In our newsletter of 17 November 2022 titled 'Ecocide as a Crime of International Law in the New Criminal Code: A New Weapon against Polluters?' we already announced that the new Criminal Code would include 'ecocide' as a new crime. Ecocide is included in Book II under a new title 'Title 2 Crime of Ecocide'. On 22 February 2024, the Parliament approved Book II of the new Criminal Code.
'Ecocide' is defined as 'to deliberately commit, by any act or omission, an illegal act which causes severe, extensive and long-lasting damage to the environment, (...)'. Consequently, it entails the prosecution of the perpetrators of illegal acts, which cause severe environmental damage, which moreover has to be extensive and long-lasting. The three criteria are cumulative.
The terms 'environment', 'severe', 'extensive' and 'long-lasting' are laid down by law. For instance, to qualify as ecocide, the damage must, among other things, (i) extend beyond a limited geographical area (extensive) and (ii) be irreversible, or be unrepairable within a reasonable period of time through natural regeneration (long-lasting).
The criminalisation of ecocide is reserved for deliberate behaviour which requires general intent ('knowing that such an act causes such damage'). This implies the intention to consciously engage in the damage criminalised by the law.
Following the opinion of the Council of State, division Legislation, the criminalisation of ecocide is delineated by federal regulations and international regulations, which are binding upon the federal government. The federal government is authorised to criminalise ecocide in three cases:
- for damage caused by ionising radiation or radioactive waste;
- for damage in or on the North Sea;
- for acts which cannot be localised in Belgium.
The jurisdiction of the regions in terms of the protection of the environment thus severely limits the scope of the crime. Additionally, acts which cannot be localised in Belgium may also fall under the criminalisation of ecocide.
The crime of ecocide is considered a serious criminal offence, and must be punished with a penalty of level 6 (according to the new scale of penalties). This means a prison sentence of more than 15 years, with a maximum of 20 years, or treatment under deprivation of liberty for a period of more than 9 years, with a maximum of 16 years. Both legal persons governed by private and public law can be prosecuted for the crime of ecocide. The additional penalties provided for in Book I (forfeiture, fine or financial penalty in proportion to the profit which was expected of or made from the crime, prohibition against pursuing one's profession, closure of an establishment) shall apply.
The criminalisation of ecocide has both a repressive and preventive dimension. Indeed, as well as the penal sanction, thus with a maximum of 20 years, the perpetrator may incur a corresponding civil sanction which imposes the repair of the damaged environment (the costs of which can be substantial). The risk of social stigmatisation, too, should have a preventive effect. Additionally, the criminalisation of ecocide has a significant symbolic value. That's because the recognition of the crime of ecocide might be viewed as a symbol of collective awareness of the ongoing environmental crisis. It might also lead to other states following us, thus contributing to the recognition of the crime of ecocide in international treaty and customary law. Belgium, indeed, is only the second EU Member State (after France) to enshrine the crime of ecocide in national criminal law.
It is to be expected that other (EU) countries will follow the example of France and Belgium, in part under the influence of EU law. Indeed, on 27 February 2024, the European Parliament approved a resolution on the proposal for a directive of the European Parliament and the Council on the protection of the environment through criminal law, and replacing Directive 2008/99/EC. These new rules also include 'qualified criminal offences', more specifically infringements which cause the destruction of ecosystems, and which are thus similar to ecocide. The EU Member States must transpose the directive into national law within two years. This will inevitably lead to other EU countries also including in their criminal law ecocide or criminal offences similar to ecocide.
The new Belgian criminal law will enter into force two years after the date of its publication in the Belgian Official Gazette (article 128 book II of the new Criminal Code).
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