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

Part 6: Creation of Harm or Risk?

Some crimes consist in bringing about harmful consequences, while others consist of creating a risk of harm. These offences of “endangerment,” are committed regardless of whether the harm materialises. 

The International Proposal defines ecocide as a crime of endangerment: the creation of a substantial likelihood of severe and either widespread or long-term damage to the environment. Proposals for a new crime of ecocide in Scotland, Italy, Mexico (federal), and Brazil also require the conduct to create a substantial likelihood of harm. The Dutch and Peruvian legal proposals require the conduct to either cause actual damage or create a risk of such damage. 

By contrast, the European Crime Directive requires actual harm to manifest for the ecocide-like offence. Among the new ecocide laws, France, Belgium, and Jalisco (Mexico) also require the harm to have materialised. In Jalisco, however, if the harm is to the health of persons, it only needs to be a serious risk. 

Criminalising risk may have a stronger preventative effect, and align with the environmental law principle of precaution. It also avoids the problem of waiting a long time for the environmental harm to fully manifest. On the other hand, assessment of risk may be complex, and requiring harm to materialise adds to certainty.