnam, and the Scientists Who Changed the Way We Think about the Environment (University of Georgia Press, Athens, 2011); Laurent Neyret, Damien Short, Michael Urs Baumgartner and Antonio A. Oposa Jr., ‘Timely and Necessary: Ecocide Law as Urgent and Emerging’, 28 J. Juris. (2015) 431–452; Anastacia Greene, ‘The Campaign to Make Ecocide an International Crime: Quixotic Quest Or Moral Imperative’, 30 Ford. Environ. L. Rev. (2019) 1–48. On the project proposed by Higgins, cf. Polly Higgins, Eradicating Ecocide: Exposing the Corporate and Political Practices Destroying the Planet and Proposing the Laws to Eradicate Ecocide (Shepeard-Walwyn, London, 2nd ed., 2016). On the so-called green criminology, cf. Gerben J.N. Bruinsma and Shane D. Johnson (eds.), The Oxford Handbook of Environmental Criminology (Oxford University Press, Oxford, 2018). About the impact of climate change on international law, see Kevin R. Gray, Richard Tarasofsky and Cinnamon Carlarne (eds.), The Oxford Handbook of International Climate Change (Oxford University Press, Oxford, 2016). Specific focus on the application of criminal law to climate change in Matthew Hall, ‘Criminal law and climate change’, in Michael Faure (ed.), Elgar Encyclopedia of Environmental Law (Edward Elgar, Cheltenham, 2015), pp. 103–114. International Criminal Law Review (2021) 1-27 9 9 121 3:9 / 0 9: 5 5 2: 5 25 93 :9 5 42 draft convention ecocide | 10.1163/15718123-bja10038 3 perfectly fits within the wider discussion on the strategies needed to design and implement adequate measures to protect the environment.3 Although criminal and international criminal law are characterised for a subsidiary nature since they should represent the ‘extrema ratio’ of the public enforcement,4 the fundamental importance of the values at stake imposes to take into account strategies of criminal policy.5 These should consider the role of multinational enterprises, not only for the global reach of their activities and the extreme danger they can cause6 but also because of their organisational and financial capacities, which make these subjects often the only ones able to remedy the damages caused: a goal particularly relevant when dealing with environmental crimes.7 Currently, only the national States can prosecute corporations since, at the international level, no form of corporate criminal liability is provided. Although the Rome Statute of the International Criminal Court (icc) does not envisage corporate liability,8 different theoretical positions stand for such liability for 3 4 5 6 7 8 The intersection between the debate on climate change criminality and ecocide is recently addressed by Rob White, ‘Ecocide and the Carbon Crimes of the Powerful’, 37 Univ. Tasmania L. Rev. (2018) 95–115. For a juridical perspective on climate change, cf. Luca D’Ambrosio (ed.), ‘Le bon usage de la terre: penser le droit dan une planète finie’, Rev. Jurid. Environ. – Numéro special (2018). See generally Douglas Husak, ‘The Criminal Law as Last Resort’, 24 Oxf. J. Leg. Stud. (2004) 207–235, DOI: 10.1093/ojls/24.2.207; Douglas Husak, Overcriminalization: The Limits of the Criminal Law (Oxford University Press, Oxford, 2009). Polly Higgins, Damien Short and Nigel South, ‘Protecting the Planet: A proposal for a law of ecocide’, 1 Cr. L. Soc. Change (2013) 251–266, DOI: 10.1007/s10611-013-9413-6. Cf. Mireille Delmas Marty and Klaus Tiedemann, ‘La criminalité, le droit pénal et les multinationales’, La Semaine Jurid. (1979) 1–19. More recently, Gregg Barak, Unchecked Corporate Power: Why the Crimes of Multinational Corporations Are Routinized Away and What We Can Do About It (Routledge, London, 2017); Jamie Cassel, ‘Outlaws: Multinational Corporations and Catastrophic Law’, 31 Cumberland L. Rev. (2000–2001) 311–335. About environmental crimes, cf. Adán Nieto Martín, ‘Bases para un futuro derecho penal del medio ambiente’, 3 Rev. Int. Dr. Pén. (2011) 477–505, DOI: 10.3917/ridp.823.0477. Pamela Ann Davies, ‘Green crime and victimization: Tension between social and environmental justice’, 18 Theor. Criminol. (2014) 300–316, DOI: 10.1177/1362480614522286. See also Francesco Centonze and Stefano Manacorda, ‘Preventing and Sanctioning Historical Pollution beyond Criminal Law: An Introduction’, in Francesco Centonze and Stefano Manacorda (eds.), Historical Pollution: Comparative Legal Responses to Environmental Crimes (Springer, Milan, 2017), pp. 1–19, DOI: 10.1007/978-3-319-56937-6_1. Cf. Kai Ambos, ‘International Economic Criminal Law. The Foundations of Companies’ Criminal Responsibility Under International Law’, 29 Crim. L. Forum (2018) 499–566, DOI: 10.1007/s10609-018-9356-9. See also, more recently, Panagiota Kotzamani, ‘Corporate Criminality and Individual Criminal Responsibility in International Law: Removing the Hurdles from the International Criminal Court’s Approach to Perpetration through Control of a Collective Entity’, 5 Int’l. Crim. L. Rev. (2020) 1–30, DOI: 10.1163/15718123-bja10011. International Criminal Law Review (2021) 1-279 9 121 3:9 / 0 9: 5 5 2: 5 25 93 :9 5 42 4 10.1163/15718123-bja10038 | colacurci genocide, crimes against humanity, and war crimes.9 In recent times, the icc confronted itself with violations of human rights allegedly implying – among others – the liability of top management of European defence companies: besides the difficulties in proving the mens rea of such conduct, the corporate liability still does not emerge.10 In such a scenario, a recent international research project elaborated a proposal aimed at environmental protection at the national and international level.11 The project outcome is composed of two different draft conventions, one concerning the introduction of the international crime of ecocide, and one dedicated to transnational crimes labelled as eco-crimes.12 In both cases, corporate liability is acknowledged, and central importance is given to corporate remediation.13 Before analysing the research project, the paper reviews the recent International Monsanto Tribunal case. Although this was an opinion tribunal, whose acts have no binding effects, its experience clearly shows the difficulties in making multinational corporations liable for gross violations of the environment.14 The Monsanto Tribunal represents, indeed, an attempt to condemn a multinational corporation for the violation of different human rights already acknowledged at the international level (in particular the right to health, food, and a healthy environment), as well as for the international crime of ecocide, to be recognised. The Tribunal outcome consists of a legal advisory opinion aimed at offering a juridical benchmark for anyone who wants to act against Monsanto in the future. It is a useful guide to understand the issues at the stake when investigating the possibility and opportunity of making corporations liable for the international crime of ecocide.15 9 10 11 12 13 14 15 E.g., Caroline Kaeb, ‘The Shifting Sands of Corporate Liability under International Criminal Law’, 49 Geo. Wash. Int’l L. Rev. (2016) 351–403. Stefano Manacorda, ‘An Introduction to Individual Liability for Business Involvement in International Crimes’, in Paola Severino, John Vervaele and Antonino Gullo (eds.), Proceedings of AIDP – XX International Congress, Rome 13–16 November 2019, forthcoming. See also Stefano Manacorda, Giulio Vanacore and Angelo Marletta (eds.), ‘Individual Liability for Business Involvement in International Crimes’, 1 Rev. Int’l. Dr. Pen., 2017. Laurent Neyret (ed.), Des écocrimes à l’écocide. Le droit pénal au secours de l’environnement (Bruylant, Brussels, ebook ed., 2017). Isabelle Fouchard, ‘Introduction’, in Neyret (ed.), supra note 11, p. 366 et seq. Juliette Tricot, ‘Écocrimes et écocide : quels responsables ?’, in ibid., pp. 209–239. International Monsanto Tribunal, Advisory Opinion, The Hague, 18 April 2017, <www. monsantotribunal.org/upload/asset_cache/189791450.pdf>, all websites have been accessed 4 November 2020 unless otherwise mentioned; see Gwynn MacCarrick and Jackson Maogoto, ‘The Significance of the International Monsanto Tribunal’s Findings with Respect to the Nascent Crime of Ecocide’, 48 Texas Environ. Law J. (2018) 217–237. International Monsanto Tribunal, supra note 14, p. 13. International Criminal Law Review (2021) 1-27 9 9 121 3:9 / 0 9: 5 5 2: 5 25 93 :9 5 42 draft convention ecocide | 10.1163/15718123-bja10038 5 Not by chance, the research proposal addresses most of the critical issues arising from the Monsanto Tribunal case. In particular, three different aspects emerge. The first one concerns the role victims can play in the fight against environmental crimes: they can contribute, indeed, to making public opinion aware of the particular risks arising from some business activities and, consequently, to overcome the inefficiency frequently shown by the national States in prosecuting multinational enterprises.16 The second one highlights the ‘knowledge imbalance’ between corporations, on the one side, and victims and the public power, on the other side. The Monsanto Tribunal found the accused corporation liable for deceptive activity, aimed at hiding the harmful consequences arising from the use of its products, addressing, from this standpoint, the problematic relationship between multinationals’ power and the freedom necessary for scientific research.17 Finally, the advisory opinion deals with the lack of binding instruments at the international level to make corporations responsible for environmental crimes, standing for the introduction of ecocide.18 Although only this last aspect seems to relate directly to the corporate liability for ecocide, the other two enlighten the prominent role corporations play within the current socio-economic system, dealing with issues addressed by the Draft Convention Ecocide. The description of the Monsanto Tribunal case will then be used as a starting point to deepen into it. The work proceeds as follows: after clarifying the role of opinion tribunals in the advancement of international law, the second paragraph focuses on the knowledge imbalance between multinational corporations and local regulators, stressing the need to overcome such asymmetry to foster the freedom of scientific research. The third paragraph is still on the advisory opinion, underlying the lack of binding instruments at the international level to make multinational corporations respectful of human rights and the environment. Coming to the project, after an overview of its content (para. 4), the work focuses on the Draft Convention Ecocide, with specific attention to the object of this crime, represented by the safety of the planet, and the mens rea required to individual authors (para. 5). The proposed criminal liability of corporations is then scrutinised, with particular focus both on the compliance paradigm adopted by the convention and the importance given to corporate remediation, including the possibility to further foster the role of victims, based on the Restorative Justice 16 17 18 Ibid., p. 49. Part three of the advisory opinion is entitled ‘The growing gap between international human rights law and corporate accountability’. Ibid., p. 35. Ibid., p. 47. International Criminal Law Review (2021) 1-279 9 121 3:9 / 0 9: 5 5 2: 5 25 93 :9 5 42 6 10.1163/15718123-bja10038 | colacurci model (para. 6). Finally, the paper investigates the propositions to establish international independent institutions with jurisdictional, enforcement, and researching functions (para. 7), before providing concise conclusive remarks (para. 8). 2 The International Monsanto Tribunal: the Knowledge Imbalance, the Need for Free Scientific Research and the Possible Role for Victims of Corporate Violence The International Monsanto Tribunal formed in the wake of a long tradition of opinion tribunals, which started in the Sixties with the so-called Russell Tribunal. The genesis of such a Tribunal is slightly different from the Monsanto Tribunal since it was established under the initiative of Bertrand Russell – the British philosopher and activist – to shed light on the atrocities committed by the US Army during the Vietnam war.19 However, a fil rouge put in connection the two experiences: among the activities contested to the north-American troops by the Tribunal, there were the damages to the environment perpetrated by the use of the herbicide Agent Orange – a Monsanto product – on the Vietnamese forest, where Vietcong hid. Such conduct was referred to as ecocide for the first time.20 The International Monsanto Tribunal only partly addresses the facts committed during the Vietnam war. It mostly focuses, indeed, on the activities of Monsanto linked to Roundup, the most-sold herbicide in the world, and genetically modified seeds. As anticipated, the Tribunal stated that the use of these products did not only amount to the violation of different human rights (the right to a healthy environment, food, health) as well as to the freedom of scientific research but – most of all – it has to be considered as ecocide. The latter was intended as ‘causing serious damage or destroying the environment, so as to significantly and durably alter the global commons or ecosystem services upon which certain human groups rely’.21 19 20 21 Bertrand Russell, War crimes in Vietnam (Monthly Review Press, Crows Nest, 1967). The documentation regarding the Russel Tribunal is available at <www.tuantran.org/ russelltribunal/>. See also George P. Fletcher, Tort Liability for Human Rights Abuses (Hart Publishing, Oxford, 2008). Concerning opinion tribunals, cf. Carlo Sotis, ‘Juger des crimes environnementaux internationaux: approche jurisdictionalle et institutionelle’, in Neyret (ed.), supra note 11, pp. 292–316. Supra note 1. International Monsanto Tribunal, supra note 14, p. 45. International Criminal Law Review (2021) 1-27 9 9 121 3:9 / 0 9: 5 5 2: 5 25 93 :9 5 42