🌍 Understanding the Elements of Ecocide Law: A Seven-Part Series🌍

This series breaks down the seven key elements of adopted and proposed ecocide legislation, why they matter and how they have changed in comparison to the international proposal.  

Xuchen Zhang and Kate Mackintosh conducted an extensive comparison of existing and proposed laws that you can read here. In this series, we present their findings in bite-sized pieces, examining each element in detail to highlight its significance. 

Part 5: The Mental Element

Mens rea refers to the criminal intent or awareness a suspect has regarding the wrongfulness of their actions. In cases of environmental harm, the issue of mens rea is complex since potential violators rarely aim to cause environmental damage; rather, harm is a byproduct of profit-driven activities.  

The mens rea in the International Proposal is knowledge of the substantial likelihood of harm coming to pass. The mens rea thus focuses on the consequences of the acts, as this is how ecocide is defined in that proposal (see Part 3 of this series). The Scottish, Mexican (federal), Brazilian, and Italian proposals follow this approach. The Peruvian proposal sets a lower standard: it requires knowledge of a likelihood of harm but does not require the likelihood to be substantial. 

The European Crime Directive (ECD) requires the unlawful act constituting a qualified offence to be committed intentionally, but goes to define “intentionally” to include a situation where one anticipates the possibility of a harmful consequence and proceeds with the act regardless, accepting this risk. The Dutch proposal sets the same standard. 

Other jurisdictions have higher requirements. The Belgian law requires knowledge that the act will cause harm, moving from risk to certainty. The French law requires the conduct to be committed intentionally.  

The Jalisco Penal Code does not explicitly define mens rea for the crime of ecocide. Under its criminal law, mens rea standards include intent, reckless disregard, imprudence, and negligence.