By Hassan Abbas
On Sept 19, 1960, a treaty was signed between India and Pakistan on water sharing. The decisions taken effectively meant that the three rivers of the Indus River basin — each rivalling the size of the Colorado River — would not be allowed to follow their natural courses. This was unprecedented.
Since the dawn of the Industrial Revolution, there has been a growing tendency to subdue nature. Unsustainable development models have led to the reckless exploitation of nature, mostly driven by greed for capitalistic gains, power and politics. From overfishing to excessive mining, from the use of chemicals in wars to that of poison in agriculture, from deforestation to the damming of rivers, from chlorofluorocarbons to greenhouse gas emissions, nature has been harmed by human beings in the past two centuries on an immense scale.
The effect of this squeezing of nature is now manifesting itself as biodiversity loss, the extinction of species, pandemics, seawater intrusion, pollution of water resources, melting glaciers, heat waves, droughts, superstorms … the list goes on.
But matters cannot go on unchecked. International law has a role to play.
Unsustainable development models have led to the reckless exploitation of nature.
At present, environmental damage is only considered a crime under Article 8(2)(b)(iv) of the Rome Statute — which implicates acts of “widespread”, “long-term” or “severe” environmental damage caused by an act of war. The law cannot be applied to peacetime situations of environmental damage. Corporate and state criminal responsibility are also excluded from the Rome Statute, therefore, corporations or states which cause widespread pollution or destruction of ecological systems cannot be prosecuted for environmental damage.
Derived from the terms ‘genocide’ and ‘crimes against humanity’, as contained in the Rome Statute, the idea of ‘ecocide’ was first proposed in the 1970s by biology professor Arthur W. Galston, when chemicals were used to destroy foliage and crops during the Vietnam War.
In 1972, the Swedish prime minister Olaf Palme invoked the idea of ecocide as an international crime at the UN Conference on the Human Environment. In 1973, Richard A. Falk drafted an Ecocide Convention, recognising “that man has consciously and unconsciously inflicted irreparable damage [on] the environment in times of war and peace”. In 1985, UN special rapporteur Benjamin Whitaker advocated the inclusion of ecocide in the definition of genocide; British lawyer Polly Higgins did pioneering work on ecocide; and James Crawford, an Australian scholar, lawyer and judge at the International Court of Justice, contributed to making the protection of the environment a central part of modern international law.
A project emerged in 2020, in response to a request from parliamentarians in Sweden to form the ‘Independent Expert Panel for the Legal Definition of Ecocide’. The panel included highly renowned international criminal and environmental lawyers from around the world. After six months of deliberations, the panel proposed the definition of ‘Ecocide’ and also suggested amendments to the Rome Statute to add ‘ecocide’ as the fifth crime to be tried under the Rome Statute.
In 2021, the Expert Panel defined Ecocide as follows: “… ‘ecocide’ means 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.”
A fuller description of the terms used was given:
“‘Wanton’ means with reckless disregard for damage which would be clearly excessive in relation to the social and economic benefits anticipated;
“‘Severe’ means damage which involves very serious adverse changes, disruption or harm to any element of the environment, including grave impacts on human life or natural, cultural or economic resources;
“‘Widespread’ means damage which extends beyond a limited geographic area, crosses state boundaries, or is suffered by an entire ecosystem or species or a large number of human beings;
“‘Long-term’ means damage which is irreversible or which cannot be redressed through natural recovery within a reasonable period of time;
“‘Environment’ means the earth, its biosphere, cryosphere, lithosphere, hydrosphere and atmosphere, as well as outer space.”
On June 22, 2021, botanist and professor Alexandre Antonelli and ecologist and End Ecocide chair Pella Thiel, wrote an article in The Guardian in which they explained: “Recognising large-scale environmental destruction as an international crime would bring two corollary effects. First, laws provide clear, long-term guidelines for financial decision-making and international aid. That something is morally questionable usually doesn’t hinder investment. Laws provide boundaries and sanctions for investment, as no company or organisation — such as the World Bank — would want to invest in something potentially criminal.
“Second, laws can lead to a shift in social norms. Criminalising ecocide at the highest level would bring public, corporate and governmental understanding that the protection of the biosphere — the thin and fragile layer of life that supports our societies — must be a top priority for all nations.”
Some factions in power, politics and business benefited from the shutting down of three rivers as a consequence of the Indus Waters Treaty mentioned at the beginning of this article. But 62 years after the treaty, the environment and people are suffering, empty riverbeds are being filled with sewage, freshwater is being poisoned, wetlands have vanished, the world’s fifth-largest mangrove forest is disappearing, the Indus delta is eroding, fragile estuarine ecosystems are under stress, many population centres in the delta region have been engulfed by the sea, saltwater intrusion into freshwater resources is on the rise, etc.
The damage done to the Indus Basin as the consequence of the treaty seems to be severe, widespread and long-term.
If ecocide is approved as a crime in the Rome Statute, would the treaty be able to survive a trial? Or, would it be a ray of hope for the environmental revival of the Indus River basin?
The writer is an expert on hydrology and water resources.