Every crime is defined by its elements – what lawyers call Mens Rea and Actus Reus (the state of mind and the act). This applies to all crime, including the most serious of crimes of concern – international crime. International crimes include two more elements in their drafting: context and perpetrator. The following elements apply to the draft Model Ecocide Law:
Ecocide crimes occurs predominantly within peace-time. The consequences are often severe. Like conflict and war crimes, ecocide crimes can cause serious harm. Ecocide crimes are contextualised by two categories that lock-in serious harm: corporate activity and climate change. Thus it can be said that there are two categories of ecocide crime: 1. corporate ecocide and 2. climate ecocide.
ACTUS REUS: THE ACT
In the case of corporate ecocide crime, the act is ecocide arising from dangerous industrial activity. In the case of climate change ecocide, the act is ecocide occurring from increased levels of atmospheric carbon dioxide. In both cases, the act can also be the failure to prevent the serious harm from occurring.
THE PERPETRATOR (the person who carries out the harmful act, or fails to prevent the harm)
In the case of both ecocide categories of crimes, the perpetrators are the directing minds – CEO’s, directors, ministers of State etc.
MENS REA: KNOWLEDGE (the state of mind of the perpetrator)
In the case of both categories of ecocide crimes, the state of mind is reckless knowledge. The determining minds of the corporation (the CEO and directors) and/or the State (the ministers) knew or should have known that serious harm will or would occur as a result of their actions or failure to take action.
Whilst each ecocide will stand on it’s own facts and evidence, the nexus between the two categories of ecocide may require additional evidence. State knowledge can be established on a number of fronts, most notably the Paris Agreement confers knowledge of duty to limit carbon emissions. Now signed by 194 UNFCCC member States, the Paris Agreement is evidence of State knowledge not only of the nexus between the most dangerous of industrial activities that drive carbon pollution but also the resultant climate harm. However, the UNFCCC, the primary forum for international climate discussions, typically focuses on responsibility at the country level. Ecocide law focuses responsibility at a corporate level. Thus, the Carbon Majors report provides data that reflects a more accurate analysis of the most serious carbon major corporations for climate purposes.
Analysis and mapping by scientific research organization Climate Central provides data on sea-level rises. Carbon emissions causing 4 °C increase (7.2 °F) — a business-as-usual scenario — could lock in enough eventual sea level rise to submerge land currently home to 470 to 760 million people globally. Carbon cuts to meet the proposed international target of 2 °C increase (3.6 °F) reduces the figure to 130 million people at risk of serious injury, harm and displacement.