Ecocide is the destruction of an ecosystem. It forms etymologically a compound between the Greek oikos (house) and the Latin caedere (destroy). Against the background of the recent climate summit, COP27, the Belgians are Europe’s pioneers in environmental criminal law. In Belgium’s new criminal code, a provision will be made punishable by ecocide. Causing a major oil spill, which affects the surrounding flora and fauna, may fall within the scope of such a law article and could mean ten to twenty years in prison. It is still unclear what exactly this Belgian law will look like.
The same applies to the enforcement of such a law. Environmental crime is notoriously difficult to detect. There is now an important opportunity for the Netherlands to better enforce serious environmental damage. The Dutch Code of Criminal Procedure is being modernized and is expected to enter into force in 2026. The Code of Criminal Procedure is the key to enforcing criminal behaviour.
One reason for the introduction of a new Code of Criminal Procedure is that crime is increasingly transnational. This type of crime is often made punishable under so-called special legislation: laws other than those in the Penal Code. Dutch environmental criminal law is also mainly found in special legislation. According to the legislator, the criminal enforcement of special laws has come to play a much greater role.
However: the word ‘environment’ occurs exactly twice in the explanatory memorandum of the modernized Code of Criminal Procedure. The legislator is missing an important opportunity here, given the fact that serious and large-scale environmental damage is one of the greatest challenges of our time. And scientific research shows that the detection of environmental crime encounters many bottlenecks.
The environment is an invisible victim of crime. Environmental damage often transcends the legal imagination. Robins and elms do not file a report and people often do not know that they are victims of environmental crime, because the harmful effects can only manifest themselves after years. As a result, there is little administrative attention or commitment to environmental matters.
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Environmental damage is defined in environmental ethics as a time lagging phenomenon, as damage spread over time. Consider, for example, the consequences of air pollution.
In addition, unlike many other forms of crime, such as drug trafficking, environmental crime usually takes place within a regular recognized business process. As a result, a ‘criminal appearance’ is missing. Classic detective work with the naked eye is therefore not sufficient. Costly, time-intensive and specialist investigations are required. The political will to do this is lacking. The scarce available capacity is spent on problems that are more visible and palpable.
As long as the environment is the neglected child of Dutch criminal law, the effectiveness of the investigation will remain insufficient. There is an assignment for the legislator for the enforcement instruments up-to-speed with the current scientific insights into the detection of environmental crime. The modernization of the Code of Criminal Procedure provides a logical and necessary reason for this. For example, the legislator could choose to have research carried out into innovative investigative techniques that are in line with the modus operandi perpetrators of environmental crime. Enforcement authorities can improve their information position through clear legal rules for sharing information.
Finally: let the legislator focus the criminal procedure more on the environment. This creates more administrative commitment to enforcing environmental crime. We can be inspired by our southern neighbours. Without an adequately functioning enforcement system, any criminalization of ecocide will be a dead letter.
A version of this article also appeared in the newspaper of November 24, 2022