Every crime is defined by its elements – what lawyers call Actus Reus and Mens Rea (the act and the state of mind). This applies to all crime, including the most serious of crimes of concern – international crime. International crimes sometimes include two more elements in their drafting: a threshold element and perpetrator’s context. The following elements apply to the draft Model Ecocide Law:
The perpetrator’s acts or omissions caused, contributed to, or may be expected to cause or contribute to serious ecological, climate or cultural loss or damage to, or destruction of ecosystem(s) of a given territory(ies).
The perpetrator’s activity has or will severely diminish peaceful enjoyment by the inhabitants.
The perpetrator’s acts or omissions were reckless where the perpetrator had knowledge or ought to have had knowledge of the likelihood of ecological, climate or cultural harm.
the perpetrator was a senior person within the course of State, corporate or any other entity’s activity in times of peace or conflict.
Whilst each ecocide will stand on it’s own facts and evidence, the nexus between ecological and climate ecocide requires 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. Signed by 193 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. Withdrawal of a State as a signatory is irrelevant; knowledge has been established. In terms of data, the Carbon Majors report and the Climate Accountability Institute’s report, CDP (2017) The Carbon Majors Database provides verifiable evidence of the most serious carbon major corporations for climate purposes.