What ecocide means
The definition of Ecocide under Belgian law is narrow. It is defined as:
“Deliberately committing, by act or omission, an unlawful action causing serious, widespread and long-term damage to the environment in the knowledge that this act causes such damage”
The damage caused must be serious and widespread and long-term. This is narrower than the definitions proposed by international experts, and suggests that the crime is meant to target only the most egregious harm.
Key terms are further defined:
- “Serious” means that there must be actual - not only potential - damage that consists of a “highly detrimental adverse change, disruption or impairment of any component of the environment, including substantial impacts on human life or health, on biodiversity or on natural, cultural or economic resources for society”.
- “Widespread” means damage that “extends beyond a limited geographical area, which crosses regional or state boundaries or which is suffered by an entire ecosystem or an entire species or a significant number of human beings”.
- “Long-term” means “damage that is irreversible or that cannot be repaired by natural regeneration within a reasonable period of time”. There is no further guidance on the meaning of ‘reasonable time’.
- The damage should be caused to the “environment” which is defined as “the earth, its ecosystems, biosphere, cryosphere, lithosphere, hydrosphere, atmosphere, and outer space”.
- An “unlawful act” covers:
- conduct that occurs in Belgium and is in breach of federal law; and
- conduct that occurs outside of Belgium and is in breach of national or international law.
The reference to federal law is a result of the intricacies of Belgian constitutional law and is another important limit on the scope of the offence. Explanatory notes to ecocide mainly refer to damage caused by ionizing radiation or radioactive waste and damage caused in the North Sea.
The addition of conduct that occurs outside of Belgium, is intended to highlight that environmental harm caused by Belgian nationals or entities abroad is also covered.
The knowledge test is a high bar for ecocide offence, especially for legal entities
The offender must have known that their conduct or omission would cause the damage. This is not an easy test to meet. It does not need to be shown that they wanted these consequences to occur. For a company, knowledge can be inferred from the conduct of its leadership, corporate organization and culture, and its policies and procedures.
In practice, we see criminal intent being found under Belgian law where:
- There is awareness of misconduct, e.g. shown in board meeting minutes, without the appropriate measures being taken to remediate.
- There is a silent consensus within a company which allows misconduct to go unchallenged.
- There is an absence of governance structures, policies and procedures, such that misconduct is allowed to occur.
The assessment of criminal intent for legal entities is specific. It includes testing the corporate structure, decision making, policies, strategies, culture and control mechanisms.
Not clear if breach of a duty of care is covered by ecocide offence
An as yet unanswered question is whether a breach of the Belgian general duty of care is a breach of federal law that could give rise to ecocide. This is an important issue, as the general duty of care catches a broader range of conduct than environmental federal legislation. The general duty of care is often relied on by claimants in climate litigation in Belgium and elsewhere. For example, in March 2024, a new claim based on breach of this duty was launched against a major oil and gas company before the Belgian courts.
Sanctions
- Fines of up to EUR1.6 million may be imposed on a company.
- Individuals risk prison sentences of up to 20 years.
- In addition, accessory penalties may be imposed, including confiscation measures, business closures, professional bans and/or prohibitions over the exercise of certain activities.
Simply being under investigation for ecocide or being prosecuted will in itself likely cause reputational harm. Procedurally, it is straightforward for individuals or non-governmental organizations to trigger criminal proceedings in Belgium; the bar is certainly much lower compared to UK private prosecutions.
Part of a broader international picture
The introduction of the crime of ecocide is part of a broader trend focused on environmental justice. The Belgian legislator emphasized the effect of the introduction of ecocide: “The symbolic weight of this criminalization is also important … it could encourage other states to follow our example and contribute to the recognition of the crime of ecocide in international treaty or customary law.”
There have been calls for the recognition of ecocide for decades in the Rome Statute of the International Criminal Court, and in other international instruments.
The EU published a new Directive on the protection of the environment through criminal law in April 2024. This new directive requires EU states to introduce new environmental crimes, including a so-called ‘qualified offence’ which applies when an environmental offence is committed intentionally and causes the destruction of or irreversible or long-lasting damage to the environment.
This will boost legislative action across the EU, and Belgium may need to further revise its definition of ecocide as well as its broader environmental criminal law framework as a result. EU states have two years to bring their national rules in line with these new EU standards.
Several other countries have established similar crimes including in Vietnam and Ukraine. France incorporated a more limited version of ecocide in 2021. In the Netherlands and Spain draft bills have been recently introduced.
In the UK, a private members Ecocide Bill was introduced by a crossbench peer in November 2023, although private members bills rarely make it onto the statute book. None of the major UK political parties have pledged to introduce ecocide as a new crime yet. In Scotland, a consultation on a new ecocide offence closed in February.
The global picture is gradually evolving. It remains, as for other corporate criminal liability risks, essential for businesses to establish a robust environmental compliance framework and, if issues arise, investigate and take appropriate remedial action.
