Ecocide: From the Vietnam War to International Criminal Jurisdiction? Procedural Issues In-Between Environmental Science, Climate Change, and Law

• Author: Giovanni Chiarini
• Position: Currently a Visiting Researcher at the UCC Centre for Criminal Justice & Human Rights (CCJHR) and at the Centre for Critical Legal Studies at Warwick (Coventry, UK)
• Pages: 1-34

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ECOCIDE: FROM THE VIETNAM WAR TO INTERNATIONAL CRIMINAL

JURISDICTION? PROCEDURAL ISSUES IN-BETWEEN ENVIRONMENTAL

SCIENCE, CLIMATE CHANGE, AND LAW

Giovanni Chiarini*

A INTRODUCTION – A 50 YEAR HISTORY OF ECOCIDE: BETWEEN

POLITICS, WAR AND SCIENCE

The crime of ‘ecocide’ has been discussed for almost 50 years and is of increasing relevance.

Starting as scientific and biological debates during the Vietnam War, ecocide arguments

became foremost political and then juridical. Recently in 2021, the ‘Stop Ecocide Foundation’

proposed to add ecocide as a new crime to the International Criminal Court (ICC) Rome Statute

(RS), recommending amendments regarding substantive law and the structure of the crime of

ecocide. This paper does not argue against this proposal. On the contrary, following an

examination of the history of the crime of ecocide, it puts forward an integrative proposal

focused on procedural issues.

Ecocide can be considered as a neologism derived from the Greek oikos (house, home) and the

Latin caedere (destroy, kill), which essentially means the wilful destruction of the

environment. Contrary to what we generally tend to believe, its history is not so recent. The

creation of this term – taking his cue from the UN Genocide Convention – is commonly

attributable to Dr Arthur W Galston, an American botanist and bioethicist who was Director of

the Division of Biological Sciences at Yale University.

Professor Galston described the appalling effects of the powerful defoliant ‘Agent Orange’, so-

called for the orange stripe painted around the steel drums that contained it. During the Vietnam

War, American troops released an estimated 20 million gallons of the chemical herbicide to

destroy crops and expose the National Liberation Front of South Vietnam positions and routes

of movement in the vast forests and territories of both Vietnam and Cambodia.

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In 1969, in his

* Giovanni Chiarini is currently a Visiting Researcher at the UCC Centre for Criminal Justice & Human Rights

(CCJHR) and at the Centre for Critical Legal Studies at Warwick (Coventry, UK), as well as an International

Fellow of the National Institute of Military Justice (Washington DC). Giovanni is a Barrister-At-Law (Bar Council

of Piacenza, Italy), admitted as Assistant to Counsel (Conseils Adjoints) to the International Criminal Court (The

Hague) list, and a last-year PhD candi date at Insubria University (Como, Italy). He was a Chercheur Invité at

the Laboratoire de Droit International et Européen (LADIE), Université Côte d'Azur (Nice, France) and a

Visiting Researcher at the Institute for International Peace and Security Law at Universität zu Köln (Cologne,

Germany). He has received invitations as a Visiting Scholar to the Centre for International and Global Law,

Edinburgh University (Scotland), and to the Centre for Military Law at TTU Texas Tech University (USA). He

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Official Statement to the US Congress hearings, Galston observed that about 4 million acres

of Vietnam were sprayed with about 100 million pounds of assorted herbicides, including other

agents such as ‘Agent White’ and ‘Agent Blue’: approximately an area the size of the State of

Massachusetts.

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Galston expressly noted that the warfare usage of these chemicals and

especially of ‘Agent Orange,’ was eliminating ‘one of the most important ecological niches for

the completion of the life cycle of certain shellfish and migratory fish’.

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These revelations led

President Richard Nixon to order a halt to its use.

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Later, in 1970, during the Conference on War and National Responsibility in Washington,

Galston proposed a ‘plea to ban ecocide’,

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also considered as ‘a new international agreement

to ban ecocide’.

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Even though Galston’s words on the Vietnam War are now history, the

neologism and his enlightening tripartition of the above-described damage are still pertinent:

‘One is ecological damage; the second would be inadvertent agricultural damage, and the third

involves direct damage to people’.

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His pioneering view constituted a breakthrough in the

affirmation of the concept of ecocide. In the following years, various scientists dedicated their

studies to this field, including jurists, and a part of the political community were drawn to the

issue.

In 1972, at the UN Stockholm Conference on the Human Environment, the Swedish Prime

Minister Olof Palme explicitly talked about ecocide in his keynote address, with specific

attention paid to the Vietnam War.

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The Stockholm Conference, which was a result of the so-

also interned as a Law Clerk at the Supreme Court of the Extraordinary Chambers in the Courts of Cambodia,

with the United Nations Assistance to the Khmer Rouge Trials (UNAKRT). Opinions expressed represents the

author’s view and not the institutions above mentioned. The author sincerely thanks Dr Dug Cubie and Jack Kenny

for their enlightening reviews.

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‘In memoriam: Arthur Galston, Plant Biologist, Fought Use of Agent Orange’ YaleNews (New Haven,

Connecticut, 18 July 2008) <https://news.yale.edu/2008/07/18/memoriam-arthur-galston-plant-biologist-fought-

use-agent-orange> accessed 24 March 2022.

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Arthur W Galston, ‘Statement of Dr Arthur W Galston, Professor of Biology and Lecturer in Forestry, Yale

University’ (1970) in ‘Chemical-Biological Warfare: US Policies and International Effects: Hear ings Before the

Subcommittee on National Security Policy and Scientific Developments of the Committee on Foreign Affairs, US

House of Representatives Hearing, 91st Congress, 1st Session, 18, 20 November and 2, 9, 18 – 19 December

1969’ (1970) US Government Printing Office 107.

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Galston (n 2) 108.

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YaleNews (n 1).

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‘… and a Plea to Ban “Ecocide”’ The New York Times (New York, 26 February 1970)

<https://www.nytimes.com/1970/02/26/archives/and-a-plea-to-ban-ecocide.html> accessed 24 March 2022.

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Barry Weisberg, Ecocide in Indochina: The Ecology of War (Canfield Press 1970) 4.

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Galston (n 2) 108.

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Statement by Prime Minister Olof Palme in the Plenary Meeting (UN Conference on the Environment,

Stockholm, 6 June 1972), 12 <http://www.olofpalme.org/wp-content/dokument/720606a_fn_miljo.pdf> accessed

24 March 2022. He stated that ‘[t]he air we breathe is not the property of any one nation – we share it. The big

oceans are not divided by national frontiers – they are our common property …. In the field of human environment

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called ‘Swedish Initiative’,

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is considered the ‘birth of the green generation’,

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as well as a

ground-breaking achievement. Moreover, not only Olof Palme denounced the Vietnam War in

human and environmental terms, but also other heads of state, including Indira Gandhi from

India, the leader of the Chinese delegation Tang Ke, and delegates from Iceland, Tanzania,

Romania, Algeria, and Libya.

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Without any shadow of doubt, this gathering invigorated

environmental movements all over the world, for a ‘fierce political battle’ and was a trailblazer

for subsequent environmental international negotiations.

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However, neither the Stockholm

Declaration nor the Official Report of the Conference expressly mentioned the crime of

ecocide.

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Nevertheless, it was wisely observed by Professor John HE Fried that although not

legally defined, the question was:

Not whether ‘ecocide’ is forbidden by international law under the term

‘ecocide.’ In a purely formalistic sense, the world legal order has, because of

the very enormity and novelty of the phenomenon, not yet included in its

vocabulary. But to conclude from this that, therefore, the phenomena which it

describes are beyond the pale of international law, or are therefore legal, would

be as impermissible as to claim that Hitler’s extermination camps were not

illegal because the name of genocide was at that time not part of international

law.

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there is no individual future, neither for humans nor for nations. Our future is common. We must share it together.

We must shape it together. ... The immense destruction brought about by indiscriminate bombing, by large scale

use of bulldozers and pesticides is an outrage sometimes described as ecocide, which requires urgent international

attention. It is shocking that only preliminary discussions of this matter have been possible so far in the United

Nations and at the conferences of the International Committee of the Red Cross, where it has been taken up by

my country and others. We fear that the active use of these methods is coupled by a passive resistance to discuss

them’.

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Eric Paglia, ‘The Swedish initiative and the 1972 Stockholm Conference: The Decisive Role of Science

Diplomacy in the Emergence of Global Environmental Governance’ (2021) 8(2) Humanities and Social Sciences

Communications 1.

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Richard Black, ‘Stockholm, Birth of the Green Generation’ BBC News (London, 4 June 2012)

<https://www.bbc.com/news/science-environment-18315205> accessed 24 March 2022.

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Tord Bjork, ‘The Emergence of Popular Participation in World Politics: United Nations Conference on Human

Environment 1972’ (Seminar paper, University of Stockholm 1996) 1, 20

<http://www.folkrorelser.org/johannesburg/stockholm72.pdf> accessed 24 March 2022.

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Peter Willets, ‘From Stockholm to Rio and Beyond: The Impact of the Environmental Movement on the United

Nations Consultative Arrangements for NGOs’ (1996) 22 Review of International Studies 57; Tony Brenton, The

Greening of Machiavelli: The Evolution of International Environmental Politics (The Royal Institute of

International Affairs Series, 1994). For the other negot iations: United Nations Conference on Environment and

Development (Rio de Janeiro, 3-14 June 1992); General Assembly Special Session on the Environment (New

York, 21, 23-27 June 1997); World Summit on Sustainable Development (Johannesburg, 26 August - 4 September

2002); UN Conference on Sustainable Development (Rio de Janeiro, 20-22 June 2012); UN Sustainable

Development Summit (New York, 25-27 September 2015).

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United Nations, ‘Report of the United Nations Conference on the Human Environment – Stockholm, 5-16 June

1972’ (New York, 1973) UN Doc A/CONF.48/14/Rev.1

<https://www.un.org/en/conferences/environment/stockholm1972> accessed 24 March 2022.

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John HE Fried, ‘War by Ecocide: Some Legal Observations’ (1972) 4(1) Bulletin of Peace Proposals 43, 43.