[i] The rise of environmental crime – A growing threat to natural resources, peace, development and security, UNEP-Interpol rapid response assessment, 2016, p.4 (“The growth rate of these crimes is astonishing. The report that follows reveals for the first time that this new area of criminality has diversified and skyrocketed to become the world’s fourth largest crime sector in a few decades, growing at 2-3 times the pace of the global economy. INTERPOL and UNEP now estimate that natural resources worth as much as USD 91 billion to USD 258 billion annually are being stolen by criminals, depriving countries of future revenues and development opportunities”); p.7 (“The value makes environmental crimes the fourth largest crime in the world after drug trafficking (344 billion USD), counterfeit crimes (288 billion USD) and human trafficking (157 billion USD), by some estimates”).
[ii] Bill recognizing the crime of ecocide, n°384, Senate, 19 March 2019, p.3 (“Environmental crime is expanding dramatically on an international scale. After drug trafficking, counterfeiting and human trafficking, it is the fourth largest market for international illicit activities (…)”) ; p.4 (“Despite the particular gravity of these environmental crimes, their intentionality and the irreversible damage to ecosystems and to the conditions of existence of populations, the criminal justice response remains non-existent. Noting the shortcomings of the law, the authors of this bill wish to lay the foundations for an environmental criminal law that will enable us to fight vigorously against the crimes that threaten the planet. For the most serious environmental crimes, they consider it necessary to introduce in our legal system the incrimination of ecocide”) ; Bill recognizing the crime of ecocide, n°2353, National Assembly, 22 October 2019, p.2 (“However, it is clear that the environment is threatened by a growing environmental criminal activity that still goes largely unpunished (…)”) ; p.3 (“However, there is currently no criminal response adapted to the industrial crime of large companies that benefit from the principle of too big to fail (…) We have to face the fact that, as extensive as it is, our legal framework still suffers from shortcomings when it comes to completely discouraging the destruction of our environment. These are the gaps that citizens are pointing out today and that we are seeking to address in part through this proposed law. Rather than repairing the damage after the fact, it is time to prevent it”).
[iii] “Impact study – Bill to combat climate change and strengthen resilience to its effects”, French Republic, 10 February 2021, p.625 (“Environmental criminal law presents a vast range of offenses. It includes all offenses relating to the protection of nature, natural resources, sites and landscapes as well as those relating to the fight against pollution and nuisances, which are included in the criminal code as well as in the environmental code, the rural and maritime fishing code, the forestry code and the mining code. In total, there are 2,000 offenses in force”) ; p.636 (“First of all, there is no generic offense to punish serious environmental damage. These are punishable by specific and scattered provisions in the Environmental Code, which makes the repressive system difficult to read and confusing, both for practitioners and for citizens who are directly concerned by the provisions protecting their natural environment”).
[iv] “Impact study – Bill to combat climate change and strengthen resilience to its effects”, French Republic, 10 February 2021, p.628 (“Environmental litigation represents a small part of the activity of the courts. Over the last decade, the share of cases handled by the public prosecutor’s office in environmental matters represented 0.5% of the total number of cases for all types of litigation combined”) ; p.630 (“The criminal response rate for environmental code violations is high, at 92.3% in 2018. More specifically, the criminal response is, in 78.6% of cases, alternative prosecution procedures. Under these alternatives to prosecution, the public prosecutor may, pursuant to Article 41-1 of the Code of Criminal Procedure, order the restoration of the site when the damage caused to the environment proves to be minor. As for convictions for environmental offenses, they amounted to 1,993 for natural persons in 2018 and 139 for legal persons in 2017. However, the sentences handed down by the criminal courts appear relatively low”).
[v] Decided by the President of the Republic, Emmanuel Macron, the Citizens’ Climate Convention is a panel of 150 citizens chosen by lot with the mandate to define a series of legislative and/or regulatory measures to achieve a reduction of at least 40% in greenhouse gas emissions by 2030 in a spirit of social justice.
[vi] “The proposals of the Citizens’ Climate Convention”, Citizens’ Climate Convention, 29 January 2021, p.400 (“To achieve these objectives we propose to adopt a law that protects ecosystems from degradation and destruction, placing legal and financial responsibility on the perpetrators of depredations. This law would include: (…) → The criminalization of the crime of ecocide (…)”) ; p.403 (“Incorporate the concept of the crime of ecocide into the law: In order to to sanction the violation of these planetary limits, it is necessary to recognize in criminal law the crime of ecocide, in order to allow the judge to prosecute cases of serious damage caused to all or part of the system of planetary commons or of an ecological system of the Earth. Proposed definition of the crime of ecocide: Constitutes a crime of ecocide, any action having caused a serious ecological damage by participating in the obvious and not negligible overstepping of the planetary limits, committed in the knowledge of the consequences which were going to result from it and which could not be ignored. In order for the possible sanction to be dissuasive, the penalty incurred must be, in the case of a violation by a company, in addition to a prison sentence and a fine for the company directors or persons directly responsible, a fine in the form of a significant percentage of the company’s turnover and must include the obligation to make reparation”).
[vii] The Legislation Committee’s mission is to carry out a legislative transcription of the measures prepared by the members of the Citizens’ Climate Convention. It is mandated by the Governance Committee which has the task of advising the members of the Convention in the exploration of avenues of work and the development of proposed measures.
[viii] “The proposals of the Citizens’ Climate Convention”, Citizens’ Climate Convention, 29 January 2021, p.406 (“The proposal was submitted to the Legislation Committee in the form of a draft bill. The work of the Legislation Committee was therefore based on the proposal of the members of the Convention. It makes a number of changes to remove legal obstacles that have been identified (…) several amendments are proposed to reflect the intent of the members: – Include the incrimination in another book of the penal code related to environmental protection. – To modify the legal definition of the crime of ecocide. Indeed, the reference to the planetary limits to define the incrimination is not in conformity with the principle of legality of the offences and the penalties (…) – In addition to this principle, there is the principle of proportionality of penalties (…) In order for the global limits to constitute the basis of a criminal offence, it would be necessary to identify upstream and precisely the thresholds that would constitute an exceeding of the global limits attributable to the activity of a person. In the state of the work of the working group, the legislative committee did not find how to express such a threshold. However, it maintained the group’s proposal, making the necessary adjustments to bring it into line with general criminal law, without succeeding in formulating it in a manner consistent with the principle of criminal legality (…) This is why, in an attempt to transcribe the will of the members, the Legislation Committee proposes other wordings of the crime of ecocide that seek to overcome the difficulties linked to the principle of criminal legality”).
[ix] Bill to combat climate change and strengthen resilience to its effects, article 68, I, 4° (“4° A new Title III is added to Book II to read as follows TITLE III GENERAL DAMAGE TO THE PHYSICAL ENVIRONMENT (…) “Art. L. 231-3. – The offense provided for in article L. 231-1 constitutes ecocide when committed intentionally. The offenses provided for in II of article L. 173-3 and in article L. 231-2 also constitute ecocide when they are committed with knowledge of the serious and lasting nature of the damage to health, flora, fauna or the quality of the air, water or soil, likely to be caused by the acts committed. The penalty of five years’ imprisonment provided for in II of Article L. 173-3 and in Articles L. 231-1 and L. 231-2 is increased to ten years’ imprisonment. The penalty of a one million euro fine provided for in II of Article 173-3 and Articles L. 231-1 and L. 231-2 is increased to 4.5 million euros, and this amount may be increased up to ten times the benefit derived from the commission of the offense. The following are considered to be long-lasting: harmful effects on health or damage to flora, fauna, air, water or soil quality that are likely to last at least ten years. The period of limitation for prosecution of the offense of ecocide shall run from the time of discovery of the damage””) ; Climate and resilience bill – Press kit – Presentation of the bill in the Council of Ministers, Ministry of Ecological Transition, 10 February 2021 (“France is punishing environmental gangsterism more severely. This measure will : strengthen existing rules and sanctions”).
[x] Bill to combat climate change and strengthen resilience to its effects, article 68, I, 4° (“4° A new Title III is added to Book II to read as follows TITLE III GENERAL DAMAGE TO THE PHYSICAL ENVIRONMENT (…) “Art. L. 231-3. – The offense provided for in article L. 231-1 constitutes ecocide when committed intentionally. The offenses provided for in II of article L. 173-3 and in article L. 231-2 also constitute ecocide when they are committed with knowledge of the serious and lasting nature of the damage to health, flora, fauna or the quality of the air, water or soil, likely to be caused by the acts committed. The penalty of five years’ imprisonment provided for in II of Article L. 173-3 and in Articles L. 231-1 and L. 231-2 is increased to ten years’ imprisonment. The penalty of a one million euro fine provided for in II of Article 173-3 and Articles L. 231-1 and L. 231-2 is increased to 4.5 million euros, and this amount may be increased up to ten times the benefit derived from the commission of the offense. The following are considered to be long-lasting: harmful effects on health or damage to flora, fauna, air, water or soil quality that are likely to last at least ten years. The period of limitation for prosecution of the offense of ecocide shall run from the time of discovery of the damage””) ; Climate and resilience bill – Press kit – Presentation of the bill in the Council of Ministers, Ministry of Ecological Transition, 10 February 2021 (“France is punishing environmental gangsterism more severely. This measure will : strengthen existing rules and sanctions”).
[xi] Bill to combat climate change and strengthen resilience to its effects, article 68, I, 4° (“4° A new Title III is added to Book II to read as follows TITLE III GENERAL DAMAGE TO THE PHYSICAL ENVIRONMENT (…) “Art. L. 231-3. – The offense provided for in article L. 231-1 constitutes ecocide when committed intentionally. The offenses provided for in II of article L. 173-3 and in article L. 231-2 also constitute ecocide when they are committed with knowledge of the serious and lasting nature of the damage to health, flora, fauna or the quality of the air, water or soil, likely to be caused by the acts committed. The penalty of five years’ imprisonment provided for in II of Article L. 173-3 and in Articles L. 231-1 and L. 231-2 is increased to ten years’ imprisonment. The penalty of a one million euro fine provided for in II of Article 173-3 and Articles L. 231-1 and L. 231-2 is increased to 4.5 million euros, and this amount may be increased up to ten times the benefit derived from the commission of the offense. The following are considered to be long-lasting: harmful effects on health or damage to flora, fauna, air, water or soil quality that are likely to last at least ten years. The period of limitation for prosecution of the offense of ecocide shall run from the time of discovery of the damage””) ; Climate and resilience bill – Press kit – Presentation of the bill in the Council of Ministers, Ministry of Ecological Transition, 10 February 2021 (“France is punishing environmental gangsterism more severely. This measure will : strengthen existing rules and sanctions”).
[xii] Opinion on a bill to combat climate change and its effects its effects, Conseil d’Etat, 4 February 2021, p.39 (“On the other hand, the bill aggravates, under the term of ecocide, the offenses provided for in II of article L. 173-3 of the Environmental Code and in article L. 230-2 when they are committed with the knowledge of the risks incurred of serious and lasting damage to health, flora, fauna or the quality of the air, water or soil. However, the offenses provided for in II of article L. 173-3 and in article L. 230-2 are, as has been said, intentional offenses, which punish the voluntary non-respect of legal or regulatory prescriptions intended to guarantee the protection of the environment. Consequently, knowledge of the risk of damage to the environment by reason of non-compliance with these regulations is already included in the constituent elements of these offenses, as mens rea. It is thus not possible to provide for the aggravation of these offenses by reason of an aggravating circumstance that is already one of their constitutive elements, the Constitutional Council censuring, in the name of the principle of equality before the criminal law, legislative provisions qualifying facts in an identical manner, while subjecting their perpetrator, according to the text of the criminal law on which the prosecuting authorities are based, to penalties of different kinds (decision no. 2013-328 QPC of 28 June 2013). The unintentional offense provided for in Article L. 230-1, qualified as ecocide when the acts are committed intentionally, becomes the only intentional offense resulting in serious and lasting damage to the environment punishable by ten years’ imprisonment and a fine of 4.5 million euros, this amount being able to be increased up to tenfold of the benefit derived from the offense. The intentional offense of soil pollution, provided for in the new Article L. 230-2 of the Environmental Code, and the intentional offense provided for in the new Article L. 173-3, which both punish serious and lasting damage to the environment, are only punishable by five years’ imprisonment and a fine of one million euros. The bill thus punishes in a significantly different and inconsistent manner intentional behavior causing serious and lasting damage to the environment. The Conseil d’Etat cannot retain these provisions as drafted by the third rectifying referral received on February 3, 2021”).
[xiii] Analysis of “Notre Affaire à Tous” of Title VI provisions of the climate and resilience bill to strengthen judicial protection of the environment and proposals of amendments, accessible at: https://notreaffaireatous.org/wp-content/uploads/2021/02/PJL-LOI-CLIMAT-De%CC%81cryptage-e%CC%81cocide-V4.docx-1-1.pdf ; Ecocide, the government is stuck in an absurd position, Press release, Wild Legal, 19 March 2021, accessible at : https://www.wildlegal.eu/post/cp-ecocide-le-gouvernement-s-enlise-dans-une-position-absurde ;
“Offense of ecocide”, on the left as well as on the right, the Members of parliament point out the imposture, Press release, Wild Legal, 30 March 2021, accessible at : https://www.wildlegal.eu/post/delit-d-ecocide-a-gauche-comme-a-droite-les-deputes-pointent-l-imposture.
[xiv] Bill to combat climate change and strengthen resilience to its effects as adopted by the National Assemblée on 4 May 2021, article 74 (“Article 74 (new) Within one year of the promulgation of this law, the Government shall submit to Parliament a report on its action in favour of the recognition of ecocide as a crime that can be tried by international criminal courts”).
[xv] Bill to combat climate change and strengthen resilience to its effects as proposed by the Commission on Land Use Planning and Sustainable Development of the Senate on 2 June 2021, article 68 I, 4° (“4° A new Title III is added to Book II to read as follows “TITLE III “GENERAL DAMAGE TO THE PHYSICAL ENVIRONMENT (…) “Art. L. 231-1. – Is punishable by five years imprisonment and a fine of one million euros, this amount being increased up to five times the benefit derived from the commission of the offence, the fact, in clear deliberate violation of a particular obligation of prudence or safety provided for by law or regulation:” 1° To emit in the air one or more substances whose action or the reactions involve serious and durable harmful effects on health, the flora or the fauna ;” 2° To throw, spill or let flow, in surface or underground waters or in the waters of the sea within the limits of territorial waters, directly or indirectly, one or more substances whose action or reactions lead to serious and lasting harmful effects on health, flora or fauna, with the exception of the damages mentioned in articles L. 218-73 and L. 432-2, or serious modifications of the normal water supply system;”(3) (new) To deposit, discharge, or allow to flow into or onto the land any substance or substances whose action or reactions result in serious and lasting harmful effects on health, flora, fauna, or soil quality.”; “Harmful effects on health or damage to flora or fauna that are likely to last for at least seven years shall be deemed to be lasting.” The period of limitation of public action for the offence mentioned in the first paragraph of this article shall run from the discovery of the damage, without being able to exceed twelve completed years from the day on which the offence was committed. “Art. L. 231-2. – The acts provided for in Article L. 231-1 are punishable by seven years’ imprisonment and a fine of 4.5 million euros, which may be increased to ten times the benefit derived from the commission of the offence, when committed intentionally. “Are considered lasting the harmful effects on health or damage to flora, fauna or soil quality that are likely to last at least seven years.”The period of limitation of the public action of the offence mentioned in the first paragraph of this article runs from the discovery of the damage, without being able to exceed twelve completed years from the day when the offence was committed”).